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What is this? It is my personal reviewer, where I got stuff from Champ,  Mixed
Beda Memaid and MOST from Ruben (Who says he is not that smart o Prescription
but is terribly good looking). Some stuff also repeat a lot. If it repeats Succession created the fiction of legal personality that survives the
it means sir gave it a lot of weight. death of a person.

Title IV. – SUCCESSION Succession under Spanish Law

INTRODUCTION For Manresa it: Implies the subrogation or the replacement of one
The word succession derives itself from two different Latin words: person by another in a juridical situation.
 Sub – Under Manresa also says: Substitution of one person for another in a specific
 Cedere – to Transfer or Surrender. legal situation.
Thus when you place them together it means “to pass under”. Castan Says: substitution of one person in the transmissible rights of
Succession is moving under the canopy of the legal capacity of the another.
predecessor. This is since when a person dies, his civil personality is Dictionary of Spanish Letters: It implies the action of one person or
extinguished. thing taking the place of another.
Gaian Oder – refers to the arrangements of civil law. Elements of Succession
 The legal scholar Gaius wrote a treatise on civil law called 1. Subjective Change
the institutes, here he divided Civil law in to 3: 2. Objective Identity
o Law of Persons a. Means two things
o Law of Things i. The thing passed by succession remains the same.
o Law of Obligations ii. The rights to the thing are the same – i.e they do not
change.
Modes of Acquiring Ownership:
1. It means that if a dad dies and the kid inherits, the
 Original child will own the land. The nature of the
o Occupation ownership does not change into something like a
 This contemplates that the item is res nullis, or that there usufruct.
is an act of abandonment by a person.
 Kinds of Succession:
o Intellectual creation
1. According to the when it is transmitted:
 Derivative – These are instances where the ownership is 1. Inter Vivos
transferred from someone else.
 This is not called succession – it is called donation.
o Donation
2. Mortis Causa
o Succession
 Succession upon death of the decedent.
o Law
2. As to Extent of rights that are involved
o Tradition – acquisition by means of delivery (ex. Sale)
1. Universal Succession
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 Succession to the entire estate, or fractional part.
2. Particular Succession
 Succession to limited to specific items
 Kinds
o Devise
 Specific RP
o Legacy
 Specific personal property
3. According to cause and Importance: In this order
 Compulsory
 Testamentary
 Intestate
 Who are the parties in Succession?
1. Decedent – Auctor, causante, de cuius, transferor
 Dies with a will he is called a testator
 If he dies without a will he is called a decedent
2. Successor – Transferee, causante habiente
 Heir – who succeeds by universal title.
 Legatee/Devisee – who succeeds by particular title to
specific property.
 Principles in Succession
1. Succession cannot take place during the lifetime of the owner.
 This is since in our country we limit succession to
succession mortis causa.
 During the lifetime of the decedent, the rights of the heirs
or legates is just an expectancy
2. The interest of the family ay override the interest of the
decedent.
 In our country we have compulsory heirs, such as the
children, and spouse
3. The estate will pass to the family, unless the decedent declares
otherwise by making a valid will.
 It can pass to a relative up to the 5th degree
4. A family cannot be entirely deprived of an estate.
5. Within the family, relatives within equal degree of
relationships shall inherit in equal shares.
6. The state has a share in the inheritance.
 It shares in two ways
a. Taxes
b. If a person dies without a will and without relatives,
then the state will inherit. The State is a person’s last
heir.
7. The heirs are not liable for the debts of the decedent beyond
their share in the succession (774 & 776).
What is the basis of Succession?
 Some say that the basis is family law, but this is not true when it
comes to testamentary succession, since you can make it go
outside the family
 Some say that it is a part of property
 Castan on the hand is of the view that it is both family and property
law.
What are the changes that were made by our Civil Code?
1. Allowance of Holographic Wills. This as allowed by the Spanish
law, but this was repeal when the Americans came, but this was
eventually revived in the NCC.
2. Greater facility in probate – here the validity of the will as to its
form is passed on by the courts. In our law there are 2 kinds of
probate, a post mortem and an ante mortem.
3. Improvement in the successional position of the surviving spouse.
In the old law the spouse only had usufruct, the spouse does not
own.
4. Abolition of the mejora (improvement or betterment).
5. Abolition of the reserves and reversiones, EXCEPT Reserva
Troncal.
6. The application to succession of article 739 of the law on
donations
7. Increase in the free portion. i.e void donations

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o Those that were made between persons who are guilty of parents – ie. Obey parent still he reaches the age of
adultery of concubinage at the time of the donation majority, and to respect them as long as they may be alive.
o Those made between persons found guilty of the same o He has siblings
criminal offense, in consideration thereof  There is the right of fraternity, a thus comes with the duty
o Those made to a public officer or his wife, descendants and to support when the need arises.
ascendants, by reason of his office. o He is a student
8. Limitation of the fidei commissary substitution to only one degree.  He has a certain obligation towards the school and the
Previously it was two degrees school has certain obligations towards him.
9. Successional rights for spurious children – i.e granting o He is married
successional rights to those that were disqualified to marry, but o He has children (Paternity)
have a child among themselves. – this was not allowed before.  There are some legal relationships that are intuit personae –
10. Limit of intestate succession has been narrowed from six degrees inherent in the person. These are the legal relationships that die
to 5 degrees. with the person.
11. Abolition of the sustitucion popular and sustitucion ejemplar.  The opposite of this are patrimonial rights. These on the other
These were provisions that allowed the father that allowed to hand are transmissible. These are the legal relationships that do
make a will for his children that were mentally incapacitated or not die with a person.
may die before age of majority. o This the question is what do we do with the legal realtionships
that survive him.
 What is succession?
Our law on succession is mostly based on the Spanish code. As a
o A set of rules which regulate how legal relationships are to go,
matter of fact there are only 29 articles in Succession that were
namely:
influenced by American Law, out of 332 articles.
1. To whom,
2. At what time,
Lecture by JBL Reyes: 3. In what proportions, and
 He says that during a person’s lifetime he is at the center of many 4. In what manner
different legal relations. Below are just a few.
o He is a Filipino Citizen CHAPTER 1
 This has already a bundle of legal relationships – i.e. to
GENERAL PROVISIONS
vote and run for public office, protection by or
government, render compulsory military or civil service  What causes the transmission of the property is (1) the will or (2)
in times of war, taxes, etc. law
o He is a child to his parents (Filiation)  Remember: Not all non-monetary debts are non-transferrable.
 This has the legal relationship of affiliation, and there are There are some contracts that the heirs must respect – ex. Lease,
also obligations on behalf of the child – ie. Support, usufruct, etc.
succession, surname. He also has an obligation to his
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 A money debt is not extinguished by death. It passes to the heirs,
but the heirs may only be held liable for this money debt up to the
extent of their inheritance.
Art. 774. Succession is a mode of acquisition by virtue of which
the property, rights and obligations to the extent of the value of
the inheritance, of a person are transmitted through his death to
another or others either by his will or by operation of law. (n)
 Succession is a mode of acquiring ownership
o This has to be read along with 712 where it states that:
Ownership and other real rights may be transmitted by testate
and intestate succession.
 Sir: Succession is a mode of acquisition by virtue of which
inheritance of a person is transmitted through his death to
another or others either by his will or operation of law.
 This article talks about the property rights and obligations to the
extent of the value of the inheritance, while 766 on the hand talks
about the extent of the inheritance – i.e. the property, rights, and
obligations which are not extinguished by death.
 Transmission:
o What are transmitted?
1. Property
2. Rights
3. Obligations
o But these are only transmitted to the extent of the value of the
inheritance.
o The general rule for the transmission of rights is: If a right or
obligation is strictly personal then it cannot be transmitted.
o It is transmitted by:
 Will
 Operation of Law
o I.e. PATRIMONIAL rights are transmissible, and those that
are Intuitu personae are not transmissible.
 Rule regarding pecuniary obligations:
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o Money obligations of the deceased pass to the heirs to the
extent that they inherit.
o The article mandates that the heirs receive the estate, then pay
off the creditors.
o The rules of court mandate that the debts be paid first before
the estate is distributed among the successors.
 It is only when all of the obligations of the deceased are settled
that the estate may be distributed among the heirs.
o It is only when the debts and the costs of administration have
been paid that the court may assign the residue, and it only
upon then that an action to recover may be filed.
 In our country, the creditors of the deceased must claim against
the estate and not against the heirs.
 The responsibility of the heirs for the debts of their successors
cannot exceed the value of the inheritance that they receive.
 What happens in succession is that by virtue of the right of
succession the heirs are subrogated to the rights and obligations of
the deceased.
o 3 instances when the it may not be transmitted (generally for
obligations A1311)
1. Nature of the obligation
2. Stipulation
3. Not transmissible by operation of law.
Union Bank vs. Santibanez:
In this case a PN was executed by the dad and a son for the
purchase of a tractor. Eventually the dad died, and he left a
holographic will. During the course of the probate proceedings the son
and the sister agreed that they will partition the tractors 3:1 and they
will be liable to UB in that corresponding ratio. Eventually the loan
paid and UB flied a collection case against the brother and sister.
The SC said that the case should not prosper since it is
MANDATORY that if it is a money claim that the claim should be
filed with the probate court. Collecting on the money claim outside the
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probate court is not allowed. The court said that if they wanted to claim
outside of the probate court they cannot file a suit against the sister
Art. 776. The inheritance includes all the property, rights and
since she was not a signatory to the PN.
obligations of a person which are not extinguished by his
death. (659)
Estate of Hemady vs .Luzon Surety  Inheritance includes
Money debts are transmitted to and paid for by the heirs. 1. All the properties that were existing at the time of the
Whatever is payment is made from the estate is ultimately a payment decedent’s death.
be the hers since the amount of the paid claim in fact diminishes or 2. All the transmissible rights and obligations existing at the time
reduces the shares that the heirs would have been entitled to receive. of the decedents death.
In this case there was a Surety Agreement that was executed by the  Rules for the determination of the
dad, and when the dad died, the children were saying that the estate transmissibility/intransmissibilty of the rights and
should not be held liable for the surety agreement that was entered into obligations:
by the dad.  Rights relative to persons and family or purely
In this case it is not really a money debt but a contingent claim, personal rights are intransmissible.
because the cause was a contract of guarantee. A contingent claim is
a transmissible obligation. Art. 777. The rights to the succession are transmitted from the
Alvarez v. IAC moment of the death of the decedent. (657a)
The heirs cannot escape the legal consequences of their  A better way to look at it is to say that the right to succession is
father’s transaction. The fact that the petitioners did not inherit the vested upon the death of the decedent, vis-à-vis transmitted.
property involved is of no moment since by legal fiction, the monetary  This article specifies the time of the vesting of the successional
equivalent devolved into the mass of the estate of the father. The estate right
is liable in their totality for the payment of the debts of the estate. But  776 presumes that the person succeeding :
the children are only liable to the extent of their share in the o Has a right to succeed either by:
inheritance. 1. Compulsory – Legitime
2. Testamentary – Will
3. Intestate – Law
Art. 775. In this Title, "decedent" is the general term applied to
o The person has the legal capacity to succeed
the person whose property is transmitted through succession,
o The person accepts the successional portion.
whether or not he left a will. If he left a will, he is also called the
 The vesting of the right to succeed happens immediately upon the
testator. (n)
decedent’s death, thus it should be remembered that:
 Decedent – general term for a person whose property passes o The law in force at the time of the decedent’s death will
through succession determine who the heirs should be.
 Testator – a decedent who left a will o Ownership passes to the heir at the very moment of death

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 Because of this the heir now acquires the right to dispose

of his share. De Borja vs. Vda. De Borja
o The heirs have a right to be substituted on behalf of the
In this case there was a compromise agreement that was
deceased in actions that survive. – Note the actions munst not
entered into by two heirs. The family of one of the heirs sought to have
be intuitu personae.
the compromise agreement invalidated since there was a will that was
 Heirs have the right to be substituted for the deceased party in an
left, thus it was mandatory to go into probate. The SC said that the
action that survives
compromise agreement is valid. This is since what was done here was
 The operation of article 777 is at the very moment of the
not a settlement of the estate, rather it was an heir selling to another
decedent’s death.
heir her share in the estate. It should be noted that ownership passes to
 Sir: What is transmitted to the heirs is not the inheritance per se,
the heir upon the moment of death, and they are allowed to dispose of
rather it is the right to the inheritance.
it in the manner that they want.
 Sir: When the decedent dies the heirs do not have a right to the
property, they do not know what exact properties belong to them.
But when the heirs get their specific property that are partitioned Lee vs. RTC
to them, the rights to to these properties retroact to the time that An heir can sell his right/interest or participation in the
the decedent died. property under administration by virtue of Article 533 and 777 of the
CC.
Unson vs. Del Rosario (Note: this case was decided under the old CC) Sir: In these cases you are only selling your share. T is vastly different
Faustino died, and he left no heirs except for his widow Maria. from selling a specific property. An heir knows what his fraction is,
Maria contends that upon the death of Faustino, it was his common and he can sell that. But if he proposes to sell a specific portion, then
law wife who took possession of the lands, thus depriving her of use the rules on co-ownership – it shall only be valid to the extent that
possession and enjoyment. The common law wife was saying that she the heir receives. So a sale of a share is valid.
and Faustino had kids so they should also be entitled to the land. But
the law if force and effect was the old code. Under this code the Yu vs. Loi
lands should go to the widow and none go to the illegitimate family.
An heir can sell his interest in the decedent’s estate
The court also said that it is of no moment that at the time of the
immediately upon the death of the decedent. But this is always subject
decision a new code was already in force and effect, thus giving the
to the rights of creditors and the expenses of administration.
illegitimate children rights. The fact of the matter is that the property
transferred upon the* death of the decedent and the right was
transmitted before the enactment of the new code. Furthermore even Bonilla vs. Barcena
if there is a provision that rights declared for the first time shall have It is true that a dead person may not institute a suit in court,
a retroactive effect, but only when the new rights do not prejudice any
but it is recognized that he can be substituted by the heirs up to its
right vested or acquired of the same origin. Thus the lands cannot pass
completion. In this case was filed the complainant was still alive,
to the illegitimate family.
since rights to succession are transmitted from the moment of death of
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the decedent they may maintain the suit. The question that has to be
answered is if the suit is of a nature that it may be carried on by the
heirs. In this case it was one that was to quiet title which affects
property rights, thus it can continue.
Heirs of Conti vs. CA
Prior settlement of the estate is not necessary for the heirs to
commence an action pertaining to the decedent. A co-owner died, and
her own children file an action to partition the land that their other was
a co-owner. The SC said that this can be done, since the right to
demand partition was transmitted to them from the moment of death
of the decedent. Remember; the rights of the heirs passto them
immediately upon the death of the decedent
Yaptinchay vs. CA.
There were people who wanted to continue the action for partition.
The SC said no – since there was no declaration of heirship.
Sir: there was reason for this since there were two groups that were
claiming to be heirs. The SC said it should be the rightful heirs that
should carry on the suit – so these two groups have to settle who the
rightful heirs are then that group will have the right to file the action.
Alfonso vs. Spouses Andres
The title of the property owned be a person who dies intestate
passes at once to his heirs. Such transmission is subject to the claims
of administration and the property may be taken form the heirs for the
purposes of paying debts and expenses. But this does not prevent the
immediate passage of title, upon the death of the intestate, from
himself to his heirs. The deed of EJ settlement executed by Jose and
Alfonso evidences their intention to partition the inherited property.
This being the case the sale that was made to the respondent was after
the execution of the EJ settlement – thus valid. The SC said that even
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in the settlement was not published there was already a partition thus
Jose could sell or assign his specific portion.
Republic vs Manotoc
Under the rules of succession, the heirs instantaneously
become co-owners of the Marcos properties upon the death of the
president. The property rights and obligations to the extent of the value
of the inheritance of a person are transmitted to another through the
decedent’s death. In this concept, nothing prevents the heirs from
exercising their right to transfer or dispose of the properties that
constitute their legitimes, even absent their declaration or absent the
partition of the distribution of the estate.
Ining vs. Vega
Since Leon died without issue, his heirs are his siblings who
thus inherited the property in equal shares. In turn the heirs of his
sisters are entitled to the properties upon the death of the sisters. Since
under article 777 the rights to the succession are transmitted from the
moment of death. In this case the son in law of one of the sisters did
an act which repudiated the co-ownership. The SC said that this was
not tantamount to repudiation since the owner of the property was the
spouse and not him, thus not being an owner he had no authority to
repudiate the co-ownership.
PNB vs. Garcia
Upon the death of Ligaya, the conjugal partnership was
automatically dissolved and terminated and the successional rights of
her heirs vest, as provided in 777. Consequently the conjugal
partnership was one that was converted into an implied ordinary co-
ownership between the surviving spouse and the heirs of the deceased.
In this case the dad mortgaged the WHOLE to PNB, the SC said that
since there was already a co-ownership the mortgage should be limited
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only to his share in the conjugal partnership and what he is entitled to  This prevails over all of the other kinds
has an heir.  This takes place even if there is a will or not.
o Testamentary
 Succession by will
Art. 778. Succession may be:  Results from the designation of an heir, made in a will in
(1) Testamentary; a form prescribed by law.
(2) Legal or intestate; or o Intestate
 Succession in default of a will
(3) Mixed. (n)
 Atty Balane’s Definition: Intestate or legal succession
takes place by operation of law in the DEFAULT of a
Testamentary Intestate/Legal Mixed valid will.
 Sir says that saying that it is in the absence is wrong
799 Lost! 780
since there are instances where there is intestate
That which results Takes place by That effected partly succession even if there is a will.
from the designation operation of law in by will and partly by  Ex 100%: Will says: 50% to parents and 25% to
of an heir, legate, or default of a valid operation of law.
Ateneo. there is 25% left, this 25% will go to intestate
devisee. will.
heirs.
Combination of any o So there is intestate succession even if there is a
Made in a will two or all of the will.
executed in the form other 3 kinds. o Mixed (Not really a kind, but halo halo)
prescribed by law  Not a distinct kind, but a combination of any of the above.
 In itself this is not a kind of succession, it is just a mix of
some.
 Atty Balane’s Obseravtion
Art. 779. Testamentary succession is that which results from the o The above enumeration cannot satisfactorily accommodate
designation of an heir (Sir says that: legatee, and devisee should be the system of Legitime. Under the definitions above where
included), made in a will executed in the form prescribed by does Legitime fit in?
law. (n) o Legal/ Intestate vs. Legitime
Art. 780. Mixed succession is that effected partly by will and  Legal operated only in absence of a will. While Legitime
partly by operation of law. (n) operated WON there is a will, as a matter of fact it prevails
over a will1.
 3 different kinds of succession
 There are times where the rules on Legitime operation to
o Compulsory
the exclusion of the rules on intestacy2.
 Succession to the reserved Portion or the Legitime

1 2
Art 960 & 961 Art 960 etc.
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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. (n)
 Atty. Balane says that this is best deleted since its only purpose is
to confuse since when the property passes to the heir it should
already belong to him.
o Remember: What passes to the heirs is the INHERITANCE,
not succession.
o Thus the fruits that accrue after the death do not belong to the
estate – they belong to the heirs – through the concept of
ACCESSION.
o Ex. Mr. Gagahena inherited a mango plantation, in January.
The fruits were harvested in June. It is WRONG to say that
the fruits are part of the inheritance. Here they were only fruits
of the inheritance. It is Mr Gagahena who owns the fruits, and
he acquired it due to his ownership of the property and not
because it was part of his inheritance as part of the fruits of
the land.
 To say that the mangoes are fruits of the inheritance
maintains that inheritance is operative till then.
 Sir: Whatever is produced after the death is not anymore
due succession – rather accession.
o This is also contrary to Article 777
o So what should be part of the inheritance?
 Those that are part of the patrimony of the decedent
WHEN HE DIED – so only the shit that owns when he
dies.
 This is just like the concept that what the decedent got rid
of before he died no longer belongs to the estate.
 These are:
o Civil
o Industrial
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o Natural Fruits
Balus vs. Balus
The rights to a person’s succession are transmitted from the
moment of his death. In addition, the inheritance of a person consists
of the property and transmissible rights and obligations existing at the
time of his death, as well as those which have accrued thereto since
the opening of the succession. In the present case, since Rufo lost
ownership of the subject property during his lifetime, it only follows
that at the time of his death the disputed parcel of land no longer
formed part of his estate to which his heirs may lay claim – i.e. the
petitioner never inherited the subject lot from their father. What also
happened here is that the right to redeem also expired during the
lifetime of Rufo. This being the case it no longer formed part of the
inheritance.
In this case kasi the respondents Balus redeemed the property
from the bank, and the petitioner Balus did not help pay. Petitioner
Balus is thus saying that he also has a right to the property since it was
owned by their dad, the court said that the dad sold the land to the bank
since there was a foreclosure sale and the title transferred to the bank,
then the dad died after, thus the property was not part of his estate.
Sir: This would have been different of the right to redeem was still
there at the time of the decedent’s death.
Art. 782. An heir is a person called to the succession either by the
provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. (n)
 An important instance where it has to be differentiated whether or
not a person is an heir or a devisee are in cases of preterition.
o Preterition is the exclusion of a testator of one who is entitled
to a Legitime.
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 According to the Civil Code
o Heir is a person called to succession either by provision of a
will or by operation of law.
o Devisee / Legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will.
 The distinction between an heir and a legate/devisee is important
when it comes to dealing with preterition.
o Preterition – it is when a devisee’s portion infringes on the
portion that is supposed to go to a compulsory heir by virtue
of his legitime.
 According to Castan:
o An heir - Is one who succeeds to the whole or an aquilot part
of the inheritance. – Sir: Universal succession
o A devisee/legatee – are those who succeed to a definite,
specific and individual properties. – Sir: Particular
Succession: To specific items.
 Sir: If you are asked what an heir is – then you use the codal
provision, if you are asked to apply, then you use Castan.
CHAPTER 2
TESTAMENTARY SUCCESSION
SECTION 1. - Wills
Recap: What are the 3 kinds of succession?
 Compulsory
 Testamentary
 Intestate
SUBSECTION 1. - Wills in General
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
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 What is a will?
o It is where a person is permitted
o Within the formalities prescribed by law
o To control a certain degree the disposition of his estate
o To take effect upon his death.
 NOTE: When you have a will you only dispose of the free portion
you cannot impair the Legitime of the compulsory heirs through a
will.
 The operative words in the definition are/ Elements of a will:
1. Act
 Atty Balane: the word is too broad and should have been
more clearly delimited. This is since a will has to be
written. Also under our jurisdiction we do not recognize
Nuncupative (a will that is made on a deathbed), or oral
wills.
2. Permitted
 This means that will making is purely statutory.
 It is a statutory permission, it is something that is not
guaranteed by the bill of rights.
3. Formalities proscribed by law
 The requirement of form prescribed respectively for
attested and holographic wills.
4. Control to a certain degree
 This means the testator’s power of testamentary
disposition is limited by the rules on legitimes.
5. After his death
 The testamentary succession, like all other successions, is
mortis causa.
Vitug vs. CA
In this case there was a provision in the joint savings accounts
of the spouses that the money that is placed there is both their property,
and there was also a survivorship clause – which means that all the
money in that account will belong to the person who survives. There
were people contesting this clause saying it is tantamount to a will,
and since it did not comply with 805 it should be void.
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The SC said that this survivorship clause is valid. They opine
that a will should be: “a personal, solemen, revocable and free act by
which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death.” The
SC said that these funds were conjugal funds and that there was a case
(Rivera vs. People’s Bank and Trust Co.) that rejected the claim that a
survivorship agreement delivers to one party’s separate property to
another, it is just transferring their joint holdings. The court ruled that
such clause is just an obligation with a period. This being the case
upon the death of one of the spouses, the money in the account became
the separate property of the surviving spouse, thus it cannot be part of
the estate.
Atty Balane: Is of the belief that the survivorship agreement
circumvents the law on legitimes. It may deprive the compulsory heirs
of legitimes.
 Characteristics of Wills:
1. Purely personal
 It is the non-delegability of the disposing power
2. Free and intelligent
 Free: Testator’s consent should not be vitiated
 Intelligent:
3. Solemn and formal
 Subject to formalities under the law
 It depends whether it is attested or holographic
4. Revocable or ambulatory
 Every will is revocable while the testator is alive. THERE
IS NO EXCEPTION.
 A will is ambulatory in the sense that it is not fixed – it
can always be changed.
5. Mortis causa
 A will by its very nature disposes of property at the time
of death – Remember article 777.
6. Individual
TANTOCO 3B
 Joint wills are prohibited
7. Executed with animus testandi
 There must be an intent to dispose.
 Remember the Rizal case with the mi ultimo adios… the
sc said that even if he said that he leaves his parents
everything there really has to be the intention to do so.
Here they considered that phrase as part of literature.
8. Executed with testamentary capacity
9. Unilateral
 A will is not a contract – there is no need of acceptance.
 There is no concurrence of offer and acceptance.
Acceptance happens after the death of the decedent.
 I can make a will and my heirs do not even know that they
are heirs.
10. Dispositive of property
 To be a will, practically speaking, it should dispose of
property.
 But you can have a will that disinherits a person.
11. Statutory
Montinola vs. Herbosa
In this case the CA had the opportunity to decide whether or
not the statement in the Mi Ultimo Adios of Rizal was a will since he
said in that poem that he left all of his property to the Philippines. So
the government tried to claim because of that line. They decided that
an instrument which merely expresses a last wish as a though or advice
but does not contain a disposition of property and was not executed
with animus testandi cannot be considered a will.
The line said: “To the Philippines, my mother land… I leave
you everything…” Ruben: When you want to dispose of property you
do not put them in 14 stanzas of Rhyming Romantic Verse.
Seangio vs. Reyes
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In this case the only thing that was placentraed in a
holographic will was the disinheritance of one person. This person was
contending that the will should not be valid since there was no
disposition of property, thus it does not meet the definition of a will
under 783.
The SC said that such a will is valid since the intent to dispose
morits causa can be clearly deduced from the terms of the instrument.
And while it does not make any affirmative disposition, it is an act of
disposition itself since the disinheritance is in itself a disposition in
favor of the heirs to the exclusion of the disinherited heir.
Sir: the clear implication of this ruling is that a document which
contains only a provision for disinheritance is, in legal contemplation,
a will and must be admitted into probate to be effective.
Art. 784. The making of a will is a strictly personal act; it cannot
be left in whole or in part of the discretion of a third person (Sir:
should be another person), or accomplished through the
instrumentality of an agent or attorney. (670a)
 This provision gives the GR that the will is a purely personal act.
 The making of a will CANNOT BE DELEGATED.
o But the mechanical stuff can be delegated – such as typing
Art. 785. The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the
discretion of a third person. (670a)
 The following are the essence of will making, and therefore
CANNOT be delegated:
1. The designation of heirs, devisees, or legates
2. The duration of efficacy of such designations
 These include things such as the terms, conditions, and
substitutions.
3. Determination of the things that they are to receive.
TANTOCO 3B
4. Determination of whether or not the testamentary disposition
is to be operative. (787)
Art. 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to which
such property or sums are to be given or applied. (671a)
 This constitutes an exception to the general rule of non-
delegability of will making – under this provision there are two
things that must be determined by the testator, and two things that
may be delegated by the testator.
o Testator must determine:
1. The Property or Amount of money to be given
2. The class of the cause to benefited
o The testator MAY DELEGATE:
1. The designation of the persons, institutions, or
establishments within the class or cause
2. The manner of distribution.
 Quarendum: the testator specified the recipients by designation,
but left to ta 3rd person the determination of the sharing. Ex. I leave
P500 for A,B,C, and D to be distributed as my executor may be
determined.
o View 1: This can be said to be prohibited by 786 since the
testator must determine the names and also the amounts that
his recipients shall receive.
o View 2: This gives less discretion to the person than that
allowed by 786, thus it should be allowed.
Art. 787. The testator may not make a testamentary disposition in
such manner that another person has to determine whether or not
it is to be operative. (n)
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 This provision consist, and reinforces the purely personal  Latent as to persons:  Patent as to persons:
character of a will. o There is an ambiguity as o It is not clear as to WHO
 What this article prohibits is the delegation to a 3rd person of the to WHOM the property the property should go
power to decide whether a disposition should take effect or not. should go to to.
o Ex. Go to jose, and you o Ex. I will give this to my
have many jose’s in first cousins
Art. 788. If a testamentary disposition admits of different your life.
interpretations, in case of doubt, that interpretation by which the  Latent as to property  Patent as to property
disposition is to be operative shall be preferred. (n) o There is an ambiguity as o It is clear to who it will
to WHAT property go to, but the WHAT is
 Testacy is preferred to intestacy, since testacy is the express will
should go to who. ambiguous.
of the decedent, while intestacy is merely implied
o Ex. I will give him my o Ex. I will give to Jose
 Ut res magis valeat quam pereat. That the thing may rather be
cellphone, and you have some of my cars.
effective than be without effect. Construction in favor of
many cellphones.
validity and not nullity.
In neither case does there appear In this case the ambiguity is
to be ambiguity on the face of evident from a reading of the
Art. 789. When there is an imperfect description, or when no the will. The ambiguity here is testamentary provisions
person or property exactly answers the description, mistakes and latent. themselves.
omissions must be corrected, if the error appears from the context BOTH CASES ARE NOT GROUNDS OF AVIOD A WILL – AS
of the will or from extrinsic evidence, excluding the oral A MATTER OF FACT THEY SHOULD NOT BE STRICKEN
declarations of the testator as to his intention; and when an DOWN. What should be done is to clear it up and resolve it.
uncertainty arises upon the face of the will, as to the application REMEMBER: testacy is preferred to intestacy – thus effect must be
given to testamentary disposition.
of any of its provisions, the testator's intention is to be ascertained
from the words of the will, taking into consideration the How to deal with ambiguities?
circumstances under which it was made, excluding such oral  Determine the intention of the testator
declarations. (n) o Ambiguity – as far as possible – should be resolved in order
to give effect to the testamentary disposition.
 This article provides that there are two kinds of ambiguity referred
 Method of resolving: Any evidence admissible and relevant
to in this article:
shall be admitted.
LATENT PATENT o EXCEPT: ORAL DECLARATIONS OF THE
 It is not obvious/ it is  It is obvious on the fact of TESTATOR AS TO HIS INTENTION.
hidden. the will o Intrinsic and Extrinsic evidence may be used.
 When there is an imperfect  This is when the uncertainty
description, or when n arises upon the face of the Art. 790. The words of a will are to be taken in their ordinary and
person or property exactly will as to the application of
grammatical sense, unless a clear intention to use them in another
answers for the description. any of its provisions.
sense can be gathered, and that other can be ascertained.
TANTOCO 3B Page | 13
 AM+DG
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless
it satisfactorily appears that he was unacquainted with such
technical sense. (675a)
 Similar Rules are laid down by Rule 130, Section 10 and 14 of the
ROC.
 So.. .Rules in interpretation:
o Worlds of a will are to be taken in their ordinary and
grammatical sense.
 Exception:
 Unless a clear intention to use them in another sense
can be gathered.
o Technical words, shall be taken in a technical sense.
 Exceptions:
1. Unless the context clearly indicates a contrary
intention
2. Unless it satisfactorily appears that he was
unacquainted with such technical sense.
Art. 791. The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which
will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent
intestacy. (n)
 How to interpret words:
o The interpretation that will be given effect would by that
which would give effect to every expression
o When there are two different ways of interpreting a will, one
which favors intestacy, and one which favors testacy, THAT
WHICH FAVORS TESTACY SHALL BE APPLED.
Art. 792. The invalidity of one of several dispositions contained in
a will does not result in the invalidity of the other dispositions,
TANTOCO 3B
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made. (n)
 This article makes applicable to wills the severability or
separability principle in statutory construction.
 So… the mere invalidity of one of the provisions of a will, will
not AS A GENERAL RULE, invalidate the other provisions of
the will.
o The exception to this is when the valid provisions would not
have been made if the invalid provisions had not been made
by the testator.
SUMMARY ON HOW TO INTERPRET WILLS (790 – 792):
1. Meaning of words (790):
a. Ordinary words, ordinary sense
b. Technical words, technical sense
2. Interpretation of words (791):
o Give effect to the whole, rather than ones that will render
expressions inoperative
o If there are two modes of interpreting – the one that prevents
intestacy shall be preferred.
3. Invalidity of dispositions (792):
o It does not affect the validity of other dispositions
 Unless it is to be presumed that testator would not have
made such other dispositions if the invalid dispositions
were not made.
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. (n)
 This article makes things problematic since 77 states that the
rights are transmitted from the moment of death, this article on the
other hand speaks of the time that a will was made.
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 Ex. A makes a will that B will get 1/4 th of this property, at that Extrinsic Intrinsic
time the value of his property was P40,000. BUT when A dies the Refers to the requirement of Refers to the substance of the
property is now P4,000,000. Under this article A would only get Form – Formal Validity Provisions – Substantive
P10,000 instead of P1,000,000. Validity
 Sir: this should be turned around to read that: “Property acquired Governing Law as To Time: Governing Law as To Time:
after the making of a will passes thereby unless the contrary
 For Filipinos – the law in  For Filipinos – the law as of
clearly appears from the words or the context of the will.
force when the will was the time of the death of the
executed (Article 795) testator (2263).
Art. 794. Every devise or legacy shall cover all the interest which  For Foreigners – Same Rule.  For Foreigners – Depends
the testator could device or bequeath in the property disposed of, o But the assumption of on the rules that govern
unless it clearly appears from the will that he intended to convey this is that the will is them.
a less interest. (n) being probated here.
Governing Law as To Place: Governing Law as To Place:
 This supplies the GENERAL RULE: That in a legacy or devise
the testator gives EXACTLY the interest that he has in the thing.  For Filipinos: law of (1)  For Filipinos: Philippine
o EXCEPT: Citizenship, (2) Domicile, Law
1. Article 794 – where he can give a lesser interest (3) residence, (4) Place of  For Foreigners: Their
2. Article 9293 – where he can give more. Execution, and (5) National Law.
Philippine Law.
 In this case the estate should try to acquire what the
 For Foreigners – SAME.
testator is trying to give, but if it cannot, then the
monetary equivalent shall be given to the legate – i.e.
the just value of the interest that should have been
acquired (A931) SUBSECTION 2. - Testamentary Capacity and Intent
Art. 796. All persons who are not expressly prohibited by law may
Art. 795. The validity of a will as to its form depends upon the make a will.(662)
observance of the law in force at the time it is made. (n)
Art. 797. Persons of either sex under eighteen years of age cannot
 NOTE: This Article talks about the validity of a will AS TO ITS make a will. (n)
FORM. Art. 798. In order to make a will it is essential that the testator be
o This depends on the observance of the law in fore at the time of sound mind at the time of its execution. (n)
that the will is made.

