Succession Reviewer 1q5s60

SUCCESSION Based on

JOTTINGS AND JURISPRUDENCE IN CIVIL LAW – SUCCESSION 

By Atty. Ruben Balane

CHAPTER 1 GENERAL PROVISIONS

to the heirs, to the extent that they inherit from him.  Seemingly, this article mandates that the heirs receive the estate, and then pay off the creditors. However, Philippine procedural law, as influenced by the common-law system, lays down a different method for the payment of money debts, as found in Rules 88 to 90 of the Rules of Court. It is only AFTER the debts are paid that the residue of the estate is distributed among the successors.

 Rule 90, Sec1 provides for the When the Order for

the Distribution of Residue is made.  According to the rule, when the debts, funeral charges and expenses of istration, the allowance to the widow and the inheritance tax have all been paid, that is the only time that the court shall assign the RESIDUE of the estate to persons entitled to it.  The rule also provides that there shall be no distribution until the payment of the obligations enumerated above, have been made or provided for. However, if the distributees give a bond for the payment of the said obligations within such time and of such amount as fixed by the court, the distribution may be allowed.

ART. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law.  The Code has simplified the concept of succession

and treats it simply as one of the 7 Modes of Acquiring Ownership as enumerated in Art712 of the NCC.  7 MODES OF ACQUIRING OWNERSHIP

1. 2. 3. 4. 5. 6. 7.

Occupation Intellectual Creation Law Donation Estate and Intestate Succession Tradition Prescription

 In

our system therefore, money debts are, properly speaking, not transmitted to the heir nor paid by them. The estate pays them and it is only what is left after the debts are paid [residue] that are transmitted to the heirs.

 Justice JBL Reyes observed that Philippine rules of

 Overlap of Codal Definition with Art776

  



Article 774 talks of “property, rights and obligations to the extent of the value of the inheritance.” Article 776 talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by his death.” For clarity and better correlation, Prof. Balane opines that Art774 should rather read: “Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law.” And the inheritance which is transmitted through a person‟s death is defined by Article 776 to include “all the property, rights and obligations of a person which are not extinguished by his death.”

 What are Transmitted by Succession?

 

Only Transmissible Rights and Obligations. General Rule – if the right or obligation is strictly personal [intuitu personae], it is intransmissible; otherwise it may be transmitted.

 Rule Regarding Pecuniary Obligations



A literal construction of Art774 appears to imply that money obligations of the deceased would

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Succession Mortis Causa proceed from an imperfect blending of 3 Systems with Contrasting Philosophies – 1. GERMANIC CONCEPT OF UNIVERSAL HEIR  Heir directly and immediately steps into the shoes of the deceased upon the latter‟s death  At one single occasion [uno ictu]  Without need of any formality  En mass  Automatic Subjective Novation 2. FRANCO-SPANISH SYSTEM  Acquisition of estate by universal title but only upon acceptance by the heir at any time, with retroactive effect.  Acceptance may be made any time except when the creditors or the court requires it be done within a certain time.  This is the system followed by the NCC, by having the following features: a) Universality of Property Rights and Obligations b) Transmitted from the moment of death c) En bloc, as an entire mass d) Transmitted even before judicial recognition of heirship.

SUCCESSION 3. ANGLO-AMERICAN [COMMON LAW] SYSTEM  Estate must first be liquidated, assets marshaled and the debts paid or settled under judicial supervision, by an intervening trustee or personal representative [ or executor] before the net residue is taken over by the successor.  This is the system followed by the Rules of Court, in that: a) Executor or has possession and management of the estate as long as necessary for the payment of debts and expenses of istration, with authority to exercise the right of disposition. b) Section 3 Rule 87 – action to recover title or possession of lands in the hands of the executor or can be maintained by the heir only upon the order of the Court asg such land to the heir or devisee. c) Section 1 Rule 90 – heirs may recover their share only upon:  Payment of debts, expenses and taxes  Hearing conducted by the court  Court assigns the residue of the estate to the heirs.

 But if title vests in the heir as of the death of the decedent then the acceptance of the heir becomes entirely superfluous, and the law should limit itself to regulating the effects the effects of a repudiation by an heir or legatee, and its retroactive effect. 

 RESULT of these divergent rules – Creditors must

now pursue their claims during the settlement proceedings and not against the heirs individually.

ART. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator.  Decedent – general term, person whose property is

transmitted Testator – specific term, person who transmits his property via a will.  It is unfortunate that the Code does not use the term

“Intestate” to refer to a decedent who died without a will, This would have prevented the ambiguity now inherent in the term “decedent”

 As a result of the blending of these 3 systems, JBL

Reyes says that we are thus faced with divergent, if not contradictory principles.  Do the successors acquire the WHOLE of the transmissible assets and liabilities of the decedent?  Art774 – by virtue of succession the property, rights and obligations, to the extent of the value of the inheritance of a person, are transmitted by and at the moment of his death, implying a transfer at that instant of the totality or universality of assets and liabilities. 

Do the successors only acquire the RESIDUUM remaining after payment of the debts, as implied by the Rules of Court?  Art1057 – within 30 days after the court has issued an order for the distribution of the estate in accordance with the RoC, the heirs, devisees and legatees shall signify to the court having jurisdiction, whether they accept or repudiate the inheritance.  The order of distribution under the RoC is issued only after the debts, taxes and istration expenses have been paid; hence it is arguable that the acceptance can no longer refer to assets already disposed of by the , but must be limited to the net residue.

Or do the successors acquire only the NAKED TITLE at the death of the predecessor, but with possession or enjoyment vested in the or personal representative until after settlement of the claims against the estate?

ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.  Overlap of Codal Definition with Art776

 



Article 774 talks of “property, rights and obligations to the extent of the value of the inheritance.” Article 776 talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by his death.” For clarity and better correlation, Prof. Balane opines that Art774 should rather read: “Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law.”

 And the inheritance which is transmitted through a

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person‟s death is defined by Article 776 to include “all the property, rights and obligations of a person which are not extinguished by his death.”

SUCCESSION ART. 777. The rights to the succession are transmitted from the moment of the death of the decedent.  Time of Vesting of Successional Right  Prof. Balane says the terminology used in this article

is “infelicitous” because the right to the succession is not transmitted; but rather vested.  To say that it is transmitted upon death implies that before the decedent‟s death, the right to the succession was possessed by the decedent [which is absurd].  To say that it vests upon death implies that before the decedent‟s death the right was merely inchoate [which is correct].

ART. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. ART. 780. Mixed succession is that effected partly by will and partly by operation of law.  3 KINDS OF SUCCESSION ACCDG TO ART. 778:

1. TESTAMENTARY  That which results from the designation of an heir, made in a will. 2. LEGAL OR INTESTATE  Lost definition: “takes place by operation of law in the absence of a valid will.” 3. MIXED  That effected partly by will and partly by operation of law.

 THE LAW PRESUMES THAT THE PERSON

SUCCEEDING – 1. Has a right to succeed by a) Legitime [compulsory succession], b) Will [testamentary succession], or c) Law [intestate succession] 2. Has the legal capacity to succeed, and 3. Accepts the successional portion

 Some observations –



Enumeration cannot satisfactorily accommodate the system of legitimes.  Legal or intestate succession operates only in default of a will [Arts960 and 961], while the legitime operates whether or not there is a will, in fact prevails over a will.  There are instances where the rules on legitime [Arts 887..] operate, to the exclusion of the rules on intestacy [Arts 960..]  It is therefore best for clarity, to classify succession to the legitime as a separate and distinct kind of succession, which, for want of a better term, can be denominated compulsory succession.



Until the effectivity of the Family Code, there was one exceptional case of succession by contract [contractual succession] found in Article 130 of Civil Code. ART 130. The future spouses may give each other in their marriage settlements as much as onefifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession.

 The vesting of the right occurs immediately upon

the decedent’s death; i.e. without a moment’s interruption. From this principle, the following consequences flow – 1. The law in force at the time of the decedent’s death will determine who the heirs should be  New Civil Code – August 30, 1950 2. Ownership es to the heir at the very moment of death, who therefore, from that moment acquires the right to dispose of his share. 3. The heirs have the right to be substituted for the deceased as party in an action that survives.  Because the heir acquires ownership at the moment of death and become parties in interest.  It should be emphasized that the operation of Art.

777 is at the very moment of the decedent‟s death, meaning the transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally deemed to have acquired ownership at that moment, even if, particularly in the heir’s case, he will generally not know how much he will be inheriting and what properties he will ultimately be receiving, and not at the time of declaration of heirs or partition or distribution.

ART. 778. Succession may be: (1) Testamentary (2) Legal or Intestate, or (3) Mixed

 Donations propter nuptias of future property, made by one of the future spouses to the other, took effect mortis cause, and had only to be done in the marriage settlements, which were governed only by the Statute of Frauds.  It was the only instance of Contractual Succession in our civil law.  This has been eliminated by the Family Code in Article 84 paragraph 2: “Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.”

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SUCCESSION

 Since under the provision, any donation of future property between the affianced couple is to be governed by the rules of testamentary succession and the forms of wills, contractual succession no longer exists in this jurisdiction.  Such a donation becomes an ordinary case of testamentary succession.

ART. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.  HEIR – person called to the succession either by will

or by law DEVISEE – persons to whom gifts of real property are given by virtue of a will. LEGATEE – persons to whom gifts of personal property are given by virtue of a will.

 FOUR KINDS OF SUCCESSION ACCORDING TO

IMPORTANCE [Prof. Balane] 1. COMPULSORY  Succession to the legitime  Prevails over all other kinds

 The distinction between an heir and a devisee or

2. TESTAMENTARY [Art. 779]  Succession by will 3. INTESTATE  Succession in default of a will 4. MIXED [Art. 780]  Not a distinct kind really, but a combination of any two or all of the first three.

legatee is important because on this distinction depends the correct application of Art854 on preterition.  In cases of preterition, the institution of an heir is annulled, while the institution of legatees and devisees is effective to the extent that the legitimes are not impaired.  The codal definitions are neither clear nor very

helpful. They are so open-ended that an heir can fall under the definition of a legatee/devisee and viceversa.  “I give X my fishpond in Navotas” – by definition of heir, is not X called to the succession by provision of a will and therefore an heir?  “I give X ¼ of my estate” – if in the partition, X receives a fishpond, can X, by definition, not be considered a devisee, having received a gift of real property by will?

ART. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession.  Article 781 is best deleted; it serves only to confuse.  The inheritance includes only those things

 The definitions of the Spanish Code in conjunction

with Castan‟s explanations are more helpful:  HEIR – one who succeeds to the WHOLE or an Aliquot part of the inheritance  DEVISEE / LEGATEE – those who succeed to definite, specific, and individual properties.

enumerated in Article 776. Whatever accrues thereto after the decedent‟s death [which is when the succession opens] belongs to the heir, not by virtue of succession, but by virtue of ownership.  To say, as Art781 does, that accruals to the

inheritance after the decedent‟s death are included in the inheritance is to negate the principle in Art777 that transmission takes place precisely at the moment of death.  Once the decedent dies and the heir inherits, the fruits of the property or inheritance belongs to the heir by accession, and not by succession. This is so even if the heir does not actually receive the inheritance.  Art781 should have left well enough alone.

CHAPTER 2 TESTAMENTARY SUCCESSION

SECTION 1 – WILLS

 Question – If the assets left behind by the decedent

are not sufficient to pay the debts, may the creditors claims the fruits produced by the decedent‟s property after his death? Or do these fruits pertain to the heirs?  But wouldn‟t the debts be deducted from the estate first before the properties are distributed to the heirs?

Subsection 1 – Wills in General

ART. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.

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SUCCESSION  Operative Words in the Definition

1. ACT  The definition of a will as an act is too broad and should have been more clearly delimited with a more specific term such as instrument or document, in view of the provision of Art804 that “every will must be in writing.”  NUNCUPATIVE or oral wills are not recognized in our Code, unlike the Spanish Civil Code wherein military wills could be oral. 2. PERMITTED  Will-making is purely statutory. 3. FORMALITIES PRESCRIBED BY LAW  The requirement of form prescribed respectively for attested and holographic wills. 4. CONTROL TO A CERTAIN DEGREE  The testator‟s power of testamentary disposition is limited by the rules on legitimes. 5. AFTER HIS DEATH  Testamentary succession, like all other kinds of succession in our Code, is mortis causa.

CHARACTERISTICS OF WILLS 1. PURELY PERSONAL  Articles 784, 785 and 787 2. FREE AND INTELLIGENT  Article 839  The testator‟s consent should not be vitiated by the causes mentioned in Article 839 paragraphs 2-6 on Insanity, Violence, Intimidation, Undue Influence, Fraud and Mistake. 3. SOLEMN AND FORMAL  Articles 804-814 and 820-821  The requirements of form depend on whether the will is attested or holographic.  Articles 805-808 and 820-821 govern attested wills. Articles 810-814 govern holographic wills. Article 804 applies to both. 4. REVOCABLE AND AMBULATORY  Article 828 5. MORTIS CAUSA  Article 783  This is a necessary consequence of Articles 774 and 777. 6. INDIVIDUAL  Article 818  t wills are prohibited in this jurisdiction. 7. EXECUTED WITH ANIMUS TESTANDI  This characteristic is implied in Article 783  Rizal‟s valedictory poem “Ultimo Adios” was not a will. An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of property and was not executed with animus testandi, cannot be legally considered a will. 8. EXECUTED WITH TESTAMENTARY CAPACITY  Articles 796 – 803 on testamentary capacity and intent 9. UNILATERAL  This characteristic is implied in Article 783 10. DISPOSITIVE OF PROPERTY  Article 783 seems to consider the disposition of the testator‟s estate mortis causa as the purpose of will-making. 11. STATUTORY  Will-making is a permitted by statute.

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SUCCESSION

 The present Civil Code seems to limit the concept of

a will to a disposition of property to take effect upon and after death.  It is only when the will disposes of property, wither directly or indirectly, that it has to be probated. When there is no disposition of property, it is submitted that, although the instrument may be considered as a will, it does not have to be probated; its dispositions which are provided by law, such as the acknowledgment of a natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be give effect even without probating the will.  Questions





Would a document merely appointing an executor, not containing any dispositive provision, have to comply with the formal requirements of a will in order to be effective? Would such a document have to be probated?  Justice Hofilena says NO, because there is no disposition and such appointment would not be under the category of a will. Therefore, the formal requirements of a will do not apply. Would a document containing only a disinheriting clause have to be in the form of a will and be probated? [Article 916]  YES. According to Art916, disinheritance can be effected only through a will wherein the legal cause therefore shall be specified.  A valid disinheritance is in effect a disposition of the property of the testator in favor of those who would succeed in the absence of the disinherited heir. Unless the will is probated, the disinheritance cannot be given effect.



ART. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.  Exception to the Rule on Non-Delegability of Will-

Making. Without this provision, the things allowed to be delegated here would be non-delegable.  TWO THINGS MUST BE DETERMINED BY THE

TESTATOR – 1. The property or amount of money to be given; and 2. The class or the cause to be benefited.  TWO THINGS MAY BE DELEGATED BY THE

TESTATOR – 1. The designation of persons, institutions, or establishments within the class or cause; 2. The manner of distribution  Question – Suppose the testator specified the

rd

recipients by specific designation but left to the 3 person the determination of the sharing, ex. “I leave P500,000 for the PNRC, the SPCA, and the Tala Leprosarium, to be distributed among these institutions in such proportions as my executor may determine.” Valid?  One View – Article 785 seems to prohibit this, because the recipients are referred to by name and therefore the portions they are to take must be determined by the testator. Article 786 applies only where the testator merely specifies the class or the cause but not the specific recipients.  Contra – This actually involves a lesser rd discretion for the 3 person than the instances allowed by Article 786 and should be allowed.

ART. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.  This provision gives the will its purely personal

character.  NON-DELEGABILITY OF WILL-MAKING –

 

It is the exercise of the disposing power that cannot be delegated. Obviously, mechanical aspects, such as typing, do not fall within the prohibition.

ART. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person.

What Constitute the Essence of Will-Making or the Exercise of the Disposing Power? The ff are nondelegable: 1. The designation of heirs, devisees or legatees 2. The duration of efficacy of such designation, including such things as conditions, , substitutions; 3. The determination of the portions they are to receive.

ART. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.  This rule is consistent with, and reinforces, the purely

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person character of a will, laid down in Article 784.

SUCCESSION  This article should be interpreted rationally. It is not

testator has more than fishpond in Roxas City.

to be so interpreted as to make it clash with the principle expressed in Articles 1041-1057 of the NCC that the heir is free to accept or reject the testamentary disposition. rd  What this article prohibits is the delegation to a 3 person of the power to decide whether a disposition should take effect or not.

one

2. PATENT – obvious on the face of the will  When an uncertainty arises upon the face of the will, as to the application of any of its provisions a) Patent as to PERSON – “I institute ¼ of my estate to some of my first cousins. b) Patent as to PROPERTY – “I bequeath to my cousin Pacifico some of my cars.”  In both cases, the ambiguity is evident from a reading of the testamentary provisions themselves; the ambiguity is patent [patere – to be exposed]

ART. 788. If a testamentary disposition its of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred.  Articles 788-794 lays down the rules of construction

 HOW TO DEAL WITH AMBIGUITIES –

and interpretation.  The underlying principle here is that testacy is



The provisions of this article do not make a distinction in the solution of the problem of ambiguities – whether latent or patent.  Hence, the distinction between the 2 kinds of ambiguity is, in the light of the codal provisions, an all but theoretical one.

found in Art1373, which provides that “if some stipulation of any contract should it of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual.”



The ambiguity should, as far as possible, be cleared up or resolved, in order to give effect to the testamentary disposition.  Based on principle that testacy is preferred to intestacy.

ART. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, of the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations.



Ambiguity may be resolved using any evidence issible and relevant, excluding the oral declarations of the testator as to his intention.  Reason for the statutory exclusion is that a dead man cannot refute a tale.

preferred to intestacy, because the former is the express will of the decedent whereas the latter is only his implied will.  In statutory construction, the canon is: “That the thing may rather be effective than be without effect.”  A similar principle in contractual interpretation is

 2 KINDS OF AMBIGUITY REFERRED TO –

1. LATENT – not obvious on the face of the will  When there is an imperfect description or when no person or property exactly answers the description a) Latent as to PERSON – “I institute to ¼ of my estate my first cousin Jose” and the testator has more than one first cousin named Jose. b) Latent as to PROPERTY – “I devise to my cousin Pacifico my fishpond in Roxas City” and the

ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense.  Similar rules are laid down in Rule 130 Sections 10

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and 14 of the Rules of Court – Sec10. Interpretation of a writing according to its legal meaning – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. Sec14. Peculiar signification of – The of a writing are presumed to have been used in their primary and general application, but evidence is issible to show that they have a local, technical, or otherwise peculiar signification, and

SUCCESSION were so used and understood in the particular instance, in which case the agreement must be construed accordingly.

in the Code, an implant from the Code of Civil Procedure and ultimately from American law.

 In contractual interpretation, a similar principle is

 The problem springs from the fact that this article

expressed in Article 1370 par1: Art1370. If the of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control.

makes the will speak as of the time it is made, rather than at the time of the decedent‟s death [which is more logical because that is when the will takes effect according to Article 777].

ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.

 Illustration – X executes a will in 1985 containing a

 A similar rule is found in Rule 130 Sec11 of the RoC

 Article 793 therefore departs from the codal

legacy: “I give to M all my shares in BPI.” The testator dies in 1990, owning at the time of his death ten times as many BPI shares as he did when he made the will.  Under Article 793, the shares acquired after the will was executed are NOT included in the legacy.

–

philosophy of Articles 774 and 776 and constitutes an EXCEPTION to the concept of succession as linked to death and rendered legally effective by death.

Sec11. Instrument construed so as to give effect to all provisions – In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

 Prof. Balane suggests the provisions be reworded  In contractual interpretation, Articles 1373 and 1374

lay down similar principles – Art1373. If some stipulation of any contract should it of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. Art1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful one that sense which may result from all of them taken tly.

ART. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made.

as: “Property acquired after the making of a will es thereby unless the contrary clearly appears from the words or the context of the will.”  In the meantime, it is suggested that a liberal application of the article be allowed.  Can the word “expressly” in this article be interpreted to mean “clearly” even if it might be stretching a point?

ART. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest.  This article should be read together with Art929,

which provides that “if the testator, heir, or legatee owns only a part of or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety.

 This

article makes applicable to wills the SEVERABILITY OR SEPARABILITY PRINCIPLE in statutory construction frequently expressly provided in a separability clause.  The source of this article is Art2085 of the German Civil Code which provides that the invalidity of one of several dispositions contained in a will results in the invalidity of the other dispositions only if it is to be presumed that the testator would not have made these if the invalid disposition had not been made.

 GENERAL RULE – in a legacy or devise the testator

ART. 793. Property acquired after the making of a will shall only thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.  This article creates problems which would not have

existed had it not been so nonchalantly incorporated Page 8 of 109

gives exactly the interest he has in the thing. EXCEPTIONS – he can give a less interest [Art794] or a greater interest [Art929] than he has. 

In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in Art931 can be applied wherein the legatee or devisee shall be entitled only to the JUST VALUE OF THE INTEREST that should have been acquired.

SUCCESSION

RE-CAP OF THE RULES ON INTERPRETATION AND CONSTRUCTION OF WILLS 2.

In case of doubt, testacy is preferred and disposition should be interpreted in manner which would make it operative.

3.

Two kinds of Ambiguities  Latent – imperfect description or when no person or property exactly answers to description.  Patent – based on the face of the will as to the application of any of its provisions

4.

In case of ambiguity, may resort to any evidence, even extrinsic evidence, but may not resort to oral declarations of the testator as to his intention.

5.

Words of a will shall be taken in their ordinary and grammatical sense, unless:  Another sense or meaning is clearly intended to be used, and  That other sense or meaning can be ascertained

6.

Technical words shall be taken in technical sense, except:  When context clearly indicates otherwise  Will was drawn solely by the testator and he was not acquainted with the technical meaning of such word.

7.

Words are to receive interpretation which will give it some effect.

8.

Invalidity of one disposition in a will does not mean the other dispositions are also invalid.  But invalidity of one provision affects the other if it is to be presumed that the testator would not have made such other disposition if the first invalid disposition had not been made.

9.

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.  ASPECTS OF VALIDITY OF WILLS

A. EXTRINSIC – refers to the requirement of form / formal validity 1. Governing law as to TIME a. Filipinos – law in force when the will was executed [Art795] b. Foreigners – same rile. The assumption here is that the will is being probated in the Philippines. 2. Governing law as to PLACE  Filipinos or Foreigners a. Law of citizenship b. Law of domicile c. Law of residence d. Law of place of execution, or e. Philippine law  Articles 815-817 - Rules of formal validity a. Filipino Abroad - According to the law in the country in which he may be and may be probated in the Philippines b. Alien abroad - Has effect in the Philippines if made according to: Law of place where he resides, Law of his own country or Philippine law c. Alien in the phils. - Valid in Phils. as if executed according to Phil. laws, if: Made according to law of country which he is a citizen or subject, and May be proved and allowed by law of his own country. B. INTRINSIC – refers to the substance of the provisions / substantive validity 1.

Governing law as to TIME a. Filipinos – law at the time of death, in connection with Art2263. b. Foreigners – depends on their personal law [Art16, par2 and Art1039]

2.

Governing law as to PLACE a. Filipinos – Philippine law [Art16 par2 and Art1039] b. Foreigners – their national law [Art16 par2 and Art1039]

Property that is acquired by the testator after the will was executed shall only be transmitted along with those in the will, if the testator expressly states in the will that such is his intention.

10. A devise of legacy shall transmit the whole extent of the testator‟s interest in the property disposed.  Except when it clearly appears that the testator intended to convey a less interest.

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SUCCESSION  Art2263 provides that “Rights to the inheritance of a

person who died, with or without a will, before the effectivity of this Code [August 30, 1950], shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code.”

who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. ART. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity.  Articles 796-801 lay down the rules on testamentary

capacity.  Testamentary Capacity – testamenti factio; testamentifacción active, the legal capacity to make a will.  Who has testamentary capacity? All NATURAL persons, unless disqualified by law. Juridical persons are NOT granted testamentary capacity.

 Art16 par2 provides that “intestate and testamentary

successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.”

 DISQUALIFIED PERSONS

1. THOSE UNDER 18 [ART797]  Under EO292, the istrative Code of 1987, which took effect on November 24, 1989, years are now reckoned according to the Gregorian Calendar.  Sec31 provides for the legal periods a) Year – 12 calendar months b) Month – 30 days, unless specific calendar month is referred to, in which case it shall be computed according to the number of days the specific calendar month contains c) Day – 24 hours d) Night – Sunset to sunrise

 While Art1039 provides that “Capacity to Succeed is

governed by the law of the nation of the decedent.”

Subsection 2 – Testamentary Capacity And Intent ART. 796. All persons who are not expressly prohibited by law may make a will. ART. 797. Persons of either sex under eighteen years of age cannot make a will.

2. THOSE OF UNSOUND MIND [ART798]  Unsoundness of Mind [Insanity]  Absence of the qualities of soundness of mind  Defined by the Code only by indirection because only soundness of mind is defined under Art799.

ART. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. ART. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

 SOUNDNESS OF MIND [SANITY]

ART. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person Page 10 of 109



NEGATIVELY 1. Not necessary that testator be in full possession of reasoning faculties 2. Not necessary that testator‟s mind be wholly unbroken, unimpaired, unshattered by disease, injury or other cause.



POSITIVELY – Ability to know 3 things 1. Nature of estate to be disposed of  Testator should have a fairly accurate knowledge of what he owns.  The more one owns, the less accurate his knowledge of his estate expected to be. 2. Proper objects of one‟s bounty; &

SUCCESSION  Testator should know, under ordinary circumstances, his relatives in the most proximate degrees, his knowledge expectedly decreasing as the degrees become more remote. 3. Character of testamentary act.  It is not required that the testator know the legal nature of a will with the erudition of a civilest.  All that he need know is that the document he is executing is one that disposes of his property upon death.

 Sexist

provision, contains an erroneous and unintended suggestion that a married man does not have the same privilege.

 Article 97 of the Family Code supersedes this in part



Art97. Either spouse may dispose by will of his or her interest in the community property.

 Legal Importance and Implication of Mental Capacity

 



Law is interested in the legal consequences of the testator‟s mental capacity or incapacity, not in the medical aspects of mental disease. The testator could be mentally aberrant medically but testamentarily capable, or vice versa, mentally competent medically but testamentarily incompetent. TEST – as long as the testator, at the time he made the will, was capable of perceiving the three things [nature of estate, objects of bounty, and character of testamentary act], he has testamentary capacity, whatever else he may be medically.

Subsection 3 – Forms of Wills ART. 804. Every will must be in writing and executed in a language or dialect known to the testator.  Art804 lays down Common Requirements that apply

both to ATTESTED and HOLOGRAPHIC wills.  Art805-808 lays down special requirements for

attested wills. Articles 810-814 lays down special requirements for holographic wills.  TWO COMMON REQUIREMENTS

1. IN WRITING  Oral wills [the testamentum nuncupativum of the Institutes] are not recognized in the Civil Code.  However, oral wills are allowed under the Code of Muslim Personal Laws or PD1083 in relation to Art102(2).

 PRESUMPTION / GENERAL RULE – rebuttable

Presumption of Sanity under Art800.  TWO EXCEPTIONS – when there is a rebuttable presumption of Insanity – 1. When testator, one month or less before the execution of the will, was publicly known to be insane 2. When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity under Rules 93 and 101 of the RoC, and before said order has been lifted.

2. IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR  The provisions of Article 804 are MANDATORY and failure to comply with the two requirements nullifies the will.  Neither the will nor the attestation clause need state compliance with Art804. This can be proved by Extrinsic Evidence.  Presumption of Compliance – it may sometimes be presumed that the testator knew the language in which the will was written. a) Will must be in a language or dialect generally spoken in the place of execution, and b) The testator must be a native or resident of said locality.

 The time for determining mental capacity



time of execution of the will and no other temporal criterion is to be applied

ART. 802. A married woman may make a will without the consent of her husband, and without the authority of the court.  Sexist

provision, contains an erroneous and unintended suggestion that a married man does not have the same privilege.

 Suggested rewording –



“A married person may make a will without his or her spouse‟s consent.”

ART. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

Page 11 of 109

SUCCESSION The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation clause shall state the number of pages used upon which the will is written, and the fact that the testator signed the will an every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.  SPECIAL REQUIREMENTS FOR ATTESTED /

ORDINARY / NOTARIAL WILLS 1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses  Subscribed by the testator – To subscribe denotes writing, more precisely to write under. To Sign means to place a distinguishing mark.  Thus g has a broader meaning than subscribing. Not every signature is a subscription and not every distinguishing mark is a writing.  THUMBMARK AS SIGNATURE a) Is the placing of the testator‟s thumbprint a signature within the contemplation of the article? YES, on the authority of Payad v. Tolentino and Matias v. Salud, the testator’s thumbprint is always a valid and sufficient signature for the purpose of complying with the requirement of Art805. b) There is no basis for limiting the validity of thumbprints only to cases of illness or infirmity.

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 A CROSS AS SIGNATURE – a sign of the cross placed by the testator does not comply with the statutory requirement of signature, UNLESS it is the testator‟s usual manner of signature or one of his usual styles of g.  G BY AN AGENT OF THE TESTATOR –  Two Requisites i. Must sign in the testator‟s presence, and ii. By the testator‟s express direction  What the agent must write – need not be alleged in the will itself that agent wrote the testator‟s name under the latter‟s express direction  The essential thing, for validity, is that the agent write the testator’s name, nothing more. It would be a good thing, but not required, for the agent to indicate the fact of agency or authority.  May the agent be one of the attesting witnesses? a) If there are more than 3 witnesses – YES b) If there are only 3 witnesses – Uncertain.  G AT THE END  If the will contains only dispositive provisions, there will be no ambiguity as to where the end of the will is. If however the will contains nondispositive paragraphs after the testamentary dispositions, one can refer to two kinds of end – 1. Physical End – where the writing stops 2. Logical End – where the last testamentary disposition ends  g at either the physical end or logical end is equally permissible. The non-dispositive portions are not essential parts of the will.  g before the end invalidates not only the dispositions that come after, but the entire will, because then one of the statutory requirements would not have been complied with.  G IN THE PRESENCE OF WITNESSES  Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction. 2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another.

