In Modal Institution, the heir instituted subject to a Mode shall give security before the heir can enjoy the
property (article 882); and
3. When the institution is subject to a negative Potestative Condition or consists in not ding or not giving then
the heir instituted must also give a security which is called Caucion Muciana (article 879).
4.
SECTION 5
LEGITIME
Article 886. Legitime is that part of the testators property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called compulsory heirs.
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.
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.
The law has reserved for the compulsory heirs. For example, legitimate children so of the hereditary
estate. Therefore, if there are legitimate estate the testator has to reserve this to legitimate children. The other
half, the testator can just dispose it to anybody.
Q: Under article 886, the heirs are called compulsory heirs. What do you mean by compulsory? Are they obliged to
accept?
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A: The word compulsory means that the testator cannot deprive the heir of their share but the heir have liberty
whether or not to accept. So it is not compulsory upon the heirs to accept but is compulsory upon the testator to
provide something for his heirs.
Article 887 enumerates who are the compulsory heirs. We no longer have the acknowledged natural,
natural children by legal fiction we only have illegitimate children. So the following are primary compulsory heirs:
legitimate children; widow or widower; illegitimate children. These 3 are called PRIMARY COMPULSORY
HIERS. So whenever they survived the testator then they inherit all at the same time, they concur with each other.
The legitimate parents are SECONDARU COMPULSORY HEIRS. So in default of the legitimate children
then the legitimate parents inherit.
Q: How about if there are illegitimate children, can the legitimate parents inherit?
A: Yes because only in default of legitimate children. So legitimate parents or illegitimate parents concur with
illegitimate children.
Article 888. The legitime or 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.
So you know that the legitime of legitimate children is . If they survive with the widow or widower, the
same as the share of the legitimate child. If there are illegitimate children of the share of a legitimate child.
Q: Where will take the portion being given to the surviving spouse and the illegitimate children?
A: Taken out of the free portion. So you can say that the free portion is not a real free portion because you take the
legitime of the surviving spouse and the illegitimate children out of the free portion. So it really called the FREE
DISPOSAL, the real free portion.
Your book mentions Mejora, this is provided under the Old Civil Code in the concept of the betterment.
Meaning, di ba the testator is obliged to give for example to his legitimate children 1/2 , so if there are 5 children,
is divided by the number of legitimate children. If the testator has a favorite child, he can give the mejora to the
favorite child, so parang betterment to at least give him a share which is higher than his other children. But now it is
abolished because anyway if you favor that child you can give to him out of the free portion. So the purpose is still
served. Before the legitime is 1/3 mejora 1/3. Now the legitime is free portion is .
Tip by atty. Yangyang: unahon sa ninyo compute ang sa children later na ang spouse
provided there are 2 or more legitimate children
2 legitimate children (1/2 divided by the number of children) = P250T / 2 = P125T each
Surviving spouse (same as the legitime of a legitimate child) = P125T
3 illegitimate children (1/2 of the share of a legitimate child) = P125T (atty. yangyang: if lumampas it will
be answered by later articles as we go along )
Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estate of
their children.
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.
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Article 890. The legitime reserved for the legitimate parents shall be divided between then equally; if one
of the parents should have died, the whole shall pass to the survivor.
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 degree of either line.
1. If the only survivors of the testator are his parents, mother and father - their legitime is .
P250T divided equally between them : 250T / 2 = P125T each
2. If the mother is dead, the whole P250T shall go to the father.
3. If the father is also dead, the grandparents of the maternal side and the grandparents of the paternal side, the
P250T shall be divided equally between grandparents of the maternal and the paternal side.
P250 / 2 = P125T maternal grandparents; P125T paternal grandparents
Principle: THE NEARER EXCLUDES THE FARTHER. Those in the same degree shall inherit equally.
Article 891. The ascendants who inherits from his descendants any property which the latter may have
acquired by gratuitous title from another ascendant, or brother or sister, is obliged to reserve such property
as he may have acquired by operation of law for the benefit of relatives who are within the third degree and
who belong to the line from which said property came.
ILLUSTRATION:
1. A child receives property from the ascendant (mother) by will GRATUITOUSLY which means out of
liberality, wala gibaligya, no consideration whatsoever. So (1) Succession either testate or intestate; (2)
Donation; (3) waiver; (4) Remission (5) Condonation. Not necessarily that the mother should die basta
gratuitous ang transfer from the ascendant to the descendant.
2. If the child dies WITHOUT ANY HEIRS, same property is inherited by the ascendant (father) BY
OPERATION OF LAW, either the child died without a will or the child died with a will but the legitime of
the father.
3. The father is obliged the same property which he receives from the child in favor of the relatives of the
child who are within the 3rd degree who belong to the line from which the property came. So from the line
of the mother.
1. ORIGIN
The Origin must be a Legitimate relative either the legitimate mother or father or the law says, brother or
sister (legitimate). The law says, the ascendant, or brother or sister, is obliged to reserve such property as he may
have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the
line from which said property came. The brothers and sisters referred to by the law are HALF BROTHER OR
SISTER BUT LEGITIMATE. Meaning, nagpakasal sa una then nanganak, pagkahuman namatay then nagpakasal
napud ug usab.
Q: Why is it so?
A: Because if you say full blood brothers and sisters so walay distinction sa line.
Example: M (mother) is married to A. They have 2 children C and D. A died. M subsequently married F. M and F
have 2 children B and X.
M A MF
C&D B&X
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Si X naghatag sya property kay B, B died. So na-nherit ni F ang same property. If you say full brother or
sister and F is obliged to reserved the property for the benefit of the 3rd degree relatives of the descendants belonging
to the same line from where the property came, so unsa man ang line ni X? Dib a ang line ni X is the line of F and
M? So walay distinction sa line because the relatives of X are also the relatives of F or M. To illustrate:
M F
B&X F C F
If na-receive ang property from C, naadto kay B namatay si B naadto kay F, F is obliged to reserve the
property in favor of the 3rd degree relatives of C who belong to the same line as C. So there is distinction. The
relatives of C are not the relative of F. The purpose of Reserva Troncal is to prevent the property from straying from
one line to the other line. So pag si C half brother or sister who is not the relative of F. Therefore, you can say that
there is a different line so the property of C should remain in the line of C and should not stray to the line of F.
If the Origin sold the property to the descendant then there will be no occasion for Reserva Troncal to arise,
the transfer gratuitous mere liberality. The property transferred from the origin to the propositus must be OWNED
by the origin.
Examples:
1. The mother gave a lotto ticket to his son. The ticket won P50M. So is P50M reservable? Will it eventually
gave rise to Reserve Troncal? No, the P50M comes from PCSO not from the mother. It would have been a
different story if the mother kept the ticket and the ticket won, the proceeds are taken by the mother, sya na
ang owner, then she gave it to his son.
2. In case of Insurance, the proceeds come from the insurance company not from the insured. It must be Own
by the Origin.
Reserva Troncal will give rise only after all the situations have been complied with. Sa origin pa lang so mag-
start wala pa Reserva Troncal. So the origin can just dispose of the property, no prohibition upon the Origin to
dispose of the property. However, subject to the Rule on Inofficious Donations which we will learn later on when
we will discuss Collation.
2. PROPOSITUS
The Propositus must be a descendant of the Origin or of the half brother or half sister. Again, it must be a
legitimate relationship.
Q: After the propositus has received the property, is there already Reserva Troncal?
A: Not yet. The propositus there being no obligation to reserve yet on his part, he can just dispose the property to
anybody. He can use the property or he can destroy the property. That is why the propositus is called the ARBITER
of the reserve because it is within the hands of the propositus whether or not the reserve will arise. If the propositus
will destroy the property then Reserva Troncal cannot arise. If the propositus reserves the property until his death
then reserve troncal may arise. If the propositus has children of his own then reserve troncal cannot arise.
Upon the death of the propositus (descendant) the obligation to reserve will now arise. So namatay ang
propositus with no issues, no children, the same property received from the origin is transferred to the Reservor
(ascendant) by OPERATION OF LAW.
Q: How is the transfer by Operation of Law? If the propositus died with a will then what portion of the property is
transferred by operation of law supposing that the propositus only has the property left by the origin is a house and
lot?
A: When there is a will what is transferred by operation of law is the portion corresponding to the legitime of the
reservor. If there is NO will so intestate succession, the entire property is transmitted to the reservor by Operation of
law.
3. RESERVOR
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Q: What is that resolutory condition?
A: The resolutory condition is that upon the death of the reservor there must be reservees or relatives of the
descendant propositus who are LIVING AND WITHIN THE 3RD DEGREE OF CONSANGUINITY from the
descendant. The happening of this resolutory condition then the ownership of the reservor is extinguished.
Q: So if the reservor acquired personal properties from the descendants by operation of law and now the reservor
sell the property to a third person and upon the death of the reservor there are still living reservees, what will now
happen to the sale? Should the reservor really get the property back from the buyer to return it?
A: No, the obligation of the reservor if it is a personal property is not to return but the estate of the reservor must pay
the value to the reservees, value lang.
Q: For example the reservor sold house & lot to another person (3 rd person) and upon the death of the reservor there
are still reservees living, so the resolutory condition happens, the ownership of the reservoir is extinguished
therefore, the sale must also be extinguished. What is now the obligation of the reservor and of the 3rdd person who
has acquired the property?
A: If the 3rd party is NOT innocent, meaning he knows that the property is subject to the reserve troncal then that 3 rd
party is obliged to return the properties to the reservees. But if the 3 rd party is an innocent purchaser or innocent
mortgagor then the right of the reservees consists merely in demanding a similar property from the estate of the
reservor or the value of the property from the estate of the reservor.
Q: So during the subsistence of the Reserva while the reservoir is alive, so wala pa na happen ang resolutory
condition, what are the obligations of the Reservor?
A:
1. the reservor must make an inventory of the property received by operation of law from the descendant;
2. He must register the inventory with the Registry of Property;
3. The property received from the descendant if Real property then the reservor has the obligation to furnish
a bond, mortgage or security to insure the safe delivery of the property to the reservees who might be living
at the time of the death of the reservor;
4. If the Real property is already registered then the reservor is oblige to annotate the reserva, if for example,
a land title, annotate at the back of the title and he must do this within 90 days from the time he received
the property from the descendant or from the time the court makes a decision that the reservoir is entitled
to received the property. If the reservor does not make the annotation then the reservees have the right to
file an action to compel the reservor to make the annotation but they must wait after the lapse of 90 days;
If the reservor despite of the request that he should make an annotation but the resevor does not comply then the
reservees may require the reservor to instead furnish a bond, mortgage or security. Dili puede na both ha, na-
annotate tapos naa pa gyuy mortgage. The annotation itself is sufficient protection or if no annotation, the bond,
security, or mortgage.
Q: There is also a case when the property received from the origin to the propositus and from the propositus to the
reservor has not yet been registered, upon receiving the land, it is now the reservoir who files a petition to register
the land, in a land registration case. Now, while the land registration proceeding is still going on, what are the right
of the reservees?
A: The reservees may intervene in the proceeding not for the purpose of opposing the registration but for the
purpose of having their claim to the reserve being annotated to the title.
Q: What if the reservees have not intervened in the proceedings, for example walang annotation at the back of the
title na free, what now are the rights of the reservees?
A: In your Land Registration subject within 1 year dili pa man na sya incontestable ang title. Within 1 year puede
ka maka-file for review of decree of registration, so within 1 year they can still cause the annotation, they can have
the decree re-open. But after 1 year they can no longer do that. If they are innocent purchasers and upon looking at
the title walang annotation ng reserva then the property itself wala na. If the purchaser is NOT innocent purchaser
even if 1 year has already lapsed and wala gihapon napa-annotate sa mga reservees ang reserve then the purchaser
may still be obliged to return the property. Why? Because knowledge is equivalent to registration, the knowledge
on the part of the purchaser as to the existence of the reserva is equivalent to the registration of the reserva.
So if innocent purchaser for value ang nakakuha ng property which is supposed to be subject to the reserva
but the title is clean, the remedies of the reservees are:
1. demand payment from the estate of the reservoir; or
2. demand payment from the Assurance Fund under the Land Registration Authority.
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5. The reservor also must not substitute the property with another. The same property received from the
origin and from the descendant must be same properties to be given to the reservees;
Exceptions:
1. if the property is sold to the innocent purchaser for value, in effect the obligation of the
reservor is substituted with the obligation to pay money to reserve;
2. if the property is lost or destroyed without the fault of the reservor then the obligation is
extinguished.