3ART 929. If the testator, heir, or legatee owns only a part of, or an interest in the
thing bequeathed, the legacy or devise shall be understood limited to such part or
interest, unless the testator expressly declares that he gives the thing in its entirety.
TANTOCO 3B Page | 15
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Art. 799. To be of sound mind, it is not necessary that the testator
be in full possession of all his reasoning faculties, or that his mind
be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the time of making
the will to know the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the
testamentary act. (n)
Art. 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the
time of making his dispositions is on the person who opposes the
probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made
it during a lucid interval. (n)
Art. 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening
of capacity. (n)
SUMMARY ON THE RULES ON TESTAMENTARY
CAPACITY (896 - 801):
 All natural person, unless disqualified by law have testamentary
capacity.
o Note: Juridical Persons are not given testamentary capacity.
 Who are Disqualified?
1. Those under 18 years of age. (797)
2. Those of unsound mind. (798)
 What is soundness of mind? NOTE: the law presumes that
everyone is of a sound mind, unless the contrary is proven (799 &
800).
o Negatively – It is not necessary that:
1. The testator be in fill possession of reasoning faculties.
TANTOCO 3B
2. The testators mind be wholly unbroken, unimpaired,
unshattered by disease, injury or other cause.
o Positively – it is the ability to know three things:
1. Nature of the estate to be disposed of
 Testator should have a fairly accurate knowledge of
what he owns
 Accurate should be used in a relative sense – since
the more one owns the less accurate is ones
knowledge of what his estate is to be.
o Thus the more you own the more liberal you
interpret the requirement of the law.
2. Proper objects of one’s bounty
 The testator should know, under ordinary
circumstances, who his relatives are in the most
proximate degree.
 It is fair that the farther the relation knowledge of who
these relatives are decreases.
3. Character of the testamentary act.
 For this requisite to be present it is not required that
the testator know the legal nature of the will.
 All that the testator needs to know is/Requisites:
1. He is disposing of Property
2. He is disposing of it Gratuitously
3. It shall take effect after his death.
 NOTE: As long as the testator, at the time of making the will,
passes the 3 tests above, then he has testamentary capacity. It does
not matter if he is medically incapable.
o So… just because you are mentally incapable does not mean
that you cannot make a will. As a matter of fact even if you
are medically or mentally incapable you can still make a will.
 Remember: Law presumes that the person that is making a will is
of sound mind in the absence of proof to the contrary (800). Here
are some considerations/to whom the onus probani is on:
1. The burden of proof is on the person who alleges that the
testator is of unsound mind.
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2. The burden of proof is on the one who maintains the validity
of the will if it was public knowledge that the testator was of
unsound mind within one month or less from the time that he
made his will.
 Rules on Supervening Incapacity (801):
1. If a person becomes incapacitated AFTER he makes the will,
then the will shall still be valid
2. If a person is incapacitated AT THE TIME OF MAKING
THE WILL, it will still be an invalid will.
 It does not matter that he subsequently comes to his
senses. Remember: The testator must have a sound mind
AT THE TIME of making his will.
 Generally 800 gives you a rebuttable presumption. The
EXCEPTION TO THIS RULE are:
1. When the testator, one month or less before the execution of
the will was publicly known to be insane
2. When the testator executed the will after being placed under
guardianship or ordered committed (to a mental hospital or
the like), in either case, for insanity BEFORE THE ORDER
IS LIFTED.
Ortega vs. Valmonte
This is the case where the 80 year old married a 28 year old,
and the 28 year old was made the heir to ½ of his property. The
relatives of the old man were saying that nauto the old man who
married, and since he was old he was not of sound mind.
There are numberless degrees of mental
capacity or incapacity and while on one hand it has been held that
mere weakness of mind, or partial imbecility from disease of body,
or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he
has understanding and memory sufficient to enable him to know
what he is about to do and how or to whom he is disposing of his
property.
They also said that there was no proof of fraud and
TANTOCO 3B
Baltazar vs. Laxa
In this case Laxa was like the adopted son of the testator, and
the testator left to that person a substantial portion of what she owned.
This was contested by the other relatives since they were saying that
the decedent was of unsound mind since she was forgetful. The SC
said just because the testator had the state of mind of being forgetful
does not necessarily make a person mentally unsound. They also said
that there was no medical proof that the decedent was indeed insane.
Art. 802. A married woman may make a will without the consent
of her husband, and without the authority of the court. (n)
 This should read that “A spouse may make a will without the
consent of the other spouse or the courts.”
 But remember the family code that a spouse may not dispose of
property inter vivos – while living.
o But once its mortis causa, then a spouse may dispose of the
property – whether it is separate property or his/her share in
the ACP or CPG.
Art. 803. A married woman may dispose by will of all her separate
property as well as her share of the conjugal partnership or
absolute community property. (n).
 This provision is superseded by Article 87 of the Family Code,
which states: “Either spouse may dispose by will of his or her
interest in community property.”
SUBSECTION 3. - Forms of Wills
Art. 804. Every will must be in writing and executed in a language
or dialect known to the testator. (n)
 This article lays own the common requirements that apply to the
two kinds of wills that are recognized in the PH.
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o These are:
 Attested
 Holographic
 Formal Requirements under 804: A will must be:
1. In writing
 In Philippine law we do not recognize oral wills.
2. In a language or dialect that is known by the testator
 The failure to follow these two requirements nullifies a will
 805 to 808 on the other hand lay down the special requirements
for attested wills
 810 to 814 lay down the special requirements for holographic
wills
Souza vs Honrado
This is a case where it was stated in the opening paragraph
that a testator understood what was written in English in the will. But
the the last paragraph said that the testator did not understand English
so it was translated to him, they also admit that the testator was
illiterate.
This means that the will was written in a language not known
to the illiterate and therefor void because of the MANDATORY
provision that the the will be executed in a language or dialect known
to the testator.
Abangan vs. Abangan
Will written in Cebuano dialect and executed in Cebu by the
testator.
In the absence of proof to the contrary, there is a presumption
that she knew this dialect in which the will was written. For the
presumption to apply, it must appear that:
1. The will was executed in a language generally spoken in the
place of execution.
2. The testator must be a native or resident of such locality.
TANTOCO 3B
Note: Properly speaking compliance with the language requirement is
not presumed but PROVED by these attendant circumstances.
Sir: Do you need to state the compliance in the attestation clause that
the will has complied with 804?
Ans: NO. It is not required that the attestation clause state that the
testator understood the will. This is something that can be proved by
extrinsic evidence.
Note: There is also a presumption that the testator knew the language
in which the will was written.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
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Codal broken down:
1. Every will other than a holographic will
2. Must be subscribed at the end thereof by the testator himself, or
3. By the testator’s name written by some other person:
a. In his presence
b. By his express direction
c. And attested and signed by three or more credible witnesses
d. In the presence of the testator and of one another.
4. The testator or the other person requested by him to write his name
and the instrumental witnesses of the will shall also sign:
a. Each and every page thereof – except the last
b. On the left margin
c. And all the pages shall be numbered correlatively in letters
d. Placed on the upper part of each page.
5. The attestation shall state:
a. The number of pages used upon which the will is written
b. The fact that the testator signed the will and every page
thereof
c. Or caused some other person to write his name
 Under his express direction
 In the presence of the instrumental witnesses
 And that the later latter witnessed and signed the will and
all the pages
 In the presence of the testator and of one another.
6. If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public
by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office
of the Clerk of Court. (n)
Codal Broken Down:
1. Every will must be acknowledged before a notary public by the
testator and the witnesses
2. The notary public shall not be required to:
TANTOCO 3B
o Maintain a copy of the will, or file another with the clerk of
court.
Sir: these two articles give you the special requirements of the will.
Q: Does the testator need to know the language of the will?
A: YES.
Q: Does the testator need to know the language of the attestation
clause?
A: NO – because logically speaking the attestation clause is not an
affair of the testator, rather it is one of the Witnesses
Q: Do the witnesses need to know contents or understand the language
of the will?
A: No – they just need to witness its signing.
Q: Do the witnesses need to know the language of the attestation
clause?
A: No – but if they don’t then it will interpreted to them.
Sir: Thus it is safe to conclude that there is only ONE language
requirement – this is that ONLY the testator needs to know the
language of the will. But when it comes to the attestation clause – no
one needs to understand it.
Sir: REMEMBER: When it comes to acknowledgement before a
notary – IT IS ONLY FOR ATTESTED WILL AND NOT A
HOLOGRAPHIC WILL.
Special requirements for attested wills:
A. As to form:
1. Each will other than a holographic will must be:
a. Subscribed at the end by the testator or his agent
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b. If Subscribed by the agent the FF MUST CONCUR:
 Done in the presence of the testator
 Under the express direction of the testator
c. Attested and subscribed by3 witnesses:
 In the presence of the testator
 And all 3 must be there at the same time.
 They must also sign each and every page.
B. As to format:
1. Every single page must be signed, ON THE LEFT HAND
MARGIN, except for the last page.
o The signing must be done in the presence of the FF:
a. The Testator, and Agent if any
b. All 3 witnesses.
2. All pages shall be numbered correlatively in LETTERS on the
upper part of each page.
C. Requirements for the Attestation Clause:
 The Attestation Clause shall state:
1. The number of pages of the will
2. The fact that the testator signed the will and every page
thereof
3. If its signing is done by an agent on behalf of the principal
then:
a. That it was done under the express direction of the
principal
b. The agent signed the will and every page thereof
c. And it was done in the presence of the witnesses.
 Note about the attestation clause: It seems, as can be seen in a case
in 806 – there is no need for the testator nor the witnesses to
understand the attestation clause.
o When it comes to the testator, it is not even material that he
understand the language of the attestation clause. It is said that
the attestation clause is no longer part of the will, thus the
interest of the testator stops there.
 The attestation really is the declaration of the witnesses
that they signed each and every page of the will, and that
this was done in the presence of the testator.
D. It must be Notarized
Note: when it comes to an attested will there is no need that the will
be dated. This is contra a Holographic will where it is imperative that
it be dated.
Note: Consequently a variance between the indicated dates of
execution and acknowledgement does not in itself invalidate a will.
Comments on some of the requirements:
 There is a difference between subscribe and sign.
o To subscribe necessarily denotes writing
o Signing has a broader meaning – not every signature is
necessarily a subscription and not every distinguishing mark
is writing.
 This can be seen in the case where it is permissible for a
testator who cannot write just to place his thumb mark.
 Can you use your thumbmark even when you are not
incapacitated?
o YES! As a matter of fact it is even better since it is harder to
forge. Remember – the law says sign, it is not subscribe.
 Why do we sign wills?
o We sign them to make sure that they are authentic
Payad vs. Tolentino
In this case the testatrix did not sign every page, instead she
just placed her thumb mark on each and every page, and her name was
written by her attorney where she placed her thumbmark. They were

TANTOCO 3B Page | 20
 AM+DG
contesting that the will should not be valid since the attestation clause
did not state that the Atty. wrote the name of the testatrix.
The SC said that the attestation clause is valid. As a matter of
fat they stated that a statute requiring a will to be signed is satisfied if
the signature is made by the testator’s mark. Thus there was no more
need for the attestation cause to state that the Atty signed requested
Atty. to sign her name since she personally signed her will in the way
that is contemplated by law.
Matias vs. Salud
The SC said that they have repeatedly held that the legal
requisite that the will should be signed by the testator is satisfied by a
thumb print or other mark affixed by him and that where such mark is
affixed by the decedent it is unnecessary to state in the attestation
clause that another person wrote the testator’s name at his request.
Conclusion: On the authority of these rulings it can be seen that the
testator’s thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.
Question: Should the there be a limitation to the use of a thumbprint –
i.e. that they ill and infirm?
Answer: According to Atty. Balane there seems to be no basis for
limiting the validity of thumbprints only to cases of illness of
infirmity.
Garcia vs. Lacuesta
It is not pretended here that the cross appearing on the will
is the usual signature of Mercado. We are not prepared to like the
mere sign of a cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
TANTOCO 3B
This being the case it DOES NOT comply with the statutory
requirement of signature.
BALANE: A cross is easy to falsify! Unless of course, your usual
signature is a cross.
Signing of an agent for the testator:
 Two requisites for signing by the agent:
o Must sign in the presence of the testator
o It must be under the express direction of the testator.
Barut vs. Cabacungan
In this case the plaintiffs were alleging that the will of the
testatrix should be invalid since there is a difference in the handwriting
of the person who wrote her name down in a previous will, and the
current one which is being probated. It is also important to add that the
testatrix was unable to read nor write so she had other persons do this
for her.
From the provisions of the law it is clear that with respect to
the validity of a will, it is unimportant whether the person who writes
the name of the testatrix signs his or not. The important thing is that it
clearly appears that the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other.
The SC also said that the main thing to be established in the
execution of a will is the signature of the testator. If that signature s
proved whether it be written by himself of by another at his request, it
is nonetheless valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal
omits to sign his own name as it can when he actually signs. To say
that a will should be invalidated on the ground that the person who
signed the name of the principal and not his own would be a complete
abrogation of the law of wills.
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 AM+DG
As a matter of fact the case of Guison s. Concepcion was cite
in this cacse. In that case the testatrix was not able to sign the will, and
she requested another person to sign for her, And instead of signing
her name that other person signed their own name. The SC held that
the will was not duly executed.
Note: The essential thing for the validity is that the agent write the
testator’s name, NOTING MORE. It would be nice for the agent to
indicate the fact of agency or authority – but it is not a requirement.
Question: May the agent be one of the attesting witnesses?
Answer: There are 2 view points:
 If there are more than three witnesses – Certainly
 If there are only three – uncertain.
Signing at the End
 THE TESTATOR MUST ALWAYS SIGN AT THE END OF
THE WILL
 If the will contains dispositive portions, there will be no ambiguity
as to where the end of the will is.
 If the will contains non dispositive paragraphs after the
testamentary dispositions, once can refer to TWO kinds of ends:
o Physical End – where the writing stops
o Logical End – Where the last testamentary disposition ends.
 Note: the end that matters is the Logical End.
o So if the signature is made, and no further dispositive parts
follow, then all is good.
o BUT if a signature is made before the end… THEN the whole
will shall be invalidated.
TANTOCO 3B
 You cannot even say that the portions before the signing
are valid and those that are made after are not. This cannot
be done since one of the statutory requirements would not
have been followed.
Signing in the presence of witnesses
Nera vs. Rimando
The true test of presence of the testator and the witnesses in
the execution of a will is not whether they actually saw each other
sign, but whether they might have seen each other sign, had they
chosen to do so considering their mental and physical condition and
position in relation to each other at the moment of inscription – i.e.
they must be able to see each other sign if they chose to do so.
It is sufficient that a witness was actually and physically
present and in such position that he could see everything that took
place by merely casting his eyes in the proper direction and without
any physical obstruction to prevent his doing so. It does not depend
upon proof that that their eyes were actually cast upon the document
at the moment of subscription by each of them. Admitted to probate.
Note: as explained in Nera and Janoeta – ACTUAL SEEING IS NOT
REQUIRED, rather what is essential is the ability to see each other by
casting their eyes in the right direction.
There is a requirement that the will be ATTESTED and
SUBSCRIBED by at least three credible witnesses in the presence of
the testator and of one another. There are TWO DISTINCT THINGS
required of the witnesses:
 Attesting – Which is the act of WITNESSING
 Subscribing – Which is the act SINGING their names in the proper
places in the will.
*It is essential that both of these be done.
Page | 22
 AM+DG
Question: Does 805 require that the witnesses sign at the end of the
will?
Answer: YES – But it is not a hard and fast rule. As a matter of fact in
the case of Tabadora vs. Rosal the witnesses only signed on the left
had portion and not at the end. The SC said that while perfection in
drafting a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially where the authenticity of the
will is not assailed.
Question: May the witness affix his thumbmark in lieu of writing his
name?
Answer: NO – remember it is required of a witness that he be able to
read and write. (But this is a temporary answer since there is no ruling
on the matter.)
Signing in the Presence of one Another
The testator, or his agent, must sign every page except the last, on the
left margin – in the presence of the witnesses.
 The testator need not sign the last page on the margin since it is
the page where the will ends – thus it should already contain his
signature.
 There is a mandatory and directory part to this requirement:
o Mandatory - signing on every page in the witnesses’ presence
o Directory – the place of the signing. The signing can be done
anywhere on the page.
 If the entire document is only 2 pages, one being the will and the
other the attestation clause – then there is no need for there to be
signing on the margins.
Icasiano vs. Icasiano
The failure of the witness to sign page 3 of the original was
due to the fact that he may have lifted two pages instead of one when
TANTOCO 3B
he signed the same, but he admitted that page 3 was signed in his
presence.
We hold that the inadvertent failure of one witness to affix his
signature to one of the pages, due to the simultaneous lifting of 2 pages
in the course of signing, is not per se sufficient to justify denial of
probate. The impossibility of substitution of this page is assured not
only of the fact that the testator and two other witnesses did sign the
questioned page, but also by its bearing the coincident imprint of the
seal of the notary.
The law should not be strictly and literally interpreted where
the purpose of the law is to guarantee the identity of the testament and
its pages is sufficiently attained. No intentional or deliberate deviation
existed. Otherwise, the witnesses may sabotage the will by muddling
or bungling it or the attestation clause.
It was pure oversight and satisfies the requirements in order
to guard against fraud and bad faith, without undue or unnecessary
curtailment of the testamentary privilege.
BALANE: This ruling should not be interpreted that witnesses may
dispense with singing each and every page of the will. Icasiano ruling
is not recommended. It just so happened talaga that 2 pages were lifted
instead of one.
Where must the witnesses sign?
1. They must sign every page, except the last
2. On the left hand margin
3. In the presence of the testator and
4. In the presence of one another.
5. The witnesses also sign at the end of the will.
o In the case of Tabuada, the witnesses were deemed to have
complied with the requirement when they signed at the
margin. The one that really has to sign at the bottom, and it is
non-negotiable is the testator.
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 AM+DG

 Note: If the acknowledgement is done by the testator and the

The signing is needed to make it more difficult to create a forged witnesses separately, all of them must retain their respective
document. This is sine you would have to forge four sets of signatures. capacities until the last one has acknowledged! – So bawal muna
ma baliw.

Note: When it comes to the making of the will there are two things
that are done by the witnesses, they attest and they subscribe. Requirements of Pagination:
Attest Subscribe Mandatory Directory
This consists in the: This is the act of signing of the Pagination by means of a It does not have to be in letters
conventional system.
1. Witnessing of the testator’s witnesses’ name upon the same
execution of the will, and to paper for the purpose of It does not have to be on the
take note that the formalities identification of such paper as This is to prevent the insertion or upper part of each page.
that are required by the law the will which was executed by removal of pages.
are complied with, the testator.
2. That the signature of the
testator exists as a fact. This means that every page must
This is to make a mark on the be numbered, and in the normal
3. This is to witness/to will.
perceive way – using roman numbers,
letters, real numbers, etc. and it
should also be consecutive – so
Sir: Both have to be done in order for a will to be valid. If a witness 1,2,3,4,5 NOT 10,2,4,3
does not Attest AND Subscribe  then the will is avoided.
Sir: if you are really thorough, then you would not just place 1,2,3 –
Sir: Also when the witnesses sign the attestation clause, they have to rather you would put ONE, TWO, THREE. This is what numbered
sign the End, if the witness signs on the side, then it is an invalid correlatively in letters mean.
attestation clause.

Is there a particular order when it comes to signing?
 It is immaterial provided that everything is done in a single
transaction
 But if the affixation is done in several transactions then it si
required for the validity that the testator affix his signature ahead
of the witnesses.
What must the Attestation Clause State?
1. The number of pages of the will
2. The fact that the testator or his agent under his express direction
signed the will and every page thereof in the presence of the
witnesses
3. The fact that the witnesses witnessed and signed the will and every
page thereof in the presence of the testator and of one another.