SUCCESSION  Two distinct things are required of the witnesses here – a) Attesting – which is the act of witnessing b) Subscribing – which is the act of g their names in the proper places of the will  Both must be done.  May the witness, like the testator, affix his thumbmark in lieu of writing his name? Art820 requires a witness to be able to read and write, but this does not answer the query definitively. The point is debatable.  g in the presence of the testator and of one another - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction.

a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses c) The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another.  The attestation clause is the affair of witnesses therefore, it need not be signed by the testator.  The signatures of the witnesses must be at the BOTTOM of the attestation clause.  If the entire document consists only of 2 sheets, the first containing the will and the second the attestation clause, there need not be any marginal signatures at all [Abangan v. Abangan]  The fact that the attestation clause was written on a separate page has been held to be a matter of minor importance and apparently will not affect the validity of the will.

3. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses  The last page need not be signed by the testator on the margin because, being the page where the end of the will is, it already contains the testator‟s signature.  There is a Mandatory and a Directory part to this requirement – a) MANDATORY – the g on every page in the witnesses‟ presence b) DIRECTORY – place of the g, the left margin, the signature can be affixed anywhere on the page.  g in the presence - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction

7. Acknowledgement before a notary public.  Code does not require that the g of the testator, witnesses and notary should be accomplished in one single act.  All that is required in this article is that the testator and witnesses should avow to the notary the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. [Javellana v. Ledesma] a) Ratio – Certification of acknowledgement need not be signed by notary in the presence of testator and witnesses. b) Art806 does not require that testator and witnesses must acknowledge on the same day that it was executed. c) Logical Inference – neither does the article require that testator and witnesses must acknowledge in one another‟s presence. If acknowledgement is done by testator and witness separately, all of them must retain their respective capacities until the last one has acknowledged.

4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another.  Order of g – immaterial, provided everything is done in a single transaction. However, if the affixation of the signatures is done in several transactions, then it is required for validity that the TESTATOR affix his signature ahead of the witnesses. 5. All pages numbered correlatively in letters on the upper part of each page.  Mandatory and Directory part a) MANDATORY – pagination by means of a conventional system. The purpose is to prevent insertion or removal of pages b) DIRECTORY – pagination in letters on the upper part of each page.  6. Attestation clause, stating:

 Notary cannot be counted as one of the attesting witnesses.  Affixing of documentary stamp is not required for validity.  Some Discrepancies

Page 13 of 109

 

Par1 Art805 – No statement that the testator must sign in the presence of the witnesses Par2 Art805 – No statement that the testator and the witnesses must sign every page in one another‟s presence.  But these two things are required to be stated in the attestation clause.

SUCCESSION



Conclusion is that they should be complied with as requirements. Attestation clause is not required to state that the agent signed in the testator‟s presence - a st nd circumstance mandated by the 1 and 2 paragraphs of the article.

 Indication of Date – there is no requirement that an

attested will should be dated, unlike a holographic will.

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. 

ART. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. ART. 808. If the testator is blind, the will shall be read to him twice; once by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.  Special Requirements for Handicapped Testators



For Deaf / Deaf-Mute testator 1. Able to Read – must read the will personally 2. Unable to Read – must designate two persons to read the will and communicate to him, in some practicable manner its contents.  Does this mean the 2 persons must perform each task in turn?



For Blind Testator – to be read to him twice, once by one of the subscribing witnesses, and another time by the notary.

 Art808 is MANDATORY



If art808 is mandatory, by analogy Art807 is also mandatory. Failure to comply with either would result in nullity and denial of probate.

 The requirement has been liberally applied, SC

declaring substantial compliance to be sufficient.  Applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills.  Substantially complied with when documents were read aloud to the testator with each of the 3 instrumental witnesses and the notary following the reading with their respective copies.  Burden of proof is upon the proponent of the will that

the special requirement of the article was complied with. At the same time, there is no requirement that compliance with the requirement be stated either in the will or the attestation clause.

According to JBL Reyes, “Liberalization Running Riot,” instead a possible rewording would be – In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if such defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

 Examples

1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination. 2. Failure by the attestation clause to state that the witnesses signed in one another‟s presence should be considered a FATAL FLAW since the attestation clause is the only textual guarantee of compliance.  The rule is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed.  However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself.

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself, It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.  Simplicity of the holographic will is its obvious

advantage, along with other benefits such as 1. Secrecy 2. Inexpensiveness 3. Brevity  But that very simplicity brings about disadvantages –

1. Danger of forgery 2. Greater difficulty of testamentary capacity 3. Increased risk of duress

determining

 REQUIREMENTS OF A HOLOGRAPHIC WILL

Page 14 of 109

SUCCESSION 1. COMPLETELY HANDWRITTEN BY THE TESTATOR  If testator executes only part of the will in his handwriting and other parts are not so written, the ENTIRE will is void because the article would be violated. 2. DATED BY HIM  Date – Specification or mention, in a written instrument, of the time [day, month and year] it was made [executed]. – Black‟s Law Dictionary  As a general rule, the date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date FEB./61 is a valid compliance, probate of the holographic will should be allowed under the principle of substantial compliance.  A complete date is required to provide against such contingencies as – a) Two competing wills executed on the same day, or b) Of a testator becoming insane in the day on which a will was executed.  The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator.

 The three witness provision in case of contested

holographic wills is DIRECTORY, not mandatory.  Testamentary wills – mandatory  Holographic wills – directory  Witnesses must:

1. Know the handwriting and signature of the testator 2. Truthfully declare that handwriting and signature is that of the testator  In the probate of a holographic will, the document

itself must be produced. Therefore, a holographic will cannot be probated.  The execution and contents of a lost or destroyed

holographic will MAY NOT BE PROVED by the bare testimony of witnesses who have seen and/or read such will. However, attested wills MAY BE PROVED by testimonial evidence.  Why the difference in rules?  Because of the nature of the wills. In holographic wills, the only guarantee of authenticity is the handwriting itself. In attested wills, the testimony of subscribing or instrumental witnesses and of the notary guarantees authenticity of the will.  Loss of the holographic will entails loss of the only medium of proof while loss of the ordinary will leaves the subscribing witnesses available to authenticate.  In the case of ordinary wills, it would be more difficult to convince 3 witnesses plus the notary to deliberately lie.  Considering the holographic will may consist of 2-3 pages and only one of them need be signed, the substitution of the unsigned pages may go undetected.  In the case of a lost ordinary will, the 3 subscribing witnesses would be testifying as to a FACT which they saw, namely the act of the testator of subscribing the will. Whereas in the case of a lost holographic will, the witnesses would testify as to their OPINION of the handwriting which they allegedly saw, an opinion which cannot be tested in court nor directly contradicted by the oppositors because the handwriting itself is not at hand.

3. SIGNED BY TESTATOR  Must signature be at the will‟s end [at least the logical end]? YES, article 812 seems to imply this.  May the testator sign by means of a thumbprint? NO, article says will must be “entirely handwritten, dated and signed by the hand of the testator himself.”

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to,

 EXCEPTION – may be proved by a photographic or

photostatic copy, even a mimeographed or carbon copy, or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court.

 Article applies only to POST MORTEM probates, it

ART. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.

does not apply to Ante Mortem probates since in such cases the testator himself files the petition and will identify the document itself.

ART. 813. When a number of dispositions appearing in a holographic will are signed

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SUCCESSION without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.  Formal Requirements for Additional Dispositions in a

Holographic Will 1. Signature 2. Date 

When there are Several Additional Dispositions 1. Signature and date, or 2. Each additional disposition signed and undated, but the last disposition signed and dated.

to the formalities observed in his country, or in conformity with those which this Code prescribes. ART. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.  RULES OF FORMAL VALIDITY

1. FILIPINO ABROAD  According to the law in the country in which he may be  And may be probated in the Philippines

 NOTES

1. If several additional dispositions, each of which is dated, but only the last is dated and signed, then only the last additional disposition is valid. 2. If additional dispositions before the last are not signed and not dated, but the last disposition is signed and dated, what happens to the intermediate ones?  If made on one occasion – last disposition signed and dated validates all.  If on different occasions – intermediate additions are void.  But distinction is practically worthless because circumstances of execution of holographic wills are often difficult to prove.

2. ALIEN ABROAD  Has effect in the Philippines if made according to: a) Law of place where he resides b) Law of his own country c) Philippine law 3. ALIEN IN THE PHILS.  Valid in Philippines / As if executed according to Philippine laws, if: a) Made according to law of country which he is a citizen or subject, and b) May be proved and allowed by law of his own country  In relation to Articles 15 and 17 of the NCC

ART. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.  Full signature does not mean testator‟s full name,

only his usual and customary signature.  Effect of non-compliance – the change [insertion, cancellation, etc.] is simply considered NOT MADE. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted UNLESS the portion involved is an essential part of the will, such as the date.

ART. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. ART. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according Page 16 of 109

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.  NATIONALITY PRINCIPLE – Philippine law follows Filipino citizens wherever they may be.

Art. 17. The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consulate officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign country.  LEX LOCI CELEBRATIONIS – contracts, wills and other public instruments follow the formalities of the law where they are executed.

SUCCESSION  Every testator, whether Filipino or Alien, wherever he

 Outline on t Wills

1. By Filipinos in the Philippines – VOID Art818 2. Filipinos Abroad – VOID Art819, even if allowed by law in place of execution. This is an exception to the permissive provisions of Arts17 and 815. 3. Aliens Abroad – VALID, Art816 4. Aliens in Philippines – Controverted, on one view it is void because of public policy, another view says it is valid because Art817 governs. 5. Filipino and Alien – Always VOID as to the Filipino, but either #3 or #4 governs, depending if he is abroad or in the Phils.

may be, has five choices as to what law to follow for the form of his will: 1. Law of his Citizenship – Arts 816-817 for Aliens, Art15 for Filipinos 2. Law of place of Execution – Art17 3. Law of Domicile – Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 4. Law of Residence - Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 5. Philippine Law – Arts 816-817 for aliens, Art15 for Filipinos by analogy

ART. 818. Two or more persons cannot make a will tly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.  T WILL – one document which constitutes the

wills of two or more individuals.  If there are separate documents, each serving as

one independent will even if written on the same sheet, they are not t wills prohibited by the article.  Reason for Prohibition of t Wills

1. Limitation on modes of revocation  One of the testators would not be able to destroy the document without also revoking it as the will of the other testator, or in any even, as to the latter, the problem of unauthorized destruction would come in 2. Diminution of testamentary secrecy 3. Danger of undue influence 4. Danger of one testator killing the other  When a will is made tly or in the same instrument, the spouse who is more dominant is liable to dictate the of the will for his or her own benefit or for that of the third persons whom he or she desires to favor.  Where the will is not only t but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other.  In , t wills are allowed but only between spouses.

ART. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.

Subsection 4 – Witnesses to Wills ART. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mention in Article 805 of this Code. ART. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines (2) Those who have been convicted of falsification of a document, perjury or false testimony.  SIX QUALIFICATIONS OF WITNESSES

1. 2. 3. 4. 5. 6.

Of Sound Mind At Least 18 years of age Not Blind, Deaf or Dumb Able to read and write Domiciled in the Philippines Must not have been convicted of falsification of a document, perjury or false testimony.

 As to applicability to wills executed abroad, testator

may resort to either executing a holographic will or following the law of the place of execution, if no such witnesses are readily available.  Competence v. Credibility



The competency of a person to be an instrumental witness to a will is determined by the statute under Arts 820-821, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth.

ART. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.

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SUCCESSION

 As in the case of testamentary capacity under

Art801, the time of the execution of the will is the only relevant temporal criterion in the determination of the competence of the witnesses.

ART. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be itted as a witness as if such devise or legacy had not been made or given.  Article is misplaced here because it talks about

CAPACITY TO SUCCEED and not capacity to be a witness.  Article 823 lays down a disqualification of a witness

to succeed to a legacy or devise when there are only 3 witnesses. Competence of the person as a witness is NOT AFFECTED.  Assuming all other requisites for formal validity are met, the will is perfectly valid but the witness [or relatives specified in the article] cannot inherit.

ART. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will.  Because the debt or charge is not a testamentary

disposition.

Subsection 5 – Codicils and Incorporation By Reference

ART. 825. 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 disposition made in the original will is explained, added to, or altered. ART. 826. In order that a codicil may be effective, it shall be executed as in the case of a will.  Codicil v. Subsequent Will

  

 Article also applies to HEIRS. The intent of the law is

to cover all testamentary institutions.

Codicil – explains, adds to or alters a disposition in a prior will. Subsequent will – makes independent and distinct dispositions. But the distinction is purely academic because Art826 requires that the codicil be in the form of a will anyway.

 Must the Codicil conform to the form of the will to

 Disqualification applies only to the testamentary

which it refers? NO. A holographic will can have an attested codicil and vice versa. Both may also be of the same kind.

disposition made in favor of the witness or the specified relatives. If the party is also entitled to a legitime or an intestate share, that portion is not affected by the party‟s witnessing the will.  Question – Supposing there are 4 witnesses, each a

recipient of a testamentary disposition, are the dispositions to them valid or void?  Arguable  May say that dispositions are VALID because the law only requires that there be 3 other competent witnesses to such will for the disposition to be valid. For the witnesses to be competent, they need only meet the qualifications in Art820 and have none of the disqualifications in Art821.  May also say that dispositions are INVALID because the intent of the law is to avoid witnesses from attesting to the will based on the dispositions as a consideration for such act. If all of the witnesses are recipients of testamentary dispositions, then there is greater chance that they are all witnessing because a consideration has been given to them.

ART. 827. 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: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of

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SUCCESSION  Philippine Law – consistent with domiciliary principle followed by this article  Law of place of Revocation – principle of lex loci celebrationis  Law of place where the WILL was made – by analogy with rules on revocation where testator is a nonPhilippine domiciliary.

voluminous books of or inventories.  Article only refers to documents such as:

1. Inventories 2. Books of s 3. Documents of Title 4. Papers of Similar Nature  DOES NOT include documents that make testamentary dispositions, or else the formal requirements of a will would be circumvented.  Can holographic wills incorporate documents by reference?  NO. Par4 of Art827 requires signatures of the testator and the witnesses on every page of the incorporated document [except voluminous annexes]. It seems therefore that only attested wills can incorporate documents by reference, since only attested wills are witnessed.  Unless testator executes a holographic will and superfluously has it witnessed.

Subsection 6 – Revocation of Wills And Testamentary Dispositions

ART. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.  A will is essentially REVOCABLE or AMBULATORY.  This characteristic cannot be waived even by the

testator. There is no such thing as an irrevocable will.  This characteristic is consistent with the principle in

Art777 that successional rights vest only upon death.

ART. 829. 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.

 Curious that the law departs from the nationality

theory and adopts the domiciliary theory.

ART. 830. 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, canceling, 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.  MODES OF REVOKING A WILL UNDER

 RULES FOR REVOCATION

 

Revocation made in the Philippines.  Philippine Law Revocation made Outside Philippines. 1. Testator not domiciled in Phils.  Law of place where the WILL was made  Law of place where the testator was domiciled at time of revocation. 2. Testator domiciled in Phils. [Art829]

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PHILIPPINE LAW 1. BY OPERATION OF LAW  May be total or partial  Examples of revocation by operation of law a) Preterition – Art854 b) Legal Separation – Art63 par4 FC c) Unworthiness to succeed – Art1032 d) Transformation, alienation or loss of the object devised or bequeathed – Art957 e) Judicial demand of a credit given as a legacy - Art936 2. BY A SUBSEQUENT WILL OR CODICIL  Requisites for valid revocation by a subsequent instrument – a) Subsequent instrument must comply with formal requirements of a will b) Testator must possess testamentary capacity c) Subsequent instrument must either contain an express revocatory

SUCCESSION a) CORPUS – physical destruction itself; there must be evidence of physical destruction b) ANIMUS –  Capacity and intent to revoke  Testator must have completed everything he intended to do  Both corpus an animus must concur.

clause or be incompatible with the prior will d) Subsequent instrument must be probated to take effect  Revocation by subsequent will may be Total or Partial, Express or Implied a) Total – whole prior instrument is revoked b) Partial – only certain provisions or dispositions of the prior instrument is revoked c) Express – revocation of prior instrument is stated in the subsequent instrument d) Implied – incompatibility between provisions of prior and subsequent instruments.

 Loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been revoked by physical destruction  Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed.  Same presumption arises where it is shown that testator had ready access to the will and it cannot be found after his death.  But such presumptions may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

3. BY PHYSICAL DESTRUCTION

 Four ways to destroy – a) Burning b) Tearing c) Cancelling d) Obliterating  Physical destruction may be done by the testator personally or by another person acting in his presence and by his express direction.  Unauthorized if without express direction of testator. But what if with express direction but not in his presence?  Arguable. May say that it is authorized and therefore the destroyed instrument is revoked because of the intent and consent of the testator to revoke and destroy, and that the law does not provide that without the testator‟s presence, destruction will become unauthorized.  On the other hand, it may be argued that the testator‟s presence is required because at any time during the actual burning, destroying, etc. he may put a stop to the destruction if he changes his mind, and that is precisely why his presence is required?  Effect of unauthorized destruction – Will may still be proved as lost or destroyed [Art830 NCC and Rule 76 RoC]  However, this is possible only if the will is attested; if the will is holographic, it cannot be probated if lost, even if the loss or destruction was unauthorized, unless a copy survives.

ART. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.  Revocation of a will by a subsequent will or codicil

may be express [through a revocatory clause] or implied [through incompatibility].  In the old Civil Code, mere fact of a subsequent will, provided that it is valid, revoked the prior one, except only if the testator provides in the posterior will that the prior will was to subsists in whole or in part.  The present rule provides that the execution of a subsequent will does not ipso facto revoke a prior one.

ART. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.  Efficacy of the revocatory clause does not depend on

 Elements of a Valid Revocation by Physical Destruction

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the testamentary disposition of the revoking will, UNLESS the testator so provides. Revocation is generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs.

SUCCESSION institution will be given effect. [i.e. no revocation of prior will]  This is in accord with the juridical nature of suspensive conditions, and is an instance of dependent relative revocation.

 An EXCEPTION is where the testator provides in the

subsequent will that the revocation of the prior one is dependent on the Capacity or Acceptance of the heirs, devisees or legatees instituted in the subsequent will.  DEPENDENT RELATIVE REVOCATION  Is

the rule on dependent relative revocation applicable if the revocation of the will is by physical destruction?  YES. If testator executes a subsequent will revoking the prior will but conditioned on the validity of the subsequent will, then if the subsequent will is declared invalid, the prior will subsists.  In Molo v. Molo, in an obiter, SC held that the physical destruction of the will DID NOT revoke it, based on the inference made by the court in that case, that the testator meant the revocation to depend on the validity of a new will.  But apart from the fact that the statement is obiter because the facts did not clearly show that the will had been destroyed, it is arguable whether the prior will should be deemed to subsist despite its physical destruction. Can it not be argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it?  In the case of Diaz v. De Leon, the testator executed a prior will but destroyed it and executed another will revoking the former. However, the second will was found to be not executed with all the necessary requisites to constitute sufficient revocation. The court then held that the intention of revoking the will was manifest from the fact that the testator was anxious to withdraw or change the provisions he had made in his first will. Therefore, the court concluded that original will presented having been destroyed with animo revocandi, the original will and last testament cannot be probated and was effectively revoked.  In Molo, revocation of the prior will was not allowed because the court inferred that the testator meant revocation to depend on the validity of the new will, so in that case the rule on dependent relative revocation was applied.  However, in De Leon, court held that the testator‟s intent to revoke the prior will was not dependent on the validity of the subsequent will so even if the second will was void and insufficient as revocation, the prior will was still revoked because such revocation was not dependent on the validity of the second will [?!!]

 DEPENDENT RELATIVE REVOCATION





Where the act of destruction is connected with the making of another will as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. [Molo v. Molo]

 It must be ed that dependent relative

revocation applies only if it appears that the testator intended his at of revocation to be conditioned on the making of a new will or on its validity or efficacy.  In Molo v. Molo, the Samson v. Naval doctrine was

cited, providing that “A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of the Code of Civil procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.” – supposing the institution of heirs, legatees or devisees in the subsequent will is subject to a suspensive condition, is the revocation of the prior will absolute or conditional?  Depends on the testator‟s intent.  If the subsequent will contains a revocatory clause which is absolute or unconditional, the revocation will be absolute regardless of the happening or non-happening of the suspensive condition.  But if the testator states in the subsequent will that the revocation of the prior will is subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the revocation will depend on whether the condition happens or not.  If the suspensive condition does not occur, the institution is deemed never to have been made and the prior

 Question

ART. 833. A revocation of a will based on a false cause or an illegal cause is null and void.  Wills are revocable ad nutum or at the testator‟s

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pleasure. The testator does not need to have a reason to revoke the will.

SUCCESSION  However, precisely because the law respects the

testator‟s true intent, this article sets aside a revocation that does not reflect such intent.  REQUISITES FOR A FALSE / ILLEGAL CAUSE TO

RENDER REVOCATION VOID – 1. CAUSE MUST BE CONCRETE, FACTUAL AND NOT PURELY SUBJECTIVE  If a testator revoked on the stated ground that the heir was Ilocano and all Ilocanos are bad, it would just be prejudice and the revocation is valid because it is based on a subjective cause. 2. IT MUST BE FALSE 3. THE TESTATOR MUST NOT KNOW OF ITS FALSITY 4. IT MUST APPEAR FROM THE WILL THAT THE TESTATOR IS REVOKING BECAUSE OF THE CAUSE WHICH IS FALSE.

ART. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. ART. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.  If the testator wishes to republish a will that is void as

to form, the only way to republish it is to execute a subsequent will and reproduce [copy out] the dispositions of the original will. Mere reference to the prior will in the subsequent will is not enough.  A will is void as to form if it does not comply with the

requirements of Arts804-818; 810-814; 818-819.

 If the revocation is by physical destruction, and the

revoked will is holographic, then though the revocation be void, probate will not be possible, UNLESS a copy of the holographic will survives.  The rule regarding nullity of revocation for an illegal

RE-CAP OF FORM AL REQUIREMENTS OF A WILL 1.

cause limits the freedom of the testator to revoke based on an illegal cause, but this is due to public policy considerations.  It must be noted that the illegal cause should be stated in the will as the cause of the revocation.

ART. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.  The part of the will which recognizes an illegitimate

child is NOT revocable because recognition is an irrevocable act. Therefore, even if the will is revoked, the recognition remains effective.  Under the Family Code, ission of illegitimate

filiation in a will would constitute proof of illegitimate filiation. According to Article 175 of the Family Code – Art175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Art173, except when the action is based on the second paragraph of Art172, in which case the action may be brought during the lifetime of the alleged parent.  Basically, the principle laid down in Art834 remains

unaltered regarding these issions contained in wills.

Subsection 7 – Republication and Revival of Wills

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ATTESTED/ORDINARY WILL a. Must be in writing b. Executed in a language or dialect known to testator c. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses d. Attested and subscribed by at least 3 credible witnesses in presence of the testator & of one another e. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses f. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another. g. All pages numbered correlatively in letters on the upper part of each page. h. Attestation clause, stating: a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses c) Fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another. i. Acknowledgement before a notary public by the testator and the witnesses. j. Handicapped Testator a) Deaf or deaf-mute – personally read the will if able to do so, otherwise designate 2 persons to read and communicate it to him. b) Blind – read to him twice, once by a subscribing witness and another time by the notary before whom it is acknowledged.

SUCCESSION In 1987, X executed will 2 and expressly revoked will 1 In 1990, X executed will 3, revoking will 2 - When will 3 revoked will 2, it did not revive will 1.

RE-CAP OF FORMAL REQUIREMENTS OF A WILL

 This article is based on the theory of INSTANT k. Defects and imperfections in form of attestation and language used shall not make the will invalid if there is substantial compliance with requirements of Art805. l. Law to be followed a. Filipino abroad b. Alien abroad c. Alien in the Philippines m. Prohibition on t wills, especially by Filipinos even if executed in foreign country allowing t wills. n. Witnesses must possess all the qualifications in Art820 and none of the disqualifications in Art821. 2. HOLOGRAPHIC WILL a. Must be entirely written b. Executed in a language or dialect known to testator c. Dated by the testator d. Signed by the hand of the testator himself e. Witnesses required a) Knows the handwriting and signature of the testator b) Explicitly declares that the will and the signature are in the handwriting of the testator f. Dispositions below testator‟s signature must also be dated and signed. g. When several additional dispositions are signed but not dated, the last disposition must be signed and dated to validate the dispositions preceding it. h. Any insertion, cancellation, erasure or alteration must be authenticated by the testator‟s full signature, otherwise it shall be deemed as not made. i. Prohibition on t wills, especially by Filipinos even if executed in a foreign country where t wills are allowed.

 If the testator wishes to Republish a will that is either:



1. VOID for a reason other than a formal defect, or 2. Previously REVOKED The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the previous will. There is no need to reproduce the provisions of the prior will in the subsequent instrument.

 Why the difference on the rules between nullity as to

form and nullity based on other grounds? Prof. Balane says because Art835 is from Argentine Law whole Art836 is from California Law. Go figure.

ART. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not derive the first will, which can be revived only by another will or codicil.  Illustration

REVOCATION nd  That the revocatory effect of the 2 will is immediate.  However, such theory is inconsistent with the principle that wills take effect mortis causa.  Furthermore, to be effective for the purpose of revoking the first will, the second will must be probated. But it has already been revoked by the third will. A revoked will now has to be submitted to probate?  Article applies only when the revocation of the first

will by the second will is EXPRESS. If the revocation by the second will is implied due to incompatible provisions, the article will not apply and the effect will be that the first will is revived.  However, when will 3 is itself inconsistent with will 1, there is still revocation.  Also keep in mind Article 831 – Implied Revocations only annul such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.  EXCEPTION – when the second will is holographic

and it is revoked by physical destruction, because then the possibility of its probate is foreclosed, unless of course a copy survives.

Subsection 8 – Allowance and Disallowance of Wills

ART. 838. No will shall either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.  Probate of a will is MANDATORY.  TWO KINDS OF PROBATE

1. POST MORTEM – after the testator‟s death

In 1985, X executed will 1 Page 23 of 109

SUCCESSION 2. ANTE MORTEM – during his lifetime, features:  Easier for the courts to determine mental condition of a testator  Fraud, intimidation and undue influence are minimized  Easier correction of formal defects in the will  Once a will is probated ante mortem, the only questions that may remain for the courts to decide after the testator‟s death will refer to the intrinsic validity of the testamentary dispositions.

(1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intent that the instrument he signed should be his will at the time of affixing his signature thereto.

 Rules on Probate for both post and ante mortem are

found in Rule 76 of the Rules of Court.  Finality of a Probate Decree



Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata.

 Scope of a Final Decree of Probate

 



A final decree of probate is conclusive as to the due execution of the will, i.e. as to the will‟s extrinsic and formal validity only. Gallanosa v. Arcangel enumerates what are covered by the term Formal Validity and therefore conclusively settled by a final decree of probate – a) That the testator was of sound and disposing mind b) That his consent was not vitiated c) That the will was signed by the required number of witnesses, and  That all the formal requirements of the law have been complied with. d) That the will is genuine. Another way of defining the scope of a final decree of probate is to refer to art839. Any action based on any of the grounds for disallowance of a will enumerated in Article 839 can no longer be pursued once there is a final decree of probate.

 An Exclusive Enumeration of the grounds for

disallowance of a will.  These are matters involved in formal validity. Once a

probate decree is final, such decree forecloses any subsequent challenge on any of the matters enumerated in this article.  If any of these grounds for disallowance are proven, the will shall be set aside as VOID.  A will is either valid or void. If none of the defects enumerated in this article are present, it is valid; if any one of these defects is present, the will is void. The issue of formal validity or nullity is precisely what the probate proceedings will determine.  There is no such thing as a Voidable Will.  GROUNDS FOR DISALLOWANCE OF A WILL

 GENERAL RULE – A decree of probate, therefore

1.

FORMALITIES  Those referred to in Articles 804-818, 818819 and 829-821

2.

TESTATOR INSANE OR MENTALLY INCAPABLE AT TIME OF EXECUTION  Articles 798 – 801 on testamentary capacity and intent

3.

FORCE, DURESS, INFLUENCE OF FEAR OR THREATS  Force or Violence – when in order to wrest consent, serious or irresistible force is employed.  Duress or Intimidation – when one of the contracting parties is compelled by a reasonable and well-grounded fear of imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. Age, sex and condition of the person are borne in mind. Threat to enforce a just or legal claim through competent authority does not vitiate consent.

does not concern itself with the question of INTRINSIC validity and the probate court should not upon that issue.  EXCEPTION - When the probate of a will might

become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be ed upon, even before it is probated, the court should meet the issue.  On the authority of Nepomuceno v. Ca, a probate

court may upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent.

ART. 839. The will shall be disallowed in any of the following cases:

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SUCCESSION 4.

UNDUE & IMPROPER PRESSURE AND INFLUENCE  Undue Influence – when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. Circumstances such as the following shall be considered: confidential, family, spiritual and other relations between parties, or fact that person unduly influenced was suffering from mental weakness or ignorant or in financial distress.

5.

SIGNATURE PROCURED THROUGH FRAUD  Fraud – when through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.

6.

MISTAKE OR TESTATOR DID NOT INTENT INSTRUMENT TO BE HIS WILL WHEN HE AFFIXED HIS SIGNATURE THERETO  Mistake – must refer to substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract. Mistake as to identity or qualifications only vitiates consent when such were the principal cause of the contract. A simple mistake of gives rise to correction.

SECTION 2 – INSTITUTION OF HEIR ART. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or person who are to succeed him in his property and transmissible rights and obligations. 