So the concept of Reserva Troncal is actually a burden or restriction or a charge on the legitime of the
ascendant. Di ba the reserva must be covered in the legitime because the transfer must be by Operation of law tapos
even if the property is part of the legitime of the ascendant still his right with respect to the property are restricted
because the property is subject to the reserva therefore it is an encumbrance upon the ascendant reservor.
4. RESERVEES
Upon the death of the reservees meaning if there are still relatives within the 3 rd degree of the propositus
who are still living then the ownership of the reservor is extinguished, the property will now go to the reservees.
Q: How about the reservees would want to sell the properties themselves while the reservor is still alive, can the
reservees do that?
A: Yes but the sale is subject to a condition that the reservees must be alive upon the death of the reservor otherwise
the sale made by the reservees becomes ineffective. The authority for this is article 1461 of the Civil Code.
Article 1461. Things having a potential existence may be the object of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that
the thing will come into existence.
The sale of a vain hope or expectancy is void.
This is actually an sale of expectancy. Meaning, you can sell a property which has potential existence but
subject to the condition that it must exist. So when the reservees sell the property the sale is subject to the condition
that they must be living at the time of the death of the reservor otherwise wala na sale, invalidate. This is not a sale
of future inheritance because the reservees inherit from the propositus, namatay naman ang propositus although wala
pa namatay ang reservor. So this is a deferred inheritance not future inheritance.
The law says 3rd degree relatives of the propositus. How do you know that this relative is within the 1 st, 2nd
rd
or 3 ?
Collateral relatives: Uncles & aunts, brothers & sisters & nephews & nieces
Relatives in the direct line: parents, grandparents and the great grandparents
Illustration below:
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Q: Should you give the property to all of them, kay 3rd degree man sila tanan?
A: The law says WITHIN the 3 rd degree. We have to apply the rule on legal succession the nearer excludes the
farther, and those who are in the direct line are preferred over those who are in the collateral line. So nearer ang 1 st
kaysa sa 2nd, nearer ang 2nd kaysa sa 3rd, subject however to the rule on the Right of Representation.
Q: Between the brothers & sisters & the nephews and nieces?
A: We have to apply here the rule on the Right of Representation.
For example, the descendant has brothers & sisters A, B and C. A died leaving children D and E. B has children
F and G. The remaining relatives of the descendant who are within the 3 rd degree are his brothers and sisters and the
children of his brothers & sisters, the nephews & nieces. In this case, the 3 rd degree relatives are B, C, D and E. This
is because upon the death of A, by virtue of the right of representation D and E are raised to the status of A. How
about F and G? No right of representation because B is still alive. If the property is worth P30T: B 10T; C
P10T; D & E P5T each.
Q: How about if A, B and C are all dead, who will now inherit?
A: The nephews and the nieces (D, E, F & G) will now inherit. By how much? The nephews and the nieces will
inherit in their own right by the death of their parents. So, P30T is divided by 4.
Q: What if G is dead but he has children H and I, will D, E, F and H and I (children of G) inherit?
A: H and I cannot inherit because they are no longer relatives within the 3 rd degree. The rule is, subject to the right
of representation provided that the representatives are still within the 3 rd degree.
Q: Another case, same facts but A is half blood, B and C are full. The remaining relatives of the descendant within
the 3rd degree are his brothers and sisters, one is of the half blood and 2 are of the full blood? So who will now
inherit? Only the full blood?
A: All of them will inherit provided na legitimate gihapon.
Q: Supposing the grandfather gave by way of donation (parcel of land) to the descendant (grandchild). The
descendant died without a will so the property is transferred to his father. The descendants mother is dead. Upon
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the death of the father, the parcel of land is now being claimed by the grandmother and the brothers and sisters. The
bro/sis is 2 degrees from the descendant. The grandmother is also 2 degrees. To whom shall the property go?
A: The brothers and sisters because reserva troncal is in favor of relatives within the 3 rd degrees in whose line the
property came. The grandmother is not within the line of the grandfather being the wife of the former. So walang
blood relationship. The grandmother does not belong to the line of the grandfather. The brother and sisters belong to
the line of the grandfather because the brothers and sisters of the descendants are also the grandchildren of the
grandfather.
If the property deteriorates, the obligation of the reservors estate upon hid death includes:
1. reimburse the reservees for the value of the deterioration from the security furnished by the reservor; or
2. claim reimbursement from the estate of the reservor.
Q: For example, parcel of land, during his lifetime the reservor gumawa sya ng swimming pool sa property. Upon
the death of the reservor, to whom shall the swimming pool go, estate ng reservor? Syempre ang land go to the
reservees but how about he swimming pool?
A: Syempre part ng land so accession. However, the reservees are merely naked owners, the right to enjoy belong to
the estate of the reservoirs the heirs. Thus, Usufruct goes to the heirs of the reservoirs and naked ownership to the
reservees. Of course if the reservees would pay the value of the swimming pool then the right to enjoy will now
belong to the reservees and the naked ownership thereof.
Q: How about the value of the reserva? For example, the land owned by the origin worth P500T. The descendant
propositus inherited the land worth P500T. Upon his death, the descendant left also properties of his own aside from
the P500T, which is worth P1M. The descendand propositus has no issues so all of his properties will go to the
ascendant (father). The descendant made a will, I hereby give all my properties to my father. So the ascendant by
operation of law gets the legitime di ba pag may will only the legitime pass by operation of law? Pag ang father wala
gihapon properties, how much should be the value of the properties came from the propositus should the reservor
(father) reserve in favor of the reservees? Take note that P1M is not included because it is owned by the descendant,
only the P500 is subject to reserva because it is the property received from the origin. So how much, the entire
P500T?
A: We have 2 theories on this, Reserva Maxima and Reserva Minima.
1. Under the theory of RESERVA MAXIMA, all that can be embraced or included in the legitime shall be
considered as reservable property.
The reservable property is that which can be embraced in the legitime. So how much can be embraced in
the legitime worth P750? The whole P500T. Therefore, the entire property of P500T is reservable. Out of the
legitime P500T is reservable and P250T is own property of the descendant.
2. Under the theory of RESERVA MINIMA, only HALF of the property received from the origin then to the
descendant is transferred to the ascendant reservor as legitime. So half of P250T (P125T) go to the
ascendant by way of legitime and half of P500T (P250T) will go to the ascendant by way of legitime. So
the under the theory of reserva minima, the reservable property is only P250T because only P250T is part
of the legitime. (Did u understand? NO daw mam )
Again, di ba ang nadawat nya is P500T + 1M. Ang P1M is own property of the descendant. P500T is the
property received by the descendant from another ascendant (origin). Under RESERVA MINIMA, only half sa
property received from the origin then to the descendant is reservable. Half of P500T and half of 1M nuadto sa iyang
legitime mao na iyang legitime is P750T. Pila man ang niadto sa legitime? P250T lang. That is why ang legitime
composed of P500T from the property itself of the descendant and P250T from the other ascendant (origin).
Meaning, ang reservable property is only P250T.
This Reserva Maxima theory is more in keeping with article 891. Reserva Minima is more in keeping with
equity and justice. What is followed is reserva minima.
Another example, P1M is received from the origin by the descendant. The descendant also acquired
property worth P500T. Upon the death of the descendant leaving no children, the entire property will go to his
ascendant who is living (father). So the total property received by the father is P1.5M. P1M reserva, P500T not
reserva.
RESERVA MAXIMA: legitime is P750T. The property received from the descendant which the descendant in turn
received from another ascendant is P1M. Under reserva maxima, P750T lang ang reservable property because this
is the only amount that can be embraced under the legitime.
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RESERVA MINIMA: of P1M is the legitime (other half Free portion); of P500T also legitime (other half free
portion),so a total of P750T ang legitime. The property received from the ascendant then to the descendant included
in the legitime is P500T lang. So out of P1M only P500T is reservable.
This is so if the descendant propositus died living a will. Kung walay will, how much should be the
reservable property? Of course the ENTIRE property which came from the other ascendant is reservable (P1M)
because the entire property here transferred to the ascendant by operation of law kay wala man will. When there is
will, only that part which corresponds to the legitime is transferred by operation of law. That is why you have to
bother with reserva maxima and reserva minima. But if there is no will then everything is reservable.
Q: If the reservable property is insured and then destroyed, is there still reserva?
A: Yes, on the insurance indemnity or the proceeds thereof.
Article 982. If only one legitimate child or descendant of the deceased survives, the widow or widower
shall be entitled to one-fourth 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.
You have memorized the shares so just take note. The law says In case of a legal separation, the surviving
spouse may inherit if it was the deceased who had given cause for the same. Meaning, the guilty spouse shall be
disqualified from disinheriting from the innocent spouse but the innocent spouse can still inherit from the guilty
spouse.
Q: How about if there are 2 or more legitimate children, can the surviving spouse from the deceased if there was
legal separation and the deceased spouse gave cause for legal separation?
A: Yes of course still applicable.
Article 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 one- fourth shall be taken from the free portion of the estate.
In here, the surviving spouse concurring with the legitimate ascendants. Observe that the share of the
legitimate ascendant is one-half. In order to memorize effectively, you have to memorize first the share of the
surviving spouse.
Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of
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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.
The surviving spouse surviving with illegitimate children, so one-third. In this case, the share of the
surviving spouse is NOT TAKEN FROM THE FREE PORTION. 1/3 for the surviving spouse and 1/3 for the
illegitimate children so 2/3 lang. The other 1/3 is free portion.
Article 895. The legitime of each acknowledged natural children and each of he natural children by legal
fiction 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 the free
portion, and that the legitime of the surviving spouse must first be fully satisfied.
Note that under the Family Code, there are no longer acknowledged natural, natural child by legal fiction,
we only have legitimate or illegitimate children. So instead of article 895 it has a similar provision which is article
898, illegitimate children. We follow article 898 but applying by analogy article 895. Because 895 deals also with
acknowledged natural, natural, article 898 illegitimate lang.
ASSIGNMENT:
1) Estate P2.5M
Surviving: 3 legitimate children; spouse; 1 illegitimate child
Answer:
3 legitimate children = of P2.5M = P1, 250,000 (P416,666.67 for each legitimate child)
Surviving spouse = P416, 666.67 (same as the share as each legitimate child
1 illegitimate child =P208,333.33 (1/2 of each legitimate childs share)
Total legitimes = P1,875,000
In this case, the estate is enough to satisfy the legitimes of all compulsory hiers that survive the testator.
2) Estate P2.5M
Surviving: 5 legitimate children; spouse; 9 illegitimate children
Answer:
5 legitimate children = of P2.5M = P1,250,000 (P250,000 each)
Surviving spouse = P250,000 (same as the share as each legitimate child)
9 illegitimate children = P125,000 (supposed share of each illegitimate child.
However the free portion would not be sufficient)
= P125,000 / 1,125,000 * 1,000,000 = P111,111.11
= P 111,111.11 = proportionate share of each illegitimate child
In this case, there is no free portion enough to satisfy the legitimes because 9 illegitimate children. You just
have to give first the share of the legitimate children and the surviving spouse. The last priorityare the illegitimate
children. Whatever remains just give to the illegitimate children.
Article 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 free portion at the disposal of the
testator.
You have to remember that illegitimate children DO NOT excludes the legitimate parents or ascendants
whereas legitimate children excludes legitimate parents or ascendants.
Article 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.
Article 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
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surviving spouse shall be the same as that provided in he preceding article.
Article 899. When the widow or widower survives with legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall be entitled to one-eight 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-eight of the estate.
Article 900. If the only survivor is the or 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 one-third of the hereditary estate, except when they have been living for more than five
years. In the latter case, the legitime of the surviving spouse shall be hat specified in the preceding
paragraph.
GENERAL RULE:
EXCEPTION: 1/3 if:
1. The marriage was performed in articulo mortis (point of death); and
2. The testator died within three months from the time of the marriage.
Example, Sa ship sweetheart pa lang sila sa ship. Tapos naay terrorist napusilan ang lalaki hapit na sya
mamatay. Ang captain di ba authorized sya mag solemnize? Luckily nabuhi man ang lalaki, so wala sya namatay.
But because of infetion namatay gihapon sya within 2 weeks. So in this case, it is presumed that the purpose of the
wife in getting married to the dying spouse is to for financial gain or profit. That is why, her share is reduced to
one-third. But note that the spouse who is at the point of death during the marriage must be the one who should die.
Because in my example, if it was the wife who died, dili man sya ang nasa articulo mortis at the time of the
marriage, it was the husband. So if it was the wife who died dili ma-apply ang 1/3 so lang gihapon ang share sa
husband. And the cause of death must be the very same reason why the marriage was in articulo mortis so katong
napusilan. Kung namatay sya because of disease or nabungguan sya dili na sya included.