TANTOCO 3B Page | 24
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Notes on the attestation clause
 It is an affair of the witnesses, therefore it need not be signed by
the testator
 The signatures of the witnesses must be at the bottom of the
attestation clause
 It is not a requirement that the attestation clause be in a language
that the witnesses and the testator understand. As a matter of fact
ALL of them can be completely oblivious to what the attestation
clause says – there is a provision naman that if the witnesses do
not understand the language used it will be interpreted to them.
 It has also been held that the fact that the attestation clause was
written on a separate page has been held to be a matter of “minor
importance” and apparently will not affect the validity of the will.
 Usually the attestation clause is found right below.
o But the fact that the attestation clause was placed on a separate
page has been held to be of minor importance, and it does not
avoid the will.
 THE ATTESTATION HAS TO BE SIGNED BY THE
WITNESSES
 IT ALSO HAS TO BE SIGNED AT THE BOTTOM by the
witnesses. This is mandatory and not directory.
Q: Is it possible to have a valid will even without any marginal
signatures?
A: YES. If the will proper only has
one page, in this case the testator and the witnesses would have
already signed the bottom.
Cagro vs. Cagro
The attestation clause is not signed by the attesting witnesses
where the signatures of the 3 witnesses do not appear at the bottom of
TANTOCO 3B
the attestation clause, even if the page is signed by the witnesses on
the left hand margin.
An unsigned attestation clause cannot be considered as an act
of the witnesses, since the omission of their signatures at the bottom
negatives their participation.
The signing at the left hand margin is not substantial
compliance because if the attestation clause is not signed at the
bottom, it would be easy to add such clause to a will on a subsequent
occasion even in the absence of the testator or any or all of the
witnesses. In this case the SC said that even if the witnesses signed the
left margin, since they did not sign the attestation clause the will was
void. This is since it is in the attestation clause that contains the
utterances made in writing that the witnesses have complied with the
legal requirements/formalities.
Remember: The attestation clause and the will itself are 2 different
documents. The will is where the testamentary dispositions are made
– this is an affair of the testator. On the other hand an attestation clause
is an affair of the witnesses – here the testator has no role. Thus the
witnesses NEED TO SIGN THE ATTESTATION CLAUSE.
Bautista Angelo, dissent:
There is substantial compliance. The objection is too technical
to be entertained. The purpose of the law which is to avoid the
substitution of the pages has already been accomplished, since the fear
of substitution has been obviated by the uncontradicted testimony of
the witnesses.
Balane, concurring: It is safer to sign at the bottom.
Azuela vs. CA
The number of pages must appear in the Attestation Clause. If
the number of pages does not appear in the attestation clause, then the
Page | 25
 AM+DG
will shall be void. According to the code commission this is something
that is essential since it is one of the few modes that the courts can to
check against perjury. The purpose of the law is to make sure that there
is no removal or addition of pages.
Furthermore the witnesses must also sign at the bottom of the
attestation clause. This signature indicates that they say that they saw
the testator sign the will, on every page, and that it was done in the
presence of the witnesses. If there is no signature at the bottom, then
these are not attested to.
In this case the notary public stated: In lieu of an
acknowledgment, the notary public, Petronio Y. Bautista, wrote
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981
dito sa Lungsod ng Maynila.”
By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and
declaring it to be his act or deed. It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of
a document has attested to the notary that the same in his own free act
and deed. In this case the SC said that this may be considered a valid
jurat, but what the law requires is that it be acknowledged, and not
merely subscribed and sworn to.
A notarial will that is not acknowledged before a notary public
by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.
Q: What if I don’t place the number of pages in the attestation clause
– but I number it 1 of 4, 2 of 4, etc.
Acknowledgement before a notary Public (Article 806)
Note:
TANTOCO 3B
 It is essential that the will is notarized. If the will is not notarized,
it is merely a draft.
 The notary public also does not have to be present when the
witnesses sign the document. What he is tasked to do is
acknowledge the will.
Javellana vs. Ledesma
Whether or not the notary signed the certification or
acknowledgement in the presence of the testator and the witnesses
does not affect the validity of the will (codicil). The NCC does not
require that the signing of the testator, witnesses and the notary be
accomplished all in one single act.
The NCC requires that the testator and the witnesses sign in
the presence of each other. All that is thereafter required is that the
will must be acknowledged before a notary public. A comparison of
805 and 806 yields that while the testator and the witnesses must sign
in the presence of one another – this requirement is absent when it
comes to the notarization. All that it requires is that the testator and
the witnesses acknowledge it before a notary public. There is no
mention that they must do it together and at the same time.
The subsequent singing and sealing by the notary is not part
of the testamentary act. Hence, their separate execution out of the
presence of the testator and the witnesses cannot be said to violate the
rule that the testament should be completed without interruption.
RATIO: There is no requirement that the notary public sign and seal
in the presence of the testator and the witnesses.
OBITER: Art 806 does not contain words requiring that the testator
and the witnesses should acknowledge the testament on the same day
or occasion that it was executed. – So need to execute the will and
acknowledge on the same occasion.
Page | 26
 AM+DG
LOGICAL INFERENCE: Article 806 does not require that the testator
and the witnesses must acknowledge in one another’s presence. BUT
if it is done separately then ALL OF THEM must retain their
capacities until the last one has acknowledged.
RUBEN: There are many things that the witnesses and the
testator have to do in each other’s presence. The acknowledgement
before the notary public is not one of them. – There is no requirement
that the parties acknowledge the will all together and at the same time.
RUBEN: But this is risky, since there is the possibility that
one of the witnesses loses capacity, or maybe that the testator dies or
loses capacity himself.
Question: May the Notary Public be counted as a witness?
Answer: It depends, if there are more than three – YES. If there are
less than 3 – NO. But in essence the person that notarizes the will
CANNOT be a witness.
Cruz vs. Villasol
The notary public before whom the will was acknowledged
cannot be considered as the 3rd instrumental witness since he cannot
acknowledge before himself his having signed the will.
To acknowledge means to avow, in front or before. If the 3rd
witness were a notary public himself, he would have to avow, assent,
or admit his having signed the will in front of himself! He cannot do
this because he cannot split his personality into two so that one will
appearing before the other acknowledge his participation in the will.
For he would be interested in sustaining the validity of his own act.
To allow the notary public to act as third witness, or one of
the attesting witnesses would have the effect of only having two
attesting witnesses to the will which would be in contravention to the
provisions of Article 805.
TANTOCO 3B
RUBEN: The notary should be one of the most impartial persons
among all the parties, his only interest is to make sure that the law is
complied with. In this case if you allow him to be a witness and a
notary, then you are making him interested in the formal validity of
the will – Once the notary acknowledges the will he ceases to be a
witness.
Question: If one of the witnesses is a notary and he notarizes it, is it
PROPERLY notarized?
Answer: YES. Of course, as long as it is executed in the territorial
jurisdiction of the notary – i.e. he is duly commissioned.
Question: What if he is one of the witnesses, is the will valid?
Answer: It Depends. If they are only three witnesses, and the notary
public is one of them, then it is NOT valid. BUT if they are more than
three witnesses, then it is valid.
Question: T or F – if one of the witnesses notarizes the will, is the will
void?
Answer: F
So from the 3 questions the Rule is: If one of the witnesses notarizes
the will, then the validity of the will shall depend on whether or not
the notary shall be considered as the 3 rd instrumental witness. If he is
considered as such, then the will shall be void, if he is not – then it is
valid.
Question: Do you need the affixing of a documentary stamp for the
validity of a will?
Answer: NO.
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 AM+DG

 The provision in Article 808 is something that is not merely

Guerrero vs. Bihis directory, rather it is mandatory in nature – and since 808 is
mandatory, it is safe to assume that 807 is also mandatory.
In this case the will was acknowledged by a notary public
 When it comes to an illiterate testator, because of his incapacity
outside his territorial jurisdiction. The SC said that is NOT allowed.
to read is like a blind testator – thus Article 808 should apply.
Since this was done the will was effectively avoided. It is paramount
 Article 807 refers to an illiterate deaf mute. If he is a literate deaf
that the notary public who affirms the will have territorial jurisdiction
must, then he reads the will, just as is required to ordinary
in the place where the will is notarized. This arises from the provision
testators.
that no notary public has the authority to do any notarial act outside
his jurisdiction.
Question: Does the fact that the will was read to the testator need to
be stated in the attestation clause?
Art. 807. If the testator be deaf, or a deaf-mute, he must personally
read the will, if able to do so; otherwise, he shall designate two Answer: NO – there is no requirement that the compliance with such
persons to read it and communicate to him, in some practicable should be stated in the attestation clause.
manner, the contents thereof. (n) Note: Both the sense of Article 808 and Garcia are that the burden of
Art. 808. If the testator is blind, the will shall be read to him twice; proof is upon the proponent of the will that the special requirement of
once, by one of the subscribing witnesses, and again, by the notary the article was complied with.
public before whom the will is acknowledged. (n)
Garcia vs. Vasquez
These two articles above lay down the rules for handicapped testators: The testimony of the ophthalmologist who has first had
Deaf Mute – Able Deaf Mute – Unble Blind knowledge of the actual condition of her eyesight was that her vision
to Read to Read remained mainly for viewing distant objects and not for reading print.
Thus conclusion is inescapable that she was incapable of reading and
If able to read then He must designate Will to be read to
could not have read the provisions of the will supposedly signed by
he must read the will two persons to read him twice:
her. The instrumental witnesses stated that she merely read the
personally. the will and By the (1)
communicate to him instrument “silently.” She therefore could not see at normal reading
subscribing distance.
in some practicable witnesses and
manner its contents. another by the (2) The rationale behind the requirement for reading the will to
notary public. the testator if he is blind or incapable of reading the will himself (as
when he is illiterate) is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with his
Notes: wishes.

TANTOCO 3B Page | 28
 AM+DG
The aim of the law is to insure that the dispositions in the will
are properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire. Hence, not
only must the will be read to him once, but must be twice by two
different persons (the witness, and the notary)
RUBEN: These are protective measures because it is easy to fool a
blind person. FURTHEMORE – the requirement in article 808 has
been liberally applied. The SC says that substantial compliance is
sufficient.
Alvardo vs. Gaviola Jr
In this case the testator execute a notarial will where he
disinherited his illegitimate son and revoke the previously executed
holographic will. In this case the will was read aloud to the testator in
the presence of the notary public and of the instrumental witnesses –
this was done only once. The instrumental witnesses and the notary
public just merely followed the reading of the will with their
respective copies.
The SC said that there was substantial compliance with 808.
Since its principal purpose is to make known to the testator the
contents of the will. In this case it was not the first time that the testator
affirmed the truth and authenticity of the contents of the will. He had
earlier already acknowledged the will in accordance with his express
wishes when the draft was sent to him. We can safely conclude that
the testator was reasonably assured that what was read to him were the
terms actually appearing on the documents.
The spirit of the law was served, though the letter was not. It
was not the object of the law to restrain or curtail the exercise of the
right to make a will. Notably, Alvarado was not totally blind at the
time the will was executed. He was capable of counting fingers at 3
feet, hence merely poor eyesight.
TANTOCO 3B
The SC also said that the requirement that the will be read in
808 does not only apply to cases where the testator is blind, but also
when they are incapable of reading the will.
RUBEN: The Alvarado doctrine LIBERALIZES the Garcia doctrine.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of Article 805. (n)
Justice JBL Reyes says: this provision should only apply if such
defects and imperfections can be supplied by an examination of the
will itself and it is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of article 805.
Example of this is:
1. If the attestation clause fails to state (1) that the testator signed
each and every page, an examination of the will itself and see if
the testator did indeed sign each and every page. Or (2) that the
signatures appear in each and every page, (3) That there were 3
attesting witnesses, and (4) That the will was actually notarized.
a. But if the attestation failed to state that the witnesses signed
in the presence of one another, then this is fatal since the
attestation clause is the only textual guarantee of compliance.
Caneda vs. CA
The provisions of Article 809 must be limited to the FF: situations:
1. If all the pages are numbered
2. Whether the signatures appear in each and every page
3. Whether or not the testator signed at the end of the will
Page | 29
 AM+DG
4. Whether or not there were 3 attesting witnesses
5. If the will was actually notarized
These 4 above are facts that the will itself can reveal, and the defects
or even the omissions concerning then in the attestation clause may be
disregarded. Thus:
 Omissions which can be supplied by mere examination of the will
itself, without need of resorting to extrinsic evidence is not fatal.
 Omissions which cannot be supplied, except by evidence alliunde
would result in the invalidation of the attestation clause and
ultimately the will itself.
This provision cannot be used to cure the attestation clause when:
1. It completely omits to mention that the attesting witnesses sighed
each and every page thereof in the presence of the testator and
of one another.
2. It does not state the number of pages were used in the making of
the will.
Lopez vs. Lopez
In this case the attestation clause stated that there were 7
pages, but upon examination of the will there were 8 pages. The
plaintiffs were saying that it should be allowed because of article 809
– which provides for the liberal interpretation of wills. The court said
that this cannot be permitted, since the liberal application that article
809 is talking about does not apply when evidence alliunde (from an
external source) has to be resorted to. For 809 to apply, according to
JBL, the consideration is that the defects can be cleared up upon
examination of the will
Azuela vs. CA
TANTOCO 3B
Here it was a failure to state the number of pages in the
attestation clause. The SC said that the failure to state the number of
page is fatal since this is something that cannot be supplied by an
examination of the will. In this case they also reiterated the J.B.L
thing.
Art. 810. A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. (678, 688a)
What is the greatest advantage of a Holographic Will?
 Secrecy
o There is no need for witnessing and notarization.
 Inexpensive
o There is no need for lawyers, notary publics, etc.
 Brevity and Simplicity
o There is no need for an attestation clause, nor all those that are
in 805
What re the disadvantages?
1. It is easier to forge
o Especially if the disposition is not lengthy.
2. It is harder to determine testamentary capacity
o E.X. The testator could be in and out of insanity. If it is a
holographic will it is difficult to determine whether or not it
was made in a lucid interval.
Requisites for a Holographic Will: (Handwritten, Dated, Signed)
1. Completely HANDWRITTEN by the testator
o The will has to be ENTIRELY written by the testator himself,
if it is not, then the entire will shall be void.
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2. DATED by him
o As a general rule, this should indicate the Day, Month, and
Year.
 But it can be even just say “Christmas Day” – but if this
is done then there is a requirement that there is a generally
known feast, or historic event that can be verified and
checked.
o Should be placed personally by the testator.
 As to where – it can be places anywhere.
3. SIGNED by Him
o Signature must be at the very end
 The provision is silent on where the signature should be.
But some authors state that it should be at the end since
813 and 814 state talk about additions after the signature.
o Thumbprint is not allowed – this is since the provision says
that it must be done by the “hand of the testator himself”.
It is subject to:
1. No other form
2. May be made inside and outside of the Philippines
3. Need not be witnessed
Labrador vs. CA
In this case the date that the testator placed was just Feb/61.
The court said that the Civil Code does note state that the exact date
must be placed, is just says dated. The complete date is required
merely to provide against such contingencies as that of two competing
wills executed on the same day, or of the testator becoming insane on
the day on which a will was executed. In this case, there is no such
contingency. There appearing no fraud, bad faith, or undue influence,
and the authenticity of the will is already established, the date,
“Feb./61” is substantial compliance.
TANTOCO 3B
RUBEN: THIS IS WRONG… the only saving grace of this case was
that there was no fraud. But as a general rule it should really be
complete – i.e. DAY. MONTH. YEAR.
Roxas vs .CA
The sole issue in this case is WON the holographic will
exeuted by Labrador is dated. In this case the date of the will was
placed in the body itself. The Sentence was: “… and being in the
month of March, 17th day, in the year 1998.”
The SC said that this does not matter since all that is required
by the law is that the will be dated, it does not specify the particular
location where the date should be placed in the will. The only
requirement is that the date is in the will itself, and that it is executed
in the hand of the testator.
BUT: As a general rule, the will must be signed at the logical
end of the will – this is as implied by 812.
Art. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a)
NOTES:
 This article only applies to POST MORTEM probates, and not
those made ante mortem, since in the later it is the testator himself
who files the petition, and he is also the one who identifies the
document itself.
 This rule is a rule of evidence.
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o But it implies that to determine the validity of the holographic What are the rules when it comes to the number of witnesses?
will, it requires the presentation of the will itself. One Witness At least 3 Witnesses
 Even though it is not said under this article is MANDATORY that
If the probate of the will is If the probate of the will is
the will must be presented/produced in order for it to be probated.
uncontested it shall be contested, at least 3 witnesses
o If the holographic will is lost, then it cannot be probated. necessary that at least one shall be required.
 EXCEPT – If there is a copy of the holographic will. person who knows the
 What is important is that the authenticity of the handwriting AND signature of
handwriting of the deceased may be exhibited and the testator EXPLICITLY BUT, in the absence of
tested before the probate court. declare that the will and the witnesses AND the court deems
it necessary (these have to
 RUBEN ON WITNESSES: signature are that of the testator.
concur) – EXPERT
o The three witness requirement ONLY APPLIES WHEN THE
TESTOMONY may be resorted
WILL IS BEING CONTESTED to.
 A will is contested when the authenticity of the will is
being contested – i.e. they are saying that the will is a
forgery. NOTE: But in determining the credibility of the witnesses, the number
 If the will is not being contested, then one witness shall of the witnesses is immaterial, what really matters is the intrinsic
suffice. qualities of their testimonies.
 For example if the ground is undue influence, fraud, o So in this case 3 really credible ones would beat 100 not so
pressure, etc. credible witnesses.
o The provision three witnesses rule is merely DIRECTORY.
o When it comes to the witnesses it is quality over quantity
 It will up to the judge to determine whether or not to take The FF are the ways that the genuineness of a handwriting are proved:
credence of the witnesses. 1. A witness who actually saw the testator writing such instrument.
2. A witness familiar with such handwriting and who can give his
opinion thereon, such opinion being an exception to the general
What does it mean when you say that a holographic will is rule.
contested? 3. A comparison by the court of the questioned handwriting and
 The party who is opposing the will alleges that the will was not admitted genuine specimen thereof
written by the testator himself – i.e. not his hand writing. 4. Expert Evidence
 He also alleges that the signature that appears in the will is not that
of the testator. Note: The three witness rule under this article is not mandatory, it is
 When this article says that the “will is being contested” IT DOES merely directory.
NOT REFER TO GROUNDS OF FRAUD OR VITIATION
 As matter of fact, only one witness is needed to verify the
OF CONSENT.
handwriting and the will of the testator. The only time that the

TANTOCO 3B Page | 32
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three witness rule comes into play is when the will is being
contested.
Azaola vs. Singson
Here the will was being contested on the ground that there was
undue influence and fraud. In this case the authenticity of the
handwriting was NOT AN ISSUE. (NOTE: If forgery or handwriting
was an issue, then it would need a different story, you would need
more than 1 witness.)
The SC said that this is NOT a contested will since in the
purview of Art 811 a will is contested when the authenticity of the will
is challenged or put to issue – i.e. they are saying that the will is a
forgery. Since the will is not contested then you only need one witness.
If the will is not being contested there is no need to produce
more than one witness. But even if the genuineness of the holographic
will were being contested the SC said that 811 cannot be interpreted
as to require the compulsory presentation of three witnesses under the
penalty of having the probate denied. This is since to require this
would be to leave it to matters beyond the control of the proponent.
This is why there is a second paragraph is 811 which says that
in the absence of any competent witness expert testimony may be
resorted to. By adding this provision the law foresaw the possibility
that no competent witnesses could be found, and provides for resort to
expert evidence to supply the deficiency.
Where the will is holographic, no witness need be present, and
the rule requiring production of 3 witnesses must be deemed merely
permissive if absurd results are to be avoided – thus the first paragraph
is merely directory and NOT mandatory.
Codoy vs. Calugay
This case on the other hand states that the provision of article
811 is mandatory due to the fact that the provision of the word uses
TANTOCO 3B
SHALL. . (Here will was forged daw so the SC said that the
application of Art 811 is mandatory.) But in this case they did not
base denial of the will on the grounds that the 3 witness rule was not
complied with since the handwriting was inconsistent.
RUBEN: Not so… SHALL does not mean it’s mandatory.
: For the BAR = This means that the Azaola ruling is
overturned. SO YOU NEED 3 WITNESSES - MANDATORY.
: BUT Ruben says: NO, as a matter of fact there were 6
witnesses, but 4 were discredited. This in effect highlights the Azaola
ruling since it gave a premium on the quality of the witness.
Gan vs. Yap
In this case they tried to have a will probated but they did not
have the document itself, but there were 6 witnesses who testified to
the genuineness and existence of the will along with what it contains.
In this case the SC said that it will not probate a holographic
will based on the testimony of witnesses who have allegedly seen it
and who declare that it was written in the handwriting of the testator.
Authenticity and due execution is the dominant requirement
to be fulfilled when such will is submitted to the courts for allowance.
For that purpose the testimony of one of the subscribing witnesses
would be sufficient, if there is no opposition.
In the matter of holographic wills since they need no
witnesses, it is reasonable to suppose that the law regards the
document itself as material proof of authenticity and as its own
safeguard since it could be demonstrated that it was or was not in the
hands of the testator himself.
The witnesses so presented do not need to have seen the
execution of the holographic will. They may be mistaken in their
opinion of the handwriting, or they may deliberately lie in affirming it
as the testator's hand. The court itself may, in view of such
contradictory testimony may use its own visual sense, and decide in
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the face of the document. However the oppositors may also present If oral testimony were allowed It is hard to convince 3
other witnesses who also known the handwriting of the testator, or then it would be easy for one witnesses and a notary to lie
some expert witness man to fabricate the whole will. about the will
Obviously, when the will itself is not submitted, these means In this case if the witnesses were Here the witnesses are
of opposition and of assessing the evidence are not available. Then the allowed to testify, it would be as subscribing to a fact which they
only guarantee of authenticity (the testator's handwriting), has to their opinion of whether or saw- i.e. the act of the testator of
disappeared. Thus the courts will not distribute the property of the not the writing is that of the subscribing the will
testator.
deceased in accordance with a holographic will, UNLESS they are
shown to be done in his handwriting and signature.
Conclusion by the Court: The execution of the contents of a lost or This is an opinion which cannot
destroyed holographic will may not be proved by the bare testimony be tested in court, nor directly
contradicted by oppositors since
of witnesses who have seen and/or have read such will.
the handwriting itself is not at
RUBEN: The document itself is the only material proof of hand.
authenticity. This is a good rule since you are depriving the
opportunity for fraud, and if it is allowed then you are depriving the
opportunity to challenge the will – for how will the witness know that Rodelas vs. Aranza
the signature is indeed the signature or the handwriting is the A photostatic copy or xerox copy of the holographic will may
handwriting of the testator. be allowed probate because comparison can be made with the standard
writings of the testator. As recognized in the Gan ruling, footnote 8, a
lost holographic will may still be proved by a photographic or
Holographic Will Attested Will photostatic copy.
Cannot be proved by testimonial Can be proved using testimonial Even a mimeographed or carbon copy, or other similar means,
evidence – since the only evidence (secondary evidence)
if any, of determining the authenticity of the handwriting of the
guarantee of authenticity is the when the will is lost or
deceased may be exhibited and tested before the probate court. Hence,
handwriting itself. destroyed.
the xerox copy of a lost or destroyed holographic will may be admitted
The only guarantee of The testimonies of the because then the authenticity of the handwriting of the deceased can
authenticity is the handwriting subscribing or instrumental
be determined by the probate court.
itself witnesses, and of the notary are
there to guarantee authenticity
Loss of a holographic will If the will is lost, then the RUBEN: Xerox copies are not accurate because there the “penlifts”
means the loss of the only subscribing witnesses are there would no longer be identifiable. (pen-strokes).
medium of proof to authenticate.

RUBEN: GR: You have to produce the actual will

TANTOCO 3B Page | 34
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EX: Rodelas Case – you may produce a photocopy or a photostatic
copy. (But he does not agree with this)
Art. 812. In holographic wills, the dispositions of the testator
written below his signature must be dated and signed by him in
order to make them valid as testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Formal requirement for additional dispositions in a HOLOGRAPHIC
will:
 General Rule:
1. Signature
2. Date
 But if there are several additional dispositions:
1. Signature
2. Date
3. Each additional disposition may be signed and undated, BUT
the LAST disposition should be signed and dated.
RUBEN: When you say additional dispositions this contemplates that
it is done after the body of the will itself, and the signature of the
testator at the bottom.
 So you do not have to sign and date the dispositions in the body
of the will
 But if you make additional dispositions, i.e. after you sign, then
this is the one where you need either the:
o Signature on each disposition and a signature and date on the
last disposition
TANTOCO 3B
o Signature and date on each disposition.
NOTES:
 The will must be dated and signed by the testator in order for them
to be valid as testamentary dispositions.
 If there are additional dispositions, the previous ones are dated but
not signed and only the last is signed and dated, only the last one
will be valid.
o Remember this talks about additional – so this is outside of
the body, and after the signature of the testator.
o This contemplates that the additional dispositions were dated
differently – i.e. made on different dates.
 BUT, if there are dispositions that are signed but not dated, and
the last disposition is signed and dated – such date validates the
dispositions preceding it .
o It does not even matter when the prior dispositions are made
– the important fact is that the previous dispositions are signed
but not dated.
 What if there are several additional dispositions and they are
neither signed nor dated, but the last is signed and dated?
o If made on one occasion – then the date and signature on the
last validates all
o If made on different occasions – then the intermediate ones
will be void.
o But Sir says that this is difficult to prove since how do you
determine when and under what circumstances a holographic
will is made. So in essence it is a nice academic
differentiation, but practically impossible to apply.
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate the
same by his full signature. (n)
What does this article deal with? (ICA-E)
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1. Insertions
2. Cancellations
3. Alternation
4. Erasure
In order to authenticate these the testator has to sign his FULL
Signature
Notes:
 When you say full signature this means the usual and customary
signature – it does not mean signing your full name.
 Effect of non-compliance:
o The change or insertion is simply considered as not made.
o Thus the will is not invalidated as a whole, rather only with
regard to the particular words erased, corrected, or inserted.
NOTE: As a General Rule it is ONLY the additional provisions which
is avoided if this article is not complied with.
 BUT the WHOLE WILL MAY BE AVOIDED if the voiding of
one provision ends up invalidating the WHOLE will.
o An instance of this is the situation where there is only one
disposition in the will and this is altered, or something was
inserted without complying with Art. 814.
Kalaw vs. Relova
Here the name of one heir was added, and one of the heirs
were removed. It is important to note that neither the adding of an heir
and the removal of an heir were authenticated by the signature of the
testator.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic will have not been
noted under his signature, the will is not thereby invalidated as a
TANTOCO 3B
whole, but at most only as respects the particular words erased,
corrected or interlined.
However in this case, the holographic will had only one
substantial provision, which was altered by substituting the original
heir with another, and such alteration did not carry the requisite
authentication by the full signature of the testator. The effect must be
that the entire will is voided or revoked for the simple reason that
nothing remains in the will after that which could remain valid.
Sir: Here there was only one provision so the will was declared void,
but supposing there was more than one disposition, so what would
happen now? – Recap: Addition was not authenticated, the erasure
was also not authentication. For example the will was as follow:
I institute Rosa  GREGORIO (NOT authenticated) as my universal
heir
I institute Rosa  GREGORIO as my executor
RUBEN: The insertion of the name of Gregorio should not be given
effect since it was not properly done – i.e. authenticated. So this should
be disregarded. But in the same time the striking out of the name of
Rosa was also not authenticated so it also violated 814, so doesn’t this
mean that it was is as if the name of ROSA WAS NOT cancelled – so
it should go to her.
RUBEN: This decision is highly illogical – SEE above, the court ruled
that it should be cancelled since the testator removed the name of
Rosa, so it cannot go to her since it would be violating her intent. But
Ruben says that if you espouse this view you also didn’t follow the
intent of the testator since she wanted it to go to Gregorio.
 A better reason that the court could have given was 830 –
CANCELLING of a will. The striking out is equivalent to the
cancellation of the will.
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 SIR: When it comes to the modifying, cancelling, etc. it would be  BUT the Filipino MAY NOT execute a JOINT will, eve
814 that governs since this is a SPECIFIC law, and 830 is a nif it is allowed by the country in which he is executing
general law. So this could be used to challenge the previous bullet. his will in. (See article 819)
2. An Alien Abroad
 The will of an alien produces an effect in the PH if made
Art. 815. When a Filipino is in a foreign country, he is authorized with the formalities prescribed by:
to make a will in any of the forms established by the law of the a. The law of the place in which he resides
country in which he may be. Such will may be probated in the b. In conformity with the rules of his country
Philippines. (n) c. In conformity with the laws of the PH.
3. An Alien in the PH
Art. 816. The will of an alien who is abroad produces effect in the  A will executed by an alien here in the PH shall be valid
Philippines if made with the formalities prescribed by the law of if:
the place in which he resides, or according to the formalities  Executed in accordance with the law of the country of
observed in his country, or in conformity with those which this which he is a citizen of, AND
Code prescribes. (n)  Which might be proved and allowed by the laws of
his country.
 This will shall produce the same effects as if the will was
Art. 817. A will made in the Philippines by a citizen or subject of executed according to the laws of the PH.
another country, which is executed in accordance with the law of  When it comes to the execution of a Filipino executing a will in
the country of which he is a citizen or subject, and which might be the PH, then these provisions will not apply since it will be either
proved and allowed by the law of his own country, shall have the 805 or 810.
same effect as if executed according to the laws of the
Philippines. (n)
So no matter who you are and where you’re from and where you live
you have 5 choices as to what law to follow for the form of your will:
Notes: 1. Law of Citizenship
 These three articles govern rules for the formal validity in the FF 2. Law of Place of Execution
instances: 3. Law of Domicile
1. A Filipino Abroad 4. Law of Residence
a. He is authorized to make a will in any of the forms 5. Philippine Law
established by the law of the country in which he may be
in.
Art. 818. Two or more persons cannot make a will jointly, or in
b. This will may be probated here in the PH
the same instrument, either for their reciprocal benefit or for the
benefit of a third person. (669)

TANTOCO 3B Page | 37
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Joint Wills: This means one document which constitutes the wills
of two or more individuals.
 RUBEN: So what is a joint will?
o ONE document which constitutes the will of two or more
persons.
o So if it is one sheet of paper, one is made in front and one at
the back, there are 2 documents, but one sheet of paper – this
is completely valid. This is also the same if one was written
on the upper part of a page, and another at the bottom.
 So if the wills are in separate documents, each of them
serving as one independent will, then they are not the
joint wills that are contemplated by the article.
 Example of a joint will:
o We the spouses AAA set forth this document as our last will
and testament, and dispositions are as follows…
 This is VOID.
 It does not matter who the will benefits. It may be reciprocal, for
a 3rd person, etc. as long as the will is joint it is void.
 JOINT WILL ARE VOID.
Why joint wills are void:
1. Limitation of the modes of revocation
2. Diminution of testamentary secrecy
3. Danger of undue influence
4. Danger of one testator killing the other.
How about RECIPROCAL wills, are they valid?
 THEY ARE VALID
 These that are wills that are made by 2 or more persons for the
benefit of each other – BUT HAVE TO BE IN SPEARATE
DOCUMENETS.
o This is just giving something mortis causa.
TANTOCO 3B
 Example:
o This is when one spouse, for example, makes the other
spouse the successor.
o A and B are the best of friends: A gives B 1/3 of her estate,
and B gives A 1/6th of her estate – this falls under reciprocal.
Dacanay vs. Florendo
The reason for this provision, especially with regards husband
and wife, is that when a will is made jointly or in the same instrument,
the spouse who is more dominant is able to dictate the terms of the
will for his or her own benefit. And when the will is not only joint but
reciprocal, either one of the spouses who may happen to be
unscrupulous, wicked, etc. may be tempted to kill or dispose of the
other.
This is also the case that said that threre is a difference
between RICIPROCAL WILLS and JOINT WILLS. They are
different. JOINT IS VIOD, RECIPROCAL IS ALLOWED
JOINT RECIPROCAL
This means one document Made by 2 or more persons for
which constitutes the wills of the benefit of each other, made
two or more individuals. in separate documents.
Art. 819. Wills, prohibited by the preceding article, executed by
Filipinos in a foreign country shall not be valid in the Philippines,
even though authorized by the laws of the country where they may
have been executed. (733a)
What is prohibited by this article?
 Joint wills
 Executed by Filipinos
 No matter where they are
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 And no matter if it is permitted by the laws where they are (2) Those who have been convicted of falsification of a document,
executing their wills. perjury or false testimony. (n)