Rules on institution of heir set forth in this section apply as well to institution of Devisees and Legatees.

ART. 841. 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 accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall to the legal heirs. ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.  Even if the will does not contain any testamentary

disposition, it will be formally valid provided it complies with all the formal requisites. This is in keeping with the character of wills as dispositive of property under Art783.  HOW MUCH CAN BE DISPOSED OF BY WILL?

1. No Compulsory Heirs – Entire hereditary estate 2. There are Compulsory Heirs – the disposable portion or the net hereditary estate minus the legitimes. 

The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are possible and so the amount of disposable portion is also variable.

 If the testator disposes by will of LESS than he is

allowed to, there will be MIXED succession –  Testamentary succession as to the part disposed of by will, and  Intestate succession as to the part not disposed of by the will.  The legitimes, of course, by strict operation of law.

ART. 843. The testator shall designate the heir by his name and surname, and 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. ART. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among the persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir.  REQUIREMENT FOR DESIGNATION OF HEIR

Page 25 of 109



The heir, legatee or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testator‟s intention.

SUCCESSION 



The basic rule in testamentary succession always is respect for and compliance with the testator‟s wishes.

 The

designation of name and surname is DIRECTORY. What is required is that the identity of the designated successor be sufficiently established. This is usually done by giving the name and surname, but there are other ways as can be gleaned from Art843 par2, such as to one‟s „eldest first cousin‟.

 If there is any AMBIGUITY in the designation, it

should be resolved in light of Art789 – by the context of the will and any extrinsic evidence available, except the testator’s oral declarations.  If it is not possible to resolve the ambiguity, the testator‟s intent becomes indeterminable and therefore intestacy as to that portion will result.

ART. 845. Every disposition in favor of an unknown person shall be void, unless by some even or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid.  Unknown Person  This article refers to a successor whose identity

cannot be determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution.  This does not refer to one with whom the testator is not personally acquainted. The testator may institute somebody who is a perfect stranger to him, provided the identity is clearly designated in the will

YES, because the article talks about heirs instituted without designation of shares. A and B have been designated their shares, therefore Art846 applied to C and D.

ART. 847. 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.  Equality and Individuality of Designation  This article follows the basic rule of equality in the

previous article. In addition, it established the PRESUMPTION that the heirs collectively referred to are designated per capita along with those separately designated.  If the testator intends a block designation, he should so specify.

ART. 848. 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.  Once again, this article follows the general rule of

equality laid down in Art846. if the testator intends apportionment, he should so specify.

 Also,

an

unequal

 DIFFERENT RULE IN INTESTACY



ART. 846. Heirs instituted without designation of shares shall inherit in equal parts. 

 GENERAL PRESUMPTION

 

Equality in cases of collective designation. If the testator intends an unequal apportionment, he should so specify.  The article applies only in testamentary succession, and only among testamentary heirs or devisees or legatees.  It will NOT APPLY to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his legitime and his testamentary portion.  Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and those of others are not.  Example – “I institute to ¼ of my estate A, B, C and D, of which A will get 1/3 and B is to get ¼.” The shares of C and D are unspecified. Are they to divide equally the remaining portion of the ¼ of the estate, after deducting A‟s and B‟s portions [The remainder is 5/12 of ¼?]

Art848 only applies to testamentary succession, wherein siblings, regardless of whether full or half blood, get equal shares except if a different intention of the testator appears. In INTESTACY, the rule is different. The applicable provision is Art 1006 which establishes a proportion of 2:1 between full and half blood brothers and sisters, but without prejudice to the rule prohibiting succession ab intestato between legitimate and illegitimate siblings. [Art992] Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. Art. 992. An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

 RE-CAP

Page 26 of 109



Testamentary Succession – equality in shares of full and half blood brothers and sisters unless the testator provides otherwise [Art848]

SUCCESSION 

Intestacy – Proportion of 2:1 between full and half blood brothers and sisters [Art1006], and only if the disqualification in Art992 does not apply.

 Question – Does Art848 apply even to illegitimate

 There may after all be compulsory heirs whose

legitimes will therefore cover part of the estate, the and the legitimes do not by legal or intestate succession.  Suggested Rewording –

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, less than the entire disposable portion, legal succession takes place with respect to the remainder of the 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.

brothers and sisters, in cases where the testator is of legitimate status and vice versa? YES. Art848 does not distinguish.

ART. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively.

 Moreover, this article states exactly the same rule

laid down in Art841. there is absolutely no need for the redundancy.

 Article lays down the same rule as Arts. 846 and

847.  Equality and Individuality of institution are presumed.  If the testator desires a different mode of

apportionment, he should so specify.

ART. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.  GENERAL RULE – the falsity of the stated cause for

the testamentary institution DOES NOT AFFECT the validity or efficacy of the institution.  Reason – testamentary disposition is ultimately based on liberality.

ART. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. ART. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally.  In both articles –

1. There are more than 1 instituted heir 2. Testator intended them to get the whole estate or the whole disposable portion 3. Testator designated a definite portion for each.

 EXCEPTION – the falsity of the stated cause for

institution will set aside the institution if the following factors are present: 1. Cause for institution is stated in the will 2. Cause must be shown to be false 3. It appears on the face of the will that if the testator had known of the falsity of such cause, he would not have instituted the heir.

ART. 851. 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.  The wording of the article, according to Prof. Balane,

 ART. 852 – the total of all the portions is less than

the whole estate or the whole disposable portion. Therefore, a proportionate increase is necessary.  The difference cannot by intestacy because the testator‟s intention is clear to give the instituted heirs the entire amount.  ART. 853 – the reverse occurs, the total exceeds the

whole estate or the whole disposable portion. Thus a proportionate reduction must be made.

FORMULA FOR PROPORTIONATE INCREASE OR DECREASE P HEIR’S SHARE = X . P TOTAL DISPOSED P TOTAL ESTATE DISPOSABLE

is erroneous because legal succession does not take place with respect to the remainder of the estate but to the remainder of the disposable portion. Page 27 of 109

SUCCESSION  Should the value of the legacy or devise be less than the recipient‟s legitime, his remedy is only for completion of legitime under Articles 906 and 907.

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises 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.

 If the heir received a donation inter vivos from the testator – the better view is that there is no preterition  Reason – donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062. Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code.

 PRETERITION – means omission, but from what?

The answer to that question is the basic problem in preterition.  Manresa‟s Definition – “Preterition consists in the

omission of an heir in the will, either because he is not named, or, although he is named as a father, son, etc., he is neither instituted as an heir or expressly disinherited, nor assigned any part of the estate, thus being tacitly deprived of his right to the legitime.

Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code.

 Castan‟s Definition – “By preterition is meant the

omission in the will of any of the compulsory heirs, without being expressly disinherited. It is thus a tacit deprivation of the legitime, as distinguished from disinheritance, which is an express deprivation.”

Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.

 OMISSION THAT CONSTITUTES PRETERITION

 If the heir in question is instituted in the will but the portion given to him by the will is less than his legitime – there is no preterition.  In the case of Reyes v. Baretto-Datu: 1. There was a compulsory heir in the direct line 2. Such heir was instituted in the will 3. The testamentary disposition given to such heir was less than her legitime

 If the heir is not mentioned in the will nor was a recipient of a donation inter vivos from the testator, but not all of the estate is disposed of by the will – there is no preterition.  The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will [the vacant portion]. The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his legitime, under Articles 906 and 907.

 Based on these, the holding was that there was NO PRETERITION.  The reason was there was no TOTAL OMISSION, inasmuch as the heir received something from the inheritance. The heir‟s remedy is not found in Art854 but in Arts. 906 and 907 for Completion of Legitime. Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same may be fully satisfied. Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.



For there to be preterition, therefore, the heir in question must have received NOTHING from the testator by way of: 1. Testamentary succession 2. Legacy or devise 3. Donation inter vivos, or 4. Intestacy  Preterition means therefore – TOTAL OMISSION IN THE INHERITANCE.  WHO ARE INCLUDED WITHIN THE OF

 If the heir is given a legacy or devise, there is no preterition.

Page 28 of 109

THE ARTICLE?  A compulsory heir in the direct line, whether living at the time of the execution of the will or born after the death of the testator. 1. COMPULSORY HEIRS IN THE DIRECT LINE –

SUCCESSION  Covers children or descendants, and in proper cases [in default of children or descendants] parents or ascendants  Surviving Spouse – does not fall within the purview of this article because although a compulsory heir, is not in the direct line.  Under Art964 par2, direct line is that constituted by the series of degrees among ascendants and descendants.

and rules in favor of the adopted child‟s inclusion in the phrase.  An adopted child therefore, if totally omitted in the inheritance, is preterited within the contemplation of Art854 and can invoke its protection and consequences.  Acain‟s logic is that since an adopted child is given by law the same rights as a legitimate child, vis-à-vis the adopter, then the adopted child can, in proper cases, invoke Art854 in the same manner that a legitimate child can.  The law cited was Art39 of PD603 or the Child and Youth Welfare Code as supplanted by Art189[1] of the Gamily Code, likewise supplanted by Secs 17 and 18 of RA8552 or the Domestic Adoption Act of 1998.

2. Are ILLEGITIMATE DESCENDANTS OR ASCENDANTS within the coverage of “compulsory heirs in the direct line”?  Manresa – YES, Scaevola – NO.  Manresa‟s seems to be the better opinion, since the law does not distinguish. 3. QUASI-POSTHUMOUS CHILDREN –  There is a flaw in the wording of the article. The phrase “whether living at the time of the execution of the will or born after the death of the testator” does not, by its , include those compulsory heirs in the direct line born after the execution of the will but before the testator’s death [los cuasi posthumous].  However, such children are, without doubt, to be included within the purview of the protection of this article.

 EFFECT OF PRETERITION

 



4. PREDECEASE OF PRETERITED COMPULSORY HEIR – nd  2 paragraph of Art 854 provides: If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.  Should the preterited heir predecease or be unworthy to succeed the testator, the question of preterition of that heir becomes moot.  However, should there be a descendant of that heir who is himself preterited, then the effects of preterition will arise.  Example – X has 2 legit kids: A and B. X makes a will which results in preterition of A. A dies before X but leaves a legit child, A-1, who is himself completely omitted from the inheritance [A-1 being entitled to succeed X by representation]. Art854 will apply, not because A was preterited but because A-1 was preterited. 5. ADOPTED CHILDREN  Case of Acain v. IAC answers the question of whether an adopted child is within the contemplation of this article as “compulsory heir in the direct line”









Annulment of the institution of an heir but validity of legacies and devisees to the extent that these latter do not impair legitimes. Distinction between heirs and legatees/devisees – This in the only instance when there is still a practical effect in the distinction between an heir and a legatee or devisee in Art782. According to the case of Nuguid v. Nuguid, annulment of institution of heir means only the legacies and devises will merit consideration if expressly given in the will. Art854 does not mean that the mere institution of a universal heir in a will – void because of preterition – would give the heir so instituted a share in the inheritance. As to the heir, the will is inexistent. In that case, the only provision in the will was the institution of the petitioner a universal heir. That institution, by itself, was held null and void. Therefore, intestate succession ensued. However, this was muddled in the case of Solano v. CA wherein it was ruled that the preterition of illegitimate children should annul the institution of the heir “only insofar as the legitime of the omitted heirs is impaired”. Prof. Balane says this is not annulment but reduction, and this would erase the distinction between the effect of preterition on the institution of the heir and its effect on legacies and devises. Fortunately, this was cleared up in Acain v. CA wherein it was held that “Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.”

 RE-CAP – the correct rule of preterition is that:

Page 29 of 109

SUCCESSION 



Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of heirs and there is preterition, TOTAL INTESTACY will result. If there are legacies or devises and there is preterition, the legacies or devises will stand, to the extent of the free portion [merely to be reduced and not set aside, if the legitimes are impaired] but the institution of heirs, if any, will be swept away.

2. Proportionate reductions [after consuming the undisposed portion] should be borne not by the compulsory heirs as such but by the testamentary heirs, including the devisees and legatees.  To make the compulsory heirs qua compulsory heirs bear the reduction would mean reducing their own legitimes – a patent absurdity.  That would be solving one problem by creating another.  As correctly stated by Art907, it is testamentary dispositions that must be reduced if they impair or diminish the legitimes of compulsory heirs.

 PRETERITION v. INEFFECTIVE DISINHERITANCE



 

Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, this article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.

ART. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.  Article is redundant and completely unnecessary of it

is made to apply to cases of preterition. If there is preterition, only Art854 need be applied.  Proper Application of Art855 – in cases where a compulsory heir is not preterited but left something [because not all the estate is disposed of by will] less than his legitime. Art855 really talks of a completion of legitime.



ART. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.  Observations on the Article



 HOW TO FILL UP COMPULSORY HEIR’S

IMPAIRED LEGITIME?  From the portion of the estate left undisposed of by will.  From the shares of the testamentary heirs, legatees and devisees, proportionally.



 Superfluity and Inaccuracy of Art855 –





Superfluity – article, properly understood, does not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910 and 911. Inaccuracy – two inaccuracies 1. Coverage should extend not only to children and descendants but to all compulsory heirs. As subsequent articles [906, etc.] mandate, any compulsory heir whose legitime is impaired may demand that the same be fully satisfied.

Senator Tolentino comments that article should be rephrased as follows The share of the compulsory heir 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 heirs given to them by will.



Inaccurate and misleading because it suggests that there are exceptions to the rule that an heir, in case of predecease, incapacity or renunciation, transmits nothing to his own heirs.  This rule of non-transmission is ABSOLUTE and there is no exception to it.  Representation does not constitute an exception because in representation the person represented does not transmit anything to his heirs. Representation is rather a form of subrogation. It says too much because the article is in the chapter on testamentary succession under institution of heir, therefore it should speak only of voluntary or testamentary heirs. It says too little because it does not mention legal or intestate heirs nor does it provide for cases of disinheritance.

 Rather, the complete statement of the rule is –

Page 30 of 109



An heir, whether compulsory, voluntary or legal, transmits NOTHING to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.

SUCCESSION  Outline of Rules Kind of Heir

PREDECEASE TN R

INCAPACITY TN R

RENUNCIATION TN R

DISINHERITANCE TN R

COMPULSORY VOLUNTARY LEGAL

    

 

       

NA

NA

NA

NA

TN – Transmits nothing R - Representation

Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.  The definition of substitution is incomplete because it

covers only simple substitution and excludes the nd fideicommissary. In the fideicommissary, the 2 heir does not succeed in default, but AFTER the first.  The complete definition of substitution should be –

“Substitution is the appointment of another heir so that he may enter into the inheritance in default of, or subsequent to, the heir originally substituted.”  With respect to Simple Substitution, this section is

 



 KINDS OF SUBSTITUTION UNDER ART858

1. Simple or Common [vulgar] – Art859 2. Brief or Compendious [brevilocua / compendiosa] – Art860 3. Reciprocal [reciproca] – Art861 4. Fideicommissary [fideicomisaria] – Art863  In reality, there are only 2 kinds of substitutions – the

SECTION 3 – SUBSTITUTION OF HEIRS



substitution shall be ineffective by a will executed by the incompetent during a lucid interval or after he ahs recovered his mental faculties.

properly a part of the next section on conditional testamentary dispositions. Simple substitution is really a form of conditional institution. The right to provide for substitutions is based on testamentary freedom. In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit. In fideicommissary substitutions, the testator imposes what is essentially a RESTRICTION OR BURDEN on the first heir, coupled with a selection of a subsequent recipient of the property.

simple or common and the fideicommissary. These two are MUTUALLY EXCLUSIVE, a substitution must be one or the other and cannot be both at the same time.  Brief or compendious and reciprocal substitutions are merely variations of either the simple or fideicommissary.

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or 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 there mentioned in the preceding paragraph, unless the testator has otherwise provided.  This article provides for SIMPLE or VULGAR

substitution.  CAUSES OF SIMPLE SUBSTITUTION

1. Predecease of the first heir 2. Renunciation of the first heir 3. Incapacity of the first heir  HOW TESTATOR MAY PROVIDE FOR SIMPLE

SUBSTITUTION WITH ALL 3 CAUSES 1. By specifying all 3 causes 2. By merely providing for a simple substitution  Restricted Simple Substitution – the testator may

Art. 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary.

limit the operation of simple substitution by specifying only one or two of the 3 causes.  QUESTIONS –



 Under the old Spanish Code, in addition to the 4

enumerated, there were pupilar and ejemplar substitutions under Arts. 775 and 776, providing that an ascendant or the parent may substitute the descendant below 14 years old in case the descendant should die before age 14; and that a substitute may be designated by an ascendant for a descendant who is over 14 but has been declared incompetent by reason of mental incapacity, but such

Page 31 of 109



May the testator provide for a substitution on grounds other than those provided in this article? In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation? Supposing the substitute dies before the first heir manifests his renunciation, may the successors of the substitute acquire the testamentary disposition?  Must have capacity – Art1034 par 3 providing that “If the institution, devise or

SUCCESSION



legacy should be conditional, the time of the compliance with the condition shall also be considered.” As a simple substitution is a form of conditional substitution, therefore Art1034 can be applied.  Need not have capacity – Art1042 and 533 par2 which provides that the effects of the acceptance or repudiation of the inheritance shall always retroact to the moment of the death of the decedent” and that “one who validly renounces an inheritance is deemed never to have possessed the same.” Will the substitute be disqualified if the cause of the first heir‟s predecease is that the substitute killed him?

ART. 860. Two or more persons may be substituted for one; and one person for two or more heirs.  Brief or Compendious substitution is a possible

variation of either a simple or fideicommissary substitution.  Distinctions

  

Brief – 2 or more substitutes for 1 original heir Compendious – 1 substitute for 2 or more orig. However, most commentators use the interchangeably.

testator, B will substitute and get the share of A [¼] in addition to his share, so in total he gets ½.  The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition.  Example, A gets ½, B gets 1/3 and C gets 1/6. If a predeceases the testator, B and C will acquire A‟s ½ share in the proportion of 2:1 because their respective testamentary shares are ½ and 1/6. Should B predecease, A and C will get his portion in the proportion of 3:1 because their respective shares are ½ and 1/6. Should C predecease, A and B will get C‟s 1/6 portion in the proportion of 3:2 for the same reason.

ART. 862. 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.  The substitute merely takes the place of the original

heir, so the former is also subjected to all the liabilities as well as rights of the latter, including charges and conditions imposed upon the original heir.

 If 1 is substituted for 2 or more original heirs –



 

Effect of default of one but not all of the original heirs is that substitution will NOT take place but the share left vacant will accrue to the surviving original co-heir or co-heirs. Substitution will take place only if ALL the original heirs are disqualified. The exception is where the testator provides for substitution in the event of the death or renunciation or incapacity of any one of the original heirs.

ART. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.

ART. 863. A fideicommisary 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.  First heir – fiduciary ; Second heir – fideicommissary  ELEMENTS OF FIDEICOMISARIA

 Reciprocal substitution is a possible variation of the

simple or fideicommissary substitution.  If the heirs in a will are given unequal shares, and

they are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity.  Example, A gets ¼ and B gets ¼. They are reciprocally substituted. If A predeceases the Page 32 of 109

st

1. A 1 heir who takes the property upon the testator’s death  Fiduciary enters upon the inheritance, like every other heir, upon the opening of the succession, which is when the testator dies. nd

2. A 2 heir who takes the property subsequently from the fiduciary  The fideicommissary heir does not receive the property until the fiduciary‟s right expires.  BOTH heirs enter into the inheritance, one after the other, each in his own

SUCCESSION turn. This distinguishes the fideicomisaria from the vulgar, in which the substitute inherits only if the first heir fails to inherit.  NOTE – though the fideicommissary heir does not receive the property upon the testator‟s death, his right thereto VESTS at that time and merely becomes subject to a period, and that right es to his own heirs should he die before the fiduciary‟s right expires. nd

3. The 2 heir must be 1 degree from the first heir  Means 2 things a) Only one transmission/transfer is allowed, from the first heir to the second heir b) Second heir must be in the first degree of relationship with the first heir. The second heir must either be a child or parent of the first heir st

4. Dual obligation imposed upon the 1 heir to: a) Preserve the property, and b) To transmit it after the lapse of the period to the fideicommissary heir.  This requisite is the essence of the fideicomisaria. This makes the position of the fiduciary basically that of a usufructuary, with the right to use and enjoy the property but WITHOUT JUS DISPONENDI.  If there is no absolute obligation to preserve and transmit, there is no fideicommissary substitution.  The institution is not necessarily void, it may be valid as some other disposition but it is not a fideicomisaria.  In PCIB v. Escolin, the institution was held to be a simultaneous institution, a resolutory condition on the part of the husband while subject to a suspensive condition on the part of the brothersand sisters-in-law and not a fideicomisaria because no obligation is imposed upon the husband to preserve the estate or any part thereof for anyone else.  If the testator DID NOT specify a day when the fiduciary will deliver the property to the fideicomissary, or when the time of delivery is in doubt, it shall be understood to have been left to the fiduciary‟s discretion, which means the delivery should be upon the FIDUCIARY‟S DEATH. This is based on the presumption that the testator intended the fiduciary to enjoy the property during his lifetime. 5. Both heirs must be living and disqualified to succeed at the time of the testator’s death.  Living – according to Articles 40-41

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Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

 Qualified – according to Articles 1024-1034. Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final s of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor,

SUCCESSION by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.

 NOTE – this 2-fold requirement is to be met only upon the testator‟s death, and this applies not only to the fiduciary but to the second heir as well.

 Thus, the 2 heir need not survive the first heir, if nd nd the 2 heir dies before the first heir, the 2 heir‟s own heirs merely take his place. nd

ART. 864. A fideicommissary substitution can never burden the legitime.

ART. 865. Every fideicommisary 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.  FIDEICOMISARIA SHOULD BE EXPRESSLY

IMPOSED.  2 ways of making an express imposition –

1. By the use of the term fideicommissary or 2. By impoon the first heir the absolute obligation to preserve and to transmit to the second heir.  Allowable Deductions

1. GR – fiduciary should deliver property INTACT and UNDIMINISHED to the fideicommissary heir upon the arrival of the period. 2. The only Deductions allowed, in the absence of a contrary provision in the will are – a) Legitimate expenses – only necessary and useful expenses and NOT ornamental expenses b) Credits c) Improvements - only necessary and useful improvements and NOT ornamental improvements 

Damage or Deterioration to Property  If caused by a fortuitous event or ordinary wear and tear – fiduciary is not liable  If caused by fiduciary‟s fault or negligence – fiduciary is liable.

ART. 866. The second heir shall acquire a right to the succession from the time of the testator’s death, even though he should die before the fiduciary. The right of the second heir shall to his heirs.  In

connection with Art863 on element of fideicommissary that both heirs must be living and disqualified to succeed at the time of the testator‟s death.  The second heir‟s right vests upon the testator‟s death, conformably with Art777 and Art878 since as far as the second heir is concerned, the institution of him is one subject to a suspensive term.  Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The second heir‟s own heirs simply take his place by succeeding to the vested right already possessed by the second heir.

 Legitime es by strict operation of law, therefore

the testator has no power over it.

ART. 867. The following shall not take effect:

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SUCCESSION (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or impoon 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 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. 

Provisions that shall NOT TAKE EFFECT 1. Fideicommissary substitutions which are not made in an express manner  Lack of this element does not, by that fact alone, nullify the institution. It only means that the institution is not a fideicomisaria. 2. Perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863.  If there is a fideicomisaria, the limit is the first heir‟s lifetime.  If there is no fideicomisaria, the limit is 20 years. 3. Imposes upon the heir the charge of paying a certain income or pension to various persons successively, beyond the limit prescribed in article 863  There can only be 2 beneficiaries of the pension, one after the other, and the second must be one degree from the first. But there is no prohibition on simultaneous beneficiaries.

 This paragraph makes the ENTIRE PROVISION VOID. The problem is the difficulty of establishing the fact of circumvention. Supposing the ostensible heir conceals or destroys the secret instructions and claims as heir under the testamentary provision as worded?

ART. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.  If

the fideicommissary substitution is void or ineffective, the institution of the first heir simply becomes pure and unqualified.  Nullity or ineffectivity of the institution of the first heir – article does not provide for a case where it is the institution of the first heir that is void or ineffective. What is the rule in such a case?

ART. 869. 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 fives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply.  If the testator institutes successive usufructuaries,

there can only be two usufructuaries, one after the other, and as to the two of them, all the requisites of Art863 must be present.

ART. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.  If the testator imposes a longer period than 20 years,

the prohibition is valid only for 20 years.  If there is a fideicommissary substitution, this time

4. Leave to a person the whole 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.  The ostensible heir here is in reality only a dummy, because in reality, the person intended to be benefited is the one to whom the secret instructions refer. The purpose of such a surreptitious disposition is to circumvent some prohibition or disqualification Page 35 of 109

limitation will not apply. Rather, Art863 applies, which allows as a period, the lifetime of the first heir.

SUCCESSION ART. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.

KINDS OF SUBSTITUTIONS 1. SIMPLE or COMMON  Causes of Simple Substitution 1) Predecease of the first heir 2) Renunciation of the first heir 3) Incapacity of the first heir

 3 KINDS OF TESTAMENTARY DISPOSITIONS

2. BRIEF or COMPENDIOUS  Distinctions o Brief – 2 or more substitutes for 1 orig. heir o Compendious – 1 sub for 2 or more orig. o However, most commentators use the interchangeably.  If 1 is substituted for 2 or more original heirs, default of one but not all of the original heirs does not lead to substitution but the share left vacant will accrue to the surviving original coheir or co-heirs.

1. Conditional dispositions 2. Dispositions with a term 3. Dispositions with a mode [modal dispositions]  Inaccuracies in Section heading and wording of this

article  Incomplete Section Heading – should include4 modal dispositions  Incomplete wording of Article – does not include dispositions with a term  Definitions



Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event.

3. RECIPROCAL  If the heirs in a will are given unequal shares, and they are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity.  The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition. 4. FIDEICOMMISSARY  Elements of a Fideicommissary st 1) A 1 heir who takes the property upon the testator‟s death nd 2) A 2 heir who takes the property subsequently from the fiduciary nd 3) The 2 heir must be 1 degree from the first heir st 4) Dual obligation imposed upon the 1 heir to: a. Preserve the property, and b. To transmit it after the lapse of the period to the fideicommissary heir. 5) Both heirs must be living and disqualified to succeed at the time of the testator‟s death.  Fideicommissary substitution should be expressly provided for in the will

SECTION 4 – CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM GENERAL PROVISIONS

CONDITION – defined obliquely in Art1179 par1.



TERM – defined obliquely in Art1173 pars 1 & 3

Art. 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes. Obligations with a resolutory period take effect at once, but terminate upon arrival of the day certain. A day certain is understood to be that which must necessarily come, although it may not be known when. If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it shall be regulated by the rules of the preceding Section.



MODE – defined obliquely in Art882.

Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator 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.

 Proper Order of Provisions in this Section

1. General provisions – Arts 871 and 872 2. Conditions – Arts 873, 874, 875, 876, 877, 883 par. 2, 879, 880, 881 and 884 3. – Arts 878 and 885 4. Modes – Arts 882 and 883 par.1 GENERAL PROVISIONS  Art871 – The right of the testator to impose conditions, or modes springs from testamentary freedom. If he has the right to dispose of his estate mortis causa, then he has the right to make the disposition subject to a condition, term or mode.

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SUCCESSION 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.

ART. 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.  The legitime es by strict operation of law,

independent of the testator‟s will. This article is a logical consequence of that principle.  This article is echoed by Art904 par2.

 Conditions prohibiting marriage

 

DISPOSITION WITH CONDITIONS – MAY BE BOTH RESOLUTORY OR SUSPENSIVE. ART. 873. 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.

 The 2

 The rule on Donations is the same. – considered as

not imposed  Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed.



 Reason for difference in rule





Necessity of Caución Muciana – since this condition, assuming it is validly imposed, is NEGATIVE in nature, a Caución Muciana is required, as in Art879.

 Condition to contract marriage – This article does not

prohibit the imposition of a condition to marry, either with reference to a particular person or not.  Neither does this article declare void a relative

 On the other hand, the rule in Obligations is different.

– annuls the obligation  Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon.

nd

paragraph of the article may provide the testator, if he so desires, a means of terminating the testamentary benefaction should the heir contract marriage, even a first one. The wording of the disposition will be crucial, it should not be so worded as to constitute a prohibition forbidden in the first paragraph.

 The

impossible or illegal condition is simply considered as not written. The testamentary disposition itself is not annulled; on the contrary it becomes PURE.

If a first marriage is prohibited – condition always considered as not imposed If subsequent marriage is prohibited 1. If imposed by the deceased spouse or by his/her ascendants or descendants – valid 2. If imposed by anyone else – considered as not written

prohibition.

ART. 875. Any disposition made upon the condition that the heir shall make some provision in favor of the latter of the testator or of any other person shall be void.  Scriptura Captatoria – Legacy-hunting dispositions,

whether to heirs or legatees, are void.  Reasons for the Prohibition

Testamentary dispositions and donations are both gratuitous and spring from the grantor‟s liberality. The imposition of a condition does not displace liberality as the basis of the grant. On the other hand, in obligations which are onerous, the condition that is imposed becomes an integral part of the causa of the obligation. The elimination of that condition for being impossible or illegal results in a failure of cause.

1. The captatoria converts testamentary grants into contractual transactions 2. It deprives the heir of testamentary freedom 3. It gives the testator the power to dispose mortis causa not only of his property but also of his heir‟s.  What is declared void – it is not merely the condition

ART. 874. An absolute condition not to contract a first or subsequent marriage shall be

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that is declared void but the testamentary disposition itself which contains the condition.

SUCCESSION c) Constructive compliance – Art883 par2 – condition is deemed fulfilled.

ART. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him a soon as he learns of the testator’s death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again.

 Negative – not to do something a) Heir must give security to guarantee [caucion muciana] the return of the value of the property, fruits, and interests, in case of contravention. b) 3 Instances when a Caucion Muciana is Required  Art879 – if the potestative conditions is negative  Art885 par2 - The designation of the day or the time when the effects of the institution of an heir shall commence  Art882 – When there is a statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him.