EXCEPTION TO THE EXCEPTION: Surviving spouse gets one-half even if the testator or the testatrix died
within three months from time of celebration of marriage, the couple had been living previously as husband and wife
for more than five years.
In my example, namatay sya within 2 weeks namatay sya because of gun shot infection, if they have live
together for five years (at least 5 years) prior to the marriage then the legitime of the surviving spouse will still be
because you cannot really say that the purpose was for financial gain. They must have love each other noh kay 5
years na gud
This provision is only true with respect to Testate Succession. When it comes to intestate or legal
succession, this provision does not apply.
Article 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.
Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their
death to their descendants, whether legitimate or illegitimate.
We know that illegitimate children are entitled to inherit from their parents. If for example, the illegitimate
child died ahead of his/her parents and he also has his own children legitimate or illegitimate, all of these children
will inherit by Right of Representation. So they will get whatever rights their parents have. The right of an
illegitimate child pass to his children whether legitimate or illegitimate.
Take note that even both children who inherit legitimate and illegitimate still ang division sa ilaha lahi na
2:1.
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This article deals with the estate of an illegitimate child. So the legitime of illegitimate parents. How do the
parents become illegitimate? Illegitimate ka pasabot imong parents illegitimate. The illegitimate parents are only
secondary compulsory heirs because they inherit their legitimes only in the absence of the legitimate or illegitimate
children or descendants of the decedent.
Article 903 refers to only to illegitimate parents and not to other ascendants like the parents of the
illegitimate parents. Thus, the rule here is different from the case of the grandparents of a legitimate child, for they
may inherit in default of both legitimate parents.
Article 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.
The only way to deprive the compulsory heirs of their legitime is by expressly disinheriting them in a will,
wherein the legal cause therefor shall be specified. Only the Free portion of the estate that the testator can give away
is subject to certain condition, substitution or burden. But the law states except in cases expressly specified by law.
Q: What are the burdens that the testator may impose on the legitime?
A: In accordance with law:
1. a prohibition to partition the legitime is valid for a period not exceeding 20 years. This is a valid
encumbrance on the legitime.
2. Reserva Troncal is also a burden insofar as the legitime of the reservor or reservista is concerned.
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it
and his compulsory heirs is void, and 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.
The right to a future legitime is a mere expectancy, an inchoate right regarding future inheritance, hence, it
cannot be made the subject of a contract inasmuch as it is against public policy. The nullity may be claimed by any
compulsory heir who has been prejudiced.
Q: Suppose the compromise is made among the compulsory heirs themselves, would such compromise be valid?
A: No, such a compromise would still not be valid, not because no contract may be entered into upon future
inheritance except in cases expressly authorized by law under article 1347. A compromise is indeed a contract.
Article 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.
Article 906 talks about completion of the legitime. Any compulsory heir to whom the testator has left by
any title xxx. So what title? By means of donation, condonation, remission, devise, legacy as long as the giving of
the title is gratuitous. Kung gibaligya sa compulsory heir that is not covered under article 906.
For example, in the will the testator has left his son a P50T. But supposedly the legitime of the son should
have been P70T. Should you annul the institution of the heirs just because the compulsory heir who is supposed to
receive P70T was given only P50T? No, in this case, you just complete the legitime. So you add P20T to the son
whose legitime has been impaired. This is the rule under article 906.
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which are inofficious shall be respected.
Article 907. The 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.
Article 907 talks about testamentary disposition that impair or diminish the legitime of compulsory heirs.
For example, A son; B friend. The estate is worth P500T. In the will the friend is given P300T. So the
remaining is P200T. What should be the legitime of the son being the only survivor? It is 1/2, so P250T. Because of
the legacy to B of P300T, so impaired ang legitime kay P200T na lang ang mabilin. So because the P300T impair
the legitime of the son, it should be reduced by P50T, and this P50T is added to the legitime of the son to complete
his legitime (P200T + 50T = P250T).
The law says testamentary disposition, meaning, devise, legacy or institution of a voluntary heir. But what
about donation inter vivos? Will this article apply? By analogy this article applies. So donations which impair
(donation inter vivos) the legitime meaning inofficious donation shall be reduced on petition of the compulsory
heirs. So when you apply inofficious donation only the compulsory heirs can assails that the donation shall be
reduced because it impairs their legitime.
Q: How about the creditor can they petition that donation inter viivos which are inofficious be reduced?
A: No they cannot. (I will explain later )
Article 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.
ILLUSTRATION: The estate at the time of death P1M. The debts & charges not imposed by will meaning, charges
which are payable even if there is no will. So pag-legacy di ba its not included these because although these legacy
or devise is a charge on the will, it is imposed in the will, so it is not deducted. Only the debts which will otherwise
be payable even if there is no will.
Solution:
P1M Gross Estate
- (1,250,000) Debts & charges
0 Insolvent Estate
+P300T Donation to children
P300T Net Hereditary Estate
Under this example, the gross estate is P1M leass the debts & charges of P1, 250,000. Sa succession the
answer is zero because the estate cannot be made to pay the debts whose value exceeds the estate. Take note that
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donations which are inofficious cannot be assailed by creditors except when the donation is in fraud of the creditor.
So the proper answer is zero plus P300T. So the NHE is P300T. Form this amount you determine the legitime.
Q: With respect to the value of the donations which are to be added to the Net Estate, for example, during his
lifetime the testator donated a property to his son worth P500T. Upon the death of the testator, value of the donation
is P700T because the son introduced improvements on the property. How much should be the value added to, P500T
or P700T?
A: Only P500T because it is the value at the time when the donations are made. Why? Because at the time of the
donation P500T pa, that is the value of the property coming from the estate of the decedent. So that is the point in
time where ownership over the property were transferred to the donee.
Q: When you say collation should you really get the property, so kung car dalahon gyud nimo tanan?
A: No, only the value not the actual property. The invitation of the value only not the physical return of the property.
However, there are instances when the heirs must return the property which is under article 1076 #2 but we will
discuss that later.
If there are judicial proceedings then the court through the administrator (if there is a will) or executor (if
there is no will) determines the value of the estate. If there are no judicial proceedings the settlement of the estate,
the computation may be done by the hiers themselves.
EXAMPLE:
1) The Gross Estate is P150 less debts of P40T so the Net estate (NE) is P110T. Add donations subject to collation
including donation to X (friend) because there are compulsory heirs (70 * 3 = 210T). P110 + P210 = P320 is the
Net Hereditary Estate (NHE). Although according to Manresa in your book, donations to strangers should not be
collated but the rule is donations to strangers should be collated. Otherwise, you would be impairing the legitime of
the compulsory heirs.
Q: How much should be the legitime of the compulsory heirs?
A: 320 divided by 2 = P160 divided by 2 children = P80T. C, being the illegitimate child gets P40T of P80T. The
total legitime is P200T.
To the legitime of the compulsory heirs shall be charged the value of donations which are subject to
collations because they are considered as advances of their legitim. So, to the legitime of A worth P80T, P70T is
charged. So kasya di ba? Naa pay P10T na kulang sa iyaha. How about to C illegitimate child, his legitime is P40T
so sobra. The excess of P30T should be charged to the Free Disposal. The donations to the compulsory heirs should
be charged to tehe legitime, the excess to the free disposal. Out of P70T, P40T lang ang kaya sa iyang legitime.
Thus, the excess of P30T shall be charged to the free disposal. To the friend X also should be charged to the Free
Disposal.
So the excess of P20T depende na sa term sa will sa testator. If the heirs were instituted in the will in which
case equal part.
ILLUSTRATION:
1) Gross Estate P150T P150T
Debts 40T - 40T
A (leg. child) 70T (donation) (80T legitime) (80T-70T= 10T) P110T - NE
B (leg. child) (80T legitime) (80T) P210T - donations
C (illeg. Child) 70T (donation) (40T legitime) (70 40T = 30T) P320T - NHE
X (friend) 70T (donation) P200T
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Q: Are the Donations inofficious?
A: NO because the free disposal is more than the value of the donations.
P320T
-200T
P120T- Free disposal
- (P30T) - C
- (P70T) - X
P20T (depends on the will of the testator)
Article 910. Donations which an illegitimate 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.
So in my example in the preceding article, there was an illegitimate child so charge to the legitime.
Article 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 devices or legacies made in the
will;
(2) The reduction of the devises or legacies shall be pro rata, without ant
distinction whatever;
If the testator has directed that a ceratin 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.
(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 devise or legatee the part
of the inheritance of which the testator could be freely dispose.
Order of priority:
1. Legitime;
2. Donations;
3. Preferred legacy or devise; and
4. All others pro rata. (Meaning pag mag-deduct ka sugod ka sa ubos.)
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ILLUSTRATION:
Gross Estate P150T P150T
Debts 40T - 40T
A (leg. child) 70T (donation) (67,500 legitime) (70T 67, 500 = 2,500) P110T - NE
B (leg. child) (67,500 legitime) (67, 500) P160T - donations
C (illeg. Child) 70T (donation) (33,750legitime) (70 33,750 = 36, 250) P270T - NHE
W (friend) 20T (donation) P168, 750
Preferred legacy X 50T
1. legacy to Y 20T
2. legacy to Z 30T
So P67, 500 shall be charged to the legitime of A and the excess to the free disposal. The legitime of B oay
lang. Kay C lampas, P33, 750 charged to the legitime, the excess of P36, 250 charged to the free disposal. How bout
donations asa i-charge? To the Free disposal:
A (2,500)
C (36, 250)
W (20,000)
X (50,000)
Y P15, 750
Z P10,500
P135T
Q: So how much should be the respective legitimes of the compulsory hiers and the shares of the voluntary hiers?
A: The respective shares are as follows:
A P70,0000 W - P20,000
B 67, 500 X- 50,000
C 70,000 Y- 15, 750
Z - 10,500
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9. In case free disposal is insufficient, reduce the legacies, donations etc in the order of priority.
How?
1. Donation to strangers;
2. if there is still an excess then you charge the legacies & devises;
3. If sufficient pa, all others.
But for example, sa donations pa lang kulang na, let us say P50T ang donation but the free disposal is only
P20T so P20T na lang ang donation, exclude the others. Same rule with #7. Again if dili na ma-accommodate ang
legacies/devises, you have to reduce it pro rata.
Article 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 support;
(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.
Article 912. If the devise subject to reduction should consist of real property, which cannot be conveniently
divided, it shall go to the devise 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.
For example, A devise of a house worth P2M. But it has to be reduced by P800T because it would impair
the legitime of the compulsory heirs. Kay dapat ang P800T ihatag sa compulsory heirs para dili ma-prejudice ilang
legitime. So P2M ang devise it has to be reduced by P800T. The house cannot be conveniently divided. So the
remedy is to reduce the value. So to whom shall the house go? Under article 912 to the devisee because the value of
deduction does not absorb of P2M which is P1M. So ihatag sa iya ang house pero tagaan nya P200T ang heirs.
If baliktad, if P2M has to be reduced by P1, 200, 000, so in this case, more than half. So whom shall the
house go? To the compulsory heirs and they should give the devisee P800T.
Under 2nd paragraph: Example, if there are many heirs, the value of the legitime is more than P1, 300,000.
So if Korina after computation her legitime should be P500T. So naa pa free disposal na worth P800T. Korina is
given a house worth P1M. Under article 912, the house shall go to Korina because the value of the house even if it
exceeds her legitime still when you add the legitime plus the free disposal will cover the value of the house given to
Korina. So to Korina is given the house even if it exceeds the value of her legitime.
Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding
article, any heir or devisee 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.
So article 912 pag the reduction does not absorb so the devisee of legatee retain the property and you will
just reimburse the heirs.
Q: What if the legatee or devisee does not want to exercise the right under article 912?
A: The other parties may exercise the right on behalf of the party who does not wish to exercise the right. In the
example above given, if the devisee does not want to own the house, wala sya action, the heirs themselves may
exercise the right of the devisee. If the heirs would want to retain the house they may do so but they will just have to
pay the devisee.
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If none of the parties have the interest to exercise the right or reimbursement or retention, so the property
may just be sold at public auction. So in my example, P1M ang reduction tapos P1M must be given to the
compulsory heirs so the property would just be sold at public auction, the proceeds shall be divided to the parties.
So P1M shall go to the compulsory heirs as completion of their legitime. The other P1M shall be given to the
devisee as his suppose devise.
Article 914. The testator may devise and bequeath the free portion as he may deem fit.
Free disposal, meaning after all the legitimes of the compulsory heirs have been satisfied including the
surviving spouse and the illegitimate children, the free disposal may be given by the testator to anybody provided
that there are no prohibition by law. So if he give the free disposal to the concubine that is not allowed. The free
portion mentioned in article 914 is really the free disposal.
SECTION 5
DISINHERITANCE
Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for
causes expressly stated by law.