Summary of Ruben on Joint Wills THESE PROVISIONS ONLY APPLY TO ATTESETED

Executed by Whom and Valid or Not? WILLS!
Where  Malamang because it talks of witnesses, and a holographic will
Filipinos in the Philippines VOID need not be witnessed.
Filipinos Abroad VOID  But if a person who makes a holographic will, BUT he executes
an attested codicil, then this provision must be followed.
Aliens Abroad Governed by Article 816
Qualifications for the witnesses of a will:
*Aliens in the PH 2 views:
1. Sound Mind
1. One says void because of o Because attestation is an act of the senses
public policy
2. At least 18 years of age
2. OTHER say valid because of
Art 817. 3. Not blind, deaf, or dumb
o Dumb = mute
Jointly by a Filipino and an alien 3. As to the Filipino – VOID o This provisions are here since you have to witness, i.e. see the
4. As the alien - 816, 817, or person sign the will and also ascertain that the contents are
void because of public what they are purported to be.
policy.
4. Able to read or write
5. Domiciled in the Philippines
o Citizenship does not matter – it is the fact of Domicile.
o Why do you need this – so that in case you need to testify, the
SUBSECTION 4. - Witnesses to Wills
courts can reach you.
Art. 820. Any person of sound mind and of the age of eighteen o Thus a foreigner may be a witness to a will – so long as they
years or more, and not bind, deaf or dumb, and able to read and are domiciled here in the PH.
write, may be a witness to the execution of a will mentioned in 6. Must not have been convicted of falsification of a document,
Article 805 of this Code. (n) perjury, or false testimony.
Art. 821. The following are disqualified from being witnesses to a o Conviction = Final Judgement
will: o These are crimes have an impact on credibility – and a witness
has to be credible.
(1) Any person not domiciled in the Philippines;
 Here it shows that you have no regard for the truth

TANTOCO 3B Page | 39
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The FF are disqualified from being a witness to a will:
1. Any person not domiciled in the Philippines
2. Those who have been convicted of:
a. Falsification of a document
b. Perjury
c. False testimony
Competence vs. Credibility
Gonzales vs. CA
In this case the petitioner was contending that the probate of
the will should not have been allowed since there was no showing that
the three witnesses were credible – i.e. that they have a good standing
in the community (they were the driver, yaya, and piano teacher). She
was effectively saying that credible is not the same as competent – i.e.
possessing the requirements that are in 820 and 821.
The court said that there is no mandatory requirement that the
witness testify to his good standing in the community. It is enough that
the qualifications under Article 820 are complied with. There also no
need to prove that the witness has a good standing in the community,
for that good standing is presumed unless the contrary is proved.
Furthermore in probate proceedings, the instrumental
witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to
said execution – thus in this case “Credible witnesses”, as used in 805,
is synonymous with competent witness as give by 820 and 821.
In fine, the rule is that the instrumental witness in order to be
competent must be shown to have the qualifications under 820 and
none of the disqualifications under 821. For their testimony to be
credible, it only needs to be worthy of belief and entitled to credence,
it is not mandatory that the evidence be first established on record that
the witnesses have a good standing in the community or that they are
honest and upright. For a person is presumed to be such unless the
contrary is established.
TANTOCO 3B
In other words the instrumental witness must be competent
and their testimonies must be credible before the court allows the
probate of the will that they attested to.
Art. 822. If the witnesses attesting the execution of a will are
competent at the time of attesting, their becoming subsequently
incompetent shall not prevent the allowance of the will. (n)
Note: This article states that all that needs to happen is that the witness
was competent at the time he attested the will. If he becomes
incompetent afterwards, it does not matter.
BUT: remember if the attestation is not done at the same time by the
witnesses, ALL the witnesses have to retain their respective capacity
until the will is completed.
Art. 823. If a person attests the execution of a will, to whom or to
whose spouse, or parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far only as concerns such
person, or spouse, or parent, or child of such person, or any one
claiming under such person or spouse, or parent, or child, be void,
unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness
as if such devise or legacy had not been made or given. (n)
Considerations of this article:
 If a person attests to the execution of a will
 And a devise or legacy in the will is to be given to:
o Himself
o His Spouse
o His Child, or
o His Parent
o Or any persons claiming under the above
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 The devise or legacy that is supposed to be given to any of the
above shall be VOID
o Unless there are three other competent witnesses to such will.
 The provision shall be void, but only to the extent that was to be
given to the persons mentioned above.
 But the person shall be admitted as a witness it if such devise or
legacy had not been made or given.
So a person will be allowed to succeed to the legacy or devise when
there are more there are 3 other witnesses, excluding him.
Notes:
 This article is misplaced since it is concerning the capacity to
succeed and not the capacity to be a witness.
 This article lays down a disqualification of a witness to succeed to
a legacy or devise when there are only three witnesses (as in he is
the 3rd).
o The competence of the person as a witness is not affected
assuming that all other requisites for formal validity being
present.
o Thus the will is still valid, but the witness, or his relatives
cannot inherit.
 So even if the situation in this article arises, it does not mean that
the will is void, nor does it make the person incapable of being a
witness. The will and the witnessing are perfectly valid, it just that
the person and his mentioned relatives cannot inherit.
 This article does not only apply to devisees and legates, it was also
held to be applicable to the heirs of the testator.
o The intent of the law was to cover all testamentary
institutions.
 This disqualification applies only to the testamentary dispositions
made in favor of the witnesses or the specified relatives.
TANTOCO 3B
o BUT if the party is entitled to a legitime or an intestate share
– that portion is not affected by the party’s witnessing of the
will.
 E.X. A,B,C witness the will of X. B is the son of X. There
is a legacy for B.
 In this case the legacy shall be void, but B shall still
be entitled to his Legitime.
 Question: Why does the law prohibit these people from
succeeding?
o Answer: Because there will be a conflict of interest. Kasi if
you are an heir you want the will to be valid! So how can you
perform the functions of a witness. If the legacy given to you
is large you will do any and everything to make sure that the
will is valid.
 So if it so happens that there is an issue when it comes to
probate you can lie to favor yourself.
 Ex. What if testimony is needed to determine whether
the testator was of sound mind? You will say that the
testator was of sound mind so that you inherit the
property.
 There is the temptation to lie so that the integrity of
the will can be upheld.
Art. 824. A mere charge on the estate of the testator for the
payment of debts due at the time of the testator's death does not
prevent his creditors from being competent witnesses to his
will. (n)
So…
 A creditor may still be a witness
 The reason for this is that a creditor does not inherit property, he
just gets paid back.
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SUBSECTION 5. - Codicils and Incorporation by Reference
Art. 825. A codicil is supplement or addition to a will, made after
the execution of a will and annexed to be taken as a part thereof,
by which disposition made in the original will is explained, added
to, or altered. (n)
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
A Codicil is:
1. A supplement or addition to a will
2. Made after the execution of a will
3. It is annexed and to be takes as part of the will
4. It explains, adds, or alters the dispositions made in the original
will.
Codicil Subsequent Will
By definition – explains, adds This makes independent and
to, or alters a disposition in a distinct dispositions.
PRIOR will.
*But this distinction is academic since at the end of the day you are
going to have to conform to the requirements of a will. (826)
NOTE: The codicil does not have to follow the form of the will. So
you can have a holographic will, but an attested codicil, vice versa.
 What is important here is that whatever form the codicil be, it must
comply with the requirements and formalities of that form.
Art. 827. If a will, executed as required by this Code, incorporates
into itself by reference any document or paper, such document or
paper shall not be considered a part of the will unless the following
requisites are present:
TANTOCO 3B
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on each and
every page, except in case of voluminous books of account or
inventories. (n)
Requirements to incorporate documents into a will (MUST
CONCUR):
1. The document or paper referred to in the will must be in existence
at the time of the execution of the will
o You cannot incorporate into a will a document you are about
to make – this will open the door to fraud and circumvention
of the law.
o This can be established by extrinsic evidence
2. The will must clearly describe and identify the document and its
number of pages
o This is intrinsic evidence – the will must state that this is the
document and that these are the number of pages
o If ever these are not followed the will is NOT avoided, rather
the document is not just taken as part of the will.
3. It must be identified by clear and satisfactory proof as the
document referred to
o The document must be acknowledged in probate that this is
the document that is being referred to.
4. It must be signed by the testator and the witnesses on each and
every page.
o EXCEPT – If it deals with voluminous books of account or
inventories.
o This is done to ensure authenticity
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5. That document cannot make a testamentary disposition

When it comes to the revocation of a will – you can NEVER place a
What is an incorporated document? provision that you waive the right to revoke the will.
 It is a document that is attached to a will.
 REMEMBER – these documents CANNOT make testamentary As a matter of fact a will essentially revocable or ambulatory – there
dispositions? is no such thing as an irrevocable will.
o If it makes a testamentary disposition it has to follow the form
of a will.
Art. 829. A revocation done outside the Philippines, by a person
What are the reasons for attaching documents? who does not have his domicile in this country, is valid when it is
done according to the law of the place where the will was made, or
 It may explain or clarify the will.
according to the law of the place in which the testator had his
o Ex. It may facilitate the identification – i.e. I give to A my lot,
domicile at the time; and if the revocation takes place in this
attached is the TCT of the lot. The attached TCT is an example
country, when it is in accordance with the provisions of this
of such document.
Code. (n)
 It may also serve to identify a particular thing

Rules for Revocation:

NOTE:
1. If the revocation is made in the Philippines – follow PH law
 The document that is sought to be incorporated should NOT make
2. Of the revocation is made outside the Philippines:
any testamentary dispositions
a. If the Testator is NOT domiciled in the Philippines:
 A HOLOGRAPHIC WILL may NOT incorporate documents,
i. Follow the law of the place where the will was made
since the article is explicit that the testator and the witnesses sign
ii. Follow the law of the place where the testator was
each and every page of the document.
Domiciled at the time of the revocation.
o BUT – a holographic will may have it done if by the off
b. If the Testator is domiciled in the Philippines:
chance the testator has the holographic will witnesses.
a. Follow Philippine law – consistently with the domiciliary
o Ruben: it is also possible that in case of holographic wills,
principle followed by this article
then the one who signs is the testator himself.
b. Follow the place of revocation – consistent with the
principle of lex loci celebrationis
SUBSECTION 6. - Revocation of Wills and Testamentary c. Follow the law of the place where the will was made – by
Dispositions analogy the riles on revocation where the testator is a non-
Philippine domiciliary.
NOTE: In this article the law departs from the nationality theory and
Art. 828. A will may be revoked by the testator at any time before
it adopts the domiciliary theory.
his death. Any waiver or restriction of this right is void. (737a)

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1. The subsequent instrument must comply with the formal

requirements of a will.
Art. 830. No will shall be revoked except in the following cases:
2. The testator must possess testamentary capacity
(1) By implication of law; or 3. The Subsequent instrument must either contain:
(2) By some will, codicil, or other writing executed as provided in  An express revocatory clause (express revocation)
case of wills; or  Or be incompatible with the prior will (Implied
(3) By burning, tearing, cancelling, or obliterating the will with revocation)
the intention of revoking it, by the testator himself, or by some 4. That subsequent instrument must be probated.
other person in his presence, and by his express direction. If o Just like any ordinary will, this subsequent will or the codicil
burned, torn, cancelled, or obliterated by some other person, HAS TO BE PROBATED.
without the express direction of the testator, the will may still be o If a person executes 2 wills, the second does not expressly
established, and the estate distributed in accordance therewith, if revoke the first, nor is it compatible with the second.
its contents, and due execution, and the fact of its unauthorized  This means that a person dies with 2 wills. This is
destruction, cancellation, or obliteration are established allowed.
according to the Rules of Court. (n)  Sir: You can even have 2,000 – but patay ka sa filing
fees sine you have to probate all of this.
3. Physical destruction
Modes of revoking a will under Philippine Law: o 4 ways that a will may be destructed:
1. Operation of law 1. Burning
o This may be: 2. Tearing
 Total or 3. Cancelling
 Partial 4. Obliterating
o Examples: o The physical destruction may be done by:
a. Preterition 1. The testator personally
b. Legal Separation 2. By another person:
c. Unworthiness to succeed  Acting in his presence and
d. Transformation, alienation, loss of the object that is to be  By his express direction
bequeathed o Effect of unauthorized destruction:
e. Judicial demand of a credit given as a legacy 1. Attested – it may still be proved if it is lost and destroyed
2. Subsequent will or codicil  It may be probated in absentia
o Revocation may be:  You just have to prove
 Total a. Contents
 Partial b. Due Execution
o Requisites: c. That fact that it was destroyed without the
consent or knowledge of the testator.

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2. Holographic – usually it cannot be probated even if the
destruction is unauthorized, UNLESS a copy of the will
survives.
o Requirements to Effect a valid revocation through
physical destruction:
1. CORPUS – the physical destruction itself. Here there
must be evidence of physical destruction.
2. ANIMUS – this is the:
a. Capacity and intent to revoke
b. The testator must have completed everything he
intended to do. ( This is important for there to be
complete animus)
o E.x. You tear it in two (corpus) and throw it in the
trash and storm out (animus)
o E.x.2. You tear it (corpus), but you are naawa, so
you tell the person to tape it back (no animus)
because the testator did not finish everything that
he wanted to do.
NOTE: The Corpus and the Animus MUST CONCUR. One without
the other will not produce revocation.
Ruben: What if there is Animus Without Corpus
 This is NOT allowed
o Ex. I feel that I am going to die, and I tell you that I am
revoking my will so go to my office and tear it.
 Animus and Corpus must concur
What is the effect of unauthorized physical destruction?
 See Article 830
 The will may still be established and the estate distributed in
accordance therewith provided that the FF are established
according to the rules of court:
o Authenticity
o Due Execution
TANTOCO 3B
o And the fact of its unauthorized destruction, cancellation, or
obliteration.
This gives the reasoning that a physically destroyed will may still be
probated. But this generally refers to an attested will and not a
holographic will. Since if a holographic will is destroyed there will be
no other means to ascertain the will – Unless of course a copy was
kept.
Lost or Unauthorized Lost or Unauthorized
Destruction of an ATTESTED Destruction of a
will HOLOGRAPHIC will.
May still be established by GR: May no longer be probated
secondary evidence according (Gan vs. Yap)
to the rules of court
EX: Unless a copy survives
(Rodelas vs. Aranza)
Testate of Adrinane Maloto vs. CA
It is clear that the physical destruction of a will, like burning
in this case, does not per se constitute an effective revocation, unless
the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by
the testator himself. It may be performed by another person but under
the express direction and in the presence of the testator.
In this case, the animus revocandi, or intention to revoke is
only one of the necessary elements for the effective revocation of
wills. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or canceling the will.
It was not sufficiently established that the papers burned by
the maid was the will of the deceased. Even so, the burning was not
proven to be done under the express direction of the testator and not
in her presence.
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Question: Are there instances where the will is presumed to be
revoked?
 YES (As seen in the case of Gago)
o The loss of unavailability of a will may give rise to the
presumption that it had been revoked by physical destruction.
Gago vs. Mamuyac
The law does not require any evidence of revocation or cancellation
of a will to be preserved. The fact that such cancellation or revocation
has taken place must remain either unproved or inferred from evidence
showing that after due search the original will cannot be found.
When do these presumptions arise – i.e. that in the absence of other
competent evidence – that the will was cancelled or destroyed?
1. Where a will which cannot be found is shown to have been in the
possession of the testator.
2. The testator has ready access to the will and it cannot be found.
If the circumstances above happen – it WILL NOT be presumed that
such will has been destroyed by any other person without the
knowledge or authority of the testator.
The force of the presumption of cancellation or revocation is never
conclusive, it may be overcome by proof that the will was NOT
destroyed or revoked by the testator with the requisite intention.
Art. 831. Subsequent wills which do not revoke the previous ones
in an express manner, annul only such dispositions in the prior
wills as are inconsistent with or contrary to those contained in the
latter wills. (n)
NOTES:
TANTOCO 3B
 The revocation of a will by subsequent will or codicil may be
express (though a revocatory cause) or implied (through
incompatibility).
 GENERAL RULE: If there is a subsequent will that is executed it
does not revoke the previous will. What it does is that it annuls
only the inconsistent or contrary dispositions that are in the
previous will.
 So… PRESENT RULE: The execution of a subsequent will does
not ipso facto revoke a prior one.
Art. 832. A revocation made in a subsequent will shall take effect,
even if the new will should become inoperative by reason of the
incapacity of the heirs, devisees or legatees designated therein, or
by their renunciation. (740a)
Notes:
 The efficacy of the revocatory clause does not depend on the
testamentary dispositions of the revoking will, UNLESS the
testator provides so.
 GR: When a will is revoked it is revoked forever – this is
ABSOLUTE REVOCATION – As a GR revocation is absolute.
o EXCEPTION – Dependent Relative Revocation/
Conditional Revocation
 GR: Revocation is an absolute provision independent of the
acceptance or capacity of the new heirs.
o EXCEPTION: Where the testator provides in the subsequent
will that the revocation of the first is dependent on the
capacity or acceptance of the heirs, devisees, or legates
instituted in the subsequent will – called Dependent Relative
Revocation
 Dependent Relative Revocation
o When the testator provides in the subsequent will that the
revocation of the prior will is dependent on the capacity or
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acceptance of the Heir, Legate, or Devisee instituted in the
subsequent will or he destroys the old will with the intention
of making a new will.
 If for any reason the new will intended to be made as a
substitute becomes inoperative, the revocation fails, and
the original remains in full force.
o The failure of the new testamentary disposition is equivalent
to the non-fulfillment of a suspensive condition and hence
prevents the recognition of the original will.
 But the mere intention to make at some time a will to
replace the will that was destroyed does not render the
destruction conditional. It really must appear that the
revocation is dependent upon the valid execution of a new
will.
o This doctrine applies ONLY if it appears that the testator
intended his act or revocation to be conditioned on the making
of a new will, or on its validity or efficacy.
o Here the new will is valid as to form, but is subject to the
condition that the subsequent heirs are capable or accept the
testamentary dispositions.
 Under DDR there are 2 possible acts:
1. When the testator provides in a subsequent will that the
revocation of the prior will is dependent on the capacity of the
HDL in the subsequent will.
2. When the testator destroys the old will with the intention of
making a new one.
Q: What if the will is subject to a suspensive condition, is the
revocation of the previous will absolute or conditional?
A: IT DEPENDS.
 If the subsequent will contains a revocatory clause which is
absolute and unconditional
o The revocation will be absolute and the happening or the non-
happening of the suspensive condition will be immaterial
TANTOCO 3B
 If the subsequent will makes the revocation subject to the
occurrence of the suspensive condition, or if the will does not
contain a revocatory clause:
o The revocation will depend on whether or not the condition
happens.
o If the suspensive condition does not happen, then the
institution is deemed never to have been made, and the prior
dispositions shall be efficacious.
Q: Is the rule of Dependent Relative Revocation applicable if the will
is revoked by physical destruction?
A: In the case of Molo the SC held in an obiter that the physical
destruction of a will did not revoke it – the court inferred that the
revocation was dependent on the validity of a new one.
Molo vs .Molo
In this case the SC allowed the probate of a previous will since the
second will was not in accordance with the form that is required by
law. In this case the previous will was destroyed, but there was a copy
of it, and the subsequent will was not allowed for probate since it was
not executed in a manner that is required by law. The SC said that form
the circumstances the fact is that there is no direct evidence of
voluntary or deliberate destruction of the will by the testator. Thus this
matter cannot be left to inference or conjecture.
A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with procedure given by law for the execution of wills,
cannot be produce the effect of annulling the previous will – since the
said revocation clause is void.
A will which is invalid because of the incapacity of the testator or of
undue influence can have no effect as a revoking will. Moreover, a
will is not revoked by a defectively executed will or codicil, even
though the latter contains a clause expressly revoking the former will.
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The intent of the testator to revoke is immaterial, if he has not
complied with the statute.
Ruben: But isn’t the fact that he tore it mean that he really wanted to
revoke it?
Diaz vs. De Leon
The testator, shortly after the execution of the first will in
question, asked that the same be returned to him. The instrument was
returned to the testator who ordered his servant to tear the document.
The intention of revoking the will is manifest from the fact
that the testator was anxious to withdraw or change the provisions he
had made in his first will. The original will herein presented for
probate has been destroyed with animus revocandi.
Ruben; It does not matter WON the testator wanted to. Just because
you want to does not mean it happens, you still have to follow the
requirements by law.
RUBEN: In order to revoke the first will, the second or subsequent
will must be valid and probated. A revoking will MUST be probated.
Rule on implied Revocation:
 When a revocation is implied this article will apply by
incompatibility of provisions and not by a revocatory clause.
Art. 833. A revocation of a will based on a false cause or an illegal
cause is null and void. (n)
Notes:
 Wills are revocable ad nutum – at the testator’s pleasure.
TANTOCO 3B
o The testator therefor does not have to have a reason for the
revoking.
 GR: The Testator does not need a reason for revoking his will.
o EX: When the revocation is due to a false of illegal cause then
the revocation is not given effect – i.e. the revocation is NULL
and VOID. In this case the first will subsists.
 But if the will that was revoked under the circumstances in this
article is a Holographic will, and it was done PHYSICALLY –
then even if revocation is void it would be impossible to probate.
o UNLESS of course a copy survives.
Requisites for the Nullification of the Revocation for false cause
under article 833:
1. The cause must be concrete, factual, and not purely subjective
o This means that to have a valid revocation, the cause must be
totally subjective.
 Ex. I want to revoke my will because I found out Carl
was Cebuano, and Cebuanos are bad.
o Here you are acting on a mistake of fact.
o E.X. You heard from someone that Gagahena killed someone,
in your fury you revoked the disposition that you gave to
Gagahena. As in you wrote in your will “I revoke the
disposition that I give to Gagahena because he killed my
brother” But Gagahena did not really kill your brother.
2. The cause must be false
3. The testator must not know of its falsity
4. It must appear from the will that the testator is revoking because
of the false cause.
5. The false cause must be stated in the will as the cause of the
revocation
How about illegal cause?
 Here the law is just emphasizing the fact that it will not condone
illegal acts.
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 E.X. I revoke my disposition to Gagahena since he refuses to kill o YOU CANNOT just make reference to the previous will. This
Dean Candelaria. is not enough.
 What do you mean when you say a will is void as to form?
o It means that it does not comply with the requirements of Arts:
Art. 834. The recognition of an illegitimate child does not lose its
804-808, 810-814, 818 and 819.
legal effect, even though the will wherein it was made should be
revoked. (741) If a testator wants to republish a will that is:
1. Void for a reason other than a formal defect
o Ex. A will that institutes one of the three attesting witnesses
What this provisions says is that if you recognize an illegitimate child
2. One that is previously revoked
in the previous wills, the fact that you revoked that will does not
 The only thing necessary to republish it is for the testator to
revoke the recognition. As a matter of fact recognition of an
execute a subsequent codicil referring to the previous will.
illegitimate child is an irrevocable act.
o There is no need to reproduce the provisions of the prior will
The will as a document recognizing disposition of property – can be in the subsequent instrument.
revoked.
These two provisions are really Malabo since 835 is taken from
But the will as a document recognizing the civil status of the person – agentinian law and 836 is taken from the California law – so in order
VOID. to remedy this, to place harmony this is the interpretation:
Article 835 Article 836
SUBSECTION 7. - Republication and Revival of Wills Void as to form Void as to:
Art. 835. The testator cannot republish, without reproducing in a Revival only through 1. Non-formal defect
subsequent will, the dispositions contained in a previous one republicatoin 2. Previously Revoked
which is void as to its form. (n) How to Republish: How to Republish:
Art. 836. The execution of a codicil referring to a previous will has 1. Execute a new will 1. Execute a new will or
the effect of republishing the will as modified by the codicil. (n) 2. Copy the provisions from codicil
the original will 2. Simply make reference to
the original void will
Notes:
CANNOT make reference to the CAN make reference to the
 What is republishing? original will – this is original – sufficient.
o This is to give efficacy to a will that was previously voided. insufficient.
If a testator wishes to republish a will that is void as to form the FF
must be done: What if it was due to lack of capacity?
 Execute a new will and reproduce the dispositions of the original  On one hand it can say that it is to form – since capacity is a matter
will of form

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 AM+DG

 The other means that it is not – it refers to documentary. Why is inconsistent with the principle or mortis causa, and why is it
 Sir: But if you take the meaning of form as in the case of wills as funny?
given by this title –it should also include capacity.  Because in order for the revocation of Will 1 to be effective, the
o Added to that is the fact that when you probate a will, it says second will must be probated. But Will 2 has already been
that formal validity includes the state of mind of the testator. revoked by Will 3.
Sir: If the will is void for reasons other than form, then you do not  It suggests that revoked wills (Will 2) are still submitted for
have to reproduce it in a subsequent will – then you can revive it by probate.
mere reference (836).
 If I revoked my will, all I have to do is reference it, you do not Does this provision apply to all kinds of revocation of wills?
need to reproduce the dispositions.
 NO – the terms of this article apply only where the revocation of
the first will by the second will is EXPRESS.
Art. 837. If after making a will, the testator makes a second will  If the revocation is a sensu contrario (Contrary Sense) –
expressly revoking the first, the revocation of the second will does incompatible provisions – the article will not apply, this in such a
not revive the first will, which can be revived only by another will case the revocation of the second will by a third will revives the
or codicil. (739a) first will.
o UNLESS – the third will the first will, either express or
impliedly revokes the first.
Three wills were made – Will 1,2, and 3.; will 2 EXPRESSLY revokes  An obvious exception to this article is when the second will I
will 1, and will 2 is EXPRESSLY revoked by will 3. holographic and it is revoked by physical destruction, because in
In this case the revocation of will 2 does NOT revive will 1. this case the possibility of probate is foreclosed – UNLESS a copy
survives.
What is the reason behind the non-revival of Will 1:
 Of the Theory of Instant Revocation Will 2 revokes will 1 Will 2 revokes Will 1
EXPRESSLY IMPLIDELY
 The revocatory effect of will 2 is immediate.
 RUBEN: This provision though is inconsistent with the principle Article 837 WILL apply Article 837 WILL NOT apply
that wills take effect mortis causa. And it is also a filthy provision. Effect: Effect:
This is since wills only take effect upon death. Here when you If there is a will 3 that is GR: If there is a will 3 which
make the wills, and allow them to revoke, then you are making the executed revoking will 2, will 1 revokes will 2, then will 1 is
wills operate (i.e. the revocation, within the lifetime of the will not be revived revived.
testator..
EX: When will 3 is inconsistent
with will 1.