ART. 877. If the condition is casual or mixed, it shall be sufficient if it happen 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. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again.

B.

ART. 883, par. 2. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. ART. 879. If the potestative condition imposed upon the heir is negative or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.  These articles govern POTESTATIVE, CASUAL and

MIXED conditions. 1. Potestative Conditions – one that depends solely on the will of the heir/devisee/legatee. 2. Casual Condition – one that depends on the will of a third person or on chance 3. Mixed Condition – one that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or chance.  RULES ON POTESTATIVE, CASUAL AND MIXED

CONDITIONS A. POTESTATIVE  Positive – to do something a) GR – must be fulfilled as soon as the heir learns of the testator‟s death b) E – if the condition was already complied with at the time the heir learns of the testator‟s death, and the condition is of such a nature that it cannot be fulfilled again.

CASUAL or MIXED  GR – may be fulfilled at any time, before or after the testator‟s death, unless the testator provides otherwise.  QUALIFICATIONS – if already fulfilled at the time of the execution of the will a) If testator UNAWARE of fulfillment – deemed fulfilled b) If testator was AWARE of fulfillment  Can no longer be fulfilled again – deemed fulfilled  Can be fulfilled again – must be fulfilled again  Constructive Compliance - Art883 par2 a) If casual – not applicable b) If mixed  If dependent partly on chance – not applicable  If dependent partly on will of a third party rd  If interested 3 party – applicable  If not an interested party – not applicable

ART. 880. If the heir be instituted under a suspensive condition or term the estate shall be placed under istration 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. 881. The appointment of the of the estate mentioned in the preceding article, as well as the manner of

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SUCCESSION istration and the rights and obligations of the shall be governed by the Rules of Court.  Between the time of the testator‟s death and the time

of the fulfillment of the suspensive condition or of the certainty of its non-occurrence – property is to be placed under istration. 1. If condition happens – the property will be turned over to the instituted heir 2. If it becomes certain that condition will not happen – property will be turned over to a secondary heir [if there is one] or to the intestate heirs, as the case may be.  Not applicable to institutions with a TERM – despite

the wording of the article, it should not be applied to institutions with a term, which are governed by Art885 par 2. Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the arrival of the term, the property should be given to the legal heirs. nd

paragraph – the property shall be in the executor‟s or ‟s custody until the heir furnishes the caucion muciana.

 2

 Procedural

rules governing appointment – Rules 77-90 RoC.

of

ART. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section.  Suppletorily governing conditional institutions are

Articles 1179 and 1192 on conditional obligations. Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event. Art. 1180. When the debtor binds himself to pay when his means permit him to do so, the obligation shall be deemed to be one with a period, subject to the provisions of Article 1197. Art. 1181. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition. Art. 1182. When the fulfillment of the condition depends upon the sole will of the debtor, the conditional obligation shall be void. If it depends upon chance or upon the will of a third person, the obligation shall take effect in conformity with the provisions of this Code. Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon.

Page 39 of 109

Art. 1184. The condition that some event happen at a determinate time shall extinguish the obligation as soon as the time expires or if it has become indubitable that the event will not take place. Art. 1185. The condition that some event will not happen at a determinate time shall render the obligation effective from the moment the time indicated has elapsed, or if it has become evident that the event cannot occur. If no time has been fixed, the condition shall be deemed fulfilled at such time as may have probably been contemplated, bearing in mind the nature of the obligation. Art. 1186. The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment. Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with. Art. 1188. The creditor may, before the fulfillment of the condition, bring the appropriate actions for the preservation of his right. The debtor may recover what during the same time he has paid by mistake in case of a suspensive condition. Art. 1189. When the conditions have been imposed with the intention of suspending the efficacy of an obligation to give, the following rules shall be observed in case of the improvement, loss or deterioration of the thing during the pendency of the condition: (1) If the thing is lost without the fault of the debtor, the obligation shall be extinguished; (2) If the thing is lost through the fault of the debtor, he shall be obliged to pay damages; it is understood that the thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown or it cannot be recovered; (3) When the thing deteriorates without the fault of the debtor, the impairment is to be borne by the creditor; (4) If it deteriorates through the fault of the debtor, the creditor may choose between the rescission of the obligation and its fulfillment, with indemnity for damages in either case; (5) If the thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor; (6) If it is improved at the expense of the debtor, he shall have no other right than that granted to the usufructuary. (1122) Art. 1190. When the conditions have for their purpose the extinguishment of an obligation to give, the parties, upon the fulfillment of said conditions, shall return to each other what they have received. In case of the loss, deterioration or improvement of the thing, the provisions which, with respect to the debtor, are laid down in the preceding article shall be applied to the party who is bound to return. As for the obligations to do and not to do, the provisions of the second paragraph of Article 1187 shall be observed as regards the effect of the extinguishment of the obligation. Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law.

SUCCESSION Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first infractor shall be equitably tempered by the courts. If it cannot be determined which of the parties first violated the contract, the same shall be deemed extinguished, and each shall bear his own damages.

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.

DISPOSITION WITH ART. 878. 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.

st

 The 1 paragraph defines a mode obliquely. A mode  When the heir‟s right vests – in dispositions with a

term, the heir‟s right vests upon the testator‟s death, conformably with Art777. Therefore, should the heir die before the arrival of the suspensive term, he merely transmits his right to his own heirs who can demand the property when the term arrives.  The rule in this article is similar to Art866 in fideicommissary substitutions.  The rule in conditional institutions – what is the rule if the instituted heir dies before the happening of the condition? The section is silent on this matter. But under Art1034, par3, “if the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.  The import is that in conditional institutions, the heir should be Living and Qualified to succeed BOTH at the time of the testator‟s death and at the time of the happening of the condition.

ART. 885. The designation of the day or the 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.  If term is Suspensive – before the arrival of the term,

the property should be delivered to the intestate heirs. A caucion muciana has to be posted by them. nd This is the 2 instance where a caucion muciana is required to be posted.  If term is Resolutory – before the arrival of the term, the property should be delivered to the instituted heir. No caucion muciana is required.

DISPOSITION WITH MODES

is an obligation imposed upon the heir, without suspending the effectivity of the institution [which a condition does].  A mode must be clearly imposed as an obligation in order to be considered as one. Mere preferences or wishes expressed by the testator are not modes.  A mode functions similarly to a resolutory condition. In fact, modes could very well have been absorbed by the concept of resolutory conditions.  Caucion Muciana – should be posted by the rd

instituted heir [3 instance of caucion muciana]

ART. 883 par1. 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.  The intention of the testator should always be the

guiding norm in determining the sufficiency of the analogous performance.

SECTION 5 – LEGITIME  System of Legitimes – our successional system,

closely patterned after that of the Spanish Code, reserves a portion of the net estate of the decedent in favor of certain heirs, or groups of heirs or combination of heirs.  The portion that is so reserved is called the LEGITIME.  The portion that is left available for testamentary disposition after the legitimes have been covered is the free or disposable portion.  The heirs for whom the law reserves a portion are called compulsory heirs.  Nature of Legitimes – the legitimes are set aside by

ART. 882. The statement of the object of the institution, or the application of the Page 40 of 109

mandate of law. Thus, the testator is required to set aside or reserve them. Otherwise stated, the testator

SUCCESSION is prohibited from disposing by gratuitous title, either inter vivos or mortis causa, of these legitimes. Dispositions by onerous title are not prohibited because in theory, nothing is lost from the estate in an onerous disposition, since there is merely an exchange of values.

 This article enumerates the compulsory heirs. The

enumeration is EXCLUSIVE and may be classified as follows: 1. Primary compulsory heirs – legitimate children and / or descendants  So called because they are preferred over, and exclude the secondary heirs.

 Because the testator is compelled to set aside the

legitimes, the heirs in whose favor the legitimes are set aside are called compulsory heirs. The compulsion is not on the part of the heirs, who are free to accept or reject the inheritance, but on the part of the testator.

2. Secondary compulsory heirs – legitimate parents and / or ascendants ; illegitimate parents  So called because they receive legitimes only in default of the primary heirs.  Legitimate parents/ascendants – only in default of legitimate children/ descendants.  Illegitimate parents – only in default of any kinds of children/descendants.

 Major changes in the law of legitimes

1. Abolition of the major or betterment in the Spanish Code 2. The surviving spouse‟s share is upgraded from a usufructuary interest to full ownership, albeit a very variable share. 3. The grant of legitimary rights to children classified under the New Civil Code as illegitimate other than natural or spurious, and further change under the Family Code abolishing the distinction between natural and spurious children and giving all illegitimate children the same legitimary shares.

ART. 886. 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.

3. Concurring compulsory heirs – surviving spouse; illegitimate children and / or descendants  So called because they succeed as compulsory heirs together with primary or secondary heirs, except only that illegitimate children / descendants exclude illegitimate parents.  THE COMPULSORY HEIRS



 This article gives the statutory definition of legitime.

ART. 887. 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. 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 mentioned, shall inherit from them in the manner and to the extent established by this Code. Page 41 of 109

LEGITIMATE CHILDREN / DESCENDANTS 1. Legitimate Children – specified in Arts164 and 54 of the Family Code. Legitimated children fall under this classification [Art179 FC]. The law does not specify how the legitimate children should share in the legitime. However, they will share EQUALLY regardless of age, sex or marriage of origin. 2. Legitimate Descendants – the GR is the nearer exclude the more remote. Thus, children, if all qualified, will exclude grandchildren and so on. The qualification to this rule is representation when proper.



LEGITIMATE PARENTS / ASCENDANTS 1. Legitimate Parents 2. Legitimate Ascendants – Only in default of parents. The rule – absolute in the ascending line – is that the nearer exclude the more remote. [Arts889-890]



SURVIVING SPOUSE 1. The spouse of the decedent, not the spouse of a child who has predeceased the decedent. 2. Marriage between the decedent and his/her surviving spouse must be either VALID or VOIDABLE. If voidable, there should have been no final decree of annulment at the time of the decedent‟s death.  Question – if the consort dies during the pendency of a petition for declaration of nullity under Art36 or for

SUCCESSION nullity under Art40 of the FC, should the proceedings be dismissed or should they proceed?  Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.  Effect of Decree of Legal Separation a) On the offending spouse – disqualification b) On the innocent spouse - nothing  Death of either spouse during pendency of a petition for Legal Separation – Dismissal of the Case. 

ILLEGITIMATE CHILDREN / DESCENDANTS 1. Illegitimate Children – Family Code has abolished the distinction between natural and spurious children and gives all of them – indiscriminately called illegitimate children – equal legitimary portions. However, pursuant to Art777, if death occurred before effectivity of the Family Code on August 3, 1988, the old distinctions will apply and the spurious child gets only 4/5 of the share of the natural child. [Art895] 2. Illegitimate Descendants – Same rule applies as in the legitimate descending line, the nearer exclude the more remote, without prejudice to representation when proper. It should be noted that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished from the legitimate child, who can be represented only by legitimate descendants. [Art902 and 992]



ILLEGITIMATE PARENTS 1. Unlike the legitimate ascending line, which includes ascendants in whatever degree, the illegitimate ascending line only includes the parents, it does not go beyond the parents. 2. The illegitimate parents are secondary heirs of a lower category that legitimate parents, because the illegitimate parents are excluded by legitimate and illegitimate children [Art903] whereas legitimate parents are excluded only by legitimate children/ descendants.



The legitimary system of the Philippine Code rests on a double foundation – EXCLUSION and CONCURRENCE.

 GENERAL RULE – there is a basic amount of ½ that

is given to one heir or one group of heirs. This General Rule its only of 3 EXCEPTIONS: 1. Art894 – surviving spouse and illegitimate children 2. Art900 par2 – surviving spouse in a marriage in articulo mortis, with the conditions specified in that article 3. Art903 – surviving spouse and illegitimate parents.  The term “legitimate child” or “legitimate children”

includes a legally adopted child under Sec18 of RA8552 or the Domestic Adoption Act of 1998.  Question – Is an adopted child entitled to a legitime

from his biological parents or ascendants? Uncertain.  Art189[3] of the FC provides that the adopted shall remain an intestate heir of his parents and other blood relatives.  Thus, the adopted child was entitled to a legitime BOTH from his adopter and his biological parents.  But now, the law is silent and it neither gives nor denies an adopted child the right to a legitime from his biological parents.  Sec16 of the law provides that “all legal ties between the biological parents and the adoptee shall be severed” but that is unavailing to answer the question because sec16 only has to do with parental authority.  The term “legitimate child” or “legitimate children”

shall, in proper cases, include descendants other than children.

legitimate

 The term “legitimate parents” includes, in proper

cases, legitimate ascendants other than parents.

 Variations in the Legitimary Portions

DIFFERENT COMBINATIONS OF COMPULSORY HEIRS CODE LC

COMBINATION Legitimate Children Alone

SHARE ½ of estate divided equally [Art888]

CODAL PROVISION

NOTES

Art. 888. 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.

Adopted Child has the same rights as LC If there is more than 1 legitimate child, the ½ of the estate shall be divided equally among them. If there are legitimate children and grandchildren, the nearer descendants exclude the farther, so as long as there are legitimate children, the grandchildren cannot

Page 42 of 109

SUCCESSION inherit. If legitimate children PREDECEASE the testator or are INCAPACITATED to inherit, the grandchildren get their respective parents’ [the legitimate children] shares by virtue of REPRESENTATION. But if ALL the legitimate children RENOUNCE, the grandchildren inherit in their own right and the ½ estate is divided equally among them. But if only a few of the legitimate children RENOUNCE or not all renounce, the share of those who renounce accrue to the other legitimate children.

1LCSS

One Legitimate Child and Surviving Spouse

½ of the estate to the legitimate child ¼ of the estate to the surviving spouse [taken from the free disposable portion of the estate] [Art892 par1]

Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to onefourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.

LCSS

Legitimate Children and Surviving Spouse

½ of estate to legitimate children Share equal to that of 1 child for the surviving spouse [taken from the free disposable portion of the estate] [Art892par2]

Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to onefourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.

LCIC

Legitimate Children and Illegitimate Children

½ of estate to the legitimate children ½ of the share of 1 legitimate child to the illegitimate children [Art176 FC]

CODE 1LCICSS

COMBINATION One legitimate child, illegitimate children and surviving spouse

SHARE ½ of estate to legitimate children Each illegitimate child will get ½ of the share of a legitimate child ¼ of estate to the surviving spouse, whose share is preferred over those

LEGAL SEPARATION between the testator and the surviving spouse If there is a final decree of legal separation 1. surviving spouse is the innocent party – he/she gets her legitime [Art63 par4 FC] 2. surviving spouse is the offending spouse – he/she is disqualified from inheriting [Art63 par4 FC] If after the final decree of legal separation there was a reconciliation between the parties, the reciprocal right to succeed is restored because reconciliation sets aside the decree [Art66 par2 FC] Illegitimate child only gets half the share of a legitimate child. In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children cannot be reduced.

CODAL PROVISION

NOTES

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child.

In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children and the surviving spouse cannot be reduced.

Page 43 of 109

SUCCESSION of the illegitimate children, which shall be reduced if necessary [Art895]

The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.

LCICSS

Legitimate children, illegitimate children and surviving spouse

½ of estate to legitimate children Each illegitimate child will get ½ of the share of one legitimate child A share equal to that of 1 legitimate child for the surviving spouse, whose share is preferred over those of the illegitimate children which shall be reduced if necessary. [Art895]

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.

In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children and the surviving spouse cannot be reduced.

LP

Legitimate parents alone

½ of estate [Art889]

Art. 889. 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 provided.

There is NO RIGHT OF REPRESENTATION in the Ascending Line. If the one of the legitimate parents PREDECEASE or is INCAPACITATED to inherit, his/her share accrues to the other parent [tama ba?]

LPIC

Legitimate parents and illegitimate children

½ of estate to legitimate parents ¼ of estate to illegitimate children

Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator.

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

LPSS

Legitimate parents and surviving spouse

½ of estate to legitimate parents ¼ of estate to surviving spouse

Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate.

Page 44 of 109

SUCCESSION CODE LPICSS

COMBINATION

Legitimate parents illegitimate children and surviving spouse

SHARE ½ of estate to the legitimate parents ¼ of estate to the illegitimate children 1/8 of estate to the surviving spouse

SS

Surviving spouse alone

½ of the estate or 1/3 if the marriage, being in articulo mortis, falls under Art900 par 2 [Art900par1]

SSIC

Surviving spouse and illegitimate children

SSIP

Surviving spouse and illegitimate parents

1/3 of estate to surviving spouse 1/3 of estate to illegitimate children ¼ of estate to surviving spouse ¼ of estate to illegitimate parents [Art903]

IC

Illegitimate children alone

½ of estate [Art901]

IP

Illegitimate parents alone

½ of estate [Art903]

CODAL PROVISION

NOTES

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining oneeighth of the estate. Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be onethird of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate.

Page 45 of 109

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

SUCCESSION degree of either line. ARTICLES GOVERNING THE PARTICULAR COMBINATIONS

 Legitimate

ART. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

parents/ascendants as secondary compulsory heirs – the legitimate ascending line succeeds only in default of the legitimate descending line.

 3 BASIC RULES ON SUCCESSION IN THE

ASCENDING LINE 1. The nearer exclude the more remote.  This rule in the ascending line its of no qualification, since there is no representation in the ascending line. [Art972 par1]

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.

2. Division by line.  This rule will apply if there are more than one ascendant in the nearest degree. The legitime shall then be divided in equal parts between the paternal line and the maternal line.

 Equal sharing – the legitimate children share the ½ in

equal parts, regardless of age, sec or marriage of origin. The provision should have been explicit about this. The counterpart provision in intestacy [Art979 par1 and Art980] is quite explicit on this.  Descendants other than children – the GR is that the

nearer exclude the more remote. Hence, grandchildren cannot inherit, since the children will bar the, unless all the children renounce, in which case the grandchildren become the nearest in degree. The rule goes on down the tine, great grandchildren cannot inherit unless all the children and grandchildren renounce.

3. Equal division within the line.  After the portion corresponding to the line has been assigned, there will be equal apportionment between or among the recipients within the line, should there be more than one.  Note – also, there is no right of representation in the

ascending line.

 The only qualification to the rule that the nearer

exclude the more remote in the descending line is representation when proper [Arts970-977]

 The operation of the principles of Division By Line

and Equal Division within the Line may cause inequality of shares among ascendants of identical degrees.  For example, if both legitimate parents of testator predecease him and testator has no other legitimate descendants, if there are 2 surviving maternal grandparents but only 1 surviving paternal grandparent – the ½ estate is divided equally between the maternal and paternal lines, but the 2 maternal grandparents must share the ¼ portion of the maternal line [they get 1/8 each] while the sole paternal grandparent gets the whole ¼ portion of the paternal line.

 There is no limit to the number of degrees in the

descending line that may be called to succeed, whether in their own right or by representation.

ART. 889. 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 provided. ART. 890. The legitime legitimate parents shall them equally; if one of have died, the whole survivor.

reserved for the be divided between the parents should shall to the

ART. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to onefourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in Page 46 of 109

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the

SUCCESSION paragraphs 2,3,4 and 5 of article 43 and by article 44 shall also apply in the proper cases to marriages which are void ab initio or annulled by final judgment under Articles 40 and 45.

surviving spouse shall be taken from the portion that can be freely disposed of by the testator.  1 LEGITIMATE CHILD / SURVIVING SPOUSE – the



The problem here will arise should either or both partners in the defective marriage remarry later.



Balane says that prescinding from the practical problem of having 2 husbands [or 2 wives] claiming the right to a legitime, the very principle underlying the rule is questionable – why should consorts of a terminated marriage, or an annulled one, or one declared void ab initio continue to be heirs of each other? The marriage – which forms the basis of the right of succession no longer exists.

sharing is ½ for the legitimate child and ¼ for the surviving spouse.  If there has been LEGAL SEPARATION between the

testator and the surviving spouse  If there is a final decree of legal separation 1. surviving spouse is the innocent party – he/she gets her legitime [Art63 par4 FC] 2. surviving spouse is the offending spouse – he/she is disqualified from inheriting [Art63 par4 FC]  If after the final decree of legal separation there was a reconciliation between the parties, the reciprocal right to succeed is restored because reconciliation sets aside the decree [Art66 par2 FC]

 LEGITIMATE CHILDREN / SURVIVING SPOUSE –

The sharing is ½ for the children collectively and for the spouse, equivalent to that of each of the legitimate children or descendants.  Determination of surviving spouse‟s share 1. As long as at least 1 of several children inherits in his own right, the determination of the share of the surviving spouse presents no problem. It will always be equivalent of one child‟s share. 2. But supposing ALL the children predecease or are disinherited or are unworthy to succeed? Since all the grandchildren would then inherit BY REPRESENTATION and therefore in different amounts, the practical solution will still be to give the spouse the share that each child would have gotten if qualified. 3. Supposing ALL the Children RENOUNCE, the grandchildren would inherit PER CAPITA or in their own right and therefore equally. Should the spouse‟s share still be computed on the basis of the children‟s share had they accepted? If so, then when will the word “or descendants” in the second paragraph of this article ever be operative?

 DEATH PENDENTE LITE – if either spouse dies

during the pendency of the proceedings for legal separation, the proceedings are TERMINATED and the surviving spouse inherits from the deceased spouse, no matter which spouse died.  Termination of Marriage by REAPPEARANCE of

prior Spouse / Decree of ANNULMENT or ABSOLUTE NULLITY of marriage  Arts 41-43 of FC govern a subsequent marriage contracted by a party whose spouse has been absent for the specified period and lay down the requisites therefor.  The reappearance of the prior spouse TERMINATES the second marriage. One of the effects of the termination as given in Art43[5] is – “The spouse who contracted the subsequent marriage in BAD FAITH shall be disqualified to inherit from the innocent spouse by testate and intestate succession.  The implication of Art43 is that – 1. If both consorts in the second marriage were in GOOD FAITH, they continue to be heirs of each other. 2. If only one of said consorts acted in bad faith, the innocent one will continue by testate and intestate succession. 



PROBLEM – A and B are married. A disappears and is absent for the required period. B then contracts a second marriage with C, both in good faith. Out of nowhere, A reappears [surprise!], and so the marriage between B and C is terminated. Under Art43[5] the reciprocal right of succession between A and B as the original spouses remains. What if B dies? Can A and C inherit from him/her? The same problem arises in cases of marriages judicially annulled or declared void ab initio, because of the provisions of Art50 par1 of the Family Code – “The effects provided for by

ART. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate.  LEGITIMATE ASCENDANTS / SURVIVING

SPOUSE - the sharing is ½ for the ascendants collectively and ¼ for the surviving spouse.  For the parents or ascendants, the sharing will be in accordance with Articles 889-890. [Legitimate parents/ascendants as secondary compulsory heirs – the legitimate ascending line succeeds only in default of the legitimate descending line.]

Page 47 of 109

SUCCESSION

ART. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.

½ for the illegitimate child, ¼ for the surviving spouse, and ¼ for each illegitimate child. These sharings are based on Art.892 of NCC and Art176 of FC.  LEGITIMATE CHILDREN / ILLEGITIMATE

CHILDREN / SURVIVING SPOUSE - the sharing is ½ for the legitimate children collectively, a share equal to that of one legitimate child for the surviving spouse, and ½ the share of one legitimate child for each illegitimate child.

 ILEGITIMATE CHILDREN / SURVIVING SPOUSE –

the sharing is 1/3 for the illegitimate children or descendants collectively and 1/3 for the surviving spouse.

 SHARING PRIOR TO THE FAMILY CODE



 Sharing among illegitimate children

1. If the decedent died during the effectivity of the FAMILY CODE – the sharing will be equal, inasmuch as the Family Code has abolished the old distinction between natural and illegitimate children other than natural or spurious [Arts 163, 165 and 178 of FC] 2. If the decedent died BEFORE the effectivity of the Family Code, the old distinctions must be observed.  The legitime of the spurious child will only be 4/5 that of a natural child, according to the ratio established in Art895 par2.  This ratio of 5:4 among natural and spurious children should be observed in all cases under the Civil Code where they concur.



 REDUCTION OF SHARES



ART. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.

If death occurred before the effectivity of the Family Code, this article will govern – consequently, should the natural and spurious children concur in the succession, each spurious child will get 4/5 the share of one natural child, and each natural child gets ½ the share of one legitimate child. Example  5 legitimate children and total estate is 1M. ½ of estate [500,000] divided by 5 so 1 Legit child – 100,000  Natural child – 50,000  Spurious child – 40,000 Should there be no natural children but only spurious children, each spurious child will get 2/5 share of one legitimate child.  1 legit child – 100,000  No natural children  Spurious child – 40,000

Depending on the number of legitimate and illegitimate children, the possibility exists that the total legitimes will exceed the entire estate. Reductions, therefore will have to be made in accordance with the following rules – 1. The legitimes of the legitimate children should never be reduced, they are PRIMARY and PREFERRED compulsory heirs 2. The legitime of the surviving spouse should never be reduced, this article prohibits this. 3. The legitimes of the illegitimate children will be reduced pro rata and without preference among them.

ART. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator.  ILLEGITIMATE CHILDREN / LEGITIMATE

 This article has been pro tanto amended by Articles

163, 165 and 176 of the Family Code.

PARENTS the sharing is ½ for the legitimate parents collectively and ¼ for the illegitimate children collectively. 

 ONE LEGITIMATE CHILD / ILLEGITIMATE

CHILDREN / SURVIVING SPOUSE – the sharing is

Page 48 of 109

For the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles 889-890.

SUCCESSION 

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph.

ART. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. ART. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article.

 SURVIVING SPOUSE AS SOLE COMPULSORY

HEIR –  General rule – ½ of the estate  Exception – 1/3 of the estate, if the following circumstances are present – a) The marriage was in articulo mortis b) The testator died within 3 months from the time of the marriage c) The parties did not cohabit for more than 5 years, and d) The spouse who died was the party in articulo mortis at the time of the marriage.

 The 2 articles are merely reiterations of the rules

already laid down in Articles 892 and 895 and need not be explained.

 NOTE – the last requisite is not explicit in the article

ART. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate.  LEGITIMATE PARENTS / ILLEGITIMATE

but can be derived from the sense and intent of the provision. The law does not regard such marriages with eager approval.

ART. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator.  ILLEGITIMATE CHILDREN ALONE – they get ½ of

CHILDREN / SURVIVING SPOUSE

the estate collectively. The sharing among the illegitimate children or descendants will depend on whether death occurred before or during the effectivity of the Family Code.

– the sharing is ½ for the legitimate parents collectively, ¼ for the illegitimate children collectively and 1/8 for the surviving spouse.  

For the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles 889-890. For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

ART. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate.  Right

ART. 900. If the only survivor is the widow or widower, she or he shall be entitled to onePage 49 of 109

of representation to the legitimate and illegitimate descendants of an illegitimate child.

SUCCESSION  Rule of Article 902 compared with Rule of Article 992

– In the case of descendants of legitimate children, the right of representation is given only to legitimate descendants, by virtue of Art992.

degree and who belong to the line from which said property came.  The Reserva Troncal

 The net effect of all this is that the right of

Origin

representation given to descendants of illegitimate children is BROADER than the right of representation given to descendants of legitimate children. Thus, an illegitimate child of a predeceased legitimate child cannot inherit by representation [Art992], while an illegitimate child of an illegitimate child can [Art902]. A classic instance of unintended consequence.

ART. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate.  ILLEGITIMATE PARENTS ALONE – they get ½ of

the estate. Note that in the illegitimate ascending line, the right DOES NOT go beyond the parents.

 ILLEGITIMATE PARENTS / SURVIVING SPOUSE

– the sharing is ¼ for the parents collectively and ¼ for the spouse.  Illegitimate parents EXCLUDED by all kinds of

children – as secondary compulsory heirs, the illegitimate parents are inferior to legitimate parents. Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate.

RESERVA TRONCAL

Reservista

By Gratuitous Title

Reservatarios (Relative w/in 3rd degree of Prepositus)

By Operation of Law

Prepositus



The Prepositus inherits a piece of land from his father, the Origin. Subsequently, the Prepositus dies intestate, single and without issue, and the land is in turn inherited by his mother, the Reservista. The Reservista is then required to reserve the property in favor of the Prepositus‟ rd paternal relatives within the 3 degree (Reservatarios).

 Reservas and Reversiones in the Spanish Code 1. Reserva Viudal 2. Reserva Troncal 3. Reversion Legal 4. Reversion Adoptiva  Purpose of the Reserva Troncal  The reserve troncal is a special rule designed primarily to assure the return of the reservable rd property to the 3 degree relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the relatives of the inheriting ascendant [the reservista].  Also to avoid the danger that property existing for many years in a family‟s patrimony might gratuitously to outsiders through the accident of marriage and untimely death.  PROCESS – 3 Transmissions Involved 1. First Transfer – by gratuitous title, from a person to his descendant, brother or sister. 2. Second Transfer – by operation of law, from the transferee in the first transfer [prepositus] to another ascendant [reservista]. It is this second transfer that creates the reserva. 3. Third Transfer – from the transferee in the second transfer [reservista] to the relatives rd within the 3 degree of the Prepositus, coming from the line of the Origin. 

Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by 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 Page 50 of 109

If there are only two transmissions, there is no reserva [Gonzales v CFI]

SUCCESSION b)

REQUISITES OF RESERVA TRONCAL 1.

That the property was acquired by a descendant [prepositus] from an ascendant or from a brother or sister [origin] by gratuitous title. o The term descendant should read person because if the grantor is a brother or sister, the one acquiring obviously is not a descendant. o Acquisition is by gratuitous title when the recipient does not give anything in return. It encomes transmissions by donation or by succession of whatever kind.

2.

That said descendant without an issue.

[prepositus]

died

o Should read – “that said person died without legitimate issue, because only legitimate descendants will prevent the property from being inherited by the legitimate ascending line by operation of law. 3.

That the property is inherited by another ascendant [reservista] by operation of law; and o Transmission by operation of law is limited by succession, either to the legitime or by intestacy.

4.

rd

That there are relatives within the 3 degree belonging to the line from which said property came [reservatarios]. o These relatives, called the reservatarios or rd reservees, are those that are within the 3 degree of the line of the Origin.

