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

Consequently, whether the testamentary disposition is an institution of heir, or a devise or legacy, under
this article, the testator is free to impose any condition, or mode, or term.

Before a testamentary disposition is considered conditional, it is necessary that the condition must fairly
appear from the language used in the will.4 If it does not appear in the will itself, or in a document
executed with the same formalities as a will, it is not binding. In such case the testamentary disposition
is pure, and not condition.

Morente vs. De la Santa, where the testatrix merely orders her husband, who is the principal bene
ciary in her will, not to marry again after her death, without attaching such order to the legacies and
devises, or without stating that failure to comply with the order shall result in the nullity of the legacies
and devices, and subsequently, four months after her death, the husband married again, it was held that
such legacies and devises are not conditional, since the condition does not fairly appear from the
language used in the will. The result, however, would be different if the condition not to marry again is
attached to the testamentary disposition or if the testator declared that failure to comply with the
condition will nullify the testamentary disposition. Thus, in Broce vs. Marcallana,7 where the testatrix, in
her will, expressly directed her husband not to get married again, after her death, or if he desires to get
married again, he must choose any of her relatives within the sixth degree, otherwise, he shall lose his
right to the properties bequeathed or devised to him, and subsequently, after her death, the husband
got married again, but not to any of her relatives, it was held that the legacies and devises are
conditional, and as a consequence of the violation of the condition, the husband loses his right to the
properties given to him without prejudice to his legitime.

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.8

Conditions Which Impair Legitime. The rule stated in Art. 872 merely reiterates the principle of the
untouchability of the legitime of compulsory heirs.

only one instance under our law where the testator is allowed to impose a charge upon the legitime of
compulsory heirs and that is when the testator declares that the hereditary estate shall not be
partitioned for a period which shall not exceed twenty years

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.

If the condition is impossible in the sense that it is not possible of realization because it is contrary to
either, physical, juridical or moral laws, it shall be considered as not imposed. However, the institution
of heir or the devise or legacy is not affected. There is a presumption in this case that the condition is
due to a mistake or oversight, or merely a whim or caprice of the testator. Consequently, it must be
disregarded as a matter of justice to the instituted heirs, devisees or legatees.11
Art. 874. An absolute condition not to contract a rst or subsequent marriage shall be considered as not
written unless such condition has been imposed on the widow or widower by the deceased spouse, or
by the latters 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.

Idem; Condition not to contract rst marriage. According to the rst paragraph of Art. 874, an
absolute condition not to contract a rst marriage shall be considered as not written. Subject to the rule
provided for in the second paragraph, this rule is absolute in character. As in the case of impossible
conditions, the validity of the institution of heirs or of the devise or legacy is not affected, although the
condition is void. Thus, if a person institutes one of his daughters as heir to the free portion of his estate
subject to the condition that she will never get married, the institution is valid, but the condition is void.
In other words, the institution shall be considered as pure and not conditional. Idem; Condition not to
contract subsequent marriage. In the case of an absolute condition not to contract a subsequent
marriage, the rule is subject to several exceptions, besides the general exception provided for in the
second paragraph of Art. 874. The exceptions are: (1) when it is imposed by the deceased spouse
himself; (2) when it is imposed by the ascendants of the deceased spouse; and (3) when it is imposed by
the descendants of the deceased spouse.15 Thus, if the testator institutes his wife, as heir, or appoints
her as a devisee or legatee, he may validly impose upon her the absolute condition not to contract a
subsequent marriage. The same is true if a person institutes his daughter-in-law, who was formerly
married to a deceased son, or his stepmother, who is the widow of his deceased father.

Relative Conditions Regarding Marriage. It must be noted that the general rule stated in Art. 874 is
applicable only when the prohibition to contract a rst or subsequent marriage is absolute in
character. Consequently, if the prohibition is relative with respect to persons, time or place, the rule
does not apply; in other words, the prohibition or condition is valid. Thus, if the testator institutes A
as his heir subject to the condition that she will not get married until she reaches the age of twenty-
ve, the condition not to marry is relative in character; hence, it is valid. The same is true if the testator
bequeaths P10,000 to B subject to the condition that she will not get married to anybody belonging to
a certain party or a certain sect. There are cases, however, when

relative prohibition to marry becomes in effect absolute in character rendering it practically impossible
for the heir, devisee or legatee to get married at all. In such cases, the rule stated in Art. 873 is
applicable. It must also be noted that the provisions of Art. 874 is not applicable to a condition to get
married. Although such a condition will also have the effect of preventing a person from choosing his
own status, nevertheless it must be considered valid since the law does not prohibit it. This is the
accepted rule in Spanish Law.21 In synthesis, Art. 874, in an implicit manner, authorizes the following
conditions: (1) A generic condition to contract marriage; (2) a speci c condition to contract marriage
with a determinate person; and (3) a speci c condition not to contract marriage with a determinate
person.22
Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person shall be void.23

Conditions Captatoria. The condition that the heir shall make some provision in his will in favor of the
testator or of any other person is what is known as a condition captatoria. Hence, if the testator makes a
testamentary disposition in his will subject to such a condition, it is known as disposicion captatoria.
Unlike the conditions contemplated by Arts. 873 and 874, the effect of a condition captatoria is
according to Art. 875, to nullify the disposition itself. The reason for the precept is that testamentary
succession is an act of liberality, not a contractual agreement. Besides, to permit it would impair the
heirs freedom of testamentary disposition with respect to his own property as well as allow the testator
to dispose of the property of another after the latters death.