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EX2: When Will 2 is
holographic and it is revoked by
physical destruction, probate
is no longer possible, UNLESS
a copy survives.
SUBSECTION 8. - Allowance and Disallowance of Wills
(PROBATE)
Art. 838. No will shall pass either real or personal property unless
it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case, the
pertinent provisions of the Rules of Court for the allowance of
wills after the testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of
Court as may be necessary for the allowance of wills on petition of
the testator.
Subject to the right of appeal, the allowance of the will, either
during the lifetime of the testator or after his death, shall be
conclusive as to its due execution. (n)
1st and the 4th are the important paragraphs, since the 2 nd and the 3rd
are transitory provisions - since the SC still had to formulate rules for
probate ante-mortem.
RUBEN (Lecture 9/16):
 No such thing as an extra-judicial probate – you have to go
through the courts.
 If there is a will, you cannot forego probate. If you have a will you
have to have it to probated, this is since when you execute an
TANTOCO 3B
extra-judicial settlement of estate, you SWEAR that the decedent
left no wills and no debts.
 However there is nothing to prevent the heirs, after the probate
proceedings have terminated, to make a disposition of the estate
different from that in the will.
 Generally what happens when a person dies the whole thing is just
one proceeding that is divided into two parts.
o Probate – Looks at the Extrinsic Validity
 This is the form, as in if the requirements that are laid
down by the code are present – e.x. the witnesses,
attesting, notarizing, etc.
o Settlement – Looks at the Intrinsic validity
 This goes in to the will itself – e.x. if the testator had a
disposition in favor of a live in.
 When you say that it “shall be conclusive as to its due execution”
– this means that it becomes res judicata.
o You follow the normal procedure in civil procedure. – ex –
from RTC decision = 15 days to appeal, lapse of the 15 days
final, etc…
o It becomes res judicata as to the formal validity
o What does due execution mean?
 As to formal validity, NOT intrinsic validity.
o A judge in probate proceedings cannot go into substantive
validity – a decision here would be one without jurisdiction.
The courts can only cover matters of form
 EX. If the substantive validity can be seen in the face of
the will. (Nepomuceno – In this case there was one heir,
the mistress, and the will admitted that the heir was the
mistress – under Article 1028 this is void.)
Baltasar vs. Laxa
Courts are takes to determine nothing more than the (formal and)
extrinsic validity in probate proceedings.
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Extrinsic validity pertains to whether the testator being of sound mind
freely executed the will in accordance with the formalities that are
required by law.  Sir: this a good compressed way of putting it.
Guevara vs. Guevara
What is proved during probate?
1. Due execution of the will.
2. The fact that at the time of the execution of the will the testator
was:
o Of sound and disposing mind
o Not acting under duress, menace, and undue influence or
pressure
The above must be proved to the satisfaction of the court, it’s only
upon this that the will of the decedent may be probated.
The presentation of a will for probate is mandatory and its
allowance by the court is essential and indispensable for its efficacy.
If the decedent left a will and no debts and the HDL desire to
make an extrajudicial partition of the estate, they must first present the
will to the court for probate. They may not disregard the provisions of
the will unless they are contrary to law.
The suppression of wills is contrary to law and public policy,
because unless the will is probated and notice thereof is given to the
whole world, the right of a person to dispose of his property by will
may be rendered nugatory. Absentee devisees and legatees could be
cheated of their inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the
exclusion of others.
The probate of a will is a proceeding in rem, and cannot be
dispensed with and substituted by any other proceeding, judicial or
extrajudicial, without offending public policy.
NOTE: If the decedent left a will, but NO debts and nobody raises any
question as to the authenticity and due execution of the will, NONE of
the heors may sue for the partition of the estate in accordance with that
TANTOCO 3B
will WITHOUT securing probate. Why?: (1) Because the probate of a
will is a proceeding in rem (2) because the probate of a will cannot be
dispensed with and substituted by another proceeding.
2 Kinds of Probate (Rules are in Rule 76 of ROC):
1. Post Mortem – After the death of the testator
2. Ante Mortem – During the lifetime of the testator
o This is a new provision, and the reason that the code
commission allowed this is since it is easier for the courts to
determine the mental condition of the testator during his
lifetime, rather than after his death. Here daw it is easier to
make sure that there was no fraud, undue influence or
pressure, etc.
What is the effect of a validly probated will?
 Once a decree of probate becomes final in accordance with the
rules or procedure, it becomes res judicata.
De la Cerna vs. Potot
There was a joint will that was executed between spouses. The
husband died first, and the will was allowed to probate. (Sir: Courts
should not have allowed the first probate, THE FRST DECISION WAS
GODDAMN WRONG. THE JUDGE MUST HAVE BEEN STUPID
OR CORRUPT!!!!!) But upon the death of the wife the same will was
sent for probate and it was denied since it was a joint will. But since
it was probated, it is already res judicata, so the court cannot go back
to change the decision on the first probate. But as to the will of the
wife, it is not yet res judipaul cata – it was still on probate, so finally
the court made the right decision and denied probate since it was a
joint will.
So as to the husband’s – valid since it was admitted into porbate, as to
the wife – void.
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What is the scope of a final decree of probate? oIt would be better to say that the formalities of law have been
 A final decree of probate is conclusive as to the due execution of complied with.
the will - i.e. to its EXTRINSIC and FORMAL validity ONLY – 4. The will is genuine.
it does not refer to its intrinsic validity. Dorotheo vs. CA also adds to the list:
1. The will submitted is indeed the last will and testament of the
Gallanosa vs. Arcangel
decedent
The decree of probate is conclusive as to the due execution or formal
2. The will was made in compliance with the formalities prescribed
validity of the will. That means that:
by law
1. Testator: of sound and disposing mind at the time when he
3. The will was duly executed
executed the will and
4. Testator has testamentary capacity
2. Testator: not acting under duress, menace, fraud, or undue
influence. What does due execution mean?
3. Will: signed by him in the presence of the required number of 1. Testator was of sound and disposing mind
witnesses 2. There was freedom from vitiating factors
4. Will: is genuine and not a forgery. 3. Will is genuine
These facts cannot be questioned again in a subsequent proceeding. 4. Proper testamentary age
After 5. Testator is not expressly prohibited by law from making a will
the finality of the allowance of will, the issue as to the voluntariness
of its execution cannot be raised anymore. It was rendered in a
proceeding in rem and binding upon the whole world. So, after the NOTE: Even the grounds in article 839 cannot be contested anymore
finality of the allowance of a will, the issue as to the voluntariness of when the will has been probated.
its execution cannot be raised anymore. GR: A decree of probate should only concern itself with the extrinsic
This was the case where the will was probated, and the oppositors validity of a will, and it should not pass on the intrinsic validity.
waited for 29 years to challenge the probate, and they were alleging EX: When the will appears to be intrinsically void on its face.
that there was fraud. The SC said that our procedural law does not
General Rule for probate of wills.
sanction an action for the annulment of a will. And since it was already
probated – its Res Judicata. 1. A decree of probate does not concern itself with the question of
intrinsic validity.
2. The probate court should not pass upon such issue in the first
Gallanosa enumerated what are covered by the term “Formal Validity”
stage. There is a proper time for that in the settlement proper stage.
and are therefore conclusively settled by a final decree of probate:
1. Testator: was of sound and disposing mind. Exception:
2. Testator: Consent was not vitiated 1. If it appears on the face of the will that it is intrinsically void, the
3. Will: Was signed in the presence of the required number of probate of the will might be an idle ceremony!
witnesses 2. The substantive validity may be passed upon on the first stage if
patent on the face of the will that the same is void.
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3. Practical considerations demand that the intrinsic validity of the b. Otherwise mentally incapable of making a will,
will be passed upon even before probate. o This refers to testamentary capacity – Know the nature of
one’s estate, object of his bounty, and character of the
testamentary act.
Nepomuceno vs. CA
c. At the time of its execution;
GR: In probate proceedings the court’s area of inquiry is limited to an 3. If it was executed through:
examination and resolution of the EXTRINSIC validity of the will. a. Force or
EX: A probate court may pass upon the intrinsic validity if on the fact b. Under duress, or the
of the will its intrinsic nullity is patent. c. Influence of fear, or threats;
4. If it was procured by:
In this case there was a testamentary disposition to the live in partner
a. Undue and improper pressure and influence,
of the decedent, and will stated that such heir was the common law
b. on the part of the beneficiary or of some other person;
wife. Our civil code prohibits a common law spouse from being an
5. If the signature of the testator was procured by fraud;
heir, thus in this case even if it concerns the intrinsic validity of a will
6. If the testator acted:
the Probate Court may pass on this issue.
a. By mistake or
b. Did not intend that the instrument he signed should be his will
Art. 839. The will shall be disallowed in any of the following cases: c. At the time of affixing his signature thereto.
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of NOTES:
making a will, at the time of its execution;
 If you look at these grounds, they really pertain to the formal
(3) If it was executed through force or under duress, or the requirements of a will.
influence of fear, or threats;  Undue Can you ratify a will that is declared void?
(4) If it was procured by undue and improper pressure and o For lack of testamentary capacity and for not complying with
influence, on the part of the beneficiary or of some other person; the formalities that are laid down by law – NO
(5) If the signature of the testator was procured by fraud;  This is since the will is viod
o For grounds 3-6: Violence, Intimidation, Indue influence,
(6) If the testator acted by mistake or did not intend that the fraud, or mistake – YES, ratification is possible, provided that
instrument he signed should be his will at the time of affixing his the formal requisites are present.
signature thereto. (n)
 This list is an exclusive enumeration of the causes for the
disallowance of a will.
The will shall be disallowed in any of the following cases:  These are matters that deal with the formal requirements of a will,
1. If the formalities required by law have not been complied with; thus EVEN IF any of the above circumstances exist, once the will
2. If the testator was: is probated, it forecloses any subsequent challenge on any of the
a. Insane, or matters enumerated in this article.

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 In sanity and mentally incapable do not mean the same thing.

When you say “mentally incapable of making a will” – this refers Requisites for a valid institution:
that the testator lacks testamentary capacity (see 791 to 803) 1. The will must be intrinsically valid
What is the effect if the above are proven? a. the testator must have capacity
b. The formalities must be observed
 If ANY of the above are proven, then the will shall be declared
Void. c. There must be no vitiation of consent
d. The will must have been validly probated
 A will is either VALID or VOID, there is no such thing as a
e. The will must have been the personal act of the testator
voidable will.
2. The institution must be intrinsically valid
 Once the decree of probate becomes final, you cannot have a will
a. Legitime must not be impaired
avoided based on these grounds.
b. The heir must be identified, or identifiable
c. There should be no preterition
Disallowance vs. Revocation 3. The institution must be effective
a. There must be no predeceased heir
Revocation Disallowance
b. There must be no repudiation of the heir
Voluntary act of the testator Given by judicial decree c. There must be no incapacity of the heir
With or without cause Must always be for a leagal
cause
Art. 841. A will shall be valid even though it should not contain an
May be partial or total GR: Always total institution of an heir, or such institution should not comprise the
EX: When the ground of fraud entire estate, and even though the person so instituted should not
or influence, for example, only accept the inheritance or should be incapacitated to succeed.
affect certain portions of the
In such cases the testamentary dispositions made in accordance
will.
with law shall be complied with and the remainder of the estate
shall pass to the legal heirs. (764)
SECTION 2. - Institution of Heir Art. 842. One who has no compulsory heirs may dispose by will of
RUBEN: These rules ONLY APPLY to the FREE PORTION of the all his estate or any part of it in favor of any person having
estate. This is since when you talk about legal heirs you are talking capacity to succeed.
about legitime. One who has compulsory heirs may dispose of his estate provided
Art. 840. Institution of heir is an act by virtue of which a testator he does not contravene the provisions of this Code with regard to
designates in his will the person or persons who are to succeed him the legitime of said heirs.(763a)
in his property and transmissible rights and obligations. (n)
NOTES (841):
Notes:
1. This includes heirs, legates, and devisees.
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1. It is weird that there will be a will that does not state an heir, this
is a useless will. But this article juts says that the will is valid if
we are strictly speaking of formalities.
2. It also does not matter of you are able to dispose of your whole
free portion. This does not invalidate a will, what merely happens
to this is the remainder of the free portion goes by intestacy.
3. It also does not matter of the institution of an heir is void, the part
that is supposed to go to that person just goes by intestacy again.
NOTES (842):
 If you have compulsory heirs, you can only dispose of the free
portion. (Remember, we are talking about testamentary)
 If you have NO compulsory heirs, then you can only dispose of
the entire estate as you wish. Since your free portion is the whole
estate.
A will shall be valid even though:
1. It does not contain an institution of an heir, or
2. Such institution does not comprise the estate, or
3. Even though the person so instituted:
o Does not accept the inheritance or
o Should be incapacitated to succeed.
In such cases,
 The testamentary dispositions made in accordance with law shall
be complied with, and
 The remainder of the estate shall pass to the legal heirs.
Can a will still be valid even if it does not contain any testamentary
dispositions?
 YES – Even if the will does not contain any testamentary
disposition, it will be formally valid provided it complies with all
the formal requisites.
TANTOCO 3B
How much can be disposed of by will?
 No Compulsory heirs – entire hereditary estate
 Has compulsory heirs – the disposable portion – i.e. Net Estate
minus Legitimes.
What if the testator disposes less than he is allowed to?
 There may be mixed succession – testamentary to that which is
disposed of by the will, and intestate to that which is not disposed
of by the will.
Art. 843. The testator shall designate the heir by his name and
surname, and when there are two persons having the same names,
he shall indicate some circumstance by which the instituted heir
may be known.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no
doubt as to who has been instituted, the institution shall be
valid. (772)
Art. 844. An error in the name, surname, or circumstances of the
heir shall not vitiate the institution when it is possible, in any other
manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is
a similarity of circumstances in such a way that, even with the use
of the other proof, the person instituted cannot be identified, none
of them shall be an heir. (773a)
NOTES:
 What is the Rock bottom rule – you have to identify your heir with
reasonable certainty.
 You don’t even have to give a name, all that is needed is that the
person can be determined.
 If there is an ambiguity you try to use extrinsic evidence to clear
up the confusion.
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o Excluding oral declarations of the testator as to his intention.
o This is since testacy is preferred to intestacy
Rules on designation an Heir:
1. Designate the heir by his name and surname
o This is merely directory. What is required is that the identity
of the designated successor is established.
2. Two persons with the same name – he shall indicate in some way
how to identify the two.
Rules in Interpreting Ambiguity:
1. If the testator omitted the name of the heir, but it is clear from the
will who it is, then it shall be valid.
o E.x. I bequeath this to my youngest sibling, and my sibling
born right after me.
2. An error in name shall not invalidate the will, when it may be
ascertained who that person is.
3. If among persons who have the same names and surnames there
is a similarity of circumstances and they cannot be separated, then
none of them shall be an heir.
o e.x. I bequeath this to my professor Mr. Reyes – eh… You
have more than 10 Professors who were Mr. Reyes, none of
them will succeed.
NOTE: But in any case if it becomes impossible to resolve the
ambiguity – the testator’s intent becomes indeterminable, therefore,
intestacy as to that portion will result.
Notes:
 If there are any mistakes you can use evidence to clear it up.
o Ex. I give XXXX to the Dean of the Ateneo Law School –
Sedfrey Candelario. Eh his name is Candelaria, here you
know who it really is, it’s just an honest mistake, so this does
not invalidate the will.
TANTOCO 3B
Art. 845. Every disposition in favor of an unknown person shall
be void, unless by some event or circumstance his identity becomes
certain. However, a disposition in favor of a definite class or group
of persons shall be valid. (750a)
What is an “Unknown” Person:
 It refers to a successor whose identity cannot be determined since
the designation in the will is so unclear an ambiguous that it is
incapable of resolution.
o i.e. the identity of the person cannot be ascertained
 Unknown person does not refer to a person whom the testator is
unacquainted with. As a matter of fact the testator may institute
someone who is completely unknown to him, basta identity is
clear.
o E.x. I give my pet carabao to Taylor Swift.
 Can you institute somebody in a will whose identity cannot be
ascertained at the time of the making of a will?
o YES – provided that the identity of the person can be proved
in the future
 E.x. I will give 2M pesos to whoever graduates as
valedictorian of the Ateneo Law School in the year of my
death.
 What this article is referring to is a person whose identity is not
knowable AT ALL. As in HINDI TALAGA.
Art. 846. Heirs instituted without designation of shares shall
inherit in equal parts. (765)
General Presumption of collective designation: Equality
 E.x. I give 1/3rd of my estate to Blossom, Bubbles, and Buttercup
– each of them will get 1/3rd of 1/3rd.
 If the testator intends an unequal apportion – he should specify.
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NOTE: This article ONLY applies to testamentary heirs. It will not
apply to an heir who is a compulsory and testamentary heir for in this
case the testamentary heir will get his legitime and testamentary
portion.
This article also does not cover the instance where the share
of some are determined and others not. E.x. I give to Blossom, bubbles
and Buttercup 1/3rd of my estate. I leave Bubbles ½ of the 1/3 – and
you stop at that. Now, how much do the 2 other Power Puff girls get?
Art. 847. When the testator institutes some heirs individually and
others collectively as when he says, "I designate as my heirs A and
B, and the children of C," those collectively designated shall be
considered as individually instituted, unless it clearly appears that
the intention of the testator was otherwise. (769a)
GR: The presumption is that the HDL’s are individually instituted. It
does not matter if they are individually named, or collectively
mentioned.
 Whether it Blossom, Bubbles & Buttercup, or the Power Puff
Girls.
EX: Unless it clearly appears that the testator intended to do so.
 So if the testator wants to execute a block designation – he should
specify.
Art. 848. If the testator should institute his brothers and sisters,
and he has some of full blood and others of half-blood, the
inheritance shall be distributed equally unless a different
intention appears. (770a)
Notes:
 This follows the general rule of equality that is laid down in 846.
TANTOCO 3B
 If the testator intends an unequal apportionment, then he should
specify.
 This also has a presumption of equality. Once you institute your
siblings, they are deemed equally instituted, it does not matter if
your sibling is full blood or half blood, illegitimate, and legitimate.
o If you don’t want your siblings to get an equal share, then you
should specify.
 Why is this rule tricky? Since this applies to TESTAMENTARY,
it does not apply to INTESTATE. Intestate succession has
different rules.
Does this rule apply to intestacy?
 NO – this article ONLY applies to testamentary succession.
 When it comes to intestacy the rule is different. Article 1006
establishes a ratio of 2:1 between full and half brothers and sisters.
Recap of the Rules:
 Testamentary – half and full brothers and sisters will get equal
shares.
o This is if the will just says: “I leave my land in Malolos to my
siblings.”
 Intestacy – Proportion of 2:1 in favor of full blooded siblings, and
ONLY if Article 992 does not apply.
Note: this rule ALSO applies to illegitimate and legitimate brothers
and sisters.
Art. 849. When the testator calls to the succession a person and his
children they are all deemed to have been instituted
simultaneously and not successively. (771)
Notes:
 This article states that when a parent and children are instituted in
a will, they are as if they are separately instituted. It does not mean
that if the parent dies, then the kids step in his steed – rather it
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means that the parents and the children get the same portion of the
estate as each other.
 This article lays down the same rule that equality and individuality
of institution are presumed. If the testator intends a different mode
of apportionment, then he should specify.
Art. 850. The statement of a false cause for the institution of an
heir shall be considered as not written, unless it appears from the
will that the testator would not have made such institution if he
had known the falsity of such cause. (767a)
NOTES:
 Read this provision with Art. 833.
 Please remember that a testator is free to institute heirs and at the
same time revoke them – this is testamentary freedom.
 This can be done for any reason or for no reason at all.
 If the institution of an heir on a false cause does not invalidate a
will, the will is still perfectly valid. It does not even annul the
disposition in favor of that person.
o E.x. I give A my car because he is the best racecar driver in
the world.
o If you want to have the disposition based on a false cause to
annul a testamentary disposition you have to prove that the
requirements that are laid down in the Reyes case are present.
GR: The falsity of the stated cause for the testamentary institution
does not affect the validity or efficacy of the institution.
 The reason for this rule is that testamentary dispositions are
ultimately made on liberality.
EX: The falsity of the stated cause for institution will set aside the
institution of certain factors are present. The FF are requisites.
1. Cause of institution must be stated in the will
2. Cause must be false
TANTOCO 3B
3. It must appears from the face of the will that the testator would
not have made disposition if he had known of the falsity of the
cause.
o In this case you cannot use extrinsic evidence.
 All of these three requisites MUST concur for there to be falsity
as to cause to invalidate the will.
Austria vs. Reyes
In this case some of the relatives of the decedent were saying
that the decedent did not adopt the children that she instituted as heirs
in her will. But the court said that with regard to all other matters – the
will was immaculate. The main point of contention is the phrase
“Sapilitang Tagapagpamana” and “Sapilitang Mana”. The oppositors
were saying that this indicated that the testator thought that what she
as giving was the legitime to her compulsory heirs.
The SC said that this is highly speculative, since why will she
even name the heirs one by one if she knew that they would get the
property by operation of law. The SC even added that even assuming
that the disposition was indeed made since the testator thought that she
should be giving it as legitime, the court said that this would not be
sufficient to annul the disposition. This is since the disposition can
only be annulled when it is shown that the testator would not have
made the disposition had she known that the cause was false. This
being the case the SC upheld the validity of the disposition since there
was no showing that the testator would not have made the disposition.
Here it also did not appear from the face of the will that she would not
have given the dispositions to the adopted children. As a matter of fact
why did she even grant a testamentary disposition even if she knew
that they were entitled to a legitime? This shows that she was fond of
them.
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Art. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance, legal
succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs,
each being limited to an aliquot part, and all the parts do not cover
the whole inheritance. (n)
Only One Instituted Heir More than one Instituted Heir
Institution is Limited to that Each institution is limited to that
aquilot part aquilot part
Sum of the parts is less than the
inheritance
What happens to the remainder of the estate?
 Legal succession takes place with respect to the remainder of
the disposable portion, and NOT to the remainder of the estate.
 The wording of this article is erroneous, since legal succession
does not take place with respect to the remainder of the estate,
rather only to the remainder of the disposable portion.
o This is since there may be compulsory heirs whose legitimes
cover part of the estate
Art. 852. If it was the intention of the testator that the instituted
heirs should become sole heirs to the whole estate, or the whole
free portion, as the case may be, and each of them has been
instituted to an aliquot part of the inheritance and their aliquot
parts together do not cover the whole inheritance, or the whole
free portion, each part shall be increased proportionally. (n)
Art. 853. If each of the instituted heirs has been given an aliquot
part of the inheritance, and the parts together exceed the whole
TANTOCO 3B
inheritance, or the whole free portion, as the case may be, each
part shall be reduced proportionally. (n)
852 contemplates a situation where the testator has no compulsory
heirs, and he designates some persons as those that are to be his heirs
to the WHOLE estate. 852 ONLY applies if the testator says that he
leaves to the heirs the ENTIRE estate, and he gives fractions. Since if
he gives fractions only, then the remainder will go to intestacy. If he
just says he is giving the whole estate to the persons, then they get it
in the same proportion.
 In this case he makes a designation where he assigns each a share
and he does not dispose of his whole estate.
o E.x. I give to A,B,C my ENTIRE estate. To A 5/12, to B 4/12,
to C 1/12. Here this adds up lang to 10/12. Suppose the whole
estate is worth 6M
 A = 2.5 M
 B= 2M
 C = 500K
 TOTAL = 5M, so kulang pa 1M
 So you divide the remaining 1m and apportion it among
the heirs in a 5:4:1 ratio.
o In this case you cannot go to intestacy since the testator wants
to give the WHOLE estate, if you go to intestacy, then you are
violating the will of the testator.
853 on the other hand contemplates a situation where the testator did
the reverse of article 852, here naman the testator designated too
much. So it’s the same procedure as 852, but instead of increasing it
proportionately, you decrease it.
BUT REMEMBER: Both articles contemplate that the testator left NO
COMPULSORY HEIRS. And he leaves the ENTIRE ESTATE to
those who are instituted in the will.
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Remedy: Proportional Increase Remedy: Proportional Decrease

SIR: These rules on the proportional deduction and addition shall also
apply when you are only dealing with part of an estate. For example: IMPORTANT DISTINCTIONS: 851 pertains to a situation where
you say that you are leaving the ENTIRE free portion of your estate there is only ONE instituted heir, and that institution is not to the
to A,B,C. But it’s a 5/12, B 2/12, C 4/12 – this adds up lang to 11/12. whole estate, thus the parts that are not given go to intestacy. 852 and
853 on the other hand contemplate that the testator INTENDED to
So for the articles to apply, what do you take into consideration? give the WHOLE estate or free portion to the instituted heirs, thus here
 There are more than one instituted heir there will be a proportional increase or decrease/
 The testator intended them to get the WHOLE estate, OR the
WHOLE disposable portion. What happens if there are specific dispositions – i.e. devisees, and
 The testator has designated a definite portion for each heir. there are heirs instituted to an aquilot part? In this case you decrease
all of them proportionally.
Article 852 Article 853 Ex. Whole estate is 10M
Common Elements: ADMU – 1/5 – thus 2M
1. There is more than one instituted heir UP – 1/5 – thus 2M
2. The testator intended them to get the whole estate, or the whole
disposable portion A – 9M
3. The testator designated a definite or aliquot portion for each B – 7M
heir TOTAL = 20M
These two articles also contemplate:
Here you have to reduce in the proportion of 1:1:5:4 with respect to
1. That the testator had no compulsory heirs, so he is giving the
1M na sobra. (2+2+9+7= 20) (10M/20 = 500K)
entire estate to his testamentary heirs OR
2. The testator has compulsory heirs, but he is giving the ENTIRE
free portion to the heirs so mentioned. ADMU = 2M – [500K*2 = 1M] = 1M
The total pf all the portions is The total of all the portions UP = 2M – [SAME as Above] = 1M
LESS than the whole EXCEED the whole
A = 9M – [500K*9 = 4.5M] = 4.5M
Common Element: Bano yung testator mag math. (he must have
been a lawyer) B = 7M – [500K*7 = 3.5M] = 3.5M
In this situation the remainder TOTAL = 10M
cannot pass through intestacy
since the testator clearly
intended to give the heirs the Art. 854. The preterition or omission of one, some, or all of the
ENTIRE estate compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
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shall annul the institution of heir; but the devises and legacies shall
be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation. (814a)
NOTES:
 What is the correct meaning of Preterition?
o It is the omission from the inheritance of one, some, or all
of the compulsory heirs in a direct line.
 Wala ka sa inheritance, kasi you may not be mentioned in
the will but there are instances when you are not preterited
 The fact that you are not in a will does not matter if you
are in the will or not.
 There are instances when you are in the will, and you
are still preterited.
o E.x. When the will does not give a disposition
rather it says: “I give to Gian all my love.”
 And there are instances when you are not in the will
but you are not preterited.
o When you receive a donation inter vivos
o When not all of the estate of the decedent and
there is a potion that will go through the heir
through intestacy.
o Remember: Preterition means that someone is left out from
the INHERITANCE, not from the WILL.
o So the compulsory heir must not have received anything from
the testator either by way of (An heir is preterited when he is
left out and not given anything by):
a. Testamentary Succession
b. Legacy or Devise
c. Donation Inter Vivos
d. Intestacy
TANTOCO 3B
 Is it possible that someone is left out in a will but is NOT
preterited?
o YES – In Seangio, The will just contained the disinheritance,
and this was not a case of preterition.
 SC: The fact that this is just disinheritance in the will this
does not mean that the other heirs were preterited. It is
evident from the will that the testator intended all the
compulsory heirs to succeed, except for the disinherited
heir. (Remember preterition is not the omission from the
will, but from the inheritance)
 On the other hand is it possible to be placed in a will but you ARE
preterited?
o YES! If the heir is NOT:
a. Instituted as an heir
b. Expressly Disinherited
c. Assigned any part of the estate.
o In essence you are tacitly deprived of you right to legitime.
 Who can be Preterited?
o It says compulsory heir in the direct line – remember, not all
compulsory heirs can be preterited.
 A spouse is a compulsory heir who is not in the direct line.
 So if a spouse is left out from her inheritance, then she
invokes completion of legitime, and not 854.
 Whether or not there is preterition can only be determined only
upon the death of the testator.
What is the effect of Preterition?
o Preterition ANNULS the institution of an heir/s
 T or F Preterition always results to intestacy.
 F – If there are legates or devisees, then there is no
intestacy since there is still a testamentary
disposition.
o But the legacies and devises are still valid/preserved,
EXCEPT to the extent that the latter do not impair legitimes.
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o It results in the total abrogation of the will, or the nullification
of the institution of heirs.
o If there are no other testamentary dispositions like legacies or
devises, it amounts to a declaration that nothing at all was
written.
o The effect of annulling the institution of heirs will be the
opening of intestacy, except that proper legacies and devises
must be respected.
o Scenario 1: Testator institutes A and ADMU as heir for ½ of
estate each. If there is a compulsory heir: A and ADMU do
not get anything. This is annulled – so intestacy results.
o Scenario 2: I give B – 1/2, I give ADMU P8M. At the end the
estate is 40M. In this case if there is a compulsory heir, then
B’s ½ is annulled, but ADMU’s 8M is still effective.
 But in the case that the 8M to ADMU infringes on the
legitime, then this will merely be reduced.
 If you have a surplus after giving legitimes to the
compulsory heirs, you do not give it to B.
 Here there is no intestacy since ADMU still gets P8M.
o When you say that it is annulled – it is removed, and as if it
was not made. Remember: ANUL not reduce.
Summary: When is there NO Preterition:
1. If the heir instituted in the will receives a portion less than his
legitime
o Remedy: Completing of legitime
2. If the heir is given a legacy or devise
o Remedy: Completing of legitime
3. If the heir had earlier received a donation inter vivos from the
testator.
o Note: Donation Inter Vivos are considered as advances from
legitimes.
4. If NOT ALL of the estate is disposed of by will, and the heir is
not mentioned in the will, nor a recipient of a donation inter vivos.
TANTOCO 3B
o This situation is different from 852 and 853, since here the
testator intended to give to the heirs the ENTIRE estate.
o The omitted heir would still receive something by way of
intestacy, from the vacant or remaining portion, undisposed
by the will.
o Remedy: completion of legitime.
What constitutes Total Omission:
 If the decedent receives NOTHING by way of:
1. Institution of Heir
2. Legacy or Devise
3. Intestacy
4. Donation Inter Vivos.
o If you receive anything from the above no matter how small,
you are NOT preterited – kahit piso.
What if an heir is stated in the will, but what is being given to him is
less than his legitime?
 THERE IS NOT PRETERITION! What happens here is that you
just go for ask for the remedy under article 906 and 907 for the
completion of legitime.
 So – Should the value of the legacy or devise be less than the
recipient’s legitime, the remedy is for the completion of legitime.
Reyes vs. Datu
In this case a share that was assigned to Salud – ½ of the
estate, impinged on the legitime of Milagros, and the fact that
Milagros (the daughter) was allotted a smaller share, this does not
make this a case of preterition. This is since preterition contemplates
that there is a complete and total omission of a compulsory/forced heir.
Aznar vs. Duncan
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In this case one heir was recognized as the natural daughter,
and the other was judicially declared to be the daughter. In this case
there was a will, but a partition was allowed on the premise that the
adopted daughter was preterited, hence the properties had passed to
them as if the testator died intestate. In this case the SC said that there
was no preterition since the adopted daughter was given a legacy of
P3,600. This showed that the testator did not recognize her has his
daughter, so he gave her substantially less.
The court held that there can be no preterition when a
compulsory heir was given a devise or legacy, in this case what should
be filed is for the completion of the legitime, and not for the preterition
of the will. The heir could not ask that the institution of heirs be
annulled entirely when a he was left a legacy worth less than the
legitime, and even if said legatee is not referred to as an heir or even a
relative. Should the value of the legacy or devise be less than the
recipient's claimed legitime, her remedy is only for the completion of
legitime.
Who can be preterited?
 Under 854 – the Heirs in the DIRECT LINE. This means:
o Children
 This also includes adopted children (Acain vs. IAC)
o Descendants
o Parents
o Ascendants
 Manresa – Also included are legitimate and illegitimate
descendants and ascendants (since there is no distinction in the
law)
 This article does not include the surviving spouse – although a
spouse is a compulsory heir, she is NOT in the direct line and
therefore cannot claim to be preterited.
If the heir had received from the testator a donation inter vivos, is there
Preterition?
TANTOCO 3B
 NO – this is since a donation inter vivos is considered as an
advance on the legitime. Since something was given to him, he is
not preterited. As a matter of fact all that the heir has to do is to
claim for the completion of his legitime.
o Art 909 – Donation to a child (legitimate and illegitimate)
shall form part of their legitime.
If heir is not mentioned in the will, and he did not receive any donation
inter vivos, is there an instance where there is no preterition?
 YES – this is in the case where the will did not dispose of the
whole estate, in this case the omitted compulsory heir shall be
entitled to the potion not disposed of and in addition to this he can
demand for the completion of his legitime.
Who are included in the meaning of Compulsory Heirs in a Direct
Line, whether living at the time of the execution of the will ro born
after the death of the testator?
 Compulsory heir in the direct line
o This covers children, and in proper cases the parents or
ascendants.
o The surviving spouse does NOT fall within the purview of
the article – since although a compulsory heir, not one of in
the direct line.
 So there can be no preterition of a spouse.
 Are illegitimate descendants or ascendants covered?
o Scaevola – NO
o Manresa – YES
 This is the better view since the law does not distinguish.
What happens when a preterited heir predeceases the testator?
 Scenario 1 – the preterited heir left no heir, this becomes moot
 Scenario 2 – the preterited heir left an heir – the heir of the heir
steps into the shoes of the heir. (this can be either a descendant or
an ascendant)
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Acain vs. IAC disinherited heir has been