 2 BASIC RULES I. No inquiry is to be made beyond the Origin/ Mediate Source. It does not matter who the owner of the property was before it was acquired by the Origin. II. All the relationships among the parties must be legitimate. The provisions of Art891 only apply to legitimate relatives.  4 PARTIES TO THE RESERVA TRONCAL 1. ORIGIN OR THE MEDIATE SOURCE o He is either the ascendant or a brother or sister of the Prepositus. o Ascendant from any degree of ascent. o Brother/Sister – 2 Schools of Thought a) Relationship must be of HALF BLOOD – because otherwise the property would not change lines. This means that if the relationship is Full Blood, there is no reserve because then it would not be possible to identify the line of origin. Page 51 of 109

It does not matter whether the fraternal relationship is of the full or half-blood. In either case, a reserve may arise. Since the law makes no distinction, we should not make one.

2. PREPOSITUS o He is either the descendant or a brother/ sister of the Origin who receives the property from the Origin by gratuitous title. Thus, in the scheme of the reserva troncal, he is the FIRST transferee of the property. o While the property is still with the Prepositus, there is yet NO RESERVA. The reserva arises only upon the second transfer. o Consequently, while the property is owned by the Prepositus, he has all the rights of ownership over it and may exercise such rights in order to prevent a reserva from arising. He can do this by – a) Substituting or alienating the property b) Bequeathing or devising it either to the rd potential reservista or to 3 persons [subject to constraints of the legitime] c) Partitioning in such a way as to assign the property to parties other than the potential reservista [again subject to the constraints of the legitime]. o In this sense, the Prepositus is deemed the Arbiter of the Reserva Troncal. 3. RESERVISTA [RESERVOR] o He is an ascendant of the Prepositus, of whatever degree. The Reservista must be an ascendant other than the Origin/ Mediate Source [if the latter is also an ascendant]. o The law is clear - it refers to the Origin/ Mediate Source as another ascendant. If these two parties are the same person, there would be no reserva troncal. o Should the Origin/Mediate Source and the Reservista belong to Different Lines? - Example: A receives by donation a parcel of land from his paternal grandfather X. Upon A‟s death, the parcel es by intestacy to his father Y [X‟s son]. The property never left the line, is Y obliged to reserve? - One View – NO, because another ascendant is one belonging to a line other than that of the reservista. - Another View – YES, because [1] the law makes no distinction, and [2] the purpose of the reserve is not only curative but also preventive, i.e. to prevent the property from leaving the line. 4. RESERVATARIOS [RESERVEES] o The reserva is in favor of a class, collectively referred to as the Reservatarios [reservees].

SUCCESSION o REQUIREMENTS TO BE A RESERVATARIO: rd 1) He must be within the 3 degree of consanguinity from the Prepositus.

ordinary intestate succession, since Art891 does not specify otherwise. - Thus, according to the Padura ruling, which subjects the choice of reservatarios to the rules of intestate succession, those reservatarios nearer in degree of relationship to the Prepositus will exclude those more remotely related.

2) He must belong to the line from which the property came. This is determined by the Origin/Mediate Source. - If an ascendant, the Mediate Source is either of the paternal or maternal line. - If a half-brother or half-sister, the same is true. - If however, it is a brother or sister of the full blood, it would not be possible to distinguish the lines. - To those who hold the opinion that a reserva would not exist in such case of full blood siblings, Manresa‟s comment should be the norm: “that the question of line would be indifferent.”

o Representation Among the Reservatarios - As in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of representation. - The right of representation cannot be alleged when the one claiming the same as a reservatario of the reservable property is not among the relatives within rd the 3 degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Art811 is in the highest degree personal and for the exclusive benefit of designated persons who are the rd relatives withint the 3 degree of the person from whm the reservable property came. Therefore, relatives of th the 4 degree and the succeeding degrees can never be considered as reservatarios since the law does not recognize them as such. - Nevertheless, there is a right of representation on the part of the rd reservatarios who are within the 3 degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants [fathers and mothers] who are the brothers of the said deceased person and relatives rd within the 3 degree in accordance with Art811. [Florentino v. Florentino] - Actually, there will only be 1 instance of representation among the reservatarios, which is in case of the Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother or sister.

o Question – must the Reservatario also be related to the Mediate Source? - Manresa says NO, the article speaks solely of 2 lines, the paternal and the maternal of the descendant, without regard to subdivisions. - Sanchez Roman says YES, otherwise results would arise completely contrary to the purpose of this reserva, which is to prevent the property from ing to persons not of the line of origin. o Reserva in favor of reservatarios as a CLASS - to be qualified as a reservatario, is it necessary that one must already be LIVING when the prepositus dies? - NO, because the reserva is established in favor of a GROUP or CLASS, the rd relatives within the 3 degree, and not in favor of specific individuals. - As long, therefore, as the reservatario is alive at the time of the reservarista‟s death, he qualifies as such, even if he was conceived and born after the Prepositus’ death. o Preference Among the Reservatarios - Upon death of the ascendant reservista, the reservable property should , not to all the reservatorios as a class, but only to those NEAREST in degree to the descendant [prepositus], excluding those reservatarios of more remote degree. [Padura v. Baldovino] - In other words, the reserve troncal merely determines the group of relatives [reservatarios] to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of

 Juridical Nature of Reserva Troncal  The juridical nature of the reserve troncal may be viewed from 2 aspects – from that of the reservista and that of the reservatarios.

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1. Juridical Nature from the viewpoint of the RESERVISTA - Manresa says that “the ascendant is in the first place a USUFRUCTUARY who should use and enjoy the things according to their nature, in the manner and form already set forth in the Code referring to use and usufruct.”

SUCCESSION - But since in addition to being the usufructuary, he is, even though CONDITIONALLY, the owner in fee simple of property, he CAN DISPOSE of it in the manner provided in Articles 974 and 976 of the Code. - The conclusion is that the person required by Art811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, the LEGAL TITLE and DOMINION, although under a CONDITION subsequent [whether or not there exist at the time of his death relatives within the rd 3 degree of the descendant from whom they inherit in the line whence the property proceeds]. - Clearly, he has, under an express provision of law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. [Edroso v Sablan] 

From Edroso, the following may be derived: A. The reservista‟s right over the reserved property is one of ownership. B. The ownership is subject to a RESOLUTORY CONDITION, i.e. the existence of reservatorias at the time of the reservista‟s death. C. The right of ownership is alienable, but subject to the same resolutory condition. D. The reservista‟s right of ownership is able. 2. Juridical Nature from the viewpoint of the RESERVATARIOS - The nature of the reservatarios‟ right is, Manresa says, that “during the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the rd relatives within the 3 degree, after the right that in their turn may pertain to them has been assured, have only an EXPECTATION and therefore they do not even have the capacity to transmit that expectation to their heirs.” rd - The relatives within the 3 degree in whose favor the right is reserved cannot dispose of the property, first because it is in no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the

hypothesis that only when the person who must reserve the right should die before them will they take their place in the succession of the descendant of rd whom they are relatives within the 3 degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. [Edroso v. Sablan] - The reserva instituted by law instituted rd by law in favor of the heirs within the 3 degree belonging to the line from which the reservable property came, constitutes a REAL RIGHT which the reserve may alienate and dispose of, albeit conditionally, the CONDITION being that the alienation shall transfer ownership to the vendee only if an when the reserve survives the person obliged to reserve. [Sienes v. Esparcia] 

From Sienes, the following may be derived: A. The reservatarios have a right of expectancy over the property. B. The right is subject to a SUSPENSIVE CONDITION, i.e. the expectancy ripens into ownership if the reservatarios survive the reservista. C. The right is alienable, but subject to the same suspensive condition. D. The right is able.



Florentino v. Florentino also held that the reservista has NO POWER to appoint, by will, which specific individual of the reservatarios were to get the reserved property. [As also held in Gonzales v. CFI].



The reservees do not inherit from the reservoir but from the PREPOSITUS, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor. [Padura v. Baldovino as cited in Gonzales v. CFI]



The rule in this jurisdiction, therefore, is that upon the reservista’s death, the property es by strict operation of law [according to the rules of intestate succession, as held in Padura], to the proper reservatarios. Thus, the selection of which reservatarios will get the property is made by law and not by the reservista.

 The Property Reserved  Any kind of property is reservable. A sugar quota allotment, as incorporeal property, was held to be reservable in Rodriguez v. Rodriguez. 

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Effect of Substitution o The very same property must go through the process of transmissions, in order for the reserva to arise. Thus, the same property

SUCCESSION o Problem: if 2 circumstances occur - The prepositus makes a will instituting the ascendant-reservista to the whole or a part of the free portion, and - There is left in the Prepositus‟ estate, upon his death, in addition to the reserved property, property not reservable.

must come from the Mediate Source, to the Prepositus by gratuitous title, and to the reservista by operation of law. o If the prepositus substitutes the property by selling, bartering or exchanging it, the substitute cannot be reserved. o Note that while the property is with the Prepositus, there is yet no reserva, which commences when the property id received by the reservista. o Consequently, the Prepositus has, over the property, plenary powers of ownership, and he may exercise these powers to thwart the potential reserva. The Prepositus is the arbiter of the reserva. 

QUESTION – would there be a reserva if the Prepositus sold the property under pacto de retro and then redeemed it?



Reserved Property Does Not Form Part of the Reservista‟s Estate Upon his Death o The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista‟s successor mortis causa nor is the reservable property part of the reservista‟s estate; the reservatario receives the property as a conditional heir of the Prepositus, said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista‟s lifetime. o It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by the reservatario may be entered in the property records without necessity of estate proceedings, since the basic requisites therefor appear of record. [Cano v. Director] o Of course, where the registration decree merely specifies the reservable character of the property, without determining the identity of the reservatario or where several reservatarios dispute the property among themselves, further proceedings are unavoidable. o As a consequence of the rule laid down in Cano, since the reserved property is not computed as part of the reservista’s estate, it is not taken into in determining the legitimes of the reservista’s compulsory heirs.



RESERVA MAXIMA – RESERVA MINIMA

o 2 Theories have been Advanced - Reserva Maxima – as much of the potentially reservable property as possible must be deemed included in the part that es by operation of law. This “maximizes” the scope of the reserva. - Reserva Minima – every single property in the Prepositus‟ estate must be deemed to , partly by will and partly by operation of law, in the same proportion that the part given by will bears to the part not so given. o Reserva Minima is more widely accepted.  Rights and Obligations  There are no specific implementing articles on the reserva troncal.  Under the Old Code, the provisions viudal were extended to the troncal, thus the rights of the reservatarios and the corresponding obligations of the reservista were: a. To inventory the reserved properties b. To annotate the reservable character [if ed immovables] in the Registry of Property within 90 days from acceptance by the reservista. c. To appraise the immovables d. To secure by means of mortgage: [i] the indemnity for any deterioration of or damage to the property occasioned by the reservista‟s fault or negligence, and [ii] the payment of the value of such reserved movables as may have been alienated by the reservista onerously or gratuitously. 

The abolition of the reserva viudal has caused some uncertainty whether these requirements still apply.



It was held in Sumaya v. IAC that the requirement of annotation remains, despite the abolition of reserva viudal, as based on Sec51 of PD1529 providing for conveyance and other dealings by ed owners.



Sumaya is however, silent on 2 points: 1. Within what period must the annotation be made, and 2. Whether the other requirements of the old viudal also remain.

 Extinguishment of the Reserva Troncal  The reserve troncal is extinguished by: 1. Death of the Reservista 2. Death of ALL the Reservatarios

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SUCCESSION 3.

4. 5.

6.

“The Family Home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.”

Renunciation by ALL the Reservatarios, provided that no other reservatario is born subsequently Total fortuitous loss of the reserved property Confusion or merger of rights, as when the reservatarios acquire the reservista‟s right by a contract inter vivos Prescription or adverse possession B.

Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever.  As already laid down in Art886, the legitime is not within the testator‟s control. It es to the compulsory heirs by strict operation of law.  Testator Devoid of Power to Deprive Compulsory Heirs of Legitime  It is the law, not the testator, which determines the transmission of the legitimes. Consequently, it is not within the testator‟s power to deprive the compulsory heirs of their legitime.  EXCEPTION – the only instance in which the law allows the testator to deprive the compulsory heirs of their legitimes is DISINHERITANCE under Arts915-923, the grounds being set forth under Arts919-921.  Testator Devoid of Power to Impose Burdens on Legitime  As also reiterated in Art872, the testator cannot impair the legitime, as a consequence of the principle that the legitime es by strict operation of law.  EXCEPTIONS – When the Law grants the Testator Some Power over the Legitime 1. Article 1080 par2 – “A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.” 2.

Article 1083 par1 – “Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed 20 years as provided in article 494. This power of the testator to prohibit division applies to the legitime.”

 Restrictions on Legitime Imposed by Law A. Article 159, Family Code

The Reserva Troncal

Art. 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise.  Reason for the Rule  Before the predecessor‟s death, the heir‟s right is simply inchoate.  Duty to Collate  Any property which the compulsory heir may have gratuitously received from his predecessor by virtue of the renunciation or compromise will be considered an advance on his legitime and must be duly credited.

 Scope of Prohibition  This article applies only to transactions of compromise or renunciation between the predecessor and the prospective compulsory heir.  QUESTION – Is a transaction between the prospective compulsory heir and another prospective compulsory heir, or between a prospective compulsory heir and a stranger, interdicted?  YES under Article 1347 par2: “No contract may be entered into upon future inheritance except in cases expressly provided by law.”

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.  RIGHT OF COMPLETION OF LEGITIME  This rule applies only to transmissions by gratuitous title.  Cross-References, related articles  Art855 – if the title by which the testator transmitted property is intestate succession

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SUCCESSION Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.



In relation to Arts909 and 910

 The principle underlying this rule on completion of legitime is that anything that a compulsory heir receives by gratuitous title from the predecessor is considered an advance on legitime and is deducted therefrom  EXCEPTIONS 1. Art1062 – if the predecessor gave the compulsory heir a donation inter vivos and provided that it was not to be charged against the legitime. 2. Art1063 – testamentary dispositions made by the predecessor to the compulsory heir, unless the testator provides that it should be considered part of the legitime.

MANNER OF COMPUTING THE HEREDITARY ESTATE 1.

Inventory all the Existing Assets a) This will involve appraisal/valuation of the existing assets at the time of the decedent‟s death b) These assets include only those properties that survive the decedent, i.e. those which are not extinguished by his death [in relation to articles 774 and 777]. c) The value determined by this inventory will constitute the GROSS ASSETS.

2.

Deduct Unpaid Debts and Charges a) All unpaid obligations of the decedent should be deducted from the gross assets. b) Only those obligations with monetary value which are not extinguished by death are considered. Thus, those obligations which are purely personal are not taken into . c) The difference between the gross assets and the unpaid obligations will be the AVAILABLE ASSETS.

3.

Add the Value of Donations Inter Vivos a) To the available assets should be added all the inter vivos donations made by the decedent. b) The donations inter vivos shall be valued as of the time they were respectively made. Any increase or decrease in value from the time they were made to the time of the decedent‟s death shall be for the of the donee, since the donation transfers ownership to the donee. c) The sum of the available assets and all the donations inter vivos is the NET HEREDITARY ESTATE.

Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.  Based on the same principle as art904. If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to the extent hat the legitimes have been impaired. To allow the testator to make testamentary dispositions that impair the legitime would in effect allow him to deprive the compulsory heirs of part of their legitime – an act which is prohibited by Art904.  This article should be read together with Art911.

Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them.  The NET HEREDITARY ESTATE  Articles 888-903 set forth the legitimes of the compulsory heirs, either inheriting alone or in various combinations. Those articles gave the legitimes in the form of fractions, or proportions of the decedent‟s estate.  This article makes possible the computation of the absolute amounts of the legitimes by laying down the manner of computing the net value of the estate [the net hereditary estate], on which the proportions are based.

 COLLATION  Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, s that the division may be made according to law and the will of the testator.  Collation is only required of compulsory heirs succeeding with other compulsory heirs and

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SUCCESSION





involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on of his share in the estate, and that the predecessor‟s will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the of the heir or donee. [Vizconde v CA]

 

Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code.  Donations Inter Vivos to Compulsory Heirs  Donations inter vivos to a compulsory heir shall be imputed to his legitime, i.e. considered as an advance on his legitime. 

Coverage of Rule o Applies to ALL compulsory heirs o Note that these 2 articles omit [inadvertently] ascendants who succeed as compulsory heirs. This rule applies to them as well. o For obvious reasons, this rule has no application to a surviving spouse.



Exception o This rule of imputation to the legitime will not apply if the donor provided otherwise [in relation to Article 1062], in which case the donation will be imputed to the disposable portion of the estate.

A stranger is anyone who does not succeed as a compulsory heir. Donations inter vivos to strangers are necessarily imputed to the DISPOSABLE PORTION.

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose.  This provision implements the principle laid down in Articles 872, 886 and 904 - the inviolability of the legitime.  Thus, if the legitimes are impaired, the gratuitous dispositions of the testator [either inter vivos or mortis causa] have to be set aside or reduced as may be required to cover the legitimes.  Method of Reduction  There is an order of priorities to be observed in the reduction of the testator‟s gratuitous dispositions, thus – A. First, reduce pro rata the non-preferred legacies and devises [Art911 (2)], and the testamentary dispositions [Art907]. Among these legacies, devises and testamentary dispositions, there is no preference. B. Second, reduce pro rata the preferred legacies and devises [Art911, last par.] C. Third, reduce the donations inter vivos according to the inverse order of their dates [i.e. the oldest is the most preferred] [Art773]. 

 Donations Inter Vivos to Strangers Page 57 of 109

These reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is reduced to nothing.

SUCCESSION 

An apparent conflict exists between this article and Art950, regarding the order of preference among legacies and devises, should reductions be necessary. [See discussions under Art950]

 DEVISES/LEGACIES OF USUFRUCT/ LIFE ANNUITIES/ PENSIONS UNDER PAR. 3  The following principles shall be borne in mind: A. If, upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion [i.e. it impairs the legitime], it has to be reduced, because the legitime cannot be impaired. B. The testator can impose no usufruct or any other encumbrance on the part that es as legitime. C.Subject to the 2 rules stated, the compulsory heirs may elect between: i. Ceding to the devisee/legatee the free portion[or the proportional part thereof corresponding to the said legacy/devise, in case there are other dispositions], or ii. Complying with the of the usufruct or life annuity or pension.

Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime.  This rule covers cases where: 1) The devise has to be reduced, and 2) The thing given as a devise is indivisible  RULES 1. If the extent of reduction is LESS THAN ½ of the value of the thing – it should be given to the devisee. 2. If the extent of reduction is ½ OR MORE of the value of the thing – it should be given to the compulsory heir.

who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties.  This article applies if neither party [the compulsory heir/s and the devisee] elects to exercise his right under Art912.  How the Thing Devised Should be Disposed Of: A. Any other heir or devisee, who elects to do so, may acquire the thing and pay the parties [the compulsory heir and the devisee in question] their respective shares in money. B. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided between the parties concerned.  Note – this rule of constructive partition is similar to that in co-ownership [Art498] and in partition of the decedent‟s estate [Art1086], except that, in these two latter cases, the acquisition by one of the co-owners or co-heirs can be done only if all the co-owners or coheirs agree to such acquisition.

Art. 914. The testator may devise and bequeath the free portion as he may deem fit.  Simply a re-statement of Art842.

SECTION 6. – DISINHERITANCE Art.

915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law.

 Art904 sets forth the rule that the testator cannot deprive the compulsory heirs of the legitime. The sole exception to this rule is DISINHERITANCE. Thus, disinheritance is the only instance in which the testator may deprive his compulsory heirs of their legitime.

 In either case, there should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised.

Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee Page 58 of 109

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REQUISITES OF A VALID DISINHERITANCE 1.

It must be made in a Will - Must be formally valid and itted to probate

2.

It must be for a Cause specified by law under Articles 916 in relation to Articles 919-921

- For Ascendants [Article 920] a) Abandoned children or induced daughters to live corrupt or immoral life or attempted against their virtue b) Convicted of attempt against life of testator, his or her spouse, descendant or ascendants c) Accused testator of a Crime punishable by Imprisonment for 6 years or more, if the accusation has been found to be False d) Convicted of adultery / concubinage with the spouse of the testator e) By Fraud, Violence, Intimidation or Undue Influence causes testator to Make a Will or Change one already made. f) Loss of Parental Authority for causes specified in this Code g) Refusal to Children or Descendants W/O justifiable cause h) Attempt by 1 of the parents against the life of the other, unless there has been reconciliation between them

- For Descendants [Article 919] a) Guilty of an Attempt Against the Life of the Testator or the latter‟s spouse, descendants or ascendants b) Accused Testator of Crime punishable by 6 years or more, and the accusation is found to be Groundless c) Convicted of Adultery or Concubinage with Spouse of the Testator d) By Fraud, Violence, Intimidation or Undue Influence causes Testator to Make Will or Change 1 already made. e) Refusal without justifiable cause to the parent or ascendant who disinherits f) Maltreatment of testator by word/deed g) Leads dishonorable or disgraceful life h) Conviction of a crime carrying civil interdiction

- For Surviving Spouse [Article 921] a) Convicted of Attempt against life of Testator, his/her descendants/ascendants. b) Accused Testator of a Crime punishable with imprisonment for 6 years or more, and the accusation is fond to be False. c) Spouse, by Fraud, Violence, Intimidation, or Undue Influence causes the testator to make a Will or change one already made. d) Has given cause for legal separation e) Has given grounds for loss of parental authority f) Unjustifiable refusal to the children or the other spouse - If this is not present, or the cause specified is not among those set forth in the Code, there is ineffective disinheritance under article 918. 3.

It must Specify the cause [Arts 916 and 918] - If this is not present, there is ineffective disinheritance under article 918.

4.

It must be Unconditional

5.

It must be Total

6.

The cause must be True

7.

If the truth of the cause is Denied, it must be Proved by the proponent. - If the controverted cause is not proved, there is ineffective disinheritance under article 918. - All the disinherited heir need do is deny the cause and the burden is thrown upon those who would uphold the disinheritance.

 Note – the strictness of the requisites indicates the policy of the law. It regards disinheritance with disfavor and will grant it only with reluctance, because disinheritance results in deprivation of legitime.  EFFECT OF DISINHERITANCE Page 59 of 109

SUCCESSION 

The effect of disinheritance is not just deprivation of the leigtime, but total exclusion of the disinherited heir from the inheritance. Thus, the disinherited heir forfeits: A. His legitime, B. His intestate portion, if any, and C. Any testamentary disposition made in a prior will of the disinheriting testator.

o If he did, these dispositions are VALID and the compulsory heir improperly disinherited gets only his legitime. o If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well. 

Note the difference between the effect of ineffective disinheritance and that of preterition under article 854: Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises 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.

Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.  Made in a Will – the 1 clause of this article constitutes the first requisite of disinheritance, that it must be made in a will.  The will obviously, must be FORMALLY VALID and must be itted to PROBATE. st

 Legal Cause – is the 2 requisite for a valid disinheritance. The causes allowed by law are enumerated in Articles 919 [for descendants], 920 [for ascendants] and 921 [for the surviving spouse]. nd

Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it.  7 requisite – it not presumed, it heir need do is thrown upon disinheritance. TH

must be noted that the truth here is must be proved. All the disinherited deny the cause and the burden is those who would uphold the

Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.  This article sets forth requisites 3 and 6 of disinheritance.  INEFFECTIVE DISINHERITANCE  If the disinheritance lacks one or other of the requisites mentioned in this article, the heir in question gets his legitime.  As to whether he will also get any part of the intestate portion or not, this depends on whether the testator gave away the free portion through testamentary dispositions.

Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction.  There are 8 Causes for disinheritance of Children or Descendants – Whether Legitimate or Illegitimate [Exclusive enumeration]

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1.

Has been found Guilty of an Attempt Against the Life of the Testator or the latter’s spouse, descendants or ascendants o The word attempt here is used nontechnically and should not be construed to

SUCCESSION

o o o o

2.

right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance.

limit the provision to the attempted stage of the felony. All stages of commission are included – whether attempted, frustrated, or consummated. The felony, obviously, must be an intentional one. FINAL CONVICTION is required. Question – must the disinheritance be subsequent to the conviction or may it precede the conviction? - By the wording of the law, it seems that it must be subsequent [?]

o The demand must have been unjustifiably refused. Refusal may be justified if the obligor does not have enough resources for all whom he is obliged to . The rd ascendants are only 3 in the hierarchy of preference among claimants of [under Art200 par3 of the Family Code].

Has Accused the Testator of a Crime punishable by 6 years or more, and the accusation is found to be Groundless o The word accused here is used generically and will include: a) Filing of a complaint before the prosecutor, or b) Presenting incriminating evidence against the testator, or c) Even suppressing exculpatory evidence o The crime of which the testator is accused must carry a penalty of at least 6 years imprisonment. - Prof. Balane says that the terminology used should be “more than 6 years imprisonment” because 6 years still falls within prision correccional. 1 day beyond that places it within the next higher penalty of prision mayor. - If the penalty prescribed is prision correccional, does it fall under the contemplation of this paragraph?

Art. 200. When the obligation to give falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred.

6.

Maltreatment of the testator by word or deed o This will include a wide range of misdeeds, but it is required that the act of verbal or physical assault is of a serious nature. o No conviction is required, in fact, it is not even required that any criminal case be filed. o Consequently, a physical assault that would not fall under par1 as an attempt against the life of the testator, the latter‟s spouse, descendants or ascendants, can fall under this paragraph.

7.

Leads a dishonorable or disgraceful life o The operative word here is “lead.” There must be habituality to the conduct to make it fall under this paragraph. o The dishonorable or disgraceful conduct or pattern of behavior need not be sexual in nature, although it may often be that. Surely, a child or descendant whose livelihood is drug-pushing or smuggling is living a dishonorable and disgraceful life.

8.

Conviction of a crime carrying civil interdiction o Final Conviction is required. o The accessory penalty of civil interdiction is imposed with the principal penalties of

o The testator must be ACQUITTED. o The accusation must be found to be groundless, i.e. the judgment of acquittal must state that either – a) No crime was committed or b) The accused did not commit the crime o An acquittal based on reasonable ground will not be a ground for disinheritance. 3.

Has been Convicted of Adultery or Concubinage with the Spouse of the Testator o Final Conviction is required o Same question – must the disinheritance be subsequent to the conviction?

4.

By Fraud, Violence, Intimidation or Undue Influence causes the Testator to Make a Will or Change one already made.

5.

Refusal W/O justifiable cause to the parent or ascendant who disinherits o There must have been a need and a demand for [in relation to Art 203 of the Family Code]

Art. 203. The obligation to give shall be demandable from the time the person who has a Page 61 of 109

SUCCESSION death, reclusion perpetua and reclusion temporal [under Articles 40-41 of the RPC]. o Same question – must the disinheritance be subsequent to the conviction?

Art. 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

and maintenance, her silence and inaction having been prolonged for such a time, then it can be legally inferred that there is abandonment. Question – will consent to adoption of a child constitute abandonment? b) Inducement to live a corrupt and immoral life – under Art231[2] of the Family Code as a ground for suspension or deprivation of parental authority. c) Attempt against Virtue conviction is required here.

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no

2.

Convicted of attempt against life of testator, his or her spouse, descendant or ascendants.

3.

Has Accused testator of a Crime punishable by Imprisonment for 6 years or more, if the accusation has been found to be False.

4.

Has been Convicted of adultery or concubinage with the spouse of the testator.

5.

By Fraud, Violence, Intimidation or Undue Influence causes testator to Make a Will or Change one already made.

6.

The Loss of Parental Authority for causes specified in this Code o Not all causes for loss of parental authority are grounds for disinheritance. For instance, attainment of the age of majority is not a ground. Only those causes which involve culpability on the part of the parents will provide grounds for disinheritance. a) Judicial deprivation of parental authority based on ground of sexual abuse [Arts232 FC] b) Loss of parental authority as a result of Judicial declaration of abandonment of a child [Art229(3) FC] c) Judicial Deprivation of Parental Authority on the grounds of: i. Excessively harsh or cruel treatment of the child ii. Giving the child corrupting orders, counsel or example. iii. Compelling the child to beg, or iv.Subjecting the child or allowing him to be subjected to acts of lasciviousness [Art231 FC]

7.

Refusal to the Children or Descendants without justifiable cause

 There are also 8 Causes for the Disinheritance of Parents or Ascendants, whether Legitimate or Illegitimate. [Exclusive enumeration] 1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life or attempted against their virtue o This paragraph encomes 3 grounds: a) Abandonment – also includes those penalized by law under articles 276277 of the RPC, Article 59 of PD603 and all conduct constituting repeated or total refusal or failure to care for the child. According to the case of Chua v. Cabangbang, mere acquiescence without more is not sufficient to constitute abandonment. However, when the mother completely withheld her presence, her love, her care and the opportunity to show maternal affection; and totally denied her

–

SUCCESSION 8.

Attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

d)

e)  Paragraphs 2, 3, 4, 5 and 7 are the same grounds for disinheritance of a descendant or child.

Art. 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to the children or the other spouse.  There are 6 causes for disinheriting a Spouse – these grounds are exclusive. 1. Spouse is convicted of an Attempt against the life of the Testator, his or her descendants or ascendants. 2.

Spouse Accused Testator of a Crime for which the law prescribes imprisonment for 6 years or more, and the accusation is fond to be False.

3.

The Spouse, by Fraud, Violence, Intimidation, or Undue Influence causes the testator to make a Will or change one already made.

4.

Spouse has given cause for legal separation o A decree of legal separation is not required. o According to Art55 of the Family Code, there are 10 grounds for legal separation: a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child or a child of the petitioner [natural or adopted]. b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of petitioner [natural or adopted] to engage in prostitution or connivance in such corruption or inducement.

f) g)

h) i) j)

Final judgment sentencing the respondent to imprisonment of more than 6 years, even if pardoned. Drug addiction or habitual alcoholism of the respondent Lesbianism or homosexuality of the respondent Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad Sexual infidelity or perversion Attempt by the respondent against the life of the petitioner Abandonment of the petitioner by respondent without justifiable cause for more than 1 year.