Disinheritance refers only to a compulsory heir. You cannot disinherit a voluntary heir because you just
have to omit that voluntary heir in the will then that voluntary heir will not get anything, there is no need to
disinherit.
How? Through a testamentary disposition. Meaning, there must be a will. So there is no disinheritance in
legal or intestate succession only in testate succession.
For what cause? For causes expressly stated by law.
DISINHERITANCE is the process or act, thru a testamentary disposition of depriving in a will any compulsory
heir of his legitime for true and lawful causes.
This is because we have the system of legitime and by that system you cannot deprive your compulsory heir of
his or her legitime. So disinheritance is intended to moderate the effect of the system of legitime. So in a way, the
testator has freedom to disinherit an heir unworthy or has committed an act which is provided by law as a cause for
disinheritance.
Q: What are the ways of depriving the compulsory heir of his legitime?
A:
1. Disinheritance (art. 915)
2. Repudiation of the inheritance (it is the act of the heir himself);
3. Incapacity by reason of unworthiness;
4. Predecease namatay ug una ang compulsory heir including legal absence, di ba we talks about actual or
presumptive death of the testator? In here we talk about the actual or presumptive death of the heir. So
presumptive death of the heir is also a ground for depriving the heir of his or her legitime.
5. Loss of the estate.
6. When the death or charges are equal to or more than the value of the estate. In this case, you have no
legitime because everything is for the payment of debts & charges.
Article 916. Disinheritance can be effected only through a will wherein the legal cause shall be specified.
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REQUISITES FOR A VALID DISINHERITANCE:
1. Must be made in a valid will. -The will itself must be valid. It must conform with the formalities
prescribe by law, everything, the attestation clause, witnesses etc.
a. Disinheritance can also be effected by virtue of a codicil. Because a codicil is also like a will.
b. Disinheritance can also be made in a separate will not necessarily in one will only so the 2 wills
are just interpreted as one, there are institutions and there is also the disinheritance. For example,
the testator executes 2 wills, one in 1980 and the other in 1985. There are no inconsistencies but
the later will provides for a disinheritance.
c. It can also be made in Incorporation By Reference (a will which is void but not void as to form
tapos magre-execute ka ng another will and the re-execution is merely by means of incorporation
by reference). The new will meron disinheritance tapos incorporate by reference lang a previous
will or the new does not contain a disinheritance but the previous will contains the disinheritance
so in the new will you merely incorporate the old will which contains the disinheritance.
You must state I disinherit or I omit or other words of the same import. If you do not mention the word
disinherit, omit, deprive, you just forget to write the name of one of the compulsory heir, and he also does not
receive anything by way of donation or legacy, is there disinheritance? There is no disinheritance but there is
preterition.
In the proceeding articles we will talk about the legal causes. So if not found in the Civil Code that is not an
authorize ground for disinheriting a compulsory heir.
If the testator says, In my opinion my son tried to kill me. That is not a true cause, it must not be based on
opinions, not beliefs not superstitions. It must be certain.
You cannot say that If my son will kill me in the future, I will disinherit my son. That is a conditional or a
future disinheritance. That is not allowed. It must be existing already.
This is because disinheritance affect the character or worthiness of the compulsory heir so you cannot just say
partially unworthy lang sya, it muts be total or none. There is no middle ground. You cannot say I hereby
disinherit my son to the extent of of his legitime. That is not allowed. And when you disinherit, in the legitime
and the free portion, you cannot just disinherit from the legitime but he is entitled to get the free portion. Although
in the free portion, no need to disinherit because with respect to the free portion even compulsory heirs are voluntary
heirs.
You cannot say, I disinherit some of my children. This is not valid because you cannot identify who is being
disinherited.
9. The will in which the disinheritance is stated must not have been revoked at least in so far as the
disinheritance is concerned.
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There are instances wherein, you revoke the will but in its entirety only some dispositions. If the entire will is
revoked so including everything. So the will must not be revoked. Or if the portion of the will is revoked, the
portion which states that there is disinheritance should not be revoked.
Article 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.
For example, in a will the testator provides, I disinherit my son because my son has an affair with my
wife. this is a ground for disinheritance. Nasa will na, tapos probate proceedings will follow when the testator
dies. If nobody contest the disinheritance then no problem, the heir does not have to prove the truth of the cause. If
there is no opposition from the disinherited heir, no need for the other heir to prove that indeed the son has an affair
with the wife of the testator. But during the probate proceedings if the son will oppose and will deny the grounds
stated by the testator, so in that case then the other compulsory heirs of the testator should prove the ground. They
have the burden of proving the truth of the cause.
Article 919. 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.
ILLUSTRATION:
1) Estate: P900T
legitime (P450T) Free Portion (P50T)
A P150T P25T
B P150T P25T
C (disinherited) (P150T)
The estate is worth P900T, the testator has 3 children A, B and C. I hereby institute A & B to my estate
worth P900T and I disinherit C because he is ugly. So there is an ineffective disinheritance. As a result the
institution will be annulled but only in so far as the purpose of giving to C his legitime . So how much should
be the legitime of C? P450/3 = P150T. So the effect of ineffective disinheritance shall annul the institution of heirs
for the purpose only of completing the legitime of the ineffectively disinherited heir. So give to the disinherited heir
hi legitime so P150T. Give also to the other heirs their legitime. How about the free portion, who will get the free
portion? The 3 of them? No. Who are instituted? A & B lang, so only A & B will share the free portion, so P25T
each
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Q: What if there C is PRETERITED? He was not mentioned in the will. I hereby institute A & B as my sole
heirs. And C was not given anything during the lifetime by way of donation, legacy or anything. But the testator
has 3 compulsory heirs including C. What is now the effect/
A: There is no ineffective disinheritance because there was no disinheritance provided for in a will. So there is an
omission in the inheritance itself, so there is preterition. What is the effect? You annul the institution of heirs. As
is walay instituted heir all of them stands in equal footing. So divide the P900T by INTESTACY, divided by 3, so
P300T. Or, you complete the legitime 150T each and the free portion, the institution is annulled so there is no
longer institution so divided by 3, 150T. Same pa rin P300t each.
ASSIGNMENT:
1) Estate P900T Legitime (450T) Free Portion (450T) Total
In this case, there is preterition, therefore the institution is annulled. So it is as if A is not instituted.
Therefore, all of them should get their legitime. How about the free portion? A alone? No because his institution is
annulled. So the 3 children should stand in equal footing. So all of them should inherit the free portion. It is as if
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walang preference. Had there been no preterition, in that case A alone will get the free portion. But there is
preterition so the institution of A is annulled.
If the free portion has not been disposed of, the ineffectively disinherited heir gets not only his legitime, but
also his intestate share of the free portion. This is because he is an intestate heir only ( commentaries of Paras)
Article 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 6 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 support 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.
Article enumerates the valid or legal causes for disinheriting a child or children, descendants meaning
including mga grandchildren whether legitimate or 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;
His or her spouse, descendant or ascendant refers to the spouse or descendant of the testator. The law also
says
Found Guilty meaning there has to be conviction mere accusation is not enough as cause for disinheriting a
child or a descendant.
Attempt against the life what crimes are these? Attempted homicide or attempted murder. How about
frustrated and consummated? With more reason, it is not only limited to an attempt. So there must be an
Intent to Kill. Pagnapatay because of negligence or recklessness wala nimo gituyo, this will not fall under
article 919, there must be an intent to kill.
Even if you are not the principal, you are an accomplice or accessory, this paragraph apply.
2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for 6
years or more, if the accusation has been found groundless;
The accusation must be found GROUNDLESS, so pataka lang. So if the accusation is really with ground
and the testator is really convicted then that is not a ground.
The law says imprisonment for 6 years or more, so when you say you are accusing the testator of malicious
mischief. Malicious mischief is a light felony. So wala sya kaabot ug 6 months. So at least the penlty is
prision mayor.
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3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
So the child or descendant has an affair with his stepmother or mother and you are convicted of adultery of
concubinage with the spouse of your parent.
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;
So your father, or your grandfather or your ascendant had already made a will but you do not like the
provision in the will by force hadlokon nimo sya make me an heir in your will! Or violence, bugbugon nimo,
intimidation. Fraud, giatik nimo sya na sign this, this is merely a letter, but in fact it is a will. But you have to
remember that the law says by fraud, violence, intimidation, or undue influence causes the testator to make a will or
to change one already made. So nagbuhat na sya tapos ipa-change nimo. There has to be another will made. Kung
wala pa nya na-change imoha na sya gihadlok there is still no ground, there has to be a will.
5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;
You have the means and your parents or ascendants need support but without reason you refused to give
support. Kay kung wala kay means, your refusal will be justifiable.
Maltreatment by word - yawyawan nimo imong parent or ascendant pirmi kung dili ka tagaan allowance
.
Maltreatment by deed sagpa-on nimo (grabee ). Anything short of killing because killing falls under
paragraph 1. So kung imoha lang bugbugon sya without intent to kill, still that is a ground under
maltreatment.
This paragraph applies not only to a daughter. It applies also to a son or a grandson. If you engage in that
kind of life and it is your way of life hen it is a ground.
Generally, crimes which are punishable by death penalty, reclusion perpertua and reclusion temporal, all of
these carries with it the accessory penalty of Civil Interdiction
Article 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 support 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.
1.) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
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Q: What do you mean by abandon? There is a crime of abandonment but that is not the abandonment referred to in
this article?
A: Abandonment whether physical, educational or moral as long as you neglect your child. So this is a ground
whether intentional or unintentional or by negligence or carelessness the children are abandoned then the children
have cause to disinherit the parents.
Induced their daughters- how about sons? In this case, you have to construe strictly daughters. But the
word daughter includes granddaughters.
Corrupt or immoral life you induces your daughters to prostitution, escort service etc.
Attempted against their virtue so the parents attempted against the virtue of the daughter (rape, seduce
etc.). Take note that there is no need for a conviction here. As long as you prove the act, there is no need
of conviction.
NB: Take note that the disinherited heir may controvert the grounds stated in the will.
Paragraph 2, 3, 4 and 5 are the same as those in arctile 919, so no need to explain.
Q: What are the grounds wherein a parent may loss parental authority?
A: This is provided under 228, 230, 231 & 232 of the family Code. So these are the instances when parental
authority may be loss even without the fault of the parent concerned. For example, reaching the age of majority. So
there is no more need for the exercise of parental authority.
Q: Will it be a ground for disinheriting your parents just because you have reached the age of majority and they have
loss parental authority over you?
A: Here the law should be construed as the causes for losing parental authority should refer to the FAULT OF THE
PARENT OR ASCENDANT. The loss of parental authority must be by reason of the fault of the parent or the
ascendant concerned.
Art 330 The father and in a proper case the mother, shall lose authority over their children:
(1) When by final judgment in a criminal case the penalty of deprivation of said authority is
imposed upon him or her;
(2) When by a final judgment in legal separation proceedings such loss of authority
is
declared.
Art 332 The courts may deprive the parents of their authority or suspend the exercise of the
same if they should treat their children with excessive harshness or should give them corrupting
orders, counsels, or examples, or should make them beg or abandon them. In these cases, the
court may also deprive the parents, in whole or in part, of the usufruct over the childs property, or
adopt such measures as they may deem advisable in the interest of justice.
Suppose the parent treated the child with excessive harshness so the parent loss parental authority so g-
disinherit sya ng child nya. But the loss of parental authority was later on reinstated. (Actually this is an absurd
provision because a child who is under parental authority dapat below 18 sya. If below 18 sya, makabuhat ba diay
sya ug will? Dili man di ba? ) Anyway, in the example, na-regain sa parents ang parental authority kay nagbag-o
na sya during the lifetime of the child. Later on, the child died.
Although the 2nd view Paras says that it is according to Manresa, but when I (Atty. Yangyang) was still in the
law school, we were taught the 2nd view. But you can answer either way. Just remember that the fact there is
maltreatment is not a ground. There has to be loss of parental authority.
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Same discussion with disinheritance of descendants.
8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between
them.
An Attempt meaning a husband attempted against the life of the wife or vice versa or the child by that act
of one of the parent, he can disinherit the parent who has attempted against the life of the other. No need
for conviction because the law says attempt, so mere attempt.
Unless there has been reconciliation between them Between who? Between the 2 parents because the
spouse against whom the attempt was made is able to forgive and reconcile with the other spouse then there
is no reason why the child should go on hating the other parent when the other parent reconciled the other.
Article 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 causes 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 support the children or the other 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 causes the testator to make a will or to
change one already made;
Meaning, there is yet no decree of legal separation only the occurrence of the cause for legal separation.