Preterition consists in the omission in the testator's will of the illegally deprived.
forced heirs either because they are not mentioned therein, or although Presumed to be involuntary; Should be express, and
mentioned, they are neither instituted as heirs nor are expressly based on the inadvertent supported by a legal cause
disinherited [NUGUID VS. NUGUID]. Even if a surviving spouse omission by the testator. specified in the will itself.
(widow) is a compulsory heir, there is no preterition even if she is He is bypassed, and the remedy He is still not bypassed since the
omitted from the inheritance, for she is not in the direct line. is the annulment of institution of heir is simply entitled to demand
heirs. (entire will, except Devise his rightful share.
However, an adopted daughter was totally omitted and
and Legacies)
preterited in the will.
In cases of disinheritance if the
An adopted child is included in the “compulsory heir in the
disinheritance is ineffective the
direct line”. Thus if that adopted child is totally omitted from the heir is simply entitled to his
inheritance, then that child is preterited. rightful share.

Meaning of Annulment and Institution of an Heir 2 situations:

1. If the will contains only institutions of heirs and there is
Nuguid vs. Nuguid
preterition, thus total intestacy will result.
Here, a one-sentence will institutes the petitioner (sister) as
2. If there are legacies and devises and there is preterition, the
the sole heir, nothing more. No specific legacies or bequests were
legacies and devises will stand, to the extent of the free portion.
provided. The omission of the parents as forced heirs in the direct line
The Devise and Legacies will be reduced and not set aside if the
results in preterition. And the nullity of the institution is complete.
legitimes are impaired. The institution of heirs will be swept away.
Legacies and devises merit consideration only when they are
so expressly given as such in a will, in so far as they are not inofficious. Seniago vs Reyes
In this case there was just a disinheritance in a will. There was also
The will here does not expressly disinherit the parents, the
just a brief mention of one of the compulsory heirs by name. Some of
forced heirs. It simply omitted their names. Such is preterition rather
the heirs were saying that there was preterition since they were not
than an ineffective disinheritance.
mentioned in the will.
The SC said that there was no preterition in this case since when you
Preterition Disinheritance talk about preterition the compulsory heir does not get any portion of
This is the total omission from Is a testamentary disposition the inheritance. In this case the intention of the testator is to give his
the inheritance without being depriving any compulsory heir estate to the compulsory heirs to the exclusion of the disinherited heir.
expressly disinherited. of his share in the legitime.
Inadvertent omission by the Express, and under cause Ureta vs. Ureta
testator authorized by law. When you talk about preterition there has to be a testamentary
A Complete nullity of the The nullity is limited to that disposition. If there is no testamentary disposition preterition does not
institution of heir (except portion of the estate of which the apply.
Devise and Legacies).
TANTOCO 3B Page | 65
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Note: There is a gap in the law. The article says: Preterition shall
applies to heirs who were born at the time of the execution or after the
time of death. So what happens to the gap in the middle, the interim?
 Ex. I make a will 2009, but I end up having a child in 2010?
o Bawal na yung anak na 2010? WRONG.
 Manresa says that this is just a typo
Sir: Preterition is also subject to the right of representation:
 Scenario 1: X executed a will and he forgot to institute his son A
as an heir. A died in 2015 and X died in 2020.
o In this case there was no preterition.
 Scenario 2: X executed a will and he forgot to institute his son A
as an heir. A died in 2015 and X died in 2020. BUT A had
children.
o Here there is preterition since the children are preterited, and
854 is effective not because A was preterited, rather because
his children were.
 Scenario 3: X makes a will and he gives everything to ADMU. X
has a child A, and parent P. A died in 2015 and X died in 2020.
o Here there is preterition – with regard to the parent since they
are heirs in the direct line.
Art. 855. The share of a child or descendant omitted in a will must
first be taken from the part of the estate not disposed of by the
will, if any; if that is not sufficient, so much as may be necessary
must be taken proportionally from the shares of the other
compulsory heirs. (1080a)
Notes:
 This article is completely redundant and unnecessary. It even
contradicts the provisions on legitimes.
 The proper application of this article is when a compulsory heir is
not preterited but left something less than his legitime.
TANTOCO 3B
 How to fill up the compulsory heir’s legitime
a. From the portion of the estate left undisposed of by will]
b. From the shares of the testamentary heirs, legatees, and
devisees, proportionally.
 This is the Superfluity of the Article:
o It does not apply to preterition but to completion of legitime.
There are other rules for completion under Art 906- 911.
 Two inaccuracies
1. Coverage should not only extend to children and descendants,
but to all compulsory heirs.
2. The proportionate deduction should not be borne by the
compulsory heirs, but should be by the testamentary heirs,
including the legatees and devisees. Since if you deduct from
the compulsory heirs you are deducting from their legitime.
 When does 855 operate?
o In case of inofficious disposition by the testator in the will.
o When the testamentary heirs, devisees and legatees get more
than the free portion.
 How does this article operate to fill dispositions to heirs that are
not given what they are fully due?
o First, from the portion of the estate still left undisposed of by
will.
o Second, from the shares of the testamentary heirs, legatees
and devisees.
 The following are entitled to the full satisfaction of their legitimes
o All the compulsory heirs:
 Children
 Descendants
 Parents
 Ascendants
 Spouse
 The burden to bear the deduction to complete the legitimes shall
be as follows:
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o The proportionate reduction should be borne by the  There may be representation by the heirs of said decedent heir,
testamentary heirs, legatees, and devisees. It should not be but representation is still not a transmission.
borne by the compulsory hers.  Representation in the person does not transmit anything to the
o To make the compulsory heirs suffer for the completion of heirs. Rather, representation is a form of subrogation or “to
legitimes is the case of “robbing Peter to pay Paul.” take the place”
o It is the testamentary dispositions that must be reduced if  This rule of non-transmission is ABSOLUTE.
they impair or diminish the legitimes of the compulsory
heirs.
o In fact, the testamentary heirs are subject to reduction even Outline of Rules
up to ZERO!! Type of Succession Compulsory Voluntary Legal
 Sir: Dapat yung bawasan yung share ng mga TESTAMENTARY Circumstance of heir (Compulsory) (Testamentary) (Intestate)
HEIRS. Predecease Transmits nothing
o Testamentary heir includes also a compulsory heir who
Representation No Rep. Representation
receives in excess of his legitime.
o This is since a compulsory heir is ENTITLED to legitime. Incapacity Transmits nothing
Representation No Rep. Representation
Art. 856. A voluntary heir who dies before the testator transmits Renunciation Transmits Nothing
nothing to his heirs. No Representation
A compulsory heir who dies before the testator, a person Disinheritance Transmits N/A N/A
incapacitated to succeed, and one who renounces the inheritance, Nothing
shall transmit no right to his own heirs except in cases expressly Representation N/A N/A
provided for in this code. (766a)

SECTION 3. - Substitution of Heirs

A better restatement of the rule would be:
 “An heir whether compulsory, voluntary or legal – transmits Art. 857. Substitution is the appointment of another heir so that
nothing to his heirs in case of predecease, incapacity, he may enter into the inheritance in default of the heir originally
renunciation, or disinheritance. instituted. (n)
However in the case of predecease, incapacity, and disinheritance of
compulsory heirs the rules on representation shall apply. (No Notes:
mention of renunciation)”  In default means failure to inherit because of:
The general rule is that when an heir predeceases, becomes o Predecease,
incapacitated, or renounces an inheritance, he transmits NOTHING to o Renunciation
his heirs. But there shall still be the right to representation. o Incapacity

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 Is it a complete definition?
o No. It is incomplete because default covers or defines only
simple substitution and not fideicommissary substitution.
 Complete definition: Substitution is the appointment of
another heir so that he may enter into the inheritance either
in default of the heir originally instituted or after.
 Basis for substitution:
o The testator may have a second preference.
o In relation to the first heir instituted, the first is preferred over
the substitute.
o But in default or after the first, the testator would rather that
the inheritance go to the substitute than by intestacy.
o Allowing substitution is giving respect to the first and second
preference of the testator.
o The power to make substitution is based on the power to make
testamentary dispositions.
o This is really a condition imposed on the institution of heirs.
 Ex. A has sons whom he does not want to get the free
portion. He wants to give it to B. But B may die before A.
After B, A prefers C to get it. As bet. C and his children,
A would rather that C get it. As such, C is appointed by
the testator as B's substitute.
 NOTE: Substitution ONLY covers the free portion.
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
What are the four kinds of substitution that are given by this article?
1. Simple/Common
2. Brief/Compendious
3. Reciprocal
4. Fideicommissary
TANTOCO 3B
o This is the right of the testator to place a burden on the heir
 i.e that the first heir has to take care of it and transmit it in
time period that is stated by the testator.
Notes:
 In reality there are only 2 kinds of Substitution:
o Simple
o Fideicommissary
 These two substitutions are mutually exclusive.
 There are really only 2 kinds of substitutions – brief and reciprocal
are just variations and not kinds of substitutions.
Q: Can you have a purely reciprocal substitution?
A: NO. All substitutions are either simple or Fideicommissary.
Note: The brief and reciprocal substitutions are merely variations of
the either it being simple or Fideicommissary.
Art. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided. (774)
Notes:
 This article gives you simple substitution.
What are the grounds for the 2nd heir to inherit in place of the 1st?
1. Predecease of the first heir
2. Renunciation of the first heir
3. Incapacity of the first heir
Question: Is the list exclusive?
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o YES!  So what happens now?
 The estate passes into intestacy
 Because it now becomes a condition.
 Thus it will just be a conditional testamentary
disposition.
 Remember: If a condition is not complied with, then
the disposition will just go to intestacy.
How do you make a simple substitution?
1. You enumerate all of the cases above
2. By just saying that one is to substitute the other
3. By saying which among the grounds you want
NOTE: the testator has the option to limit or choose which among the
three simple substitutions are to be operative.
 Ex. A will substitute B in the event that B predeceases me.
How many substitutions can there be?
 ONE! Only one substitution is allowed, the person who is
substituting cannot be substituted.
Q: In case of renunciation by the first heir, must the substitute have
capacity at the time of the renunciation? If the substitute dies before
the first heir manifests his renunciation, may the heirs of the substitute
represent him?
A: There are 2 Views
 View 1: The substitute must have capacity at the time of the
renunciation.
o This can be seen from article 1034
 “If the institution, devise, or legacy should be conditional,
the time of the compliance with the disposition shall also
be considered.”
o A simple substitution is a form of conditional institution –
therefore article 1034 par 3 can also be applied.
TANTOCO 3B
 View 2: The substitute need not have capacity at the time of the
renunciation.
o This can be seen from article 1042
 “The effects of the acceptance or repudiation of the
inheritance shall always retroact to the moment f the death
of the decedent.”
o Also 553
 “One who validly renounces an inheritance is deemed
never to have possessed the same.”
Art. 860. Two or more persons may be substituted for one; and
one person for two or more heirs. (778)
Notes:
 This gives you brief or compendious substitution. This means that
one substitutes for two, or two substitute for one.
o Compendious – Two or more substitutes for one original heir.
 I give A ½ of my estate, and by way of simple substitution
I designate B and C
o Brief – One substitute for two or more original heirs.
 I give B and C ½ of my estate, and by simple substitution
I designate A.
 This article is in reality a variation of simple substitution and the
fideicommissary substitution.
o Simple is the example above
o For FC – I institute A to ½ of my estate, and to transmit the
property to B upon his death.
When you talk about compendious substitution there are some things
that you have to remember (this is the One replacing 2):
 Default of only ONE of the original heirs
o Substitution will NOT take place. The share will just accrue
to the surviving heir
o So substitution will take place only if ALL the original heirs
are disqualified.
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 Default of ALL the original heirs
o Substitution can take place.
 BUT: the testator may provide for the substitution even if only one
of the original heirs is in default.
 Example:
o X says: I institute A and B to 1/3rd of my estate, and I leave C
as their substitute.
 If A predeceases B, B will get the whole 1/3.
 C will only be substituted, when BOTH A and B are
disqualified.
 EXCEPT: When the testator provides for a substitution in
the event of the death, renunciation, or incapacity of any
one of the original heirs.
Art. 861. If heirs instituted in unequal shares should be
reciprocally substituted, the substitute shall acquire the share of
the heir who dies, renounces, or is incapacitated, unless it clearly
appears that the intention of the testator was otherwise. If there
are more than one substitute, they shall have the same share in the
substitution as in the institution. (779a)
This article refers to Reciprocal Substitution. Reciprocal substitution
is not a distinct kind of substitution, but it is rather a possible variation
of the vulgar or the fideicommissaria.
Notes:
 If the heirs are instituted in UNEQUAL shares, the substitute shall
acquire the share of the heir that he replaces
o UNLESS it appears that the testator intended otherwise.
 If there is more than one substitute, they shall have the same share
in the substitution as in the institution. (second sentence)
o Example of this: Total Estate is 60K and C predeceases, and
A,B, and C are made substitutes of eachother.
A = 1/3 = P20,000
B = 1/6 = P10,000
C = ½ = 30,000
TANTOCO 3B
What is the effect? A and B will share the 30K in the proportion of
2:1.
Steps:
 Get the LCD of 1/3 and 1/6 = 6
 Then ratio the shit out of it – its 2:1, then add the 2 and the 1 to
get 3! Then 3 is your divisor.
 30,000/3 = 10,000
 A’s Share = 20,000 + 10,000*2 = 40,000
 B’s Share = 10,000 + 10,000*1 = 20,000
Art. 862. The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless and testator
has expressly provided the contrary, or the charges or conditions
are personally applicable only to the heir instituted. (780)
Notes:
 In substitution the 2nd heir takes the place of the 1st heir – this is a
kind of subrogation
 GR: The second is subject to the same charges and conditions as
the 1st heir
o EX:
1. The testator expressly provides the contrary
2. The charges and the obligations are personally applicable
to the 1st heir.
 In short: the substitute merely takes the place of the original heir.
 The article does not only cover charges and conditions but also the
rights of the first heir, subject to the same exceptions.
Art. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or
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first heir and the second heir are living at the time of the death of
the testator. (781a)
Five Elements of a Fideicommissary Substitution in Brief:
1. A first heir or a fiduciary who takes the property upon the
testator’s death.
2. A second heir who takes the property subsequently from the
fiduciary
3. The second heir must be one degree from the first heir.
4. The dual obligation imposed upon the fiduciary to preserve the
property and to transmit it after the lapse of the period to the
Fideicommissary heir.
5. Both heirs must be living and qualified to succeed at the time of
the testator’s death.
Five Elements of a Fideicommissary Substitution:
First heir or a fiduciary who takes the property upon the testator’s
death.
1. A first heir (in accordance with 777) who takes the property upon
the testator’s death.
 The fiduciary enters upon the inheritance upon the opening of the
succession – i.e. when the testator dies.
 For the substitution to operate, the first heir receives property,
either upon the death of the testator or upon the fulfillment of any
suspensive condition imposed by the will. As distinguished from
a simple substitution where the second heir receives property only
upon default of the first heir. First heir does not receive the
property.
Second heir who takes the property subsequently from the fiduciary.
 The Fideicommissary heir does not receive the property until the
fiduciary’s right expires
 BOTH heirs enter into the inheritance one after the other, each in
his own turn.
TANTOCO 3B
 This is what makes FC different from vulgar, since in vulgar the
substitute only takes the place of the 1 st heir in the event that the
1st heir fails to inherit.
 NOTE: the FC heir does not receive the property upon the death
of the testator his rights vests at the time and merely becomes
subject to a period. And the right passes to his heirs should he die
BEFORE the fiduciary’s right expires.
The Second Heir must be one degree from the first heir.
 There is no question that only one transmission is allowed in FC
– the question now is, does the second heir have to the child or
parent of the first heir  YES
 Palacios vs. Ramirez – In the case, 2/3 of the usufruct of the free
portion was given to Wanda, w/ 2 other persons not related to her
as her substitutes by way of simple and fideicommissary
substitution. Her grandnephews object on the ground that there
could be no fideicommissary substitution because the substitutes
were not w/in one degree of each other. The SC agreed w/ the
nephews. It said, quoting Tolentino, that one degree refers to one
generation. As such, the fideicommissary can only be either a
parent or child of the fiduciary.
Palacios vs. Ramirez
The substitutes Jankowski and Ramirez were not related to
Wanda, the heir originally instituted.
Tolentino says that “one degree” from the first heir is,
adopting the view of Manresa and Sanchez Roman, construed as
generation. The code thus clearly indicates that the second heir must
be related to and be one generation from the first heir. It follows that
the fideicommissary can only be either a child or parent of the first
heir. These are the only relatives who are one generation or degree
from the fiduciary.
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Note: Our jurisprudence is different from what the Spanish
commentators think. In their opinion it should be one transfer, it does
not matter what relation it is.
Note 2: there was a case in which Ruben thought that the decision
would be reversed, BUT in this case it was not clear that there was a
FC – for there to be an FC it must be clear that there is an obligation
to preserve and then to transmit to the FC heir – in this case this was
absent – thus an essential aspect of a FC substitution was not present.
There is a DUAL obligation that is imposed upon the fiduciary to
Preserve and Transmit the property to the second heir.
 This requisite is the essence of a fideicommissary, thus it is an
ABSOLUTE obligation to preserve and to transmit.
 This makes the position of the fiduciary basically that of a
usufructury, with the right to use and enjoy the property, but
without the jus dispodendi.
Q: What is the effect if there is NO absolute obligation to preserve and
transmit the property?
PCIB vs. Escolin
The wife dies and she had a will that said that the husband
may have all of her property and do as he may wish with it. It was only
subject to the condition that he should not sell their property in Texas,
and that in the event that he dies the remainder of the estate should go
to her siblings (there was a provision like this since they had no heirs).
The question in this case is if there is a FC substitution. The
SC said that there is none. This is since there was no vulgar
substitution since there no provision for substitution. There was also
no FC since there was no obligation on the husband to preserve the
property. As a matter of fact he had absolute ownership and
management of everything. He could sell, encumber, and dispose of
the property as he wished. The fact that the siblings would get what
TANTOCO 3B
was left, and that the husband was not allowed to sell the property in
Texas did not give a FC substitution.
A: Thus: If there is no obligation imposed to preserve the property
and to transmit it to the second heir, there is no fideicommissaria.
 In this case the institution is NOT void, rather it may still be valid
as some other disposition, but it is NOT a fideicommissaria.
 This in the PCIB case the court held that the institution that was
present in that case was a simultaneous institution – on the
husband it was subject to a resolutory condition, and for the
siblings of the wife it was subject to a suspensive condition.
Q: How long does someone remain as a Fiduciary?
A: 2 Rules:
1. Primary Rule
o The period indicated by the testator
2. Secondary Rule
o If there is no period that is stated by the testator, then it shall
be for the life of the fiduciary.
Both heirs must be living and qualified to succeed at the time of the
testator’s death.
 Living – given by 40-41
 Qualified – Given by 1024-1034
 This twofold requirement is to be met only upon the death of the
testator.
 This rule applies to BOTH the first heir and the second heir.
 The second heir NEED NOT survive the first heir.
o If the second heir dies before the first heir there is the right of
representation for the second heirs.
 From the moment of the death of the testator, the rights of the first
and second heirs are vested.
o The heirs of the second heir even have the right of
representation in the event that the second heir predeceases
the fiduciary.
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 If fiduciary is able to register the property in his name, 2. By imposing upon the first heir the absolute obligation to
fideicommissary should annotate his claim on the land on the title preserve and to transmit to the second heir.
to protect himself against any alienations in favor of innocent third
parties. What are the allowable deducitons?
1. GR: Is that the fiduciary should deliver the property intact and
Art. 864. A fideicommissary substitution can never burden the undiminished to the FC heir upon the arrival of the period
legitime. (782a) 2. EX: The only deduction allowed, in the absence of a contrary
provision are:
Note: as a matter of fact NO testamentary disposition can burden o Legitimate expenses
legitimes.  When you say this, it limits the expenses to those which
are necessary and useful, and NOT ornamental expenses.
Art. 865. Every fideicommissary substitution must be expressly o Credits
o Improvements.
made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the What happens if there is damage to the property?
second heir, without other deductions than those which arise from  Due to a Fortuitous Event or Ordinary Wear and Tear -
legitimate expenses, credits and improvements, save in the case o The fiduciary is NOT liable
where the testator has provided otherwise.(783)
 Fur to fiduciary’s fault
o The fiduciary IS liable
Every fideicommissary substitution must be expressly
made in order that it may be valid. Art. 866. The second heir shall acquire a right to the succession
from the time of the testator's death, even though he should die
The fiduciary shall be obliged: before the fiduciary. The right of the second heir shall pass to his
1. To deliver the inheritance to the second heir heirs. (784)
2. Without other deductions than:
a. Those which arise from legitimate expenses,
b. credits, and The second heir shall acquire the right to the succession
c. improvements,  From the time of the testator’s death,
3. Save in the case where the testator has provided  Even though he should die before the fiduciary.
otherwise.
NOTE: The right of the second heir shall pass to his heirs – i.e there
How do you make/impose a FC substitution? is the right of representation. BUT…
There are 2 ways:
1. By express imposition Should the second heir survive the testator?
o Using the term “fideicommissary”
 YES – otherwise there will be NO substitution.
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Should the second heir survive the first heir?
 NO – as long as he survives the testator.
o In the event that the second heir dies before the first heir, the
heirs of the second heir have the right of representation.
 SO: Once the testator dies the right already vests on the second
heir. It is the institution that is subject to a suspensive term.
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or imposing
upon the fiduciary the absolute obligation to deliver the property
to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate,
and even a temporary one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to
various persons successively, beyond the limit prescribed in article
863, a certain income or pension;
(4) Those which leave to a person the whole part of the hereditary
property in order that he may apply or invest the same according
to secret instructions communicated to him by the testator. (785a)
The FF shall NOT take effect:
1. FC substitutions which are not made in an express manner.
o Remember: In order to make a FC substitution you either do
it by name, or give the obligation to preserve and to transmit.
o The fact that this is present does not mean that the disposition
is not valid, rather what it maintains is that there is NO FC
substitution. BUT there may be something else.
2. Provisions which contain a perpetual prohibition to alienate, or
one which prohibits alienation for more than 20 years.
o Q: can this be more than 20 years?
 A: YES – in the case of a FC substitution, then it may be
for the lifetime of the Fiduciary.
TANTOCO 3B
o If there is no FC the limit is 20 years
o Q: What if the testator says that you cannot dispose of it for
30 years?
 There are 2 views:
 It is void
 It shall be reduced to the allowable 20.
o Ruben agreed with this.
3. Those which impose upon the heir in charge of paying to various
persons SUCCESSIVELY, beyond the limits set by 863, a certain
INCOME or PENSION.
o Thus if it is SIMULTANEOUS, then it is allowed.
o Thus there CAN ONLY be TWO beneficiaries of the pension
– one after the other.
 These two must ALSO be one degree from each other.
EX: "I give 1/3 of my estate to X and impose upon him the obligation
to give a P5,000 pension to A and in A's death, to A's son." This is
allowed. But if this is extended to the son of the son of A, then it won't
be allowed. The first and second recipient must be w/in one degree.
But it cannot extend beyond the second recipient.
4. If the testator gives the whole or part of the estate to someone so
that the person may apply or invest the same according to some
secret instruction.
o The ostensible heir here is in reality only a dummy. Since the
person intended to be benefitted is the one to whom the secret
instructions refer.
o This will make the entire provision VOID. But the difficulty
here is proving it.
EX. A has a paramour X. A gets B as a dummy. Because of the
prohibition of giving to a paramour, they agree between themselves
that A will leave to B a devise and from its profits B will give X. So
A pretends to name B as heir. But in reality, such institution is for the
benefit of X.
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 In such a case, the institution will not benefit X. Even if X shows Notes:
a written agreement between A and B, it cannot be enforced  Here the title/naked ownership is given to one person, but the
because it is contrary to law. usufruct is given to multiply usufructs
 It cannot be enforced because it is contrary to law. As regards B,  This is NOT an instance of FC, but it merely applies the rules of
he can keep the inheritance even if he double crosses A. FC.
o A instituted B at his own risk that he may be double-crossed  Rules:
by B. Too bad for X. o Only 2 usufructuries are allowed
 You CAN ONLY HAVE 2 at most. No more.
Art. 868. The nullity of the fideicommissary substitution does not o The 2nd usufructury must be one degree from the first
prejudice the validity of the institution of the heirs first  So either
designated; the fideicommissary clause shall simply be considered  Child
as not written. (786)  Parent of the first usufructury.
o This DOES NOT APPLY to SIMULTANEOUS
Notes: usufructuries.
 The nullity of the fideicommissary substitution will not affect
validity of institution of the first heir. Art. 870. The dispositions of the testator declaring all or part of
o Rather what happens here is that it becomes pure and the estate inalienable for more than twenty years are void. (n)
unqualified.
Notes:
Ruben: What we are not told by this article is what happens when the  This has nothing to do with substitution
1st heir does not have the capacity to succeed, or predeceases – Basta  If the testator imposes a period longer than 20 years, the
he cannot get the property – so what happens? prohibition is VOID.
 The 2nd heir is deemed instituted. o In this case it will only be valid for 20 years.
o Why is this the best way? Since it carries out the intent of the  If there is a FC, the time limitation will not apply
testator. o Because you are allowed have the lifetime of the fiduciary as
o Remember: The intent of the Testator in a FC is that the a period – this can certainly be more than 20 years.
testator wants the first heir to enjoy the property for a specific
time, and to eventually pass to the Fideicommisary Heir. SECTION 4 – Conditional Testamentary Dispositions and
Testamentary Dispositions with a Term
Art. 869. A provision whereby the testator leaves to a person the NOTE:
whole or part of the inheritance, and to another the usufruct, shall  Conditions, Terms, and Modes ONLY apply to testamentary
be valid. If he gives the usufruct to various persons, not dispositions. This is since a condition, term, and mode on
simultaneously, but successively, the provisions of Article 863 legitimes.
shall apply. (787a)