5.

Has given grounds for loss of parental authority

6.

Unjustifiable refusal to the children or the other spouse

 Paragraphs 1, 2, 3, 5 and 6 are also enumerated under grounds for disinheritance of a descendant or child.

Art. 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made.  Meaning of Reconciliation – either an express pardon extended by the testator to the offending heir or unequivocal conduct of the testator towards the offending heir which reveals the testator‟s intent to forgive the offense. a) If Express Pardon – a general pardon extended by the testator on his deathbed to all who have offended him will not suffice; it must be a pardon expressly and concretely extended to the offender, who accepts it. b) If conduct – the intent to forgive must be clear. This is ultimately a question of fact which will be resolved, in case of controversy, by the courts.  Effect of Reconciliation a) If it occurs before disinheritance is made – right to disinherit is extinguished b) If it occurs after the disinheritance is made – disinheritance is set aside. The effects of setting aside the disinheritance are: i. The disinherited heir is restored to his legitime ii. If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate share [in intestacy] if any, of the disposable portion. iii. If the disinheriting will disposed of disposable portion [or any part thereof] in favor of testamentary heirs, legatees or devisees, such dispositions remain valid.

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SUCCESSION  Article 922 is in relation to Article 1033.

Art. 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or istration of the property which constitutes the legitime.  Right of Representation in Disinheritance  The right of representation is granted only to descendants of disinherited descendants.  This rule is laid down in Art972 par1 which provides: “the right of representation takes place in the direct descending line, but never in the ascending.”  Thus, a disinherited child will be represented by his children or other descendants.  However, if the heir disinherited is a parent/ascendant or spouse, the children or the descendants of the disinherited heir do not have any right of representation. Thus, this article is carelessly worded.  Extent of Representation  The representative take the place of the disinherited heir not only with respect to the legitime, but also to any intestate portion that the disinherited heir would have inherited.  Representation therefore occurs in compulsory and intestate succession, but not in testamentary succession.

SECTION 7. LEGACIES AND DEVISES

Art. 924. All things and rights which are within the commerce of man be bequeathed or devised.  Definition of Legacies and Devises – legacies and devises are codally defined [by indirection] in Art782 par2  A more accurate definition of the can be found either in Art660 of the Spanish Code or in Castan – o Article 660 of the Spanish Code - Legacy: testamentary disposition of personal property by particular title - Devise: testamentary disposition of real property by particular title o Castan - Legacy: testamentary disposition of specific or generic personal property - Devise: testamentary disposition of specific or generic real property.

 It is important, in defining a legacy or a devise, to distinguish it from a testamentary disposition to an heir because of the effects of preterition. Essentially, the difference is that an heir receives an aliquot or fractional part of the inheritance, whereas a legatee or devisee receives specific or generic personalty or realty, respectively.  What can be devised or bequeathed - anything within the commerce of man. It is not required that the thing devised or bequeathed belong to the testator.  Limitations on Legacy or Devise – it should not impair the legitime.

Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. Art. 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit.  WHO is charged with the Legacy  General Rule – the Estate Exception – however, the testator may impose the burden on a testamentary heir or a legatee or devisee. If he does so, then the heir, legatee or devisee charged will, if he accepts the disposition in his favor, be bound to deliver the legacy or devise to the person specified. This will be in the nature of a subsidiary legacy or devise. As far as the heir, legatee or devisee charged is concerned, it will be a MODE.  The wording of Art925 is erroneous because a compulsory heir, as such, cannot be burdened with a legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened.  Extent of liability of heir, devisee or legatee in case of subsidiary legacies or devises – the value of the benefit received from the testator.

Art. 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent.  The liability imposed by this article is based on malice, fault or negligence.

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SUCCESSION  This liability will also attach to the executor or in the proper cases.

Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.  WHO is Liable in case of EVICTION?  General Rule – the Estate  In case of a subsidiary legacy or devise – the heir, legatee or devisee charged.

Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. Art. 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him. If the legatee or devisee acquires it gratuitously after such time, he can claim

nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. Art. 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, es with it to the legatee or devisee. Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by asg to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. Art. 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. Art. 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones.  Legacy / Devise of a thing owned in part by the testator [Art929]  General Rule – conveys only the interest or part owned by the testator  Exception – if the testator provides otherwise, viz: a) He may convey more than he owns – the estate should try to acquire the part or interest owned by other parties. If the other

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SUCCESSION parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent, by analogy with Art931. b) He may convey less than he owns [Art794]

 Legacy / Devise of a Thing Belonging to Another [Arts930-931]  If the testator ordered the acquisition of the thing – the order should be complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent.  If the testator erroneously believed that the thing belonged to him – the legacy or devise is VOID. o EXCEPT if subsequent to the making of the disposition, the thing is acquired by the testator onerously or gratuitously, the disposition is validated. 

If the testator knew that the thing did not belong to him but did not order its acquisition – the Code is SILENT on this. The most rational solution seems to be that such a disposition should be considered VALID, because: a) The fact that the testator, with knowledge of the other person‟s ownership, bequeathed the thing, implies an order to acquire b) At worst, there is a doubt, and doubts should be resolved in favor of testacy [Arts 788 and 791] Art. 788. If a testamentary disposition its of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.

 Legacy / Devise of a Thing Already Belonging to the Legatee / Devisee or Subsequently Acquired by Him [Articles 932 and 933]  If the thing already belonged to the legatee/devisee at the time of the execution of the will – the legacy or devise is VOID. It is not validated by an alienation by the legatee /devisee subsequent to the making of the will. 

NOTE – articles 932 par 1 and 933 par 1 say essentially the same thing and should be merged.



If the thing was owned by another person at the time of the making of the will and acquired thereafter by the legatee/devisee: a) If the testator erroneously believed that it belonged to him – legacy or devise is VOID b) If the testator was not in error – - If the thing was acquired onerously by legatee/devisee – the legatee or devisee is entitled to reimbursement.

- If the thing was acquired gratuitously by legatee/devisee – nothing more is due. 

If the thing was owned by the testator at the time of the making of the will and acquired thereafter from him by the legatee/devisee – Articles 932 and 933 are SILENT on this, but Article 957 par 2 can be applied and the legacy/devise should be deemed revoked.

 Legacy / Devise to remove an encumbrance over a thing belonging to the legatee / devisee under Art932 par2 – VALID, if the encumbrance can be removed for a consideration.  Legacy / Devise of a thing pledged or mortgaged under Article 934 – the encumbrance must be removed by paying the debt, UNLESS the testator intended otherwise.  Legacy of Credit or Remission [Articles 935-937]  Applies only to amount still unpaid at the time of the testator‟s death [under Art935]  Revoked if testator subsequently sues the debtor for collection [[Article 936]  If Generic, applies only to those existing at the time of execution of the will [under Articles 937 and 793], unless otherwise provided.

Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. Art. 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations.  Legacy / Devise to a Creditor [Art938]  General Rule – will be treated like any other legacy / devise and therefore will not be imputed to the debt.  Exception – will be imputed to the debt if the testator so provides, and if the debt exceeds the legacy / devise, the excess may be demanded as an obligation of the estate.  NOTE – if the testator does provide that the legacy / devise should be imputed to the debt and the amount of the debt is equal to or more than the value of the legacy/devise it would be folly for the creditor to accept the “benefit.” He will be

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SUCCESSION much better off renouncing the legacy/devise and filing a claim for the credit.  Testamentary Instruction to Pay a Debt [Art939] a) This is not a testamentary disposition, but merely a direction to discharge a civil obligation. b) Instruction to pay non-existing debt – should be DISREGARDED, because this would solution indebiti. c) Instruction to pay more than what is due – effective only as to what is due, unless the bigger amount specified constitutes a natural obligation under Articles 1423 – 1430.

Art. 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator.  Alternative legacies / devises  Definition – One which provides that, among several things mentioned, only one is to be given.  Right of Choice  General Rule 1) The estate, through the executor or – in a direct legacy or devise 2) The heir, legatee, or devisee charged – in a subsidiary legacy or devise 

These parties are, analogously, in the position of the debtor.



Exception – the legatee/devisee, if the testator so provides.

Art. 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall to his heirs; but a choice once made shall be irrevocable.  Generic legacies / devises  Rules on Validity [Article 941] A. Generic Legacy – valid even if no such movables exist in the testator‟s estate upon his death. The estate will simply have to acquire what is given by legacy. B. Generic Devise – valid only if there exists such an immovable in the testator‟s estate at the time of his death. 

Note – this distinction as found in the Spanish Code perpetuates the rule in the Partidas even if it has become artificial and arbitrary in modern times.

 Right of Choice [Article 942-943]  General Rule – the executor or , acting for the estate. o Exception – if the testator gives the right of choice to the legatee / devisee, or to the heirs on whom the obligation to give the benefit is imposed [in a subsidiary legacy or devise] 

 If the person who is to choose dies before choice is made: a) If the choice belonged to executor or – the right is transmitted to his successor in office. b) If the choice belongs to an heir, legatee or devisee – the right is transmitted to his own heirs.  The choice is irrevocable.  Provisions suppletorily governing – Articles 11991205, on alternative obligations.

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Limitation on Choice – the choice must be limited to something which is neither superior nor inferior in quality. This rule applies whether the choice belongs to the executor/ or the legatee/devisee. o In relation to Art1246 of the CC – “When the obligation consists in the delivery of an indeterminate or generic thing, whose quality and circumstances have not been stated, the creditor cannot demand a thing of superior quality. Neither can the debtor deliver a thing of inferior quality. The purpose of the obligation and other circumstances shall be taken into consideration.”

SUCCESSION 

Finality of Choice – irrevocable, once made.

o



Transmissibility of Right to Choose 1. If the choice belongs to the executor / and he dies before making the choice – the right is transmitted to his successor in the position. 2. If the choice belongs to the legatee/devisee and he dies before making the choice – the right es to his heirs.

o

Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of , the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. Art. 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced.  Legacy for Education  Duration – age of majority or the completion of a professional, vocational or general course, whichever comes later. In the latter instance, only if the legatee pursues his studies diligently.  Amount o Primarily – that fixed by the testator o Secondarily – that which is proper, as determined by 2 variables: [1] the social standing and circumstances of the legatee, and [2] the value of the disposable portion of the estate.  Legacy for  Duration – the legatee‟s lifetime, unless the testator has provided otherwise  Amount o Primarily – that fixed by the testator

Secondarily – that which the testator during his lifetime used to give the legatee by way of , unless markedly disproportionate to the value of the disposable portion Tertiarily – that which is reasonable, on the basis of 2 variables: [1] the social standing and the circumstances of the legatee, and [2] the value of the disposable portion.

 Legacy of a Periodical Pension  Demandability – upon the testator‟s death and the succeeding ones at the beginning of the period without duty to reimburse should the legatee due before the lapse of the period. 

NOTE – this should be harmonized with the rules on settlement of estates, i.e. the debts should first be paid before any testamentary grants can be complied with [unless the legatee files a BOND under Rule 90 sec1 of ROC]. However, should the legacy prove to be inofficious, the date of effectivity shall retroact to the decedent‟s death.

Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished.  This article lays down the same rule as Art934 par3.

Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs.  Demandability, Ownership and Fruits of Legacies/ Devises Demandability Pure and Determinate Pure and Generic

Upon Testator’s death Upon Testator’s death

With a Suspensive Term

Upon the arrival of the term

With a Suspensive Condition

Upon the happening of the condition

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When Ownership Vests Upon Testator’s death a. if from testator’s estate – upon testator’s death b. if acquired from a 3rd person – upon acquisition Upon arrival of the term, but the right to it vests upon the testator’s death [under Art878] Upon the testator’s death, if the condition is

Fruits Upon the testator’s death [under Art948] Upon determination, unless testator provides otherwise [Art949]

Upon the arrival of the term [implied from Art885] Upon the happening of the condition, unless

SUCCESSION fulfilled [under Art1187]

testator provides otherwise [Art884 in rel. to Art1187]

Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with.

1. 2. 3. 4. 5. 6.

 Article 950 and Article 911  Article 911 also contains a rule for reduction of legacies and devises and the order of preference there is different: it simply provides that all the non-preferred legacies/devises will be reduced pro rata, and the preferred legacies/devises are reduced last. It is a rule different from that set forth in Art950. 

Art. 948. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or . Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for ; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata.  Order of Preference among Legacies and Devises in case the Estate is Not Sufficient for All of them

Remuneratory legacies or devises Legacies or devises declared by the testator to be preferential Legacies for Legacies for education Legacies or devises of a specific, determinate thing which forms a part of the estate All others, pro rata

Possible reconciliation between the 2 articles – each article can be given its own area of applicability. o Article 911 will apply if reductions have to be made because the LEGITIMES have been impaired, i.e. if the legacies/devises have exceeded the disposable portion o Article 950 will apply if the reason for the reduction is not the impairment of legitimes, i.e. there are no legitimes because there are no compulsory heirs or the legitimes have already been satisfied through donations inter vivos.

Art. 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator.  The obligation to deliver the accessions and accessories exists even if the testator does not explicitly provide for it. This is the same rule laid down in Art1166, which provides: Art. 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even though they may not have been mentioned

 The crucial time is the testator’s death, because that is when successional rights vest [under Art777]. That is why the thing must be delivered in the condition in which it is at that time.

Art. 952. The heir, charged with a legacy or devise, or the executor or of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be

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SUCCESSION for the of the heir or the estate, but without prejudice to the legitime.



Legacies ma be total or partial, as implied under Art954 par1. o Exception – If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous part. Any other combination however is permitted.



Acceptance or Repudiation by Heirs of Legatee/ Devisee – if the legatee or devisee dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso share, and in the same manner as the legatee or devisee.



2 Legacies/Devises to the Same Recipient o If both gratuitous – the recipient may accept or renounce either or both o If both onerous – same rule, may accept or renounce either or both o If one gratuitous and the other onerous – the recipient cannot accept the gratuitous and renounce the onerous. Any other combination is permitted.



Legacy/Devise to One who is Also a Compulsory Heir – the recipient may accept either or both, the legacy/devise and the legitime. [in relation to Art1055]



Effect if the Will Provides Otherwise – all of the above rules apply in the absence of a stipulation in the will providing otherwise. If there is a stipulation, the testator‟s wishes shall govern.

 This article conforms to the rule of identity in the performance of obligations [under Art1244]: Art. 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the same value as, or more valuable than that which is due. In obligations to do or not to do, an act or forbearance cannot be substituted by another act or forbearance against the obligee's will.

Art. 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or of the estate should he be authorized by the court to deliver it.  Although the efficacy of a legacy or devise vests upon the testator‟s death, actual delivery does not take place at that time. Debts first have to be paid, then legitimes have to be determined, and the testamentary dispositions (including legacies and devises) computed lest they impair the legitimes. It is only after these steps have been taken that the beneficiaries of the will can take possession.

Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. Art. 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both.  Rules on Acceptance and Repudiation of Legacies / Devises

Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion.  Rules in Case of Repudiation by or Incapacity of Legatee/Devisee 1. Primarily – SUBSTITUTION 2. Secondarily – ACCRETION 3. Tertiarily – INTESTACY

Art. 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation

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SUCCESSION the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928.

Art. 959. A disposition made in general in favor of the testator's relatives shall be understood to be in favor of those nearest in degree.  This article is misplaced because it applies not just to legatee/devisees but to all testamentary heirs as well. It should be placed under the chapter on “Institution of Heir.”

CHAPTER 3 LEGAL OR INTESTATE SUCCESSION

SECTION 1. GENERAL PROVISIONS

 This article enumerates the instances when the legacy/devise is REVOKED BY OPERATION OF LAW 1.

TRANSFORMATION o If for example the testator converts a plantation to a fishpond.

2.

ALIENATION o The alienation by the testator may be gratuitous or onerous. o The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator. o Exceptions a) If the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of consent on the grantor‟s part, either by reason or incapacity or duress. b) If the reversion is by virtue of redemption in a sale with pacto de retro.

3.

TOTAL LOSS o This will be a cause for revocation only if it takes place before the testator‟s death. o Fortuitous loss after the testator‟s death will not constitute revocation because legally, the disposition takes effect upon death. o Therefore, fortuitous loss after the testator‟s death will simply be an instance of “res perit domino” and will be borne by the legatee/devisee.

Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise.  This principle is already set forth in Art789

Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.  Legal or Intestate Succession Defined  Not defined by the Code, unlike testamentary and mixed succession.  But the draft Code, as well as the Spanish Code defines intestate succession as taking place “by operation of law in the absence of a valid will.”  And the Spanish Code provides that “succession results from a person‟s will as manifested in a testament, or in default thereof, by operation of law.”  INSTANCES WHEN LEGAL OR INTESTATE SUCCESSION OPERATED 1. If a person dies without a will, or with a void will, or one which has subsequently lost its validity.

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SUCCESSION o 3 instances with the same legal result – there is no will. o A will that has subsequently lost its validity is one that has been REVOKED under Articles 830-837 without a later one taking its place. Validity should read “efficacy.” 2.

3.

4.

When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed. o In these instances, intestacy may be total or partial. If the suspensive condition attached to the institution of an heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution and no right of accretion takes place o Intestacy here may also be total or partial, depending on the extent of the disposition that turns out to be inoperative.



Intestacy operates on the same principles as succession to the legitime. There are 2 principles operating sometimes simultaneously, sometimes singly – EXCLUSION and CONCURRENCE.

 Groups of intestate heirs and the different combinations in intestacy are outlined under Arts. 9781010.  Basis of Intestate Succession  The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote charitable and humanitarian activities.  Manresa says that the law of intestacy is founded on the presumed will of the deceased. Love, it is said first descends, then ascends, and finally spreads sideways. Thus, the law first calls the descendants, then the ascendants and finally the collaterals, always preferring those closer in degree than those of remoter degrees.  BASIC RULES OF INTESTACY 1.

When the heir instituted is incapable of succeeding, except in cases provided in this Code. o Incapacity to succeed under Articles 1027, 1028 and 1032. Intestacy here may be total or partial.

Other Causes of Intestacy 5. Happening of a Resolutory Condition 6. Expiration of a Resolutory Term 7. Preterition

Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines.  Exclusion and Concurrence in Intestacy

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The Rule of Preference of Lines  The 3 lines of relationship are: a) The descending b) The ascending, and c) The collateral 

The law lays down an order of preference among these lines, such that the descending excludes the ascending and the collateral, and the ascending excludes the collateral.

2.

The Rule of Proximity of Degree  The nearer exclude the more remote [Art962 par1] without prejudice to representation.

3.

The Rule of Equality Among Relatives of the Same Degree  This rule is corollary of the previous one: If the nearer exclude the more remote, logically those of equal degree should inherit in equal shares [Art962 par2]  5 EXCEPTIONS a) The rule of preference of lines b) The distinction between legitimate and illegitimate filiation [the ratio under present law is 2:1] under Article 983 in relation to Article 895 as amended by Art176 of the Family Code. c) The Rule of Division by line in the Ascending Line under Art987 par2 d) The Distinction between Full-Blood and Half-Blood relationship among Brothers and Sisters, as well as nephews and nieces under Articles 1006 and 1008. e) Representation

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SUBSECTION 1. - Relationship Art.

963. Proximity of relationship is determined by the number of generations. Each generation forms a degree.

Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor.

 LINE – a series of degrees forms a line [Article 964 par1] a) Direct - degrees among ascendants and descendants [Art964 par2] i. Descending – Unites the head of the family with those who descend from him [Article 965 par2] ii. Ascending – binds a person with those from whom he descends [Article 965 par3] b)

Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the greatgrandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.

DIRECT LINE

DEGREE COLLATERAL LINE

 COMPUTATION OF DEGREES A. Direct Line – there is no legal limit to the number of degrees for entitlement to intestate succession. The practical limit is of course, human mortality.

DESCENDING DIRECT

LINE

ASCENDING

DIRECT & COLLATERAL COLLATERAL

Collateral – Degrees among persons who are not ascendants or descendants but come from a common ancestor [Article 964 par3] i. Direct and Collateral – importance of distinction: the direct is preferred over the collateral. ii. Descending direct and Ascending direct – importance of distinction – the descending is preferred over the ascending.

DESCENDING DIRECT & ASCENDING DIRECT

o Mode of Counting Degrees in Direct Line - One generation = one degree - Parent to child = 1 degree - Grandparent to Grandchild = 2 degrees - Great-Grandparent to GreatGrandchild = 3 degrees B.

Collateral Line – computation of degree is important in the collateral line because intestate th succession extends only to the FIFTH [5 ] DEGREE of Collateral relationship (Art1010) o Mode of Counting Degrees in the Collateral Line [Art966 par3] i. From the reference point, ascend to nearest common ancestor [if there are more than 1 nearest common ancestor, choose any one.] ii. Then descend to the other reference point iii. Number of generations constituting the ascent and the descent is the degree of the collateral relationship. o Collaterals by Degrees - First degree – none

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SUCCESSION - Second degree – brothers / sisters - Third degree i. Uncles / Aunts ii. Nephews / Nieces - Fourth degree i. First Cousins ii. Brothers/Sisters of a grandparent [grand-uncles / grandaunts] iii. Grandchildren of a brother/sister [grandnephews/grand-nieces] - Fifth degree i. Children of a first cousin ii. First cousins of a parent iii. Brothers/sisters of a greatgrandparent iv.Great grandchildren of a brother/sister

Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father.  Importance of distinction between full-blood and halfblood relationship – with reference to brothers and sisters and nephews and nieces, there is a ratio of 2:1 for full-blood and half-blood relationship, respectively. [Arts1006 and 1008]  With respect to collateral relatives, the full-blood and half-blood relationship is NOT MATERIAL.

Art. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place.  ACCRETION IN INTESTACY  There is accretion in intestacy among heirs of the same degree, in case of PREDECEASE, INCAPACITY or RENUNCIATION of any one of them. [Art1015] 1) In case of predecease or incapacity, representation, if proper, will PREVENT accretion from occurring. 2) Relatives must be in the same kind of relationship – for accretion to take place the heirs involved must be in the same kind of relationship to the decedent. This is

because of the principle of the preference of lines in intestate succession. Thus, there can be no accretion among a grandchild, a grandparent and a brother of the decedent nd [even if they are all related to him in the 2 degree] because they are not inheriting together in the first place.

Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance.  EFFECT OF RENUNCIATION BY ALL IN THE SAME DEGREE  The right of succession should first be ed on the heirs in succeeding degrees [in successive order] before the next line can succeed, because of the rule of preference of lines. Thus: 1) The descending line first – if all the descendants of a certain degree renounce, succession es to the descendants of the next degree [i.e. grandchildren], and so on, ad indefinitum. 2) The ascending line next – should no one be left in the descending line, the heirs in the ascending line acquire the right of succession, again in order of degrees of proximity. 3) The collateral line last – only if ALL the descendants and ascendants renounce will the collateral relatives acquire the right to succeed.  Predecease or Incapacity by All in the Same Degree  This eventuality is not provided for by the article. The rules outlined, however, are equally applicable to such situation, except in cases where REPRESENTATION is proper [in descending line]  Representation does not apply in cases of universal renunciation outlined above, because there is no representation in renunciation. [Art977]

SUBSECTION 2. - Right of Representation Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

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SUCCESSION Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. Art. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Art. 976. A person may represent him whose inheritance he has renounced. Art. 977. Heirs who repudiate their share may not be represented.  REPRESENTATION  Definition – a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. [Art970] o Criticisms – the term “representation”, it has been suggested that a better term to call this legal process is either hereditary subrogation or successional subrogation because the person inheriting in another‟s stead actually represents no one and truly succeeds in his own right. The term “fiction of law” is criticized as inaccurate, as well, because the law has ample authority to predetermine who are to be called to inherit, and the law needs no resort to fictions but merely to make use of its power

to designate those who are to take the inheritance.  INSTANCES OPERATES A. B. C. 

WHEN

REPRESENTATION

Predecease Incapacity or Unworthiness, and Disinheritance

Instance when Representation NEVER operates – RENUNCIATION

 IN WHAT KINDS OF SUCCESSION REPRESENTATION OPERATES A. LEGITIME or compulsory succession o There is no express provision on representation in the legitime, except Art923 in case of disinheritance. B. INTESTACY or legal succession 

There is no representation in testamentary succession

 IN WHAT LINE DOES REPRESENTATION OBTAIN A. With respect to the LEGITIME – in the direct descending line only [Art972] B. With respect to INTESTACY – the general rule is in the direct descending line as well, EXCEPT in one instance, in the collateral line – in case of nephews and nieces representing brothers and sisters of the deceased [Art975]  REPRESENTATION BY ILLEGITIMATE CHILDREN  If the child to be represented is legitimate – only legitimate children/descendants can represent him [Art992]  If the child to be represented is illegitimate – BOTH legitimate and illegitimate children/descendants can represent him [Arts902, 989 and 990] 

Thus X Legitimate

Illegitimate

A Legit.

B Illegit.

Legit.

Illegit. A1

A2

B1

B2

Should A and B both predecease X, only A1 can represent A but both B1 and B2 can represent B 

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Representation OF and BY and adopted child – an adopted child can NEITHER represent nor be represented. o The rationale for the rule barring an adopted from representing and being represented is that the legal relationship created by adoption is strictly between the adopted and the adopted. It does not

SUCCESSION extend to the relatives of either party. [Teotico v. Del Val]  REPRESENTATION BY RENOUNCER  Although a renounce cannot be represented, he can represent the person whose inheritance he nd has renounced [Art976]. This is because in the 2 sentence of Art971, the representative does not succeed the person represented but the one whom the person represented would have succeeded.  Example – A is the father of B and C is the son of B, and therefore the grandchild of A. B dies and C renounces his inheritance. But if A dies and there is a right of representation, C can still inherit from A in representation of B, even if C previously renounced his inheritance from B. This is because in the latter case, C is inheriting from A and not from B.

 PROBLEM ON REPRESENTATION Note, I’m not sure about the answers, please re-check 

A

B.

The representative need not be qualified to succeed the person represented [Art971]

C.

The person represented need not be qualified to succeed the decedent. o In fact, the reason why representation is taking place is that the person represented is not qualified, because of predecease, incapacity or disinheritance.

C C1

C2 D1

D

E D2 E1



Supposing X makes a WILL [TESTAMENTARY] instituting all his 5 kids to the free portion; then C predeceases him, D is unworthy to succeed and upon his death, E renounces. How is X‟s estate, worth P600,000 to be apportioned? o A, B, C, D and E are supposed to get 60,000 each [the free portion is ½ of the whole estate so the free portion is P300,000 divided by 5 kids = 60,000 each]. o However, there is NO REPRESENTATION in Testamentary Disposition. o Therefore, the share of C who predeceased X, the share of D who is unworthy, and the share of E who renounced, will all accrue to A and B as co-heirs. o So, A and B will each get ½ of the P300,000, or P150,000 each.



Supposing X dies INTESTATE, all the other facts being the same, how is X‟s estate to be apportioned? o A, B, C, D and E are supposed to get 60,000 each [the free portion is ½ of the whole estate so the free portion is P300,000 divided by 5 kids = 60,000 each]. o However, since E renounced his share, his P60k portion will, by ACCRETION, be divided equally among the rest of the kids of X. o Therefore, A, B, C and D will get an additional P15,000 each plus their own P60k portion, they will get 75k each. o However, since C predeceased the testator, he may be represented by C1 and C2, who will each get P37,500 [the P75k share of C to be divided by 2, assuming both C1 and C2 are legitimate children of C]. o Also, since D is unworthy to succeed, he may be represented by D1 and D2, who will get P37,500 each [P75k share divided by 2]

 REPRESENTATION BY GRANDCHILDREN AND REPRESENTATION BY NEPHEWS/NIECES: Difference in Rule A. If ALL the children are disqualified – the grandchildren still inherit by representation [what the parents should have gotten] under Art982. B.

B

E2

 HOW REPRESENTATION OPERATES  PER STIRPES – the representative or representatives receive only what the person represented would have received. If there is more than 1 representative in the same degree, then divide the portion EQUALLY, without prejudice to the distinction between legitimate and illegitimate children when applicable.  RULES ON QUALIFICATION A. The representative must be qualified to succeed the decedent. [Art973] nd o Again, the rationale is found in the 2 sentence of Art971, stating that the representative does not succeed the person represented but the one whom the person represented would have succeeded.

X has 5 legit kids, 3 of whom have their own kids. X

If ALL the brothers/sisters are disqualified – the nephews and nieces inherit PER CAPITA under Art975.

 Some Suggestions – more explicit provisions on: o What are the occasions or causes for the operation of representation? o In what kinds of succession does representation operate?

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SUCCESSION

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SUCCESSION SECTION 2. – ORDER OF INTESTATE SUCCESSION

INTESTACY – RULES OF EXCLUSION AND CONCURRENCE HEIRS

EXCLUDE

1.

Legitimate Children

Parents, Collaterals and the State

The surviving spouse and illegitimate children

No one

2.

Illegitimate Children Legitimate Parents Illegitimate Parents Surviving Spouse

Illegitimate parents, collaterals and the state Collaterals and the state

Surviving spouse, legitimate children and the legitimate parents Illegitimate children and the surviving spouse Surviving spouse

No one

3. 4. 5.

6.

7. 8.

Brothers, sisters, nephews and nieces Other Collaterals The State

Collaterals and the state

CONCUR

ARE EXCLUDED BY

Legitimate children Legitimate and illegitimate children No one

Collaterals, EXCEPT brothers, sisters, nephews and nieces, and the State All other collateral th relatives up to 5 degree and the state

Legitimate children, illegitimate children, legitimate parents, illegitimate parents and brothers, sisters, nephews and nieces. Surviving spouse

Collaterals remoter in degree, and the state No one

Collaterals in the same degree

All others

No one

Everyone

Legitimate & illegitimate children, and legitimate & illegitimate parents

COMBINATIONS IN INTESTATE SUCCESSION HEIR

PROVISION

SHARE

1.

Legitimate children

Whole estate, equally divided

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

2.