You do not have to secure a decree of legal separation first before you can disinherit your spouse who has given
ground.
Q: Can you disinherit your spouse if you discover that your spouse is gay?
A: Yes, it is a ground for legal separation, under Article 55 of the Family Code.
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement;]
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purpose of this Article, the term child shall include a child by nature or by adoption.
Note that attempt against the life of the petitioner (the one who filed an action for legal separation), that is a ground
for legal separation attempt against the life of the other. In this ground there is no conviction, mere attempt. But
note under the 1st paragraph under article 921: When the spouse has been convicted of an attempt against the life of
the testator, his or her descendants, or ascendants So even if it is merely an attempt it can be a ground for
disinheritance because it is a ground for legal separation.
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Q: How about attempt against the life of the children? Spouses A and B has a child C. A attempted against the life
of C, is this a ground for disinheritance?
Q: Paragraph 9 provides Attempt by the respondent against the life of the petitioner. so the spouse only. If one of
the spouses Attempt against the life of a common child or descendant there has to be conviction in order that it may
constitute a ground for disinheritance because it is not a ground for legal separation. The ground for legal separation
is only the attempt against the life of the other spouse. So if attempt against the life of the other spouse there is NO
NEED of conviction despite the provision under paragraph 1 of article 921. So you can justify that there is ground
for legal separation with respect to descendants or ascendants there has to be conviction.
Q If a child repeatedly commits physical violence against a parent, is this a ground for disinheriting the child?
A: Yes, it will fall under maltreatment.
Q: How about a spouse who commits repeated physical violence against the other spouse, can the guilty spouse be
disinherited?
A: Yes because this is a ground for legal separation.
Q: How about the parent who commits physical violence repeatedly against the child, will this be considered a
ground for disinheritance?
A: No BUT this is a ground for loss of parental authority. When there is loss of parental authority by reason of the
physical violence then this can be a ground but not per se, it has to go to the extent that the parent has loss parental
authority by reason of this physical violence.
Q: What about if there is already a decree of legal separation, is there a need to disinherit the offending spouse?
A: There is no more need because by operation of law the inheritance given to the other spouse is revoked and he or
she is also disqualified from inheriting from the innocent spouse. The offending spouse when there is already a
decree for legal separation is disqualified from inheriting from the innocent spouse.
5) When the spouse has given grounds for the loss of parental authority;
Article 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.
Q: What is Reconciliation?
A: The mutual restoration of feeling to the status quo.
For example, a child maltreats the parents so there is already a ground for disinheritance. Subsequently
there is Reconciliation. So whatever was the status before the maltreatment, that should be restored, no hurt
feelings.
Reconciliation is a bilateral act, involves 2 parties the offender and the offended party. So the offended
party must be able to forgive and the offender must be able to accept the forgiveness.
If there is disinheritance and subsequently there is reconciliation then the disinheritance becomes
ineffectual.
If there has been no disinheritance yet so you are deprived of the ground to disinherit, pag meron nang
reconciliation you cannot subsequently disinherit the heir who has offended you because there is already
reconciliation.
Example, in a will, I hereby disinherit my son C because he has led a dishonorable life. Then 1 week after,
the testator made a new will , I hereby institute C. So the same child, here the previous disinheritance made in a
previous will is deemed revoked.
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` Example, naa kay will then you disinherit your child in that will but later you have a change of heart so you
tear your will with intent to revoke. So the disinheritance in that revoke will no longer subsist.
If the will in which the disinheritance is contained is denied probate because it lacks the formal requisites
prescribe by law therefore when the will is denied probate then there is as if there is no will so whatever the
disposition in that Will, will not be given effect including the disinheritance.
Article 923. The children and descendants of the person disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not
have the usufruct or administration of the property which constitutes the legitime.
Article 923 talks about the Right of Representation of the heirs of the disinherited heir.
Example, the testator has 2 children A and B and the estate is worth P500T. A has children C and D. But in
the will A is validly disinherited. Meaning, A can longer inherit. How about the children of A, C and D? C and D
will now represent A but only with respect to the legitime of A. Why? Because A here is disinherited because of his
fault. The fault of A should not be imputed against As heirs. So even if A cannot inherit, his own heirs will inherit
by virtue of representation.
Another example, the testator provides I hereby institute B as my sole heir to all my properties. I also
disinherit A because he has maltreated me.
Remember that when there is a will (testamentary succession), representation takes place only with
respect to the legitime.
Q: What if the testator merely provides in his will, I hereby disinherit B because he has maltreated me. That is the
only provision in the will, is it a valid will?
A: It is a valid will. A will containing only a disinheritance is an indirect disposition.
Q: Should A inherit?
A: Yes because he is a compulsory heir.
PRINCIPLE: When there is a will, the representation of the heir of the disinherited heir will only be to the EXTENT
OF THE LEGITIME. But with respect to the free portion, that goes to the instituted heir UNLESS the will does not
dispose of the entire property and that there is intestacy the own heirs of the disinherited heir may still part of the
free portion.
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The disinherited heir who is represented has no usufruct or administration of the property which constitutes
the legitime. Meaning, even if his own children will get the property which he should have gotten had he not been
disinherited, has no usufruct. He cannot use it and he cannot administer it. So this is an exception to the rule under
the Family Code that parents have usufruct or administration over the properties of their minor children.
Example, the estate is P500T. B disinherited. So 125T goes to A. B wala na sya so iyang children C and D
ang makakuha 62, 500 each. Assuming na minor pa iyang children, di ba minor children can inherit money as long
as they are living at the time of the death of the testator? Ordinarily, a parent should have usufruct or administration
over the properties of his own children. But when these properties are the same properties over which the parent has
been disinherited, then under article 923, the parent cannot have usufruct or administration of this property.
Q: The law says, The children and descendants of the person disinherited shall take his or her place and shall
preserve the rights of compulsory heirs. Who is this person disinherited?
A:This article should be limited only to the CHILD. So the children and descendants of the person disinherited
meaning the person disinherited here is the child because if it is the spouse, it is the spouse who is disinherited, can
the spouse be represented? No, there is no representation with respect to the spouse. As we have learned, right of
representation pertains only to the descending and direct line.
Q: How about your ascendant? You are a son and you disinherit your parent, can your parent be represented by your
grandparent?
A: No, there is no right of representation in the ascending line.
SECTION 7
LEGACIES AND DEVISES
Article 924. All things and rights which are within the commerce of man may be bequeathed or devised.
Article 924 talks about what things may be subject of legacies and devises.
RULES:
Everything can be bequeathed or devise as long as within the commerce of man.
These legacies and devises cannot burden the legitime of the compulsory heir.
Review:
Legacy/ devise specific property
Heir universal title, no designation of the specific property given.
Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also
legatees and devises.
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.
ILLUSTRATION: In the will the testator provides, I hereby give a legacy worth P50T to my friend X.
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Q: This is the only provision, with respect to the legacy so who shall pay the P50T?
A: The estate.
Estate is P500T. If the instituted heirs are A (son) and B (another friend), I hereby institute A and B as my
heirs but my heirs shall give a legacy of 50T to my friend X.
Q: What if the testator says, I hereby charge B with the burden of giving the 50T to X?
A: In this case, since B lang ang mubayad sa legacy, wala na labot si A.
Q: How about A and B are my instituted heirs and I also give a 50T legacy to X and my son has the duty of giving
a legacy to X. From whose share you will get the 50T?
A: From A because he alone shall be charge with the legacy because he alone is mentioned.
Q: If A and B are my sole instituted heirs to my estate worth P500T but I give legacy of P150T to my friend X and
my son A will bear the burden of this legacy.
A: Divide first the estate P500T / 2 = P250T. The legitime of A is P250T. A and B are the instituted heirs so dapat
equal sila sa sharing (as to the institution, fre portion) but A daw ang mag-shoulder sa legacy. Meaning, from As
share to the institution, didto kuha-on ang legacy. The legacy is P150T, but the share of A as instituted heir is only
P125T (taken from the free portion 250T /2 = 125 each to A and B), so only 125T shall be given as legacy to X.
Dili ka magkuha sa share ni B? No because wala si B gi-charge only A. So sya lang ang mag-bear sa burden. So in
effect wala na mabilin sa iyahang free portion pero ok lang kay ang iyang legitime wala na-impair.
Example:
1) A and B are my heirs but A has the duty of giving legacy to my friend. this is a sub-legacy. A legacy
which is imposed upon another heir.
2) Or upon another legatee, like I hereby give a legacy worth 150T to B but B shall also give a legacy worth
50T to my friend. this is a sub-legacy imposed upon another legatee. Ang mahitabo ang legacy ni B
bawasan ug P50T.
Article 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.
Q: Under the 2nd paragraph, if the will provides, I hereby institute A and B as my heirs and I hereby give a legacy
of P50T to X, Who shall bear the burden of the legacy here?
A: The estate.
Q: But if the will provides I hereby institute A and B as my heirs and I also burden MY HIERS with a legacy worth
50T to be given to X. Who shall bear the burden of the legacy?
A: The heirs na in proportion to their inheritance with respect to the free portion lang. The legitime is not included.
Article 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.
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ILLUSTRATION: In the will a house and lot worth P1M is given to B. However, the other heirs of the testator A
and C took possession of the house and lot, wala sa nila gihatag kay B, ilaha sa gipuy-an. Nagtinanga man ni si C,
nagstudy sya brown out nasunog ang balay.
Q: What is the house have been lost by reason of fortuitous event, gikilatan ang balay, nasunog. Can B demand from
A and C because the 2 took possession?
A: No, if it is through fortuitous event then wala nay obligation si A and C to deliver like in Obligations and
Contracts.
Q: What if it is not negligence but intentional, si C gisunog gyud nya ug tuyo ang balay. Is there solidary liability?
A Article 927 talks about negligence. So if the destruction or lost is through the fault of one of the heir who took
possession then it is the heir at fault is the one liable. He alone is the one liable. This is because in article 927, that
is somehow related to quasi-delict but when you say intentional article 927 does not apply.
Article 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.
Example, In the will there is a sub-legacy of a car to A to be given by B (heir). If C deliver a car to A then
A later on defeated in his possession of the car because the car was already previously sold to another person. Can A
demand from C another car? Unsa man ang car? Generic. Under article 928 when the legacy or devise is of
indeterminate or indicated only by its kind meaning not specific or not partucliarly segregated, in this case, the heir
who delivers the indeterminate or generic thing to the lother egatee or devises, he is liable for eviction. So merong
warranty against eviction because being indeterminate or being generic, the hier charged should not have delivered
thing which is defective. He should have chosen something na walay problema.
Q: What if specific, the testator provided my blue expedition car with plate No. NYO 123, is the heir charged
with the obligation of delivering the expedition kiable for eviction?
A: In this case, he is no longer liable because it is the testator who chose the car so it is beyond the power of the heir,
legatee or devises charged. He is merely charged with he duty of delivering the very same thing mentioned by the
testator so he has no liability for eviction. The liability against hidden defects, warranty against eviction also apply
in this case parang sa Law on Sales.
Principle:
If indeterminate or generic, the heir bound to deliver is liable for eviction.
If specific, the hier is not liable because his duty is merely to deliver what the testator has chosen.
Article 929. If the testator, heir, or legatees 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 declareds
that he gives the thing in its entirety.
Example, in the will the testator who is a co-owner of a house provides, I hereby devise my house to B.
This is assuming that all other legitimes are not impaired.
Q: What if the testator is a co-owner of a car, in his will he provides, I hereby give to B a car with plate No LMN
456. But the car here is also partly owned by B, the legatee. In the previous example, the testator is the part owner.
Here, the legatee is the part owner. Is this a valid legacy?
A: According to article 929, if the testator, heir or legatee owns only a part or or interest in the hing bequeathed,
legacy or devise shall be understood limited to such part or interest. The legacy of the car is valid but only with
respect to part owned by the testator. The part which is already owned by B (legatee) is no longer valid. But of
course the legatee would still get the entire car becuase he is part owner of the car.
As an EXCEPTION, if the testator EXPRESSLY declares that he gives the thing in its entirety.
Example, I am only a half-owner but still I give the house to B in its entirety. So this is an express
declaration by the testator that he is giving the entirety of the house to B even if he is only a part owner he may order
that the entire thing may be given to a legacy or devises.
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Article 929 presupposes that the testator knows that he is not the full owner of the thing but still he ahs
interest or he is a part owner.
Q: How do you prove that the testator knows that he owns full or part interest on the property? Should the
knowledge of the tesator be expressly provided for in the will?
A: The knowledge of the testator can be proved by the will itself or by evidence aliunde (evidence oustside the will).
But if the testator wants to give the property in its entirety he must expressly provide in the will.
Article 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.