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Articles 871-875 talks of three things: Testamentary dispositions with:
1. Condition
2. Term-- certain as to time or certain as to occurrence
3. Mode
How is are conditions and terms similar?
 They both refer to some future event
How are conditions and terms different?
 Condition – Uncertain
 Term – Certain
Rationale for right to make either of the three:
1. Right stems from the right of freedom to dispose of his property
mortis causa.
o If he can dispose of his property mortis causa, then he can
certainly impose either a condition, term or mode.
GENERAL PROVISIONS
Art. 871. The institution of an heir may be made conditionally, or
for a certain purpose or cause. (790a)
What are the three kinds of testamentary dispositions?
1. Condition
2. Term
3. Mode
The right of the testator to impose conditions, terms, and modes,
springs from testamentary freedom. If he has the right to dispose of
his entire estate mortis causa, then he has the right to make the
dispositions subject to a condition, term, or mode.
Art. 872. The testator cannot impose any charge, condition, or
substitution whatsoever upon the legitimes prescribed in this
TANTOCO 3B
Code. Should he do so, the same shall be considered as not
imposed. (813a)
CONDITIONS:
Condition: Future and uncertain event which a testamentary
disposition is made to depend.
 Resolutory – Condition Subsequent
 Suspensive – Condition Precedent
Art. 873. Impossible conditions and those contrary to law or good
customs shall be considered as not imposed and shall in no manner
prejudice the heir, even if the testator should otherwise
provide. (792a)
Notes:
 Impossible in Fact
o Ex. I make you swim from here to HK
 Impossible in Law
o An illegal provision can be done, but it should not be done.
 Ex. I will give you my entire free portion if you burn the
Ateneo Rockwell.
 In these cases the disposition becomes pure, they do not annul the
disposition/institution. What it only annuls is the condition.
 Note: there is a difference when it comes to the application of the
impossibility or illegality when it comes to succession and
obligations.
o If it is an obligation, if it is subject to an illegal or impossible
condition, then the obligation is void, since the onerous
relation of the contract depends on the validity of the contract.
Q: What happens if there is an impossible or illegal condition?
A: It shall be considered as NOT written.
 In this case the testamentary disposition in NOT annulled, rather
it becomes pure.
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Obligation and Contracts Succession o Ruben: there is also does not include the provision that the
If the obligation is divisible, that Illegal and impossible heir should get married.
part which is NOT affected by conditions shall be considered  Ex. I shall give Ms. Santos 1/3rd of my estate, provided
the impossible condition shall as not imposed. that she marries within 2 years from my death.
be valid.
Rules:
But if it cannot be separated,
 Conditions not to contract a First marriage
then the obligation shall be void.
o This is ALWAYS against the law, thus considered as not
In onerous obligations the Testamentary dispositions are in
condition imposed becomes an the nature of gratuitous made
integral part of the causa of the obligations – which are based on o There is no exception
obligation. the testator’s liberality. This o Ex. I give Ms. Rillo 1/3 of my estate, provided that she does
liberality is the basis of the not marry.
The elimination of the condition grant.  Sir: This is anti-nuptial, thus against Public Policy
results in the failure of the cause.  Condition NOT to contract a subsequent marriage
o GR: It is also considered as not made/written.
No cause = No Obligation o EX: If it is imposed by the:
 Deceased Spouse
 Descendants
Art. 874. An absolute condition not to contract a first or  Ascendant
subsequent marriage shall be considered as not written unless o So it is only the deceased spouse, the descendants, and the
such condition has been imposed on the widow or widower by the ascendants who can make a stipulation NOT to contract a
deceased spouse, or by the latter's ascendants or descendants. subsequent marriage.
Nevertheless, the right of usufruct, or an allowance or some  A way out of this prohibition is the last paragraph where the
personal prestation may be devised or bequeathed to any person testator may provide that the heir is to get a pension. But once the
for the time during which he or she should remain unmarried or heir re-marries the pension shall cease.
in widowhood. (793a)
Q: Do you need a caucion muciana (A bond)?
Notes: A: NO
 This is a negative suspensive condition.
 Ruben: the prohibition should be an ABSOLUTE Prohibition. Note: This article deals with the prohibition to marry, but if it places
o Ruben: Pwede – I shall give Ms. Santos 1/3rd of my estate, in the will that a person HAS TO marry, then this is VALID – Quod
provided that she should not marry a lawyer. non vetitum, lecit.
o Ruben Bawal – I shall give Ms. Santos 1/3rd of my estate,
provided that she does not marry a lawyer, or a non-lawyer

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Q: Can the testator make a stipulation that a person is to enter into a
religious life?
A: YES
Q: How about renounce a religion?
A: NO
Q: Does this article prohibit a relative prohibition?
A: NO. What this article prohibits is an ABSOLTE prohibition.
Note: The testator may impose a condition to marry either with
reference to a particular person or class.
TorF: The testator can NEVER make a condition terminating the
testamentary benefaction should the heir contract a FIRST marriage?
Ans: FALSE: The testator may provide that a pension shall go to an
heir as long as that heir is unmarried.
Art. 875. Any disposition made upon the condition that the heir
shall make some provision in his will in favor of the testator or of
any other person shall be void.(794a)
Notes:
 This is called scriptura captatoria (A hunting disposition).
o i.e. Legacy hunting shall be void.
 Here it is not only the condition that is made void, rather the
WHOLE disposition that it is contained in is VOID.
o This is unlike the previous sections where only the condition
is deemed as not instituted.
 This is something that is strongly against public policy.
What are the reasons for the prohibition?
1. The captatoria converts it into Contractual Transactions.
2. It deprives the heir of testamentary freedom
TANTOCO 3B
3. It gives the testator power to dispose mortis causa not only his
property, but also that of his heirs.
Q: What is declared void?
A: The testamentary disposition which contains the prohibition. It
does not merely remove the condition as stated earlier as in the case
of a provision that is unlawful.
Art. 876. Any purely potestative condition imposed upon an heir
must be fulfilled by him as soon as he learns of the testator's death.
This rule shall not apply when the condition, already complied
with, cannot be fulfilled again. (795a)
Art. 877. If the condition is casual or mixed, it shall be sufficient if
it happens or be fulfilled at any time before or after the death of
the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time
the will was executed and the testator was unaware thereof, it shall
be deemed as complied with.
If he had knowledge thereof, the condition shall be considered
fulfilled only when it is of such a nature that it can no longer exist
or be complied with again. (796)
Art . 883 par. 2. If the person interested in the condition should
prevent its fulfillment, without the fault of the heir, the condition
shall be deemed to have been complied with.(798a)
Art. 879. If the potestative condition imposed upon the heir is
negative, or consists in not doing or not giving something, he shall
comply by giving a security that he will not do or give that which
has been prohibited by the testator, and that in case of
contravention he will return whatever he may have received,
together with its fruits and interests. (800a)
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o EX: UNLESS the testator provides otherwise.

 What if the condition is already fulfilled at the time of the
These articles govern the FF kinds of conditions: execution of the will?
1. Potestative o If the testator was UNAWARE of the fact of fulfillment
o Fulfillment of the condition depends solely upon the will of  Deemed fulfilled
the heir, devisee or legatee o If the testator was AWARE
2. Casual  If it can NO LONGER be fulfilled again
o The fulfillment of the condition depends solely on chance or  Deemed fulfilled
on the will of a third person.  If CAN be fulfilled again
3. Mixed  Must be fulfilled again.
o The fulfillment of the condition depends partly on chance and
partly on the will of the heir, devisee, or legatee. Does constructive compliance apply to casual and mixed conditions?
 Casual
Rules on the conditions: o NOT applicable
Potestative:  Mixed
 Positive – TO DO o If dependent partly on chance
o GR: This must be fulfilled as soon as the heir learns of the  NOT applicable
testator’s death o If dependent on the will of a third party
o Except (must CONCUR):  If the 3rd party IS an interested party – APPLICABLE
 The condition was already complied with at the time the  If the 3rd party is NOT an interested party – NOT
heir learns of the testator’s death Applicable.
 The condition is of such a nature that it cannot be fulfilled
again. Art. 880. If the heir be instituted under a suspensive condition or
o In this case you can have constructive compliance: term, the estate shall be placed under administration until the
 When the person interested in the condition should condition is fulfilled, or until it becomes certain that it cannot be
prevent its fulfillment, without the fault of the heir, the fulfilled, or until the arrival of the term.
condition shall be deemed to have been complied with.
The same shall be done if the heir does not give the security
 Negative
required in the preceding article. (801a)
o There heir must give a security to guarantee the return of rhe
value of the property, fruits, interest in case of contravention. Art. 881. The appointment of the administrator of the estate
 This is called the caucion muciana. mentioned in the preceding article, as well as the manner of the
administration and the rights and obligations of the administrator
Casual or Mixed shall be governed by the Rules of Court. (804a)
 GR: May be fulfilled at any time, before or after the death of the
testator

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Between the time of the testator’s death and the:

1. Time of the fulfillment of the suspensive condition or Note: If the Heirs do NOT give the caucion muciana that is required
2. Of the certainty of its non-occurrence by 879 (Potestative condition in the negative), then the same thing as
above will be done  Property will be placed under administration.
The property is to be placed under administration.
 If the condition happens – the property will be turned over to the Q: Should the heir have capacity to succeed when the condition
instituted heir happens?
 If it becomes certain that the condition will NOT happen – A: Heir should have capacity when the testator dies AND when the
property will be turned over to a secondary heir (if there is one condition happens – 1034, the capacity of the heir at the time of the
present), or the intestate heirs, as the case may be. condition shall also be taken into consideration.
 If you are no longer alive, then you do not get the right to succeed
Example: I will give my Bentley to A if he tops the bar. to that portion.
 In the mean time the Bentley does NOT go to A, rather it is placed
under administration. Note: Heir that is also subject to the condition should have BOTH
 Scenarios: capacity and be alive at the time that the condition happens AND when
1. A passes the bar – give him the car the testator dies.
2. A does not pass the bar – he does not get the car, the car passes
to intestacy. Note: Article 881 is NOT applicable to dispositions with a TERM.
3. A dies before he even takes the bar – This is the situation
where “it becomes certain that it cannot be fulfilled”. Thus the What happens to the property if the heirs have not paid the bond under
car should go to the intestate heirs. 779?
 The property shall remain in the hands of an executor or an
Notes: administrator until the heirs furnish the caucion muciana.
 Here disregard the word “Term” this is since term is governed by
885. Suspensive Condition vs. Suspensive Term
 So this article only really applies to articles with a suspensive Suspensive CONDITION Suspensive TERM
condition. Property is placed under Property is given to the legal
 If the condition does not happen, then the property shall pass to administration in the meantime, heirs at once, even BEFORE the
until the condition happens or it arrival of the term.
the intestate heirs.
becomes clear that the condition
will NOT happen.
What happens when the heir is instituted under a suspensive condition Capacity to succeed is Capacity to succeed is
or term? The estate shall be placed under administration: determined: determined:
1. Until the condition is fulfilled 1. At the time of death 1. At the time of the death
2. Until it becomes certain that it cannot be fulfilled AND ONLY.
3. Until the arrival of the term

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2. At the time the condition  The instituted heir, while he is in possession does not have
happens to post a bond
Thus, an heir must be living and
qualified to succeed at BOTH In dispositions with a term, when does the heir’s right vest?
instances.  The rights of the heir vest upon the testator’s death.
 Thus if the heir dies before the arrival of the SUSPENSIVE term,
he merely transmits the right to his own heirs who can demand the
Art. 884. Conditions imposed by the testator upon the heirs shall property when the term arrives.
be governed by the rules established for conditional obligations in o This is the same as FC.
all matters not provided for by this Section. (791a)
What happens if the instituted heir dies BEFORE the happening of the
TERMS: condition?
Term: this is a future and certain event.  In conditional institutions the heir should be living and qualified
Art. 878. A disposition with a suspensive term does not prevent to succeed at BOTH the time of the testator’s death and at the time
the instituted heir from acquiring his rights and transmitting of the happening of the condition.
them to his heirs even before the arrival of the term. (799a)
Art. 885. The designation of the day or time when the effects of the
Notes: institution of an heir shall commence or cease shall be valid.
 A term is sure to happen, thus the only qualification is that the heir In both cases, the legal heir shall be considered as called to the
be alive and qualified when the testator dies. succession until the arrival of the period or (FROM) its expiration.
o There is no need to be alive when the term arises. But in the first case he shall not enter into possession of the
o This is different from a condition where the heir has to be alive property until after having given sufficient security, with the
and capacitated at BOTH the death and the happening of the intervention of the instituted heir. (805)
condition.
 There are 2 kinds of terms Notes:
o Suspensive Term – Ex Die  This prevails over 880 since this is the specific rule on terms, thus
 Before the arrival of the term – the property should be superior.
delivered to the INTESTATE heirs.  While you are waiting for a term to arrive, you have to give the
 The intestate heirs that are in possession of the property property to the intestate heirs so that they can use the property.
are required to post a bond  You have to post a bond
 If they do not want to post a bond, then the property shall o The reason for this is to make sure that the legal heirs preserve
go into administration. the property so that in event that the intestate heirs damage the
o Resolutory Term – In Diem property while it is in their possession, then the instituted heir
 Before the arrival of the term – the property should be may claim from the bond.
delivered to the INSTITUTED heir.  When do you have to give the property and post the bond?
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o If the term is SUSPENSIVE – BEFORE the arrival of the term
the property should be delivered to the INTESTATE heirs
 They have to post a bond
o If the term is RESOLUTORY – Before the arrival of the term
the property has to be delivered to the INSTITUTED heir.
 No need to post a bond.
MODES
Art. 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge
imposed by him, shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation. (797a)
Chevola: The difference of a condition and a mode. A mode obligates,
but does not suspend. A condition suspends but does not obligate.
A mode is a duty. If you do not want to comply with this then you can
renounce the inheritance. If you want to have the inheritance, then you
have to comply with the conditions.
You interpret the provision as a mode rather than a condition since this
is more beneficial to the heir.
What is a mode?
 A mode is an obligation imposed upon the heir, without
suspending – as a condition does – the effectivity of the institution.
 A mode MUST be clearly imposed as an obligation in order to be
considered as one.
o Mere preferences or wishes expressed by the testator are not
modes.
 A mode functions similarly to a resolutory condition.
TANTOCO 3B
o As a matter of fact modes could have been absorbed in the
concept of resolutory conditions.
Condition Mode
The condition must happen or be Imposes a burden, but the heir
fulfilled first before the heir will gets the property right away
be entitled to succeed It obligates but does not
It suspends (the effectivity) but suspend.
does not obligate
Rabadilla vs. CA
The institution of an heir in the manner prescribed in Article
882 is what is known in the law of succession as an institucion sub
modo or a modal institution. In a modal institution, the testator states:
1. The object of the institution,
2. The purpose or application of the property left by the testator, or
3. The charge imposed by the testator upon the heir.
A "mode" imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession.
On the other hand, in a conditional testamentary disposition,
the condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but does not
obligate; and the mode obligates but does not suspend. To some
extent, it is similar to a resolutory condition.
From the provisions of the Codicil litigated upon, it can be
gleaned unerringly that the testatrix intended that subject property be
inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the
testatrix imposed an obligation on the said instituted heir and his
successors-in-interest to deliver one hundred piculs of sugar to the
herein private respondent, Marlena Coscolluela Belleza, during the
lifetime of the latter. However, the testatrix did not make Dr. Jorge
Rabadilla's inheritance and the effectivity of his institution as a
devisee, dependent on the performance of the said obligation. It is
clear, though, that should the obligation be not complied with, the
property shall be turned over to the testatrix's near descendants. The
manner of institution of Dr. Jorge Rabadilla under subject Codicil is
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evidently modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally acts of
liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the Will itself
that such was the intention of the testator. In case of doubt, the
institution should be considered as modal and not conditional.
Q: Who should post the caucion muciana?
A: The INSTITUTED heir.
Q: SO… when do you have to post a bond/caucion muciana?
A: In THREE instances”
1. Negative Potestative Condition – 879
2. Mode - 883
3. Dispositions of a Term Ex Die – 885
Art. 883 Par. 1. When without the fault of the heir, an institution
referred to in the preceding article cannot take effect in the exact
manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.
The intention of the testator should ALWAYS by the guiding norm in
determining the sufficiency of the analogous performance.
SECTION 5. – Legitime
This comes from the word Legitima/Legitime/Pflichtteil
which is the hereditary reservation.
In the Spanish civil code there was a thing that was called a
mejora this was a portion that was reserved for the legitimate children,
and the testator could divide it among his children as he wanted. This
was not adopted in our laws.
TANTOCO 3B
Herederos forzosos = compulsory heir
Q: What is the system of legitimes?
A: This is where the law reserves a portion of the net estate of the
decedent in favor of certain heirs, group of heirs, or a combination of
heirs.
Q: What is the nature of legitimes?
A: The legitimes are set aside for mandate of law. Thus the testator is
required to set aside or reserve them.
The testator is prohibited from disposing the legitimes by
gratuitous title  either inter vivos or mortis causa.
Dispositions which are made with onerous title are not
prohibited. This is since there is nothing lost in the estate.
Q: Who is the compulsion on?
A: The testator. The heirs are not compelled to accept the inheritance.
As a matter of fact they may even chose not to accept it. BUT on the
part of the testator, he is compelled to reserve the property for the
compulsory heirs.
Major changes in the law of legitimes:
 Abolition of the mejora
 Surviving spouse’s share is upgraded from a usufructury interest
to FULL ownership
 Treatment of illegitimate children
Art. 886. Legitime is that part of the testator's property which he
cannot dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs. (806)
This article gives the definition of legitime = thus also the definition
of compulsory succession.
 Legitime is that Part of the testator’s property
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o Part – this implies that there is a fraction, it is not to a definite
portion, rather it is a portion of the total of the estate.
o Ruben: You cannot pin point to any particular thing which
would belong and not belong to the legitime.
 When you get part of the legitime you get a portion of the
whole.
 Property which he cannot dispose of because the law has reserved
it for certain heirs who are, therefore, called compulsory heirs
o It should be which he cannot dispose of gratuitously.
Legitime can be disposed by onerous title, but it cannot be disposed of
gratuitous title.
 A testator may sell (onerous) as much of his property that he
wants.
o This is since the value of the estate does not diminish, rather
the value is replaced.
o If you contest this, then you have to prove that the sale or
whatever is simulated.
 But you cannot donate (gratuitous) items which would infringe on
the legitime
o i.e. if the donation or disposition by gratuitous title exceeds
the free portions and thus infringes on the legitimes, then the
gratuitous title is void to the extent that it infringes.
Calalang vs. Parulan
A plain reading of the above provision would clearly reveal that the
phrase “Pedro Calalang, married to Elvira Berba [Calalang]” merely
describes the civil status and identifies the spouse of the registered
owner Pedro Calalang. Evidently, this does not mean that the property
is conjugal. In Litam v. Rivera, 100 Phil. 364 (1956), we declared:
Further strong proofs that the properties in question are the
paraphernal properties of Marcosa Rivera, are the very Torrens Titles
covering said properties. All the said properties are registered in the
name of “Marcosa Rivera, married to Rafael Litam.” This
circumstance indicates that the properties Marcosa Rivera, as her
TANTOCO 3B
paraphernal properties, for if they were conjugal, the titles covering
the same should have been issued in the names of Rafael Litam and
Marcosa Rivera. The words married to Rafael Litam” written after the
name of Marcosa Rivera, in each of the abovementioned titles are
merely descriptive of the civil status of Marcosa Rivera, the registered
owner of the properties covered by said titles.
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded
by those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly
proved.
The father or mother of illegitimate children of the three classes
mentioned, shall inherit from them in the manner and to the
extent established by this Code. (807a)
There are 5 kinds of Compulsory Heirs:
1. Legitimate children and descendant
2. Legitimate parents and ascendants
3. Surviving Spouse/Widow or widower
4. Illegitimate Children
5. Illegitimate Parents
But under the family code there is no more distinction between
acknowledged natural children and illegitimate children – they are all
considered children.
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Parents of illegitimate children – Illegitimate parents.
Who are the primary? –called primary since they exclude the
secondary
1. Children or
o When it comes to matters of succession these are the most
preferred
2. Descendants
o The rule is that the nearer exclude the farther.
o The only qualification of this rule is the right of
representation.
Who are the secondary? – called secondary since they only get the
legitimes if there are no primary heirs
1. Legitimate Parents
o These are the parents or ascendants of legitimate children
o This also include the adoptor in relation to the adopter.
o Under the present law the adoptor displaced the biological
parents in the successional scheme – relative to the estate of
the adopted.
2. Legitimate Ascendants
o These inherit ONLY in default of the parents.
o ABSOLUTE rule: The nearer exclude the more remote.
3. Illegitimate Parents (if the decedent is illegitimate)
o These are the parents of an illegitimate child
o The illegitimate grandparents cannot inherit.
o NOTE: If the relationship is ILLEGITIMATE – it only goes
to the parents. There is no such thing as an illegitimate
ascendant when it comes to legitimes.
o NOTE: Illegitimate parents are EXCLUDED by:
 And kind of descendant
o NOTE: Legitimate parents are ONLY excluded by:
LEGITIMATE children.
TANTOCO 3B
 You can only have one of the above – this is since your parents
are either legitimate or illegitimate. You parents are NEVER one
legitimate and one illegitimate.
Concurring – this is since they inherit together with the primary or the
secondary. They do not exclude anyone, nor are they excluded.
1. Surviving Spouse
o There must be either be a valid or voidable marriage.
o The common law spouses do not apply to this article
2. Illegitimate children
o The FC has abolished the distinction between the kinds of
illegitimate children.
o BUT! YOU HAVE TO TAKE NOTE WHEN THE DEATH
OCCURRED.
 If occurred and the FC was in effect – then no problem
 If the decedent died before August 3, 1988  then the old
distinctions will apply.
 In which case a spurious child gets only 4/5 the share
of a natural child.
3. Illegitimate Descendants
o The same rule apples as in the legitimate descending line: the
nearer exclude the more remote  without prejudice to the
right of representation when proper.
NOTE: Right of Representation of descendants:
 The illegitimate child may be represented by BOTH his legitimate
descendants and illegitimate descendants.
 The LEGITIMATE child may ONLY be represented by his
legitimate descendants.
ONLY EX: An illegitimate child EXCLUDES an illegitimate parent
 Outside of this a concurring heir will not exclude anyone, nor are
they excluded by anyone.
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Rosales vs. Rosales
Intestate or legal heirs are classified into two:
1. Those who inherit by right
2. Those who inherit by the right or representation.
An intestate heir can only inherit either by his own right as in the order
that is provided in the code.
There is no provision in the CC which states that a widow is an
intestate heir of the MOTHER IN LAW the entire code is devoid of
any provision which entitles her to inherit from her mother in law
either by her right or by right of representation.
The provision of law refers to the estate of the deceased spouse to
which the surviving spouse is a compulsory heir  this does not apply
to a parent in law. As a matter of fact the spouse of an heir is
considered a third person as regards the estate of the parent in law.
In this case the SC said that the right of representation goes to the son
and not to his mother. This is since the son represents his father in the
estate of his grandmother, and does not succeed from the father per se
 So he really succeeds from this mother.
Note: The marriage between the decedent and the surviving spouse
must be either valid or voidable.
 If the marriage is voidable, then there should be no decree of
annulment at the time of the decedent’s death.
 Mere estrangement between the spouses
o This is NOT a ground for the disqualification of the surviving
spouse as an heir.
 Effect of decree of legal separation
o Offending spouse – disqualified.
o On the innocent spouse – nothing.
 Death of either spouse during the pendence of a petition for legal
separation
o Dismissal of the case
TANTOCO 3B
Lapuz vs. Eufemio
An action for legal separation involves nothing but the mere
bed-and-board separation of the spouses and is purely personal. Being
personal in character, it follows that the death of one party to the action
causes the death of the action itself (actio personalis moritum cum
persona). Hence, they cannot survive the death of the plaintiff if the
death occurs prior to the decree.
In short, an action for legal separation is abated by the death
of the plaintiff. If death supervenes during the pendency of the action,
no decree can be forthcoming  it does not matter who dies, it may
be the innocent spouse of the guilty spouse.
A further reason why an action for legal separation is abated
by the death of the plaintiff, even if property rights are involved, is
that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into
existence, so that before the finality of a decree, these claims are
merely rights in expectation. If death supervenes during the pendency
of the action, no decree can be forthcoming, death producing a more
radical and definitive separation; and the expected consequential
rights and claims would necessarily remain unborn
This case also gave disqualifications on the part of the guilty spouse:
1. Loss to the right to any share of the profits earned by the CPG or
ACP
2. Disqualification to inherit by intestacy from the innocent spouse
3. Revocation of the testamentary dispositions that were made in his
favor
Note: due to this ruling, it now does not matter who is the guilty
Spouse or not.
Tumbokon vs. Legaspi
Only two forced heirs survived Alejandra upon her death, namely:
respondent Apolonia, her daughter, and Crisanto Miralles, her
grandson. The latter succeeded Alejandra by right of representation
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because his mother, Ciriaca, had predeceased Alejandra.  Out of all the provisions, the general rule is: There is a basic quota
Representation is a right created by fiction of law, by virtue of which of 1/2 that is to be given to one group of heirs.
the representative is raised to the place and the degree of the person o The exceptions to this are:
represented, and acquires the rights which the latter would have if she  Art 894 – SS and IC
were living or if she could have inherited. Herein, the representative  Art 900 p2 – SS in articulo mortis
(Crisanto Miralles) was called to the succession by law and not by the  Art 903 – SS and IP
person represented (Ciriaca); he thus succeeded Alejandra, not
Ciriaca. COMBINATIONS
1. Legitimate Children (includes adopted) ALONE
Bartolome vs. SSS o LC – ½ of the estate
It is apparent that the biological parents retain their rights of o FP – ½
succession to the estate of their child who was the subject of adoption. 2. Legitimate Children (includes adopted) and Surviving Spouse
While the benefits arising from the death of an SSS covered employee o LC – ½
do not form part of the estate of the adopted child, the pertinent o SS – Share of one LC
provision on legal or intestate succession at least reveals the policy on o FP – Whatever is left
the rights of the biological parents and those by adoption vis-à-vis the 3. Legitimate Children (includes adopted), Surviving Spouse, and
right to receive benefits from the adopted. In the same way that certain Illegitimate Children
rights still attach by virtue of the blood relation, so too should certain o LC – ½
obligations, which, We rule, include the exercise of parental authority, o SS – Share of one LC
in the event of the untimely passing of their minor offspring’s adoptive o IC – HALF the share of one LC
parent. We cannot leave undetermined the fate of a minor child whose o FP – whatever is left, may even be none.
second chance at a better life under the care of the adoptive parents 4. Legitimate Children (includes adopted) and Illegitimate Children
was snatched from him by death’s cruel grasp o LC – ½
o IC – half the share of an LC
Otherwise, the adopted child’s quality of life might have been better 5. ONE Legitimate Child and surviving spouse
off not being adopted at all if he would only find himself orphaned in o LC – ½
the end. Thus, We hold that Cornelio’s death at the time of John’s o SS – ¼
minority resulted in the restoration of petitioner’s parental authority o FP – ¼
over the adopted child. 6. ONE Legitimate Child, illegitimate children, and Surviving
Spouse
o LC – ½
Variations in the legitimacy portions: o IC – half the share of an LC
 The legitimary system of the Philippines rests on a double o SS – ¼
foundation: Principle of Exclusion and Principle of Concurrence.  But this ¼ is preferred over the share of the IC
o FP – NONE

TANTOCO 3B Page | 87
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7. Legitimate Parents ALONE Quarendum: is the adopted child entitled to a legitimate from his
o LP – ½ biological parents of ascendants?
o FP – ½ Answer: YES! The adopted shall remain an intestate heir of his parents
8. Legitimate Parents and Surviving Spouse and other blood relatives. Thus the adopted child was entitled to a
o LP – ½ legitime BOTH from his adpotor and his biological parents  BUT
o SS – ¼ this was only stated in an obiter.
o FP – ¼
9. Legitimate Parents and Illegitimate Children Baritua vs. CA
o LP – ½ The parents of the deceased succeed only when the latter
o IC – ¼ collectively dies without a legitimate descendant. On the other hand, the
o FP – ¼ surviving spouse concurs with all classes of heirs, even if such
10. Legitimate Parents, Illegitimate Children, and Surviving Spouse spouse had been estranged from the deceased. Mere estrangement
o LP – ½ is not a legal ground for the disqualification of a surviving spouse as
o IC – ¼ collectively an heir of the deceased spouse.
o SS – 1/8
o FP – 1/8 Art. 888. The legitime of legitimate children and descendants
11. Surviving Spouse ALONE consists of one-half of the hereditary estate of the father and of the
o SS – ½ mother.
o FP – ½ The latter may freely dispose of the remaining half, subject to the
12. Surviving Spouse and Illegitimate Children rights of illegitimate children and of the surviving spouse as
o SS – 1/3 hereinafter provided. (808a)
o IC – 1/3
o FP – 1/3 Notes:
13. Surviving Spouse and Illegitimate Parents  Principle of equal sharing
o SS – ¼ o The legitimate children share the one half portion EQUALLY.
o IP – ¼ o Adopted Children succeed in the same way as legitimate
o FP – ½ children.
14. Illegitimate Children ALONE  Descendants other than children:
o IC – ½ o GR: The nearer exclude the more remote.
o FP – ½  Ex. If there are children the grandchildren cannot inherit.
15. Illegitimate Parents ALONE The only time that they can inherit is when ALL the
o IP – ½ children renounce.
o FP – ½ o EX/Only qualification – When the right to representation is
proper.