Legitimate children and Illegitimate children

Whole estate with ½ share of 1 legit child for EACH illegitimate child

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. Art. 176 FAMILY CODE. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.

3.

Legitimate children and surviving spouse

Whole estate, divided equally, including the surviving spouse

Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

4.

Legitimate children, surviving spouse and illegitimate children

Whole estate, the spouse getting the share of 1 legitimate child and the illegitimate child getting ½ the share of 1 legitimate child.

Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. Art. 176 FAMILY CODE. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.

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SUCCESSION 5.

Legitimate parents alone

Whole estate, equally

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

6.

Legitimate ascendants

Whole estate, division equally by line

Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.

7.

Legitimate parents and illegitimate children

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

8.

Legitimate parents and surviving spouse

Legitimate parents get ½ of the estate divided equally between them and the illegitimate children get ½ of the estate divided also equally Legit parents get ½ of the estate and the surviving spouse gets the other half

9.

Legitimate parents, surviving spouse and illegitimate children

Legit parents get ½, the surviving spouse gets ¼ and the illegitimate children get ¼.

Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth.

10. Illegitimate children

The whole estate, divided equally

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

11. Illegitimate children and surviving spouse

The illegitimate children get ½ and the surviving spouse gets the other ½

Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.

12. Surviving spouse

The whole estate

Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.

13. Surviving spouse and illegitimate parents

Spouse gets ½ of estate, illegitimate parents get the other ½

No provision, but by analogy to Art997. Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

14. Surviving spouse and legitimate brothers, sisters, nephews and nieces 15. Surviving spouse and illegitimate brother, sisters, nephews and nieces

Spouse gets ½ and the legitimate BSNN get ½, with the nephews and nieces inheriting by representation in proper cases

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.

Spouse gets ½ while illegitimate BSNN get ½, with representation

Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.

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SUCCESSION 16. Illegitimate parents

The whole estate

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

17. Illegitimate parents and any children

Illegitimate parents are excluded by the children

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

18. Legitimate brothers and sisters

Whole estate, half blood gets ½ of full blood‟s share [2:1]

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

19. Legitimate brothers & sisters, nephews & nieces

Whole estate, 2:1 for half blood, with representation for nephews and nieces

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

20. Nephews and nieces with uncles and aunts

Uncles and aunts are excluded. The nephews and nieces get the whole estate

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. And the case of Bacayo v Borromeo

21. Illegitimate brothers and sisters 22. Illegitimate brothers & sisters, nephews & nieces 23. Nephews and nieces

Whole estate, 2:1 full and half blood

No article governing

Whole estate

No article governing

Whole, PER CAPITA, 2:1 ratio

Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

24. Other collaterals

Whole, PER CAPITA, nearer excludes the more remote in degree

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

25. The state

Whole estate

Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate.

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SUCCESSION

 AS TO THE STATE  Assignment and disposition of decedent‟s asses a) If decedent was a resident of the Philippines at ANY Time i. Personal Property – to municipality of last residence ii. Real Property – where situated b)



If decedent was NEVER a resident of the Philippines – where property is situated, whether real or personal property.

How property is to be used a) For the benefit of public educational and charitable institutions in the respective municipalities/cities b) Alternatively, at the instance of an interested party, or motu proprio, court may order creation of a permanent trust for the benefit of the institutions concerned.

 The right of an adopted child in relation to the adopter is governed by sections 17 and 18 of RA8552, which lays down the same rule that an adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. Art.

SECTION 2. – ORDER OF INTESTATE SUCCESSION

 Grandchildren do not inherit per capita even if all children die – they inherit per stirpes, EXCEPT if ALL children renounce, then the grandchildren will inherit in their own right / per capita.

SUBSECTION 1. - Descending Direct Line

Art. 978. Succession pertains, in the first place, to the descending direct line.  WHO ARE THE INTESTATE HEIRS [not in order] A. Legitimate Children/Descendants B. Illegitimate Children/Descendants C. Legitimate Parents/Ascendants D. Illegitimate Parents E. Surviving Spouse F. Brothers, Sisters, Nephews, Nieces th G. Other Collaterals up to the 5 degree H. The State   

Art.

982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895.  The proportion of the shares of legitimate and illegitimate children has been simplified to 2:1 by virtue of the amendments introduced by Articles 163 and 176 of the Family Code.

The first 5 classes of intestate heirs are also compulsory heirs. There is also an overlapping of compulsory and intestate succession, i.e. the legitime and the intestate portions merge. There is a very close parallel between the rules of compulsory succession and those of intestate succession.

979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

 In this combination, care should be taken lest the legitimes of the legitimate children be impaired. Consequently, a 2-step process should be observed – 1) Segregate the legitimes of the children – both legitimate and illegitimate 2) If any residue is left, apportion it in the proportion of 2:1.  It is possible – depending on the number of legitimates and illegitimates – that the estate may not even be sufficient to satisfy the legitimes, in which case, the second step in the process will not even be feasible. In fact, in such case, the legitimes of the ILLEGITIMATES will have to be reduced pro rata.

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs.  Repealed by Sections 17 and 18 of RA8552.

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SUCCESSION inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

SUBSECTION 2. - Ascending Direct Line Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. Art. 986. The father and mother, if living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire estate of the child. Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.  There is no right of representation in the ascending line.

SUBSECTION 3. - Illegitimate Children Art.

988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.  MEMORIZE!  This is the well-known and successional barrier between illegitimate relatives of a decedent.

much criticized legitimate and

Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. Art. 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.

SUBSECTION 4. - Surviving Spouse  There are no rules on marriage mortis cause [unlike in legitimes]

Art.

 Only difference – an illegitimate child can be represented bi either an illegitimate or legitimate child of his. While a legitimate child can only be represented by a legitimate child of his.

995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent.

Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the

 This rule holds even if there is only 1 legitimate child, in which case, the child and the surviving spouse will divide the estate equally.

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SUCCESSION  When the law speaks of “brothers and sisters, nephews and nieces” as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters.

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to onehalf of the estate, and the legitimate parents or ascendants to the other half. Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. Art.

1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have onefourth of the estate, and the illegitimate children the other fourth.

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to onehalf of the inheritance and the brothers and sisters or their children to the other half. Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles.

SUBSECTION 5. - Collateral Relatives Art.

1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.  Prescriptive period for the claim is FIVE YEARS from the delivery of the property to the state or political subdivision concerned.  Who may make the claim – any person entitled by succession to the estate, including any heir of any kind of succession, legitime, testamentary or intestate.

THE PROBLEM OF PARTIAL INTESTACY  The combinations laid down in Articles 978-1014 cover only cases of TOTAL intestacy. There is no provision to govern cases of partial intestacy when the decedent has left a will disposing of part, but not all, of the disposable portion.  How then should the estate be divided if the decedent died with a will but the will does not dispose of the entire free or disposable portion? The problem is solved by inference, bearing in mind the law‟s intent, thus: 1) Trace where the free portion went in total intestacy 2) Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and what is left of the free portion should then be given to the intended beneficiary in intestacy.  EXAMPLE  X died, leaving as his survivors his legitimate parents A and B and his wife Y, without any children. He left a will giving 1/8 of his entire estate to Caritas Manila. His net estate is worth P600,000.  PROCESS/ANSWER  The will is not inofficious, since it disposes only of 1/8 of the estate, the disposable portion being ¼.  The legitimes of the compulsory heirs are – o A and B as legitimate parents – ½ of estate = P300,000 o Y as surviving spouse – ¼ of estate = P150,000  In total intestacy, the sharings would have been – [according to Art997] o A and B to ½ of the estate = P300,000 o Y to ½ of the estate = P300,000  The intended recipient of the undisposed portion is Y since she is the one to whom the entire free portion went in total intestacy [since A and B simply got their legitimes.  Therefore, since part of the free portion was given away by will, the remainder should be given to Y.  Hence, Caritas Manila gets 1/8 or P75,000. A and B get ½ or P300,000 divided between them, so P150,000 each. Y then gets P225,000. All shares total to the P600,000 estate.

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SUCCESSION municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be able to him for such part of the proceeds as may not have been lawfully spent.  In case of partial intestacy

CHAPTER 4 PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

SECTION 1. – RIGHT OF ACCRETION

SUBSECTION 6. - The State Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the

Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, codevisees, or co-legatees. Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the

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SUCCESSION inheritance, or be incapacitated receive it.

to

 ACCRETION  Definition – a right by virtue of which, when 2 or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator. 

Occasions for Operation of Accretion a) RENUNCIATION b) PREDECEASE c) INCAPACITY



ELEMENTS FOR ACCRETION IN TESTAMENTARY SUCCESSION 1) 2 or more persons are called to the same inheritance, or to the same portion thereof, pro indiviso o Meaning of pro indiviso:  Either the co-heirs are instituted without individual designation of shares, ex. “I institute A and B to ½ of my estate.” Or  The co-heirs are instituted with the specification that they share equally [“in equal shares”] or that they have the same fractional sharing for each [Art1017]. Examples: “I institute A, B and C to ½ of my estate in equal shares,” or “I institute A, B and C to ½ of my estate, each of them to take 1/3 of such ½.”  Will accretion occur if the fractional sharings of the co-heirs are unequal? YES. All that the law requires is that the institution be pro indiviso, which means “as undivided” or “in common”. The term does not import equality of shares. Thus, accretion will occur even if the sharings are unequal, as long as the result is coownership. 2)

One of the persons thus called die before the testator, or renounce the inheritance or be incapacitated to receive it. o Renunciation, predecease or incapacity of one or more but LESS THAN ALL of the instituted heirs.

Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion.

In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs.  In intestacy, accretion occurs – A. In repudiation or renunciation – accretion is subordinate to representation in intestacy. B. In predecease, only if representation does not take place C. In incapacity or unworthiness, only if representation does not take place.  The co-heirs in whose favor accretion occurs must be co-heirs in the same category as the excluded heir.  Example, if X dies intestate and is survived by his wife Y and his brothers A, B and C. If C renounces, his portion goes to A and B by accretion. Y is not an accruing co-heir, not being of the same category or class.

Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit.  General Rule - Accretion should be proportional.

Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had.  EXCEPTIONS to general rule that accretion should be proportional – a) b)

In testamentary succession, if the testator provides otherwise, If the obligation is purely persona, and hence intransmissible.

Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion.  1 paragraph – 3 kinds of succession: compulsory, testamentary and intestate. These 3 are distinct, although they may operate simultaneously. Consequently, accretion is restricted in its operation within the confines of the particular kind of succession involved.

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ST

SUCCESSION  2 paragraph – there is NO ACCRETION in the LEGITIME. In most cases, this rule will not substantially affect the operation of the legitime. The possible significance of this is when it comes to the computation of legitimes of illegitimate children or the surviving spouse, when concurring with legitimate children. ND

Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall to the legal heirs of the testator, who shall receive it with the same charges and obligations.

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.  REQUIREMENT FOR CAPACITY TO SUCCEED OF NATURAL PERSONS A.

General rule – must be LIVING when succession opens 1. When succession opens – the decedent‟s death under Art777 2. Meaning of “living” – it is enough that the heir, devisee or legatee be already conceived when the decedent dies, provided it be born later, in accordance with Articles 40 and 41. Inheriting is favorable to the child.

B.

If institution is subject to a Suspensive Condition o Successor must ALSO be living when the condition happens [Art1034 par3]. Thus, in a conditional institution, the successor must be living BOTH when the decedent dies AND when the condition happens.

C.

If institution subject to a Suspensive Term o The requirement of being alive applies only at the moment of the decedent‟s death, the successor need not be alive, when the term arrives [Art878]

 In the testamentary succession, accretion is subordinate to substitution, if the testator so provided. This is because substitution is the testator‟s express intent, whereas accretion is merely his implied intent.  Obviously, if there is neither substitution nor accretion, the part left vacant will lapse into intestacy and will be disposed of accordingly.

Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. SECTION 2. – CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession.  The general rule is in favor of capacity to succeed, as long as the successor has juridical personality. Incapacity must be based on some legal ground and must be shown.  The second paragraph is inaccurate. Some grounds for incapacity to succeed by will have no application to compulsory or intestate succession.  The articles laying down the cause of incapacity to succeed are Articles 1027, 2028 and 1032. A. Article 1027 pars. 1-5 – applicable only to testamentary succession B. Article 1027 par6 – applicable to ALL kinds of succession C. Article 1028 – applicable only to testamentary succession D. Article 1032 – applicable to ALL kinds of succession

 Representation NOT an exception to Requirement  The requirement that the successor should be alive when the decedent dies is absolute. There is no exception to this rule, the provisions of this article notwithstanding.  For representation to occur, the representation must at least already be conceived when the decedent dies, because of the provisions of Articles 971 and 973.  Example – X has 2 sons A and B. B was disinherited by X. X died in 1985. In 1988 B begot a child. B‟s child cannot represent B in the succession to X.

Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a

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SUCCESSION provision to the contrary in their charter or the laws of their creation, and always subject to the same.  REQUIREMENT FOR CAPACITY OF JURIDICAL PERSONS TO SUCCEED  It must already EXIST as a juridical person when the decedent dies.  Organizations or associations which do not possess juridical personality cannot succeed, because legally, they would not exist. The enumeration of juridical persons is found in Art 44: Art. 44. The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.



For institutions subject to suspensive conditions or , the rules outlined in the previous article apply.

Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final s of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

(6) Individuals, associations and corporations not permitted by law to inherit.  Pars. 1-5 apply only to TESTAMENTARY Succession. They have no application to the legitime or to intestacy. Thus, a person may be disqualified to succeed by will under these paragraphs but will still be entitled to a legitime or to an intestate portion.  It is unfortunate that these paragraphs, [except Par3, which clearly limits its application to testamentary dispositions] do not state clearly that they only apply to testamentary succession and not to the legitime or intestacy.  Par6 is misplaced because it provides for TOTAL disqualification. It should be made a separate article.  Rationale of Pars. 1-5 – the law, in imposing a disqualification, seeks to prevent any possible abuse of the moral or spiritual ascendancy for purposes of testamentary benefit.  This disqualification is peremptory. No actual duress or influence need be shown, these are conclusively presumed. Proof of absence of duress or influence is irrelevant and will not remove the disqualification.  PERSONS INCAPACITATED TO SUCCEED 1. Priest or minister of the gospel o Requisites: a) The will must have been executed during the testator‟s last illness b) The spiritual ministration must have been extended during the last illness. c) The will must have been executed during or after the spiritual ministration. o Notwithstanding the seemingly restrictive of this disqualification, it applies not only to Christian priests, pastors, ministers and so forth, but also to all individuals belonging to other religions, sects or cults, whose office or function is to extend the peculiar spiritual ministrations of their creed.

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th

2.

Priest’s 4 degree relatives and his Church o Purpose of disqualification – to prevent indirect violations or circumventions of par1. o Spouse of religious minister – does the prohibition apply to the spouse of the minister? YES. Although the Catholic priest s celibate, the priesthood or ministry of other denominations or religions are not. Certainly, the mischief sought to be averted can be perpetrated by the spouse.

3.

Guardian as to disposition before Final ing o When disqualification applies – the will must have been executed by the ward

SUCCESSION during the effectivity of the guardianship, which means at anytime between the commencement of the guardianship and its dissolution. o What kind of guardianship covered – of disqualification seem to be limited to guardians over the property. In view, however, of the purpose of the prohibition, the argument that this prohibition should apply as well to guardians over the person is most tenable. o Exception – a guardian who happens to be an ascendant, descendant, brother, sister or spouse of the ward-testator is excluded from the prohibition. Curiously, thus exception is not allowed in the other paragraphs. 4.

5.

6.

Attesting witness or Spouse, Parents, Children or any one claiming under such witness, spouse, parents or children o Essentially a reiteration of the disqualification in Art823, but cast more in general , since this article nullifies not just legacies and devises but all testamentary dispositions made in the witness‟ favor. o NOTE – there is a discrepancy between this paragraph and Art823, which allows for an exception: i.e. if there are 3 other competent witnesses. That exception should be read into this paragraph. Physician, surgeon, nurse, health officer or druggist o Scope of Prohibition – the person must have taken care of the testator during the latter‟s final illness. “Taking Care” means medical attendance with some regularity or continuity that the possibility of duress or influence exists. o However, the pharmacist who only happens to fill a prescription does not fall under the interdiction. Individuals, associations and corporations not permitted by law

 Bewildering variations in the rules –  Why do some paragraphs [pars 2 and 4] disqualify relatives but another [par5] does not?  Why is the exception in par3 not applied to paragraphs 1 and 5?  The reason is that the article is derived from various sources – from the Old Code, the Code of Civil Procedure and the ideas of the Code Commission.

Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions.

 The Disqualification laid down by this article applies only to TESTAMENTARY SUCCESSION  By the provisions of this article, those are disqualified from receiving donations under Art739 are likewise disqualified from receiving testamentary dispositions from the parties specified in that article. Art. 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descedants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013.  REQUISITES A. Disposition for prayers and pious works for the benefit of the testator‟s soul B. No specification of application of the disposition  Apportionment of the Disposition or its Proceeds A. One-half [1/2] to the Church or denomination to which the testator belonged B. One-half [1/2] to the State, to be applied as provided for under Art1013

Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.

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SUCCESSION The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality.  The named beneficiaries here are the poor, either of a definite locality [par3] or of no designated locality [par1]. In the latter case, the beneficiaries shall be the poor of the testator‟s domicile, unless excluded by the testator in his will.  Who are to determine the individual beneficiaries within the class designated by the testator? A. The person authorized by the testator or in his default, B. The executor, or in his default, C. The .  In fact, the committee specified in this article will have no occasion to function.

Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void.

(5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent.  This article applies to all kinds of succession  GROUNDS FOR UNWORTHINESS

 Rationale – What cannot be done by direction cannot be done by indirection. The simulation must be proved, for this article to apply.  Effect of simulation or circumvention – The article provides that the disposition is void, hence ineffective both as to the intended beneficiary and the intermediary. The intestate heirs, to whom the property would go, have the right to claim the nullity.

Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

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1.

Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue o There are 3 grounds given: 1) Abandonment of the child 2) Inducement of a daughter to lead a corrupt or immoral life 3) Attempt against a daughter‟s virtue o All these 3 grounds are also grounds for disinheritance of parents or ascendants under Art920. The same rules apply.

2.

Person convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants o Also a ground for disinheritance under Art919. The same rules apply.

3.

Person who accused the testator of a crime for which the law prescribed imprisonment for 6 years or more, if the accusation has been found to be groundless o Also a ground for disinheritance under Art919. The same rules apply.

4.

Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action o One requisite of this ground for disqualification makes this paragraph nonoperative – a legal obligation to make an accusation. There is no such obligation under the present law. o However, the Requisites of this paragraph are – a) The heir has knowledge of the violent death of the decedent b) The heir is of legal age c) The heir fails to report it to an officer of the law within a month after learning of it

SUCCESSION d)

The authorities have not yet taken action There is a legal obligation for the heir to make an accusation.



Person convicted of adultery or concubine age with the spouse of the testator o Also a ground for disinheritance under Art919. The same rules apply.



e) 5.

6.



Any person who by fraud, violence, intimidation or undue influence should cause the testator to make a will or to change one already made o Also a ground for disinheritance under Art919. The same rules apply.

7.

Person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter’s will

8.

Person who falsifies or forges a supposed will of the decedent





 EFFECT OF UNWORTHINESS  Unworthiness gives rise to total disqualification, i.e. the unworthy heir is incapacitated to succeed from the offended party by ANY FORM OF SUCCESSION.  Thus, unworthiness and disinheritance have identical effects. Unworthiness is disinheritance imposed by law.  That unworthiness deprives the unworthy heir even of the legitime is clear from Article 1035.

B. THUS, the most acceptable reconciliation seems to be the following: 1. If offended party DOES NOT MAKE A WILL subsequent to the occurrence of the common cause – apply article 1033, unworthiness sets in ipso facto and written condonation is necessary to restore capacity. 2. If offended party MAKES A WILL subsequent to the occurrence of the common cause – a. If he knew of the cause i. If he disinherits – art922, disinheritance is ineffective. ii. If he institutes or pardons the offender – offender restored to capacity. iii. If will is silent – this is disputed. But the better opinion is that the unworthiness stays. b. If he did not know of the cause – unworthiness stays

Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing.  Restoration to Capacity – the unworthiness is set aside and the unworthy heir restored to capacity in 2 ways: 1. A written condonation, or 2. The execution by the offended party of a will with knowledge of the cause of unworthiness.  Question – regarding the second mode, is it enough that the offended party execute a will with knowledge of the existence of the cause of unworthiness? o Balane says that the better opinion is that it is NOT enough, the will must either institute the unworthy heir or restore him to capacity.  Common Grounds for Unworthiness and Disinheritance: Conflicting Modes of Lifting Disqualification [Articles 1033 and 922] A. Most of the grounds for unworthiness are also grounds for disinheritance under Art1032.  There is no problem if the offended party does not choose to disinherit the offending

heir, because then only the rules of unworthiness will operate. Should the offended party, however, elect to disinherit the offender, the 2 set of rules on disinheritance and unworthiness would overlap. The problem then arises: HOW IS THE DISQUALIFIED HEIR RESTORED TO CAPACITY? Under the rules on disinheritance, a subsequent reconciliation is enough (Art922); under those on unworthiness, either a written pardon or a subsequent will is required. Supposing that there is a reconciliation but nothing in writing, will it be correct to conclude that the heir is restored to capacity under the rule on disinheritance but stays disqualified under the rule on unworthiness? Balane says this seems unacceptable because that would make the rules on unworthiness [which is by operation of law and is only the implied will of the offended party] prevail over those on disinheritance [which is his express will]

Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.

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SUCCESSION  When Capacity is to be Determined A. General Rule – the time of the decedent‟s death o Because that is when successional rights vest. B.

If institution is subject to suspensive condition – 1. Time of the decedent‟s death AND 2. Time of the happening of the condition

C.

If final judgment is a requisite of unworthiness – at the time of final judgment.

Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and istration of the property thus inherited by his children.  Representation in Unworthiness  Unworthiness is one of the 3 occasions for representation to operate.  Extent of Representation  Representation in unworthiness [as also in predecease and disinheritance] extends not only to the legitime but also to whatever portion in intestate succession the person represented may have been entitled to.  The first paragraph of the article should not be taken to imply that representation is confined to the legitime.  Representation in the Collateral Line  If the unworthy heir is a brother or sister, his children [nephews and nieces of the decedent] will represent under art972 par2.  Second Paragraph – Articles 225-226 of the Family Code should be read together with the second paragraph of this article – A. As to usufruct – the prohibition in this provision has become unnecessary because of Art226 par2 of the Family Code. B. As to istration – the disqualification remains, and this right shall be exercised either by a judicially appointed guardian or those vested by law with substitute parental authority under Art216 of the Family Code.

Art. 1036. Alienations of hereditary property, and acts of istration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir.

  

The validity of the alienation is determined by the good faith or bad faith of the transferee, not of the transferor [the excluded heir] For the transferee to be in good faith, he must have acquired the thing for value and without knowledge of the defect of the transferor‟s title. Thus, a donee cannot claim the benefit of this provision, since he did not acquire for value.

 Note that in cases of valid alienations by the disqualified heir, the rightful heirs are not without a remedy: they may go after the disqualified heir for damages.

Art. 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate.  The right of reimbursement granted by this article to the excluded heir is irrespective of his bad faith because the expenses referred to in this article are necessary expenses which have to be reimbursed even to a possessor in bad faith [under Articles 443 and 546 par1]

Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence.  The disqualified heir, referred to in this article, who took possession of the hereditary property, is a possessor in bad faith, because he took possession “disregarding the provision stated in the preceding articles.”  Hence, the law applies to him the rules on possession in bad faith: 1. The obligation to return, with accessions 2. Liability for fruits which were received and could have been received.  These are the same rules laid down in Art549.  Period for action to recover – Under Art 1040, 5 years.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

 Good Faith of Transferee as Determining Factor of Validity Page 91 of 109

SUCCESSION  National law of decedent governs capacity – note that it is the national law of the DECENDENT and not that of the heir that governs the capacity to succeed.  This is the same principle as Art16 par2. Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession.  5 years prescriptive period – applies both to the declaration of incapacity of the heir and the recovery of the inheritance or portion thereof wrongfully possessed by the disqualified heir.  In effect, this is a special prescriptive period for this action. It is an exception to the prescriptive periods for recovery of movables [8years] and of immovables [30years] laid down respectively in Articles 1140 and 1141.

 This has the same underlying philosophy as Art777. The moment of death is the time succession vests.  RETROACTIVITY – A. Of Acceptance – the successor will be deemed to have owned and possessed the property from the precise moment of the decedent‟s death. This rule has consequences with respect to acquisitive prescription, capacity to succeed, representation, etc. B. Of Renunciation – the renouncer is deemed never to have owned or possessed the property. Consequently, the substitute, co-heir or intestate heir who gets the property in default of the renouncer is deemed to have owned and possessed it from the moment of the decedent‟s death. C. Conditional Institutions – the principle of retroactivity is not overridden even if the institution is subject to a suspensive condition. Upon the happening of the condition, the property es to the heir but with retroactive effect. This is the same principle enunciated in conditional obligations [Art1187]. Similarly, if the condition does not happen, the property goes to the appropriate successor, with the same retroactive effect.  However, for conditional institutions, the provisions of Art880 should be complied with, to wit, the property should be placed under istration during the interim.

Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance.

SECTION 3. ACCEPTANCE AND REPUDIATION OF THE INHERITANCE Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.  Acceptance of Inheritance a Free Act  The acceptance of property through succession – whether in the form of a legitime, testamentary succession or intestacy – is, like the acceptance of a donation, essentially free and voluntary.  No one can be required to accept a benefit: Non potest liberalitas nolenti adquiri.  The following articles lay down the requirements for acceptance and repudiation. It should be noted that the rules for acceptance are much more LIBERAL than those for repudiation. This is because acceptance is beneficial whereas repudiation is prejudicial to the successor.

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent.

 Acceptance or renunciation must be made knowingly. Unless the successor has knowledge of the two things mentioned in this article, his acceptance or renunciation is not effective.

Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030.

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SUCCESSION  Requirement for Personal Acceptance or Renunciation  Capacity to act is required for personal acceptance or renunciation.  Acceptance or Renunciation on behalf of minors or other incapacitated parties  Minors and other capacitated parties may accept or renounce only through their legal representatives. However, for renunciation there is the added requirement of court approval. The rules for renunciation are stricter than those for acceptance.  Acceptance of Testamentary Grants to the Poor  The persons empowered in Art1030 to select the recipients of testamentary grants to the poor in general are likewise empowered to accept on their behalf. 

Art.

Note that: 1. These authorized individuals can only accept, not reject the grant. 2. The persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit.

1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary.

Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government.  These provisions lay down rules similar to those concerning acceptance or renunciation on behalf of minors and incompetents. The legal representatives may accept or renounce the testamentary grant on behalf of the entity represented, but for renunciation, court approval is, additionally required.

Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband.  Acceptance or renunciation by a Married person  There is no suggestion in this article that a married man of age does not have the capacity to renounce without his wife‟s consent.  The rule is more accurately worded as follows – A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or her spouse‟s consent.

Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should

they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval.  Capacity of Deaf-mute to accept or renounce – this article must be correlated with Art1327, which provides: Art. 1327. The following cannot give consent to a contract: (1) Unemancipated minors; (2) Insane or demented persons, and deaf-mutes who do not know how to write.

 Thus, a deaf-mute who can read and write has contractual capacity, and can accept or renounce on his own behalf.  However, an illiterate deaf-mute is incompetent and the rules on acceptance and renunciation through a representative apply. [Art1044]

Art. 1049. Acceptance may be express or tacit. An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional istration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed.  KINDS OF ACCEPTANCE A. Express 1. Public Documents or 2. Private Writing B. Tacit C. Implied [Art1057]

Art. 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his coheirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted.  TACIT ACCEPTANCE

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SUCCESSION 

Inferred from acts revealing an intent to accept. In general, a tacit acceptance is inferred from acts of ownership performed by the heir over the property. The enumeration in this article is illustrative but not exclusive.



 Instances of Tacit Acceptance A. Par1 – Onerous or gratuitous conveyance in favor of one, some or all of his co-heirs or to a stranger. This is an act of ownership, which necessarily implies that the heir has accepted the inheritance. B. Par2 – Gratuitous renunciation in favor of one or some of his co-heirs. This is not in fact a renunciation but a conveyance in favor of the co-heirs specified. It partakes of the nature of donation and therefore must conform to the prescribed form of donations under Arts 748749.  If the gratuitous “renunciation” is in favor of ALL the heirs but in proportions DIFFERENT from those in which they would receive by accretion, it is still a conveyance and must be treated as a tacit acceptance.  A fortiori, if the renunciation in favor of one or some of the co-heirs is for an onerous consideration, there is an acceptance. C.

Par3 – Onerous renunciation in favor of all the co-heirs indiscriminately; this is not in fact a renunciation but a sale f his portion and therefore constitutes a tacit acceptance.  Gratuitous renunciation in favor of the co-heirs indiscriminately – this is a true renunciation and cannot be treated as a tacit acceptance. Indiscriminate renunciation means a renouncement, gratuitously made, in favor of all the coheirs who would get the renounced portion by virtue of accretion.  The same rule applies even if the part renounced in this manner is the legitime, notwithstanding that there is no accretion in the legitime, as long as the renunciation is indiscriminate.

Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.  FORMS OF RENUNCIATION A. Public or Authentic [genuine] Instrument B. Petition filed in the Settlement Proceedings  Form of renunciation stricter – the law has stricter requisites for renunciation, since it is not beneficial to the heir.

Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong.  This is an instance of accion pauliana, which is the right given to creditors to impugn or set aside contracts, transactions or dispositions of their debtors which will prejudice or defraud them.  The same principle is expressed in Art1177 and Art1313 of the Civil Code. Art. 1177. The creditors, after having pursued the property in possession of the debtor to satisfy their claims, may exercise all the rights and bring all the actions of the latter for the same purpose, save those which are inherent in his person; they may also impugn the acts which the debtor may have done to defraud them. Art. 1313. Creditors are protected in cases of contracts intended to defraud them.