Example: The testator provides in his will, I hereby give to B a 5 hectare land covered by TCT 00299.
But it turns out that the testator is not really the owner of the land. Not even a part owner. The testator erroneously
believed that he owns the land.
Q: What if the will was executed in 1980. Subsequently in 1990 the testator acquired the land. In the year 2000, he
died. What is now the status of the devise to B?
A: The devise is valid because the law says 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.
Article 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.
Example: A Parcel of land is not owned by the testator but the testator KNOWS that he does not own the
land. If the testator expressly provides in his will, I hereby give to B covered by TCT 1950 and because I do not
owned the land I declare that my estate will acquire the land to be given to B.
Q: What if the testator knows that he does not own the property but gives it to the devisee or legatee and there is no
order that it shall be acquired by the estate. What is now the status of the devise or the legatee? Is it a valid
disposition or invalid disposition?
A: The devise or the legacy is still valid. But the estate, or the heir, legatee or devisee charged with the duty of
giving the property has a choice. He may have or acquire the property and give it to the legatee or devisee or he
may just pay the just value.
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But if the owner of the property does not want to alienate the property so the heir or the estate must pay the
just value.
But if there is NO order that it shall be acquired by the estate then the estate has the choice. The estate does
not have to exhaust the order of priority in article 931. He may just acquire the property or pay the just
value thereof.
Now, in article 931 the order that the thing belonging to another be acquired NEED NOT BE EXPRESS. So it
may be impied.
In my example, if the land is onwed by X, the testator may just provide, I hereby give Xs land to B covered by
TCT B-1950. So this is an implied order not express.
Article 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 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.
In this article the the legatee or devisee ALREADY OWNS the property devised or bequeathed at the time
of the execution of the will.
In my example, the testator gives to B a land covered by TCT B-1950. But at the time of the execution of
the will, B is already the owner of the property. By virtue of article 932, that devise is void because it is already
owned by the devisee at the time of the execution of the will. So the point to remember is THE TIME OF THE
EXECUTION OF THE WILL.
Another example, B owns the property but he has mortgaged the property to the bank. So even if the bank
here has interest over the property as mortgagee but still the devise is void because again B is the owner of the
property at the time of the execution of the will.
2nd pargraph: 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.
Example, B is already the owner of the land. I hereby give the land to B and because the land is
morgtgaged with the bank I declare that my estate will pay the bank so that the land will be freed from the
mortgage. In this case, the devise is void because it is already owned by the devisee.
Q: How about the order that it shall be freed from the mortgage?
A: It is valid. To that extent the declaration by the testator is valid to free the property from the mortgage. But as to
the giving of the property it is void.
Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the
will, the legacy or devisee shall be without effect, even though it may have been subsequently alienated by
him.
If the legatee or devisee acquired 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.
Example, the testator give to B a parcel of land but the parcel of land is already owned by B. So void di
ba? In 1990, B, the devisee, sells the land. Upon the death of the testator in 2000, B is no longer the owner of the
land, is the devise to B valid? Dili naman sya ang owner at the time of death? The point to remember is the time of
the execution of the will. If the devisee is the owner at the time of the execution of the will then the legacy or
devise is void notwithstanding that the legatee or devisee sunsequently alienates the property.
2nd paragraph: If the legatee or devisee acquired 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.
Example, the testator knowing that the house is owned by X gives the house to B as devise. The devise is
valid. But subsequently X donates the house to B. The testator died. Is the devise valid? The acquisition by B is
gratuitous, why? Because it was by donation, so he can cliam nothing by virtue of the legacy or devise. But if he
acquires the same by onerous title, gibaligya ni X kay B ang house, so gihatagan sa testator si B house owned by X,
kabalo ang testator na own by X, subsequently si B gipalit nya kay X ang house. Upon the death of the testator, does
B have any claim? Reimbursement lang sa value sa house na iyang gipalit so heir lang gihapon sya kay tagaan man
sya ug kwrata instead of the house.
1st paragraph: At the time of the execution of the will, the legatee or devisee is the owner.
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2nd paragraph: At the time of the execution of the will, the legatee or devisee is NOT the owner. That is
why he can still get something if he acquires the property subsequently by virtue of onerous title.
Example, if the house is worth P1M gi-donate kay B pero maghatag sya 100T sa mga anak ni X, that is the
burden, that is the only valud that can be reimbursed.
4. if thru adjudicacion en pago the value of the credit, interest and cost.
Q: Who reimburses?
A:
1. The estate if no one has ben charged in particular;
2. The heir, legatee, or devisee who has been charged.
Article 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, passes with it to
the legatee or devisee.
Example, the testator owns a house. In his will, he gives the house to B but the house is mortgaged because
nakautang ang testator so gi-collateral nya iyang balay. If the testator dies, of course the house will do to B. But the
estate of the testator has the duty of freeing the house from the mortgage. Kay dapat free man sya paghatag, dili nya
ihatag apil ang utang So if the testator gives something to the heir, legatee or devisee something which is
burdened and the burden is by virtue of a recoverable debt (ang property gi-collateral para sa utang), dapat
pagkamatay sa testator i-free sa ang property sa burden before ihatag sa legatee or devisee.
Q: What if the testator owns the house which is beoing used by X as a usufruct, pagkamatay ni testator, pahawaon
ba si X?
A: The burden is transferred to B, assuming that there is agreement between the usufruct and the testator na dili ma-
extinguish kay death extinguish the usufruct di ba? Pero kung naay agreement, it will subsists and it will go to B.
The estate has no duty of freeingthe property from the usufruct.
Only when the property is subject to a burden based on recoverable debt like when the property is
pledge, so g-prenda or mortgaged or antichresis, mao lang na sya ang i-free.
Any other burden like lease, usufruct, easement, dili na sila i-free, it shall go to the heir, legatee or
devisee.
Article 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 assigning to the legatee all rights of action it
may have against the debtor. In the secomd 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.
LEGACY OF CREDIT:
Example, the testator provides in his will I hereby give to B whatever credit (P500T) I have with A. So A is
the debtor of the testator. Ang testator naa sya credit. This is the legacy of credit. So ihatag nya kay B ang utang ni
A, so instead na magbayad sya sa testator kay B na sya magbayad. If the testator dies, so A has now the right to
collect the P500T. Together with the legacy of credit the testator also has the duty of giving to B all the right which
pertains to the credit. So pag naay pledge or mortgage makuha pud ni B.
Q: What if the A (debtor) bayad sya P300T. At the time of the death of the testator the remaining balance is P200T,
how much will B get by virtue of the legacy of credit? 500T or 200T?
A: P200T, the law says only as regards that part of the credit or debt existing at the time of the death of the testator.
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Q: What if instead of paying, A nangutang pa gyud sya ug P200T. So 700T na iyang utang. How much will B get
from A by virtue of the legacy of credit at the time of the testators death? 500T or 700T?
A: P500T only. There is an article when property acquired after the execution of the will but before the death, those
properties will not pass to the heir. (article 793)
LEGACY OF REMISSION:
Example, si A nangutang P500T kay testator. In his will the testator provides, I hereby give to A whatever
amount that is due to me from him. So meaning dili na magbayag si A. This is the legacy of remission.
Q: What if A pays P300T knowing that the testator already has given him the legacy of remission. So at the time of
death 200T na land ang nabilin. How much will A benefit from the legacy of remission?
A: Only 200T, only such part existing at the time of the death of the testator.
This legacy of remission stands in the same status as donation. Why? When the testator dies the value of
the debt should be added to the gross estate, so i-collate gihapon. We have discussed na legacy or devise dili sya
dapat i-collate. But this is a legacy of remission, it is considerd as donation mortis causa so it should be collated,
added to the value of the estate at the time of the death of the testator. Why? Because A here already receives the
same during his lifetime, nakautang sya so naa na sa iyaha money pero effective lang ang legacy of remission at the
time of death of the testator.
Q: What if the legatee does not know that there is a legacy in his favor tapos nagbayad sya. But he pays P300T.
What happen to the payment should it be deducted? At the time of death, how much will A get? 200T or 500T?
A: P500t because this is now a case of solutio indebiti, payment by mistake. Kung nakabalo sya dili sya magbayag
di ba? But if he knows but still he pays then you deduct.
The legacy of remission also carries with it the duty of the estate of the testator to give the legatee an
acquittal. Kung mangayo sya acknowledgment na wala na gyud sya utang so tagaan sa estate ang legacy like for
instance a note to that effect.
Article 936. The legacy reffered 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.
Example (same as above), the testator gives A a legacy of remission in 1980. In 1982, the testator files an
action for the collection against A. What happens to the legacy of remission in favor of A? That is considered to
have been revoked. Even if such payment has not been effected, bisan wala pa nagbayad si A namatay na ang
testator, revoke na.
This rule also applies to legacy of credit. Example, B is the legatee. A is the debtor. The testator gives to B
the right to collect the debt of A, so there is now a legacy of credit. But after having provided for in the will that B
shall now have the right to get the credit, the testator files an action for collection. The legacy of credit is considered
revoked.
The action referred to in this article is a judicial action. So if demand letter lang it is not considered as
revocation. It must be a judicial action.
2nd paragraph: The legacy to the debtor of the thing pledged by him is understood to discharge only the
right of pledge.
Example, A by virtue os his debt of P500T pledged his Television set to the testator. What if in the will the
testator provides I hereby give to A the TV pledged by him. So at the time of death of the testator, wala na ba
utang si A? Naa lang gihapon because the testator only provides the TV pledged by A. What is the effect of this?
The pledged is excluded but the debt still subsists. Why? Because pledged is merely an accessory contract.
Accessory follows the principal but the principal does not follow the accessory. So the extinction of the accessory
does not follow the extinction of the principal. However, if the debt is remitted then the exrinction of the debt
carries with it the extinction of the pledge or mortgage. Accessory contract are extinguished with the legacy of
remission.
Under article 936 although there is a legacy of remission and legacy of credit still there is no warranty on
the part of the testator as to the existence or legality of the credit or as to the solvency of the debtor. So if the testator
gives to B a legacy of credit but it turns out that A is insolvent walay obligation ang testator natagaan si B kay
insolvent si A. There is no warranty.
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Article 937. A generic legacy or release or remission of debts comprises those existing at the time of the
execution of the will, but not subsequent ones.
The value of the debt remitted should not exceed the portion which the testator can freely dispose
of. It must not exceed the free disposal. Because if for
Example the debt if P2M. The estate is worth P3M and he has a son. The legitime of the son is P1.5M.
Obvioulsy the debt of A which is P2M if we would give effect to the legacy of remission, the legitime of the son
will be impaired.
Article 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 the legacy
or devise.
Here the testator is the debtor. So the testator P1M owes from A. In his will, the testator gives to A a car
worth P2M.
2nd paragraph: In the latter case, the creditor shall have the right to collect the excess, if any, of the credit
or the legacy or devise.
If the creditor accepts then no problem. If the car is worth P3M and the testator provides in his will I
hereby give to A my car worth P3M in payment of my debt which is P2M. the creditor accepts. In this case, the
excess shall be given back to the estate of the testator which is P1M. Or, If the debt is P2M and the value of the car
is only worth P1M the creditoe can collect the excess. That is if the creditor agrees that the legacy shall be in
payment of the debt.
Article 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.
The testator believes that he owes A P5M so in his will he provides, I hereby gives to A cash worth P5M.
But in truth and in fact wala diay sya utang kay A.
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Q: What happens to the disposition in favor of A?
A: Under article 939, it is considered as not written because the giving here implled by the wrong belief by the
testator. This is the case of Solution Indebiti, payment by mistake. Under the rule that No one shall be unjustly
enrich at the expense another then you should return.
2nd sentence: If as regards a specified debt more than the amount thereof is ordered paid, the excess is not
due, unless a contrary intention appears.
If the debt is only worth P2M then the testator provides in his will that he shall pay P5M then the excess
shall be returned to the estate of the testator unless the testator provides that the creditor may keep the excess, in that
case, the creditor shall not retun the excess.
Q: What if the debt of the testator has already prescribed (20 years ago pa ang utang). But in his will the testator
provides for the payment of such debt. Should the disposition be given effect?
A: It should be given effect because this is governed by NATURAL OBLIGATION. Under the Rule on Natural
Obligation, you cannot take back what you have given.
Article 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 administrator 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 pass to the respective heirs.
Once made, the choice is irrevocable.
In 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.
Example, the testator provides in his will, I hereby give to B a car or a house or a parcel of land. So naay
choice.
Example, If X is the heir charged with the burden of giving the car to B by the testator and if X wala pa sya
nag-exercise sa Right of Choice and while he is dying he executed a will wherein he exercise his right of choice, I
hereby leave my estate to my children and with respect to the legacy of B I hereby select car 1 to be given to B. -
Note that B inherits not from X di ba but from the testator. If subsequently before he died revokes his will, then
nagpili na pud siya ug car 3 para ihatag kay B.
Q: Can he do that?
A: Once the choice is made it is irrevocable even if it is embodied in a will charged with burden still if that selection
or choice is exercise in whatever instrument that choice is irrevocable.
In alternative legacies or devises, the rule in Obligations and Contracts with respect to alternative
obligations also applied but only in a suppletory manner because the supreme law here is really the will of the
testator. If anything in the rule in Obligations and contract conflicts with the will of the testator then the will of the
testator shall prevail.
Article 941. A legacy or generic personal property shal 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 propery of its kind in
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the estate.
The right of choice shall belong to the executor or administrator who shall comply with the legacy by
the delivery of a thing which is neither of inferior nor of superior quality.
This article talks about the difference in the rule on generic/indeterminate personal property and
generic/indeterminate real property.
EXAMPLE:
1. I hereby give to A a car. This is a generic personal legacy. If there is a car in the estate then you give the car
to A. But if there no car in the estate and the testator knows that he does not have a car then it is still valid, mangita
lang ka ug car ihatag kay A.
2. If it is Real property, I hereby give to A a parcel of land. In this case, if there in none in the estate then it is
void.
Q: When do you reckon that there is really such kind of thing existing in the estate of the testator? Example, I
hereby give to A a 500sq m land. At the time of the execution of the will there is no land. At the time of the death
of the testator there is already a land. The land is a generic devise because it is not specified the location, what title
it is covered only that it is 500 square meters.
A: It should be reckoned at the time of death of the testator. Because the law says estate meaning the testator
already died.
Article 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.
As we said, as a general rule, the right of choice belongs to the estate, or the heir or legatee or devisee. But
there is nothing wrong if the testator will give the right of choice to the heirs or legatee or devisee favored.
In my example, car 1, car 2 and car3, puede ang right of choice ihatag nya sa legatee favored. The testator
can so provide in his will.
The law says Whichever he may prefer, he can actually choose things which are of superior quality or
inferior quality or medium quality. There is no obligation on his part to choose only the one which is of medium
quality, so he can choose whichever he prefer.
Article 943. If the heir, legatee or devisee cannot make the choice in case it has been granted him, his right
shall pass to his heirs, but a choice once made shall be irrevocable.
In the example, the heir burdened has the right of choice. If he dies before making a choice, the right
passes to his own heirs. In this article, you can also refer to the heir, legatee or devisee FAVORED. If he dies
before making his choice then his right of choice passes to his own heirs.
Meaning, if it is a generic legacy of a car so he can choose only a car. He cannot choose a house.
2. Cannot choose an illegal or impossible or that which could not have been intended by the testator.
3. No right of choice when among legacies or devises only one is practicable.
Example, cars daw pero only one is in running condition. So practically there is no choice here.
Article 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 support lasts during the lifetime of the legatee, if the testator has not otherwise provided.
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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 during his lifetime used to give the legatee a certain sum of money or other things by way
of support, the same amount shall be deemed bequeathed, unless it be msrkedly disproportionate to the
value of the estate.
LEGACY OF EDUCATION:
Q: How do you know that the heir or legatee pursues his course diligently?
A: This is a question left to the discretion of the court.
LEGACY OF SUPPORT:
GENERAL RULE: Lifetime of the legatee, as long as the legatee is alive the legacy for support lasts.
EXCEPTION: The testator can provide otherwise. Puede for certain or shorter period.
Q: How much is the value of the legacy for education or legacy for support?
A: The 3rd paragraph says the testator can fix the value. If the testator has not fixed the value then, the amount shall
be in accordance to the social standing and the circumstances of the legatee and the value of the estate.
Article 945. If a periodical pension, or a certain annual monthly, or weeky 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.
We have learned that you can actually provide for legacy of allowance or pension. For example, the legacy
is to give B P5T every 15th day of the month. Then the testator died first day of the month.
Q: Should the heir wait for the 15th para makuha nya ang amount?
A: The heir can petition after the death of the testator, makuha na nya ang 1 st installment and for the following ones
which shall be due at the beginning of each period.
Q: For example, 1st day pa lang gikuha na nya ang allowance and on the 2 nd day namatay na ang legatee, should the
estate of the legatee return the money?
A: No, you cannot return the money anymore.
Article 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 is related to the one we discussed before that when the thing given is subject to a burden which is to
secure a recoverable debt, the estate of the testator has the duty of fleeing the property from the burden, any other
charge shall pass to the legatee or devisee or the heir whether perpetual or temportary, so one of wich is the usufruct.
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This is a burden on the property but this is not a burden whichn is use to secure a recoverable debt. And under
article 946, this passes on to the legatee or devisee. The legatee or devisee has to respect the usufruct. You should
wait until the usufruct is extinguished. You cannot just demand that the estate of the testator free the property from
the usufruct.
Article 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.
This article talks about the Right to the Pure and Simple legacy. Meaning from the time of the death of the
testator, you already have the right. Right lang, wala pa ang property sa imoha.
If the property is generic then from the time of the selection. Although you have right to the legacy or
devise from the time of death but the property itself , you have the right over the property from the time of
selection. Becuase until the estate or the heir, legatee or devisee charged has chosen the property, you
cannot identify which property is being given. So the time of selection that is the time that you have the
right over the property.
If Alternative, from the time of selection also.
If to be acquired from a stranger, from the time of acquisition.
Q: What if the legacy or devise is subject to a condition? As long as the condition has not happned yet, there shall be
no right. But as long as the condition is fulfilled, when do you count the accrual of the right?
A: It retroacts to the death of the testator. In effect, once the condition is fulfilled it is as if you acquire the right
from the moment of death of the testator. So if anything happen from time of the death of the testaor and up to the
fulfillment of the condition, for example, some other person acquires adverse interest over the property, you can
calim prefercne because once the condition is fulfilled your right retroacts to the date of the death of the testator. So
that is in legacies or devises subject to a condition.
We also have legacies or devises subject to a Term (resolutory or suspensive term). We discusee before na
you have to wait until the arrival of the term. But if the legatee or devisee die prior to the arrival of the term, what
happens should you extinmguish it right now? Who will exercise the right?
Q: Example, the testator gives a legacy of a car to B 10 months from death of testator. So 10 months from the death
of the testator nakuha na nya ang property. When does the right of B over the legacy, 10 months after or after the
death?
A: he acquired the right from the time of death. Although na-suspend lang ang effectivity. If B dies before 10
months and he has his own heirs, his own heirs can get the property after 10 months. So when you say Term, the
right to the property vests only upon the arrival of term.
Article 948. If the legacy or devise 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 latters death.
From the moment of the tesators 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 administrator.
From the moment of death of the testator all income or fruits of determinate thing pertaining to the testator,
the legatee or devisee acquires ownership thereof.
Q: How about from the moment of the institution of the will up to the time before the death?
A: These are not included, but not the income which was due and unpaid before the latters death. These are
properties considered to be again AFTER-ACQUIRED which we discussed under article 793.
Art 793. Property acquired after the making of a will shall only pass 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.
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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.
We have here article 948 co-relate with article 781 and article 793 of the Civil Code.
Inheritance you can apply article 781.
Legacy/ devise you can apply article 948. (The same with article 793.)
Inheritance - article 793.
If specific legacy/devise we have article 948.
2nd paragraph: From the moment of the tesators 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 administrator.
Naturally because from the moment of the testators death, the specific legatee or devisee already own the
specific legacy or devise therefore, in accordance with the rule Res Perit Domino the owner bears the loss, so
whatever deterioration or loses that may be caused on the property at the time of the moment of death of the testator
and thereafter, these deterioration or loses shall pertain to the legatee or devise.
If the thing is lost by virtue of the fortuitous event, the owner bears the loss. But if the loss is by fault of
anyone other than the legatee/devisee, you apply the rule on quas-delict or Obligation and contracts like in case there
is a delay in the delivery of the thing given as legacy/devise and the legatee/devisee already demanded for it, if there
is a delay and the thing is lost before the delivery, the estate, the heir or legatee or devisee burdened shall bear the
loss.
Article 948 talks about growing fruits. In your Property, you have discussed growing fruits, expenses for
their gathering, preservation.
Article 443. He who receives the fruits has the obligation to pay the expenses made by a third
person in their production, gathering and preservation.
Q: Should the heir or the devisee/legatee in article 948 pays the testator for the expenses with respect to the
production under article 443?
A: No because with respect to the legatee/devisee, the testator is not considered as a third person. The
legatee/devisee is merely succeeding to the rights of the testator.
With respect to the cost of gathering, the article says, growing fruits, meaning, still attach to the ground or
land. So any fruit or crop that has been gathered at the time of the death of the testator, so gathered na sya dili na
growing.
Q: How about the legacy/devise is subject to a Suspensive condition? Suspensive condition meaning, the
legatee/devisee only acquires the property upon the fulfillment of the concdtion. But still, as we discussed before,
the right retroacts to the moment of death.
A: Artcile 948 applies in view of the retroactive effect of the condition once it is fulfilled.
Q: How about Supensive Term? The right already pertain to the legatee/devisee from the moment of death But how
about the property, di ba it is merely suspended?
A: When you say suspensive term, you already have personal right over the fruits. Personal lang, a right that can be
imposed against the estate. Since the right to the property itself vests only from the moment the term arrives
therefore, the legatee/devisee acquires REAL RIGHT over the fruits or income from the moment of delivery. And
as you distinguished Personal Right from Real Right, the former can be enforced only against the estate, the latter
can be enforced against the world.
Lake v. Harrington
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120 Miss. 74 (1953)
Facts: The testator provides in his will, I hereby give a legacy of monthly allowance to B and the
legacy is to be effective if and only if I have not done this during my lifetime. Meaning, effective
sya kung walay allowance gihatag during the lifetime. For example, the monthly allowance is
P2,000. After the execution of the will, the testator made a donation to B giving B P2,000 per
month for 10 years. Later on, the testator again executed a 2 nd will, so the provision in this will is
the same as those in the first will. After the testator executed the 2 nd will, he stops giving
allowance to B. B filed an action against the testator. The purpose of his action is to give effect to
the legacy na tagaan sya ug monthly allowance of P2T per month.
Ruling: B now is exercising the Right of Ademption. The Right of Ademption which is the
process of giving effect inter vivos to a disposition mortis causa. He wants to give effect to the
legacy whi h is disposition mortis causa anmd he wants to give effect to this legacy inter vivos,
during the lifetime of the testator because the testator says the legacy is to be effective if and only
if I have not done this during my lifetime. That is the Right of Ademption. The Supreme Court
however, denied it because the testator intended not to give to B the monthly alloawance. Why?
Because after he made the 1st will then he ande a donation, he executed another will and right after
he executed the 2nd will, he stopped giving the testator to B. So here there is clearly on the part of
the testator NOT to give effect to the legacy during the lifetime.
If for example, the testator did not execute a 2 nd will and the donation stop then B can file an
Action for Ademption.
Article 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 exepressly so ordered.
Article 949 speaks of Generic thing meaning it has not been segregated or particularly designated. So
before selection, you do not know for sure what property is being given. For example, a legacy of a car. The
testator has many cars. So prior to selection, you do not know what car is being given to you.
GENERAL RULE: The right to the fruit does not pertain to the legatee/devisee prior to selection and even after the
death of the testator.
EXCEPTION: If the testator expressly provides that the legatee/devisee will still get the fruits prior to selection.
Example, if the testator provides, I hereby give to C taxi (daghan sya taxi) and I expressly declare that C
shall get the income from the taxi from the moment of my death and thereafter. in this case, even if there has been
no selection the fruits or income will pertain to the legatee/devisee.
Q: How about money? I hereby give to B cash worth P5M. Is money generic?
A: Yes (gawas lang kung ibutang a serial number sa money)
Article 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 support;
(4) Legacies for education;
(5) Legacies or devises of a specific, dterminate thing which forms a part of the estate;
(6) All others pro rata.
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ART 911 ART 950
This article is applied when there is/are compulsory This article is applied when there NO compulsory
heir/s AND/OR there are donations inter vivos heirs and their legitimes are in danger of being
impaired AND/OR there are NO donations inter
vivos. All you have to do is, among the
legacies/devises which of them should be given
priority over the other. If there are compulsory heirs
but their legitimes are not impaired you can apply
article 950.
SUPPORT Under article 290 of the Civil Code, it refers to everything that is indespensible like the food,
sustenance, clothing, education, medical attendance, so the word education is included under the Civil Code. But
under article 950 you have to separate the two. So all items for Support excluding education.