 The right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or value necessary to satisfy the credit. Any amount in excess of that may be validly renounced by the debtor-heir.

Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs.  This rule is a consequence of the principle that the rieght of succession vests at the moment of death. Therefore, the right of the heir who dies before accepting or renouncing is already vested and is transmitted to the heir‟s heirs.  The right to the inheritance itself forms part of the inheritance of the heir and therefore, the heir of the heir can exercise the right granted by this article only if he [the heir‟s heir] accepts his own predecessor‟s inheritance. If he renounces, obviously he cannot exercise this right.

Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it.  If there are several heirs, their right to accept or right corresponds to the aliquot share to which they are entitled.

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SUCCESSION  Thus, if X dies and Y, his heir, himself dies before accepting or renouncing the inheritance, leaving A, B and C as his own heirs – A, B and C each has the right to accept or renounce his corresponding 1/3 interest in whatever Y was entitled to inherit from X.  Question – should one or more of the heirs renounce, to whom will the repudiated portion go? To the ones who accept, by accretion? Or to the intestate heirs of the decedent whose inheritance the predecessor of the heirs was unable to accept or renounce?

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.  This article governs the situation when a person is BOTH a testamentary heir [or legatee or devisee and an intestate heir], with respect to the same inheritance.  RULES A. If he renounces as testamentary heir [or legatee or devisee] – he is deemed to have renounced as intestate heir as well. B. If he renounces as intestate heir without knowledge of his being a testamentary heir [or legatee or devisee] – he is NOT deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the latter capacity.  Rationale – the testamentary disposition is the express will of the testator, whereas intestacy is only his implied will. One who renounces the express will is deemed to have renounced the implied also, but not the other way around.  Question – supposing the heir renounces as intestate heir with knowledge of his being testamentary heir, may he accept in the latter capacity? Balane says YES, in light of the rationale of the rule.  NON-APPLICABILITY OF RULE TO LEGITIME  In view of the rationale of the rule, should the heir be simultaneously a compulsory heir and a testamentary heir, he can accept either or both.  The legitime es not because of any implied will or wish of the decedent but by strict operation of law, irrespective of the decedent‟s wishes. Thus, the term ab intestate in this article refers solely to intestate succession.  To the same effect is the rule laid down in Art955 par2, regarding a person who is simultaneously a compulsory heir and a legatee or devisee.

Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears.  EXCEPTIONS TO THE RULE OF FINALITY OF ACCEPTANCE OR RENUNCIATION A. Vitiated Consent – the factors are: 1. Violence 2. Intimidation 3. Undue Influence 4. Mistake 5. Fraud B. Appearance of an unknown will – this applies if the newly-discovered will is subsequent to any will which may have formed the basis for the acceptance or renouncement. The new will [assuming it is valid and itted to probate] reopens the whole affair and will call for a new acceptance or renunciation.

Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance.  This is IMPLIED ACCEPTANCE – the failure to signify the acceptance or renunciation within the 30-day period specified by this article  Qui tacet consentire videtur – silence means yes.

SECTION 4. – EXECUTORS AND S

Art.

1058. All matters relating to the appointment, powers and duties of executors and s and concerning the istration of estates of deceased persons shall be governed by the Rules of Court.

 With reference to Rules 78-90 of the Rules of Court.

Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses

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SUCCESSION referred to in Article 2244, No. 8, shall be those involved in the istration of the decedent's estate.  In relation to Articles 2239-2251 and 2244

Art.

1060. A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, , guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward.

 Rule 78 of the RoC governs the issuance of letters testamentary and of istration and should be read together with this article.

SECTION 5. – COLLATION  THREE MEANINGS OF THE TERM “COLLATION” AS USED IN THE FF ARTICLES: 1. Collation as COMPUTATION – [add] o This is a simple ing or arithmetical process, whereby the value of all donations inter vivos made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate. o Article 908 2.

3.

Art.

Collation as IMPUTATION – [subtract] o This is the process by which donations inter vivos made by the decedent are correspondingly charged either to the donee‟s legitime or against the disposable portion. o Articles 909 and 910 Collation as RETURN – o This takes place when a donation inter vivos is found to be inofficious [i.e. exceeds the disposable portion] and so much of its value as is inofficious is returned to the decedent‟s estate to satisfy the legitimes. o Articles 909 and 910 also provide for this.

the legitime of each heir, and in the of the partition.  This article refers to the COMPUTATION of all donations inter vivos made by the decedent, for the purpose of determining the value of the net estate.  This is exactly the same thing that is referred to in Art908 par2. The process is purely arithmetical, and is merely paper computation.  What Should be Included in the Computation  ALL donations inter vivos – whether made to compulsory heirs or to strangers, should be included in the computation of the net hereditary rd estate. This is the 3 step in the process of computing the net hereditary estate under Art908.  Value to be Computed  Only the value of the property donated AT THE TIME THE DONATION WAS MADE is to be computed since in donations ownership transfers at the time the donation is perfected.  Thus, any subsequent increase in value is for the donee‟s benefit, and any decrease is for his .  Purpose of the Article is to determine the amount of the net estate so as to ensure that the legitimes are not impaired.

Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.  Collation in the sense of IMPUTATION  That donations inter vivos made by the decedent to a compulsory heir are, as a general rule, imputed to or charged against the heir‟s legitime.  RULES ON IMPUTATION OF DONATIONS INTER VIVOS:

1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of

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A.

Donations inter vivos to compulsory heirs o GR: Should be imputed to the heir‟s legitime and is considered as an advance on the legitime. o EXCEPTIONS – 1. If the donor provides in the Deed of Donation otherwise 2. If the donee renounces the inheritance, because in this case the donee gives up his status as a compulsory heir and therefore cannot be considered as one. o In case either exception applies, the donation will have to be imputed to the FREE PORTION.

SUCCESSION o Question – supposing the compulsory heir received a donation inter vivos from the decedent but the value of the donation exceeds the donee‟s legitime? The donation will be imputed to the donee‟s legitime to the extent of the lefitime‟s value and the excess, to the free portion. B.

Donations inter vivos to strangers o Imputed to the free portion

C.

Instances when donations inter vivos are to be imputed to the FREE PORTION 1. When made to strangers 2. When made to compulsory heirs, and the donor so provides that it will be imputed to the free portion 3. When made to compulsory heirs who renounce the inheritance 4. When in excess of the compulsory heir‟s legitime, as to the excess.

Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired.  Collation in the sense of IMPUTATION.  This article applies to Donations Mortis Cause [the previous article applies to donations inter vivos]. Therefore, here the testamentary disposition is as a general rule, not deemed as an advance on the legitime.  RULE ON TESTAMENTARY DISPOSITIONS TO COMPULSORY HEIRS  GR: they should NOT be imputed to the legitime but to the free portion. Hence, the compulsory heir receives the testamentary disposition in addition to his legitime.  EXCEPTION: if the testator provides otherwise. Then the testamentary disposition in favor of the heir WILL be MERGED with his legitime. That will make the disposition illusory.

Art. 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced.  Collation in the sense of IMPUTATION

 This article applies to 2 instances: 1. When the grandchildren of the decedent inheriting by representation concurrently with children of the decedent [uncles and aunts of the grandchildren] who are inheriting in their own right, or 2. The grandchildren inherit by representation with other grandchildren [cousins of the grandchildren].  What the Grandchildren have to Collate or Impute to the Legitime A. Whatever the parent whom they are representing would have been obliged to collate; and B. Whatever they themselves have received from the grandparent by gratuitous title, subject to the same rules and exceptions in Art1062.

Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children.  Collation in the sense of IMPUTATION.  A person should not collate what his parent gave to his child since he is not the recipient of the conveyance.  Against what part of the estate the conveyance is imputable – the donation to the grandchild should be imputed to the FREE PORTION, since the donation is to a stranger.

Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses tly, the child shall be obliged to bring to collation one-half of the thing donated.  Collation in the sense of IMPUTATION  RULES ON DONATIONS TO THE SPOUSE OF THE CHILD A. Donations made by a person to his son-in-law or daughter-in-law are SEPARATE property of the donee and should not be imputed to the legitime of the donor‟s child [the donee‟s spouse]. The donation is one made to a stranger. B. If the donation is made to the spouse TLY, one-half belongs to the donor‟s child and should be treated in accordance with Art1062 and the other half is the property of the donor‟s son or daughter-in-law and should be treated as a donation to a stranger. o This presumption of equality of aliquot shares [as to the ½ division between spouses] will yield to a different designation by the donor.

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SUCCESSION  These rules are consistent with the Family Code – A. In A – Article 92 par. 1

Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

B.

[i.e. courses beyond the secondary level] are an exception to the rule laid down in Art1062. o Hence, these expenses, if not inofficious, although donations, should NOT be charged against the recipient‟s legitime but against the FREE PORTION, unless the parents provide otherwise.

Art. 109. The following shall be the exclusive property of each spouse: (2) That which each acquires during the marriage by gratuitous title;

 Contrary Provision by parents o Should the parents provide otherwise, the child is entitled under this article to deduct from the said amount the sum corresponding to what his parents would have spent on him had he stayed at home and loafed.

Art. 113. Property donated or left by will to the spouses, tly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper.

Art. 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation.

In G – Art109 (2) and Article 113.

Art. 1067. Expenses for , education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation.  Collation in the sense of COMPUTATION [add].  The expenses mentioned should not even be included in the computation of the decedent‟s estate. This is in effect a qualification of or an exception to the rule in Art1061. The reason is that it would be extremely impractical or impossible to make an ing of all these items.  Justice Hofilena says these are not really donations but expenses. According to Tolentino, educational expenses in the elementary and high school levels are considered as expenses and not subject to collation, but higher levels of education should be collated.  “” in this article has a restrictive meaning, it DOES NOT include expenses for the recipient‟s professional, vocational or other career because these are items governed by Art1068.

 Collation in the sense of IMPUTATION  The items under this article constitute donations by the parent to the child and therefore should be treated like other donations to compulsory heirs under art1062.

Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.  This article applies only to wedding gifts given by parents or ascendants to children or descendants.  Scope and Operation of this Article – A. The article covers only wedding gifts consisting of jewelry, clothing and wedding outfit. According to Manresa, outfit includes the items necessary for an individual‟s personal use. It does not include other property, whether real or personal, that would be governed by Art1062. B.

Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom.  Collation in the sense of IMPUTATION  This article states that as a general rule: o The expenses incurred by the parents for the child‟s professional, vocational or other career

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Literally construed, this article seems to state that the value of such wedding gifts cannot go beyond 1/10 of the free portion of the donor‟s estate. Any excess will be considered inofficious and should be returned in the same manner and at the same time as other inofficious donations. It further seems that as o the allowable 1/10, this is to be imputed to the free portion. o The question is why should the gift be reduced as inofficious just because it exceeds 1/10 of the free portion? o SO, Manresa interprets the article to mean that the gift will be imputed to the free portion to the extent of 1/10 of the free portion. Beyond that value, the excess will be imputable to the recipient’s legitime.

SUCCESSION received. This of course will yield to a different agreement among the heirs.

Art. 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or and risk of the donee.  Collation in IMPUTATION

2

senses:

COMPUTATION

&

 What value is to be computed and imputed: o Only the value of the thing donated at the time the donation was made should be considered in the computation of the donor‟s estate. o Similarly, only the thing‟s value at the time the donation was made should be impited whether to the legitime or to the free portion.  Reason – any appreciation or depreciation of the thing after that time should be for the donee‟s , since the donation transfers ownership to him.

Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance.  Collation in IMPUTATION

2

senses:

COMPUTATION

Art.

&

 T DONATIONS st  The 1 sentence of this article presupposes either a regime of A or of G between the donor spouses. A t donation by them will be treated, upon dissolution of the property regime, as pertaining in equal shares to the estate of each.  DONATIONS BY ONE PARENT ALONE  Such a donation will be of separately-owned property and should be treated as such.

Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality.  Collation in the sense of IMPUTATION  This article requires not only equivalence in amount, but as far as possible, also in the kind of property

1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the coheirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price.

 This article provides for the closes analogue to strict equivalence, in case there are not enough of the same things to distribute among all.  Again, this will yield to a contrary agreement among the heirs.

Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened. For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment.  Collation in the sense of RETURN  Rationale  If any donation turns out to be inofficious, then the obligation to return it to the estate arises as of the time the succession vests, which is the time of the decedent‟s death, because it is from that time the compulsory heir‟s right to the inheritance becomes absolute. From that time therefore the compulsory heir is entitled to the fruits.  Extent of Right to Fruits  The entirety of the fruits and interests shall pertain to the compulsory heir, only if the donation is TOTALLY inofficious.  If the donation is only partially inofficious, the right to the fruits and interests shall be PRORATED between the compulsory heir and the donee, in proportion to their respective interests over the property.

Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value.

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SUCCESSION The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate.  Collation in the sense of RETURN  The rules in this article govern necessary [par1], useful [par2] and ornamental [par3] expenses incurred by the donee who is now obliged to return.  TOTAL OR PARTIAL RETURN  The extent of the application of the rules in this article depends on the extent of the obligation to return, thus: 1.

If the thing has to be returned in its ENTIRETY because the donation is totally inofficious – a. Necessary expenses – reimbursement must be to the full extent of the expenses incurred. This is in relation to Art546 par1: Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

b.

Useful expenses – reimbursement must be to the full extent provided that the improvement is still in existence. This is in relation to Art546 par2: Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

c.

Ornamental expenses – NO reimbursement demandable, but the right to removal is granted if no injury to the estate will be cause. This is in relation to Article 548: Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

2.

If the thing has to be returned only in PART because the donation is only partially inofficious a. Necessary and useful expenses – the reimbursement is also partial, in proportion to the value to be returned.

b.

Ornamental expenses – the same rule as in total return, unless the property is physically divided and the ornament happens to be located in the portion assigned to the donee, in which case he will have all the rights of ownership.

 Confusion in terminology – the situation treated in this article is really a case of reduction of inofficious donations and the rules set forth in this article really belong in the provisions on inofficious donations in Articles 910, 910 and 911. The confusion would have been avoided if the Code had not insisted on using the term collation so variedly.

Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given.  The division and distribution of the estate can be made partially, should there be controversy as to the inclusion of certain items in the computation of the estate‟s value or the imputation of the heirs‟ shares.  The distribution can proceed on the items that are not controverted.

SECTION 6. – PARTITION AND DISTRIBUTION OF THE ESTATE

SUBSECTION 1. - Partition  The immediate effect of the decedent‟s death is the vesting of the successional rights of the successors, because the rights to the succession are transmitted from the moment of the death of the decedent.  What the successors acquire vested rights over is the net estate and the net estate is what remains after all the unpaid debts of the decedent are paid, and the value of all the donations inter vivos is added. Thus, debts first have to be paid; it is possible, if the debts exceed the assets, that after the debts are paid, there will be no estate to speak of.  If however the decedent‟s gross assets exceed his liabilities, or if there are inofficious donations to be returned, his net estate es to his successors [heirs, legatees, devisees] at the precise moment of death.  The estate however, is a mass of properties, usually consisting of various items. The immediate effect therefore, of the decedent‟s death as far as successional rights are concerned, is a COOWNERSHIP of the heirs over the entire mass. The legatees and devisees will acquire a right to the specific items given to them, assuming the legacies and devises are not inofficious.

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SUCCESSION  The actual partition of the estate among the heirs terminating the co-ownership can be done basically through 2 methods: 1. Extrajudicial agreement among the heirs, or 2. Judicial proceedings  The sequence may be outlines as: 1. Upon decedent‟s death – co-ownership of heirs over net hereditary or partible estate 2. Subsequent Partition a. By extrajudicial agreement under Rule 74 Sec1 of the ROC b. Through judicial order in appropriate proceedings under Rule 90 RoC

 The causante [decedent] can himself effect the partition of his estate. 1. Nature of Partition by Causante – a partition made by the causante has the ff. characteristics: a. It takes effect only upon death, b. It is revocable as long as the causante is alive; hence the causante can change or modify it, or even rescind it during his lifetime.

 Actually, the judicial proceeding in which the partition is ordered comprises the entire settlement of the estate of the decedent, covered by Rules 73-90 of the RoC  In this part of successional law, i.e. the partition of the estate, substantive law and procedural law intersect.

Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. Art.

1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value.

 Partition ends the co-ownership among the co-heirs as to the thing partitioned.  KINDS OF PARTITION A. Actual – physical division of the thing among the co-heirs B. Constructive – any act, other than physical division, which terminates the co-ownership rd [such as sale to a 3 person – in relation to Articles 1082 and 1086].

Art. 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. PARTITION BY CAUSANTE

o These characteristics stem from the fact that the partition is based on succession as the mode of transfer and succession is necessarily mortis causa. Succession, in our law, cannot take place during the causante‟s lifetime; that would be a donation inter vivos, not succession. 2. How causante may make the Partition – a. By WILL, or b. By Act Inter Vivos i. Form of Partition by Act Inter Vivos – there is authority to the effect that a partition inter vivos should be in writing and in a public instrument. [Fajardo v. Fajardo] But in an obiter, SC held that even an oral partition is valid. [Chavez v. IAC] ii. In case of a partition inter vivos, must there be a prior will?  Certainly, a mere partition inter vivos which does not observe the formalities of a will cannot by itself, make testamentary dispositions because that would circumvent the requirement that dispositions mortis causa can be made only by means of a will. A person cannot, in the guise of making a partition, make disposition of property to take effect upon his death.  Justice HOFI says that if partition is made by private writing, after which a will is executed, the subsequent will DOES NOT cure the private writing. Therefore, the partition is not effective.  Alsua –Betts v. CA provides that the partition inter vivos is void even if a subsequent will is executed in conformity with the provisions of the prior partition.  The case of Legasto v. Verzosa provides that a mere partition not connected to a will is not binding. The act of disposition has to be by will, but the partition/distribution may be done by will or in writing. Still, it must be pursuant to or connected to a WILL.

3. Possible Effect of Amended Wording of Art1080: Page 101 of 109

SUCCESSION  The old Code used the term “testator” while Art1080 used the term “person”. Under the present provision, a partition inter vivos can be validly made even without a prior ing will, provided that it is not used to make mortis causa dispositions Nothing can take the place of a will to dispose of property mortis causa.  Hence, the only way a partition without a will can be valid is by following strictly the intestate portions provided by law: i.e. the partition should conform exactly to the portions provided by law in intestate succession, for then the causante would not be making testamentary dispositions in the partition – the dispositions would be by virtue of intestate succession.  Limitation on Partition by Causante  The legitimes of the causante‟s compulsory heirs cannot be impaired by partition made by him, whether in a will or by an act inter vivos, pursuant to Art904.  Paragraph 2 – Partition to Keep an Enterprise Intact  It seems only a parent is allowed the privilege of this paragraph.  It is understood that this privilege to make the partition in such a way as to keep the enterprise intact can be exercised only if enough cash or other property is available to satisfy the legitimes of the other children. Under no circumstances should the legitimes be impaired.

Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees.



Partition may be actual or constructive, in relation to Article 1079. This article refers to cases of constructive partition.

Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs.  Partition Generally a Matter of Right  As a general rule, any co-heir may demand partition at any time. This is the same rule laid down in Art494 par1: Art. 494. No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.



 Mandatary cannot be a co-heir – the reason for this prohibition is to ensure fairness and impartiality.

Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction.  CONSTRUCTIVE PARTITION

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EXCEPTIONS – despite this imposed indivision, partition may be demanded: 1. When any of the causes for dissolution of a partnership occurs, under Arts. 1830-1831: Art. 1830. Dissolution is caused: (1) Without violation of the agreement between the partners: (a) By the termination of the definite term or particular undertaking specified in the agreement; (b) By the express will of any partner, who must act in good faith, when no definite term or particular is specified; (c) By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking; (d) By the expulsion of any partner from the business bona fide in accordance with such a power

SUCCESSION conferred by the agreement between the partners; (2) In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this article, by the express will of any partner at any time; (3) By any event which makes it unlawful for the business of the partnership to be carried on or for the to carry it on in partnership; (4) When a specific thing which a partner had promised to contribute to the partnership, perishes before the delivery; in any case by the loss of the thing, when the partner who contributed it having reserved the ownership thereof, has only transferred to the partnership the use or enjoyment of the same; but the partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof; (5) By the death of any partner; (6) By the insolvency of any partner or of the partnership; (7) By the civil interdiction of any partner; (8) By decree of court under the following article. Art. 1831. On application by or for a partner the court shall decree a dissolution whenever: (1) A partner has been declared insane in any judicial proceeding or is shown to be of unsound mind; (2) A partner becomes in any other way incapable of performing his part of the partnership contract; (3) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business; (4) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him; (5) The business of the partnership can only be carried on at a loss; (6) Other circumstances render a dissolution equitable. On the application of the purchaser of a partner's interest under Article 1813 or 1814: (1) After the termination of the specified term or particular undertaking; (2) At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.

2. When the Court finds compelling reasons for partition. 

When the co-heirs agree on indivision for a period not exceeding 10years, renewable for like periods.

Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be

complied with, the partition understood to be provisional.

shall

be

 Application of Article – Institutions with a Suspensive Condition  Rationale  The heir instituted under a suspensive condition acquires no rights unless and until the condition happens.  The other heirs not so instituted, however, should not be deprived of their right to demand partition, subject to the obligation to protect the inchoate right of the conditional heir, by furnishing adequate security.

Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or asg to each of the co-heirs things of the same nature, quality and kind.  EQUALITY AMONG CO-HEIRS  Quantitative – the shares of the co-heirs are not necessarily equal in value, but are determined by the law and by will.  Qualitative – whatever the aliquot portions be, however, the law mandates equality in nature, kind and quality, so that if A gets a parcel of rice land, B should also be given one.  EXCEPTIONS / QUALIFICATIONS to the requirement of Qualitative Equality – 1. If the causante has made the partition himself 2. If the co-heirs agree otherwise 3. If qualitative equality is impossible or impracticable.

Art. 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done.  This is another instance of constructive partition: sale of the thing and division of the proceeds among the heirs. This will have to be resorted to if the thing is essentially indivisible or in physical partition will so diminish its value that it becomes unserviceable or useless.  To whom thing may be sold: rd 1. To a 3 person, or 2. If none of the co-heirs object, to any one of them who is interested. If more than one are interested in buying, they may buy it tly and have the proceeds distributed among the others to the extent of their respective

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SUCCESSION shares. But the co-ownership will continue as to the buyers.

 

Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect.  MUTUAL ING  Upon partition, the co-heirs shall render a mutual ing of benefits received and expenses, both necessary and useful, incurred by each of them.  Thus, any heir who between the decedent‟s death and partition time, received fruits from the estate shall reimburse his co-heirs their respective shares, in proportion to the hereditary interest of each.  Similarly, any heir who incurred necessary or useful expenses on the hereditary estate may demand reimbursement from his co-heirs in the same proportion.  This article lays down the same rule contained in the Title on Co-ownership under Art500:



 The same rule is laid down in Art1620 which applies where the co-ownership covers specific property. While Article 1088 applies where the co-ownership covers the mass of the hereditary estate. But the distinction is academic and the rule is the same. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common.

Art. 500. Upon partition, there shall be a mutual ing for benefits received and reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.  Right of an Heir to Convey Share Before Partition  Successional rights vest upon the decedent‟s death. Consequently, an heir may dispose of his aliquot share after that time; he may do this gratuitously or onerously.  RIGHT OF REDEMPTION IN CASE OF SALE  In the event any co-heir sells his aliquot portion to a stranger before partition time, this article entitles any co-heir to redeem the portion sold. A. Sale must be to a stranger – a stranger within the meaning of this article is anyone who is not a co-heir. [Basa v. Aguilar] B. When right of redemption may be exercised – the right may be exercised only before partition, not after. [Caro v. CA]  Requirement of Written Notice

The article gives the co-heirs the right of redemption, which can be exercised within one month from written notice to them by the vendor. Written notice therefore is required; without it the period does not commence to run. The SC has, as a rule, interpreted this requirement of written notice strictly. Garcia v. Calaliman – Written notice is indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice to remove all uncertainty as to the sale, its and its validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for any alternative, the method of notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption.

 When more than one co-owner wish to redeem – implicit in article 1088 and explicit in article 1620 is that in such case, ALL the co-owners wishing to redeem may do so, but in proportion to each one‟s hereditary interest over the mass.

Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated.  This is particularly important in case of ed land because the old title has to be surrendered so that a new title in the name of the heir may be issued.

Art. 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title.

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SUCCESSION  This article only provides for the right over the document.  The co-heirs however have the right to have the title divided into individual titles, a separate one for each of the owners to correspond to the separate portions held by them respectively.

 



SUBSECTION 2. - Effects of Partition Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him.  The effect of partition is termination of co-ownership.

Art. 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated.  OBLIGATION OF MUTUAL WARRANTY  Partition among co-heirs imposes upon them the same mutual obligation of warranties imposed among co-owners in general.  According to Art501: “Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other coowners.”  RULE ON WARRANTIES  The applicable rules on warranties are found in Articles 1547-1580 in the title on Sales, insofar as those articles are not inconsistent with the rules given in this subsection.

Art. 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other coheirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve.  Proportional Liability of Co-heirs on Warranty  Burdens should be proportional to benefits.

Co-heirs are A, B, C, D and E in equal shares of P60k each. B claims warranty for the total amount of his share because he was evicted. A, C, D and E have to contribute P12k each to make good the warranty. Since there was eviction in the amount of P60k, the total value to be partitioned was only P240k, hence P48k each. Should A be insolvent, his P12k share shall be borne by all the others, including B. Hence, C, D and E have to contribute P3k more, making their individual liability P15k. B receives a total of P45k, having borne his own share of P3k from A‟s insolvency.

 EXCEPTION to right to reimbursement from insolvent obligor: insolvency that is judicially declared, under the Insolvency Law, since judicially declared insolvency extinguishes all obligations.

Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. Art. 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a coheir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs.  Credit Assigned to Co-Heir in Partition  The warranty covers only insolvency of the decedent‟s debtor at the time of partition, not subsequent insolvency, for which the co-heir takes the risk.  Foolhardy is the co-heir who will accept a collectible as part of his share in the partition. A credit, even under the best of circumstances, is aleatory.  The warranty has a special prescriptive period of FIVE (5) YEARS.  Bad Debt Assigned to a Co-Heir  A co-heir who accepts a known bad debt as his share is either a fool or a masochist.

 Insolvency of One of Obligors – should one of the coheirs bound to make good the warranty be insolvent, his portion shall be borne proportionally by all, including the one entitled to the warranty: Example -

Art. 1096. The obligation of warranty among coheirs shall cease in the following cases:

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SUCCESSION (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith; (3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property.  This article enumerates the instances when there is NO MUTUAL WARRANTY. It is not accurate to refer to it as a cessation, since there was none to begin with. These are – 1. Partition by the testator himself – save where the legitime is impaired. 2. Agreement among the co-heirs to suppress the warranty. 3. Supervening events causing the loss or the diminution in value. 4. Fault of the co-heir 5. Waiver

SUBSECTION 3. - Rescission and Nullity of Partition

Art. 1097. A partition may be rescinded or annulled for the same causes as contracts.  CAUSES FOR ANNULMENT Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification.  CAUSES FOR RESCISSION Art. 1381. The following contracts are rescissible: (1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than one-fourth of the value of the things which are the object thereof; (2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number;

(3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them; (4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge and approval of the litigants or of competent judicial authority; (5) All other contracts specially declared by law to be subject to rescission.  Paragraphs 1 and 2 are modified by the following article.

Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated.  LESION is economic injury, where the party receives less than he is entitled to receive. Lesion is exceedingly difficult to determine and evaluate and is viewed with increasing disfavor by modern civil law.  Amount of Lesion  The minimum extent of lesion for rescission to be available is ONE-FOURTH or 25%.  Note the slight variation from paragraphs 1 and 2 of Art1381 which specifies MORE than ¼. Evidently, in cases of partition of the inheritance, Art1098 applies.  AN EXCEPTION TO THIS ARTICLE IS FOUND IN THE FOLLOWING ARTICLE.

Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise.  This article is an exception to the preceding article.  A partition made by the Testator himself is NOT subject to rescission even in case of lesion in the amount specified in the preceding article.  EXCEPT in the following cases: 1. Impairment of the legitime [even if the lesion is less than one-fourth] 2. Mistake by the testator or vitiation of his intent.

Art. 1100. The action for rescission on of lesion shall prescribe after four years from the time the partition was made.

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SUCCESSION  Prescriptive period of FOUR (4) YEARS – this is the same period laid down in the general rule of rescission of contracts under article 1389.

Art. 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share.  OBLIGOR’S OPTIONS – it is the co-heir who is sued for rescission who has the option. He has 2 choices: 1. To have a Re-partition, or 2. To indemnify the co-heir the amount of the lesion suffered.

 This is NOT preterition under Art854. This is simply an omission of a compulsory heir in the partition, the assumption being something is left for him in the form of an undisposed portion of the estate. The omitted heir simply gets his rightful share [Non v. CA]  If the compulsory heir is one in the direct line and is totally omitted from the inheritance, Art854 applies.

Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person.  This is the reverse of the preceding article. Here an outsider is mistakenly included in the partition. The bvious remedy is to recover the property from him and have it redistributed among the proper recipients.

Art. 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash.  Correlated with the preceding article, this article is unnecessary since anyway it is the party sued who is given the option.

Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted.  Incompleteness of the partition is not a ground for rescission. The remedy is a supplemental partition.

Art. 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him.

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SUCCESSION

COMPARISON OF RULES ON TESTATE AND INTESTATE SUCCESSION RULE RIGHT OF ACCRETION

TESTATE Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it.

INTESTATE Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. Art. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place.

Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall to the legal heirs of the testator, who shall receive it with the same charges and obligations.

NOTES Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his coheirs, co-devisees, or colegatees. Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the right of accretion.

CAPACITY TO SUCCEED

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.

Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.

Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession.

ACCEPTANCE OR REPUDIATION OF INHERITANCE

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.

Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.

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Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance.

SUCCESSION HALF BLOOD AND FULL BLOOD BROTHERS AND SISTERS REPRESENTA TION

Art. 848. 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. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance.

Art. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.

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