SPECIFIC THINGS (LEGACIES-DEVISES) You have to remember the word which forms a part of the estate.
Why? Because even if it is specific legacy or devise but it is not yet on the estate and it is to be acquired from
another person or another estate, it is not included in the legacy or devise of a specific determinate thing. If the
legacy/devise is to be taken from another person to be given to the legatee/devisee, in that case, that falls under All
others pror rata.
Under article 950, we have the same process of computation with article 911 for as long there are no
compulosery heirs and/or donations inter vivos.
Article 951. The thing bequeathed shall be delivered with all its accessions and accessories and in the
condition in which it may be upon the death of the testator.
Article 952. The heir, charged with the legacy or devise, or the executor or administrator of the estate,
must deliver the vey thing bequeathed if he is able to do so and cannot discharge his 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 for the account of the ehir or
the estate, but without prejudice to the legitime.
Even in alternative legacies/devises, you have to deliver the thing which is contemplated within the
selection. You cannot deliver another thing.
Legacy of money, for example cash P500M. If there is no cash, puro lang property sa estate, you have to
sell the properties. First, personal properties, if insufficient the you sell real properties.
Q: Who shall bear the expenses for the delivery of the thing bequeathed or devised?
A: The burdened heir, legatee/devisee or the estate shall bear such expenses. If he is a compulsory heir, the
expenses should not such as to to affect the legitime of compulsory heir.
Article 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
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or administrator of the estate should he be authorized by the court to deliver it.
Article 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.
Example, a house, it is a single devise but partly onerous, partly gratuitous. A is the heir. The 1 st floor and
the 2 floor are given to A but with respct to the 2 nd floor, there is a burden and the burden imposed is for A to pass
nd
the bar. A cannot reject the 2nd floor with a burden and accept the other one. Dapat tanan.
Q: If C does not want the onerous devise but B and D gusto sila, is it allowed?
A: It is allowed, so C will just refuse and only B and D will receive the devise provided that B and D should accept
the ENTIRE DEVISE with all the onerous condition.
Article 955. The legatee or devise 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 devise must either accept or renounce both.
Any compulosry 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.
Article 955 there are 2 legacies/devises, one is onerous the other is not. The rule is the same, you cannot
accept the gratuitous and repudiates the onerous. So you have to accept both. But of both are onerous or both are
gratuitous, you cannot accept the other and repudiates the other.
Common under article 954 and 955: Article 954, The legatee or devisee cannot accept a part of the legacy
or devise and repudiate the other, if the latter be onerous. Under article 955, The legatee or devise of two
legacies or devises, one of which is onerous cannot renounce the onerous one and accept the other.
Q: What if you choose to accept the onerous and reject the gratuitous, is it allowed?
A: The law says cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous, so you
cannot repudiate the onerous and accept the one which is not burdened. Also in article 955, cannot renounce the
onerous one and accept the other.
Q: Is there any prohibition if you accept the onerous and reject the one which is not burdened?
A: None in article 954 and article 955.
3rd sentence 1st paragraph: But if the testator intended that the two legacies or devises should be inseparable from
each other, the legatee or devise must either accept or renounce both.
This is applicable if there are 2 or more legacies/devises and ALL of them are onerous or ALL of them are
not onerous. Even if as a general rule, di ba puede mu-acceot ang isa i-reject ang isa, if the testator INTENDED that
ALL of the legacies/devises are indivisible by intention of the testator not really by nature, then you have to accept
ALL or None at all.
When it comes to compulsory heir, there is no prohibition. He can accept the gratuitous and reject the
onerous because he is a compulsory heir, he is entitled to the inheritance as long as he is not disinherited.
Article 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.
Q: For example, the testator instituted A, B and C as legatees of cash worth P3T. What if B dies ahead of the
testator? So what happened to the legacy of cash?
A: Under article 956, it shall be merged into the mass of he estate. So ibalik sya sa estate of the testator.
Q: What now happens to the money which is returned to the estate of the testator?
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A: It shall go by way of intestacy.
EXCEPTION:
1) Substitution
The testator provides in his will, To A I give a car, to B cash and C house and in case B defaulted or
unable to receive the cash X shall be the substitute of B. So if B dies ahead of the testator, the money given to B
by way of legacy will not be retuned to the estate but it shall go to the substitute.
A, B and C are heirs to a house. What if B dies ahead of the testator, what happens to the share of B? Shall
it go by way of intestacy? Will it go to the substitute? Is there a substitute? In this case, there will be accretion. He
share of B will now accrue to A and C. You will learn later on that when 2 or more heirs are instituted to the same
inheritance, is one of them becomes incapacitated there will be right of accretion in favor of the other heirs.
We have what we call the order which have to be followed in case there is a vacancy in the portion
inherited. We have the acroname ISRAI:
1. You have to follow the disposition of the testator, if theres an instituted heir then you give the property to
the instituted heir;
2. If there is none or the instituted heir becomes incapacitated, then if there is a substitute then give to the
substitute;
3. If there is no substitute then representation if proper;
4. if there is nom representative or representation is not proper then it will go by way of accretion, it shall go
to the other co-heir;
5. If accretion will not be possible then finally intestate or legal succession.
This article enumerates the instances wherein the legacy/devise shall be WITHOUT effect.
The thing here means the Specific thing because if it is a generic thing then you do not know prior to
selection which of the thing in the estate of the testator is being bequeathed or devised.
The transformation must be IN FORM OR IN DENOMINATION.
FORM external or intenal appearance of the thing. Like a gold necklace gi-melt sya nahimo sya
ring. Is the form the same? No, from necklace to ring is not the same.
DENOMINATION meaning the name being given to the thing. In the same example, before it
is called a necklace now it is called a ring.
When the testator transforms the thing such that it does not retain the form or the denomination it had then
there is REVOCATION of the legacy or devise and the legacy/devise becomes ineffective.
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The testator gives a devise of a land. If the testator after giving the land to A, the testator sells or donate (by
any title) the land then, there is revocation of the devise. So the legacy/devise becomes ineffective.
If the testator alienates PART of the property then the revocation is only as to the part alienated. So only
partial not entire revocation.
ILLUSTRATION:
1. The testator gives a specific land in his will to B. The will was executed in 1989. In 1990, the testator sells to C
the same land given to B. C in 1995 donated the land to the testator. The testator died in 2000.
Q: What happened to the devise of a land to B upon the death of the testator in 2000? Is it still effective or already
revoked?
A: Still it is revoked. What is important is that the testator alienated the property. If after the alenation the thing
should again belong to the testator, the law says the legacy or devise shall not thereafter be valid. Bisan pa nare-
acquire nya, still the devise/legacy shall not be valid.
2. Same land given to B by way of devise, then subsequently after the execution of the will, the testator sells the land
to C. However, the sale between the testator and C is declared null and void for lack of consideration. Null and void
meaning mabalik sa testator ang property.
Q: After the death of the testator, is the devise to B still valid or not?
A: Still it is void. Even if it be by reason of the nullity of the contract.
EXCEPTION: The reacquisition shall have been effected by virtue of the exercise of the right repurchase.
1) The testator gives the land to B by way of devise. In 1990, the testator executed a Deed of Sale with C (pacto de
retro, there is right of repurchase). Before the tesaor died he exercised his right under the pacto de retro sale, he
repurchased the land.
Q: When the testator died, what will happen to the devise? Is it already revoked because of the sale or it reamians
valid?
A: If he has reaquired it by virtue of the right of repurchase, meaning the testator really intended to take back the
land because he wants to give effect to the devise so in that case, it is the presumption of the law that is why when
there is a right of repurchase and the testator exercise that right prior to his death then even if the property was
previously alienated still the legacy or devise remains valid.
2) If the testator sold the land to C but C threatened the testator that he will kill the testator if he will not sell the land
to C. So gibaligya na lang sa testator ang land kay C.
Q: The testator re-acquired the land kay na-declare na null and void. So what happen to the legacy/devise, is it
revoked or it remains effective?
A: Under article 957, it must be voluntary. So when the alienation is not voluntary because ther has been vitiated
consent, it has been effected by fraud, violence, intimidation or mistake then there is NO REVOCATION of the
legacy/devise.
Q: If the testator devise a land to B and subsequently the testator sold the land to B. What happened to the devise, is
it valid or becomes ineffective becuas it has ben alienated by the testator ?
A: According to Paras, it is valid. But because the testator sold it to B, so si B na ang owner at the time of the death
but not at the time of the execution of the will and B acquired the land by virtue of onerous title. So the rights of B
upon the death of the testator is reimbursement.
Q: What if the land is given as devise to B and subsequently the testator donated it to B? So what happens to the
devise/legacy after the death?
A: Wala na.
Q: What if the testator after giving the land to B by way of devise sells the land to C then C later on sells the land to
B? What are the rights of B after the death of the testator?
A: The devise/legacy is revoked because of the alienation. It does not matter that the legatee/devisee acquires the
property.
3) The testator is the co-owner of the land with X. The testator provides in his will, I hereby give the entire land I
co-owned with X to B.
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Q: Is the Provision valid?
A: It is valid because the testator knows that he is merely a co-owner. It is an implied order to the estate to acquire
the property to be given to B.
Q: Prior to the death of the testator, the testator and X decided to end their co-ownerhip, so there is partition. The
testator just agreed na reimburse lang sya ni X sa iyang share. So kay X na ang land tanan. After the death of the
testator, what happen to the devise in favor of B?
A: It is valid and revoked. The valid part is the portion of X. X because the testator provides I hereby give the land
I co-owned with X. So ihatag nya. It does not matter that the land is owned by X. the testator knows that the land is
not his but he gives the land in its entirety to B.
Article 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.
Article 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 persons having the same names and surnames, there is a similarity of circumstances
in such a way that, even with the use of other proof, the person instituted cannot be identified,
none of them shall be an heir.
Art 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral declarations of the testator unto his
intention; and when an uncertainty arises upon the face of the will, as to the application of any of
its provisions, the testators 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.
So even if there is a mistake in the name of the thing bequeathed or devised, if it is possible to determine
which of the thing of the tetsaotr is really intended, the mistake is of no consequence. So the devise/legacy remains
valid. So you can use the provisions of article 844 and 789.
Article 959. A disposition made in general terms in favor of the testators relatives shall be understood to
be in favor of those nearest in degree.
Example, in his will the testator merely provides, I hereby give my land to my relative. so tanan ban a
relative?
What is contemplated in article 959 is the raltives within the 5 th civil degree. And within the 5 th civil
degree, the nearer excludes the farther. Kung naay 1 st degree excludes na ang 2 nd degree etc. Only to the 5th
degree because when there are no relatives up to the 5 th degree, the State becomes the owner by virtue of
Escheat proceedings.
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Under this artcle, the nearer relative excludes the farther. So if there are parents then the brothers & sisters
are excluded. But under this article take note that there is no preference as to line. So it does not matter if
descending or ascending, direct or collateral This is in testate succession. So grandparents & brothers &
sisters are in the 2nd degree, they will both inherit in default of the 1st degree.
Q: What if the testator says, I give my land to the relative of my wife. Will article 959 apply?
A: No, article 959 applies only when the relatives are that of the testator. So if relatives of my wife or relatives of
my children, dili na applicable ang 959.
Q: If the testator says, To all those who are entitled to my land. Will article 959 apply?
A: When the testator ssya to all those who are entitled, the clause evidently refers to intestate heirs and not to the
tesators relatives. What he really means is that the land shall go by way of intestacy. So the rules of intestacy or
legal succession will govern.
Chapter 3
LEGAL OR INTESTATE SUCCESSION
The instances where legal or intestate succession are enumerated in this article.
If a person dies without a will, naturally his estate will go by legal succession.
Void will When does the will becomes void? Example, when it does not comply with the formalities
required by law. In this case, even if there is a will it shall be denied probate and the estate of the decedent
shall be disposed of by way of legal succession.
Subsequently lost its validity Example, valid will but revoke by the testator. By virtue of the revocation,
the will loses validity. Therefore, you cannot give effect to the will and the estate will be dispoed of by way
of intestacy.
2) NO INSTITUTION OF HEIR
Example, when the will only provides for disinheritance. So there is no instituted heir. What happen? The
will shall be effective in so far as the diinheritance is concerned. The rest of the estate shall go again by
legal/intestate succession.
The will does not disposed of all the property belonging to the testator. Example, the estate consists of a
10-hectare land, he only diposes of 3 hectare land. The 7-hectare land will go by legal succseion. So we
have here a case of mixed succession.
Example, I give P5M to B if B passes the bar exam. If B does not pass the bar for 5 times, so the
condition is not fulfilled the P5M shall go by intestate/legal succession.
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