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 So the kids of the deceased child may represent their
father in the inheritance of Lolo.
o Recap: So when may the descendants inherit?
 Right of representation
 All of the children renounce.
o When it comes to descendants there is also no limit to the
number of degrees in the descending line that may be called
to succeed.
Ruben: This provision does not really say how the children are
supposed to share the inheritance. But all the commentaries that it shall
be equal among the children.
Ruben: Before, in our country we had something that was called
Mayorazco this meant that it was the oldest son that would get the
estate of the decedent father – we do not have this now. This was
something that was changed in 1903.
The rule in our country is that the NEARER EXCLUDE THE MORE
REMOTE.  this means that the children exclude the grandchildren,
the grandchildren exclude the great grandchildren.
 But this is subject to the right of representation.
 Sir: Even if all of the children pre decease, disinherited, or are
incapacitated the grandchildren do not get a share of the
inheritance per capita.
o The ONLY case where the grandchildren will inherit per
capita is if ALL of the children RENOUNCE the inheritance.
Art. 889. The legitime of legitimate parents or ascendants consists
of one-half of the hereditary estates of their children and
descendants.
The children or descendants may freely dispose of the other half,
subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided.(809a)
TANTOCO 3B
Art. 890. The legitime reserved for the legitimate parents shall be
divided between them 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. (810)
Notes:
 Legitimate parents/ascendants are SECONDARY compulsory
heirs.
o They only succeed in default of any legitimate descending
line.
o i.e the legitimate ascending line ONLY succeeds on default of
a legitimate descending line.
Three basic Rules:
1. The nearer exclude the more remote (889):
o This rule in the ascending line admits of no qualification.
o There is NO right of representation in the ascending line.
2. Division by Line (890):
o This rule will apply if there are more than one ascendants in
the nearest degree – ex. There are paternal and maternal
o The legitime shall be divided in equal parts between the
paternal line and the maternal line.
3. Equal division within the line (890)
o After the portion corresponding to the line has been assigned,
there will be equal apportionment between or among the
recipients within the line – should there be more than one.
Note: It is a given that the operation of # 2&3 above will mean that
there may be an inequality among shares among ascendants.
 Ex. 2 maternal grandparents and 1 paternal grandparent. In this
case, the grandparents collectively will inherit ½ of the estate.
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o This ½ is to be divided among the maternal and paternal lines
EQUALLY – as per #2.
 The result will be that each side will get ¼
o So = Maternal will get 1/4, but they are 2. So each grandparent
will get 1/8
 This is compared to the paternal grandparent who will get
¼ all by his lonesome self.
 Another instance of this is Reserva Troncal – in this case the land
goes back to the line.
Art. 892. 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. (834a)
This article gives the situation where there is one Legitimate Child and
one surviving spouse.
What if there has been legal separation?
 There is a final decree + the deceased is the offending spouse
o The surviving spouse gets the legitime
 If there is a final decree + deceased spouse is the innocent spouse
o The offending spouse is disqualified from inheriting.
 If there was reconciliation AFTER they were given a final decree
o The reciprocal right to succeed is restored.
What about death pendente lite?
TANTOCO 3B
 If either spouse dies during the pendency of the proceedings for
legal separation, the proceedings are terminated and the surviving
spouse inherits from the deceased spouse
 It does not matter WON it was the guilty one or the innocent one
who died.
What about termination of marinate by reappearance or of prior
spouse/Decree of absolute annulment or absolute nullity of marriage?
 Under the FC the reappearance terminates the marriage, and one
of the effects of the termination of the marriage is that the spouse
who contracted the marriage in bad faith shall be disqualified from
inherit from the innocent spouse by testate and intestate
succession.
 Also when it comes to reappearance the spouse who contracted
the subsequent marriage in bad faith shall be disqualified to inherit
from the innocent spouse.
 Clear implications of this article:
o If both consorts in the second marriage were in good faith –
they continue to be heirs of each other.
o If only one of the said consorts acted in bad faith, the innocent
one will continue to be an heir of the other.
Note: 892 says that the share of the spouse is the share of a child OR
descendant.
 So.. what happens if all of them predecease, or become
incapacitated?
o Tolentino says just give them the share of a child.
 Sir – Okay.
Quarendum: What happens to the share of the spouse if all of the
children RENOUNCE?
 Tolentino: Spouse – same share as a child.
o This is since if you say that the spouse should only get the
share of a grandchild then this is a way for the children to
circumvent the law on legitimes.
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o Ruben: May inasawa si tatay na 21 years old, tapos 89 na si
tatay. The children may sa, o tara renounce na tayong lahat
para lumiit yung share ng bruha na yan.
Scenario: A and B are husband and wife. A disappears thus B complies
with the requirements in the FC on the matter, and marries C. BOTH
B and C are in good faith. Subsequently A reappears – causing the
termination of the marriage of B and C.
Q: Are A and C both entitled to legitime from B?
A: Sir is of the opinion that ONLY the legitimate spouse is allowed to
inherit. This is since why should consorts of a terminated marriage, an
annulled one, or one declared void ab initio continue to be heirs of
each other. The marriage which is the basis of the right no longer
exists.
Q: If all the children of the decedent renounce, what happens to the
share of the surviving spouse?
A: Sir this presents a problem. There is one view that states that the
spouse should still get the share of a child. There is another view that
the share of the spouse should be reduced to that which a grandchild
will receive. Ruben is more inclined to adapt the second view since
the article uses the term “descendants”.
Art. 893. If the testator leaves no legitimate descendants, but
leaves legitimate ascendants, the surviving spouse shall have a
right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the
estate. (836a)
th
In this case there will always be a free portion of 1/4 .
Note: The surviving spouse gets 1/4th from the free portion.
TANTOCO 3B
Art. 894. If the testator leaves illegitimate children, the surviving
spouse shall be entitled to one-third of the hereditary estate of the
deceased and the illegitimate children to another third. The
remaining third shall be at the free disposal of the testator. (n)
Sharing among the illegitimate children
 If the decedent died during the effectivity of the family code:
o The sharing will be equal, inasmuch as the family code has
abolished the old distinction between natural and other
illegitimate children
 If the decedent died BEFORE the effectivity of the family code:
o The old distinction must be observed and the legitime of a
spurious child will only be 4/5 of a natural child.
Art. 895. The legitime of each of the acknowledged natural
children and each of the natural children by legal fiction shall
consist of one-half of the legitime of each of the legitimate children
or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction, shall
be equal in every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children shall be taken from the
portion of the estate at the free disposal of the testator, provided
that in no case shall the total legitime of such illegitimate children
exceed that free portion, and that the legitime of the surviving
spouse must first be fully satisfied. (840a)
This article has been simplified by the family code – children that are
not legitimate are illegitimate. There is no more classification as them
being natural, illegitimate, etc.
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In case there has to be a deduction – the deduction shall be on the
shares of the illegitimate children. The legitimate children and the
spouse DO NOT suffer any deduction.
What is the sharing PRIOR to the FC?
1. If the death occurred before the effectivity of the FC. This article
will govern.
o So Natural Child – gets ½ the share of a LC
o A spurious Child gets – 4/5ths the share of a NC
2. If there are no natural children but only spurious children – then
the legitime of a spurious child will only be 4/5 ths that of a natural
child.
o The ratio should ALWAYS be 5:4 among natural and
spurious children.
Reduction of Shares: Depending on the number of legitimate and
illegitimate children, the possibility exists that the total legitimes will
EXCEED the entire estate. Thus there will have to reductions.
1. The legitimes of the legitimate children should NEVER be
reduced.
o They are the primary and preferred compulsory heirs.
2. The legitime of the surviving spouse should never be reduced
o This article prohibits this.
3. The legitimes of the illegitimate children will be reduced pro rata
and without preference among them.
Art. 896. Illegitimate children who may survive with legitimate
parents or ascendants of the deceased shall be entitled to one-
fourth of the hereditary estate to be taken from the portion at the
free disposal of the testator. (841a)
Notes:
 In this case there will always be a free portion of 1/4th.
 There illegitimate children here get the 1/4th collectively.
TANTOCO 3B
Art. 897. When the widow or widower survives with legitimate
children or descendants, and acknowledged natural children, or
natural children by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate
children which must be taken from that part of the estate which
the testator can freely dispose of. (n)
Art. 898. If the widow or widower survives with legitimate
children or descendants, and with illegitimate children other than
acknowledged natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same as that provided in
the preceding article. (n)
Sir: The distinctions that were found here are gone na!
Art. 899. When the widow or widower survives with legitimate
parents or ascendants and with illegitimate children, such
surviving spouse shall be entitled to one-eighth of the hereditary
estate of the deceased which must be taken from the free portion,
and the illegitimate children shall be entitled to one-fourth of the
estate which shall be taken also from the disposable portion. The
testator may freely dispose of the remaining one-eighth of the
estate. (n)
Art. 900. If the only survivor is the widow or widower, she or he
shall be entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other
half. (837a)
If the marriage between the surviving spouse and the testator was
solemnized in articulo mortis, and the testator died within three
months from the time of the marriage, the legitime of the surviving
spouse as the sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife for more
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than five years. In the latter case, the legitime of the surviving
spouse shall be that specified in the preceding paragraph. (n)
Art. 901. When the testator dies leaving illegitimate children and
no other compulsory heirs, such illegitimate children shall have a
right to one-half of the hereditary estate of the deceased.
The other half shall be at the free disposal of the testator. (842a)
This article gives the surviving spouse as the SOLE compulsory heir:
GR: The Surviving Spouse gets ½ of the estate
EX: the wife shall get 1/3rd of the estate if the following circumstances
are present:
1. The marriage was in articulo mortis
2. The testator died within three months from the time of the
marriage
3. The parties did not cohabit for more than five years.
4. The spouse who died was the party in articulo mortis at the time
of the marriage.
o This requisite is not explicit, but it can be derived from the
sense and the intentZ of the provision.
Example of the bullet in No. 4: A was madly in love with B. But B did
not like A since he was old and ugly (but extremely wealthy). But one
day B became terminally ill. It was found out that he had SARS,
MERS, AIDS, Cancer of the everything. He was thus confined to the
ICU for the sole purpose of pain management.
B found out about this so she went to the ICU, professed her
love for A and said that they should get married. She brought with her
a priest and they were married on the spot. B needed something from
mercury drugstore, so A went to get it. While she was crossing the
street she was hit by a car and died.
Sir: In this case B should be able to inherit from A since he was the
party in AM, thus the reason behind the article is not present.
TANTOCO 3B
Art. 902. The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to their
descendants, whether legitimate or illegitimate. (843a)
This article grants the right of representation to the legitimate and
illegitimate descendants of an illegitimate child
 This should be distinguished with article 992. In that article when
it comes to the descendants of the legitimate children the right of
representation is ONLY given to the LEGITIMATE CHILDREN
descendants.
What is the net effect of the right of representation?
 The right of representation given to descendants of illegitimate
children is broader than the right of representation that is given to
descendants of legitimate children.
 Thus an illegitimate child of a predeceased legitimate child cannot
inherit by representation, while an illegitimate child of an
illegitimate child can.
Art. 903. The legitime of the parents who have an illegitimate
child, when such child leaves neither legitimate descendants, nor
a surviving spouse, nor illegitimate children, is one-half of the
hereditary estate of such illegitimate child. If only legitimate or
illegitimate children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower survives with
parents of the illegitimate child, the legitime of the parents is one-
fourth of the hereditary estate of the child, and that of the
surviving spouse also one-fourth of the estate. (n)
Note: Illegitimate parents are excluded by any kind of descendant.
This is due to the fact that they are secondary compulsory heirs.
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Legitimate Parents Illegitimate Parents  Also called the reserva extraordinaria, tronco,
Excluded only be legitimate Excluded by ANY kind of reserva lina, reserva familiar, reserva semi-troncal,
children. children – it does not matter pseudo troncal.
WON legitimate or illegitimate.  Reversion
They are inferior to illegitimate o Was a rule that made sure that the property that went to the
parents. source.
o 2 kinds:
RESERVA TRONCAL
 Legal
Art. 891. The ascendant who inherits from his descendant any  Adoptiva
property which the latter may have acquired by gratuitous title  Any property that the adopter gave to the adopter
from another ascendant, or a brother or sister, is obliged to must go back to him upon the death of the adopted
reserve such property as he may have acquired by operation of child.
law for the benefit of relatives who are within the third degree and
 The code commission wanted to abolish all 4, but there was a
who belong to the line from which said property came. (871)
congressman that wanted to make keep reserva troncal – and this
was the only one among of the reservas that survived.
Fun fact: We call this Reserva Troncal – but this term is not mentioned
anywhere in this provision. Q: What is the purpose of Reserva Troncal
A: To bring back property to the line which it may have left due to
The reservitarios DO NOT SUCCEED from the prepositus – saying marriage. This was a way to make sure that property went back to the
this is ONLY a metaphor. The correct term is that they inherit through line from which it came from – back to the line of origin.
the special provision of reserva troncal.
Requisites for Reserva Troncal:
History: 1. The property was acquired by a descendant from an ascendant or
 Reserva brother or sister, by gratuitous title.
o This means a person that was supposed that gets a property o This should actually be person. Since if grantor is the brother
and has the obligation to preserve it to transmit it back to the or sister, then the one acquiring it is obviously not a
source. descendant.
o 2 kinds o In this case it has to be by gratuitous title, this means that
 Viudal recipient does not give anything in return.
 Also called the Reserva Ordinaria  It encompasses transmissions by donation or by
 Hre husband transfers to the wife land by gratuitous succession (of whatever kind).
title, and the wife remarries, when the wife dies the 2. The descendant dies without issue.
land that she acquired from the first marriage should o This should actually be – without legitimate issue
go to the children from the first marriage.
 Troncal

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o This is since only legitimate descendants will prevent the
property from being inherited by the legitimate ascending line
by operation of law.
3. The property is inherited by an ascendant through operation of law
o When you say operation of law this is limited to succession –
either intestate or though legitime.
 If the disposition is through testamentary disposition, then
it will not fall under RT since TD is not by operation of
law – rather it is though the will of the testator.
4. There are relatives within the third degree from which the said
property came.
Process of Reserva Troncal undergoes three transfers
1. First Transfer:
o By Gratuitous Title
o From the Origin/Mediate Source  the Prepositus
2. Second Transfer:
o By Operation of Law
 This does not include testamentary dispositions because
this is by will.
 When you say operation of law it is by legitime or
intestacy.
o From the Prepositus  the Reservista.
3. Third Transfer: from the transferee to the relatives.
Note: When you say ascendants this means that it has to go straight
up. As in to parents, or lolo or lola, great grand lolo and lola.
 It does not extend to aunts, and uncles.
Solivo vs. CA
When you talk of reserva troncal there has to be two
transmissions. In this case there was no second transmission since the
land went to the mom, then she died, then it went to the son, then he
died. In this case there was no RT since there was no transmission up.
Since there was no RT, then the property should go into intestacy.
TANTOCO 3B
We find no merit in the petitioner's argument that the estate of
the deceased was subject to reserva troncal and that it pertains to her
as his only relative within the third degree on his mother's side.
The reserva troncal provision of the Civil Code is found in Article 891
which reads as follows:
The persons involved in reserva troncal are:
1. The person obliged to reserve is the reservor (reservista)—the
ascendant who inherits by operation of law property from his
descendants.
2. The persons for whom the property is reserved are the
reservees (reservatarios)—relatives within the third degree
counted from the descendant (propositus), and belonging to the
line from which the property came.
3. The propositus—the descendant who received by gratuitous title
and died without issue, making his other ascendant inherit by
operation of law.
Clearly, the property of the deceased, Esteban Javellana, Jr.,
is not reservable property, for Esteban, Jr. was not an ascendant, but
the descendant of his mother, Salustia Solivio, from whom he
inherited the properties in question. Therefore, he did not hold his
inheritance subject to a reservation in favor of his aunt, Celedonia
Solivio, who is his relative within the third degree on his mother's side.
The reserva troncal applies to properties inherited by an ascendant
from a descendant who inherited it from another ascendant or 9
brother or sister. It does not apply to property inherited by a
descendant from his ascendant, the reverse of the situation covered by
Article 891.
Who are the parties in Reserva Troncal:
1. Origin/Mediate Source
o The transferor in the first transfer.
o This is where you stop looking where the property came from.
It does not matter of the property came from someone above
him or not.
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2. Prepositus
o The first transferee who is a descendant or sibling of the origin
3. Reservista
o The ascendant who is obliged to reserve
4. Reservetarios
o The relatives benefited.
Two Basic Rules:
1. No inquiry is to be made beyond the origin or mediate source. It
does not matter who the owner of the property was before it was
acquired by the origin.
2. All the relationships among the parties must be legitimate. This is
since the provisions of Art 891 only to legitimate relatives.
The Origin or Mediate Source
 He is either an ascendant or a brother or sister of the prepositus.
o Ascendant – may be of any degree
o Brother/Sister – There is a divergence of opinion on this.
 View One: Of the origin is a brother/sister, the
relationship must be of half-blood, since otherwise the
property would no change lines. There should be no
reserva if the fraternal relationship is of the full blood for
then it would not be possible to identify the line of origin
– whether paternal or maternal.
 View Two: It does not matter whether the fraternal
relationship is of full or the half blood. In either case a
reserva may arise. Since the law makes no distinction, we
should not make one.
The Prepositus
 He is either a descendant or a brother/sister of the origin, who
receives the property from the origin by gratuitous title.
o When it comes to RT – he is the first transferee of the
property.
TANTOCO 3B
 While the property is still with the prepositus there is as yet no
reserva.
o The reserva ONLY arises upon the second transfer.
 Consequently, while the property is owned by the prepositus he
has ALL the rights of ownership over it and may exercise such
rights in order to prevent a reserva from arising. This may done in
three ways:
1. By substituting or alienating the property
2. Bequeathing or devising it either to the potential reservistas
or to third persons
 Subject to the constraints of legitimes.
3. By partitioning in such a way as to assign the property to
parties other than the potential reservista.
 Subject to the constraints of legitimes.
The Reservista
 He is an ascendant of the Prepositus, of whatever degree.
 The reservista must be an ascendant other than the origin.
 The law is clear on this: It refers to the origin/mediate source as
another ascendant. I these two parties are the same person, then
there shall be no reserva troncal.
Scenario: A receives by donation property from his paternal Lolo. A
then dies, so the property goes to his dad. In this case is there reserva?
Answer: YES. This is since (1) the law makes no distinctions and (2)
the purpose of the reserva is not only curative but ALSO preventive –
i.e. to prevent the property from leaving the line.
The Reservitarios
 The reserva is in favor of a class, collectively referred to as the
reservatarios
 Requirements to be a reservatario:
o He must be within the third degree from the prepositus
o He must belong to the line from which the property came
 This is determined by the Origin/Mediate source.
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 There may be a third requisite: Must the reservatario also be
related to the Mediate Source?
o View 1: NO, This is since the article speaks of two lines, the
paternal and the maternal of the descendant, without regard to
subdivisions.
o View 2: YES, otherwise results would arise comeplety
contrary to the purpose of the reserva – which is to prevent the
property from passing to persons not of the line of origin.
 Reserva in favor of reservatarios as a class:
o The reserva is established in favor of a group or class: The
relatives within the third degree, and NOT in favor of specific
individuals.
 Q: Does the reserva have to be alive at the time of the reservista’s
death?
o A: NO, a person may qualify as a reservatario even if he was
conceived and born after the Prepositus’ death.
 Q: Is there a preference among the reservatarios?
o NO.
Scenario: Paternal Lolo – Donates property to the Apo
 The dad of the apo is dead, and the then the apo dies.
 Naturally this property will go to the mom – this she becomes a
reservista.
 QUESTION: Can the Paternal Lola say that she is a reservitaria?
o Ruben: The more accepted view is that of Sanchez Roman –
under his view NO – this is since the reservitario/reservitaria
MUST be of the same blood as the Origin/mediate Source.
Note: The reservetarios do not have to be alive when the prepositus
dies. BUT they have to be alive when the reservista dies.
Padura vs. Baldovino
In case of RT where the only reserves surviving the reservita
and belonging to the line of origin are nephews, some of the fill blood
TANTOCO 3B
and some of the half blood, should the reserved properties be
apportioned among the nephews equally?
The SC said no. What reserva does is that it just designates
the class. But when it comes to the distribution within the class the
rules on intestacy shall apply.
The purpose of reserva is accomplished once the property has
devolved to the specified relatives of the lines of origin. Upon the
death of the ascendant reservista, the reservable property should pass
to the reservatarios who are closest in degree to the prepositus. What
should also be taken into consideration here is the right if
representation.
Proximity of decree and right of representation are basic
principles of ordinary intestate succession. So the rule is that the whole
blood brothers and nephews are entitled to a share double that of
brothers and nephews of half-blood.
In other words the reserva troncal merely determines the
group of relatives to whom the property should be returned. But within
that group the individual right to the property should be decided by the
applicable rules of ordinary intestate succession.
Even during the reservista’s lifetime the reservatarios can
already assert the right to prevent the reservista from doing anything
that might frustrate their reversionary right. For this purpose the can
compel the annotation of their right in the Registry of Property – even
while the reservista is alive.
The reservable property is not part of the estate of the
reservista, who may NOT dispose of them by will, so long as there are
reservatarios existing. Thus the reservatarios do not inherit from the
reservista, but from the descendant prepositus, of whom the
reservatarios are the heirs mortis causa, subject of the condition that
they must survive.
Note: We do not have here the reserva integral. Our rule is that the
reservable property should succeeded to by the reservatario who is
nearest in degree, according to the basic rules of intestacy.
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If there are several reservetarios – they do not share it by capita –
Rather you have to apply the rules of intestacy. It is AS IF they are
inheriting intestate from the prepositus.
 Note this is as if since they really do not inherit though intestate
succession.
 What rules may apply?
o Nearer exclude the farther
o 2:1 ratio of full blood and half blood
o Rule of preference of the direct line over the collateral line.
 Ex. Grandfather is preferred over the brother – since this
is the direct line.
o Right of Representation.
You cannot use 891 to determine the preference of the reservetarios of
the same degree, this is since 891 does not concern itself with this. As
a matter of fact 891 just concerns itself to making sure that the property
does not leave the line.
 Thus to remedy this you have to go to the rules of intestacy.
 Thus it is as if they inherit through intestacy.
Note: Even if the property is acquired though legitime – it may still
fall under reserva.
Representation among the reservatarios:
 The rule on preference of degree among reservatarios is qualified
by the rule of representation.
 There will only be ONE instance of representation among the
reservatarios
o This is the case of the prepositus being survived by his
brothers/sisters, and children of a predeceased or
incapacitated brother or sister.
TANTOCO 3B
Florentino vs. Florentino
There are relatives of the descendant within the 3rd degree,
the right of the nearest relative (R'io), over the property which the
R'ista should return to him, excludes that of the one more remote.
The right of representation cannot be alleged when the one
claiming the same as a Reservatario is not among the relatives within
the 3rd degree belong to the line from which the property came.
The right granted by Art 891 is in the highest degree personal
and for the exclusive benefit of the designate persons who are the
relatives within the 3rd degree. Therefore relatives of the 4th and
succeeding degrees can never be considered as reservatarios.
In short, there is a right of representation on the part of the
R'ios who are within the 3rd degree, as in the case of nephew and
nieces of the deceased from who the reservable property came. These
R'ios have the right to represent their ascendants (fathers and mothers)
who are the brothers of the said deceased person and relatives within
the 3rd degree.
If all of the relative within the third degree, of the descendant
(from whom the reservable property came) die, or disappear, the said
property becomes free property, by operation of law, and is thereby
converted into the legitime of the ascendant heir who can transmit it
at his death to his legitimate successors or testamentary heirs. This
property has now lost the nature of reservable property.
The right of representation cannot be alleged when the one
claiming the same as a reservatario of the reservable property us NOT
among the relatives within the third degree belonging to the line from
which such property came.
Thus the relatives of the fourth and succeeding degrees cannot
be considered as reservatarios. Nevertheless there is a right of
representation on the part of the reservatarios who are within the third
degree mentioned by law, as in the case of nephews of the decease
person from whom the reservable property came. These reservatarios
hae the right to represent their ascendants who are the brothers and
sisters of the deceased person and relatives within the third degree.
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CONCLUSION: You have the right to represent a
reservatario, but the person who is representing the reservatario must
also be within the third degree. If the person representing is beyond
the 3rd degree, then there is no more reserva.
Reserva is Juridical in nature
 This can be seen from 2 views, one from the reservista and the
other for the reservatarios.
Nature of the Reservista’s Right
From Edroso the following can be derived:
1. The reservista’s right over the reserved property is one of
ownership
2. The ownership is subject to a resolutry condition.
o I.e. the existence of reservatarios at the time of the reservista’s
death
o What is the resolutory condition?
 The survival of reservatarios when the reservista dies.
o Why
 Because it is not sure that there will be reservatarios when
the reservista dies – this is something that is uncertain. It
may happen that the reservista dies and there are no
reservatarios
o Why is is resolutory?
 Brcause the happening of the condition suspends the right
 Because of there are no more reservatarios when the
reservista dies – then the right that is given by reserva
troncal is extinguished.
 But if ther are reservatarios at the time when the
reservataria dies, then the right given by reserva is present
is alive.
3. The right of ownership is alienable – but subject to the same
resolutory condition.
4. The reservista’s right of representation is registrable.
o If real property
TANTOCO 3B
Edroso vs. Sablan
Husband died, so the son got his property, then the son died,
as a result of this the property passed to the mom. While the mom had
the property the siblings of the dad were claiming the property.
The mother was saying that the property was hers. The SC
said NO, since the lands had passed into the possession of the mother
through operation of law and not through testamentary disposition or
other form of willful transfer of property. The legal presumption is that
the transfer of the two parcels of land was abintestate or by operation
of law, and NOT by the will or the wish of the predecessor in interest.
The ascendant who inherits from a descendant, whether by the
latter’s wish or by operation of law, acquires the inheritance by virtue
of a title perfectly transferring absolute ownership. All the attributes
of the right of ownership belong to him exclusively – use, enjoyment,
disposal, and recovery. This absolute ownership which is inherent in
the hereditary title, is not altered in the least, if there be no relatives
within the third degree in the line from which the property proceeds,
or they die before the ascendant heir who is the possessor and absolute
owner of the property. If there should be relatives within the third
degree from which the property comes, then there will be a limitation
to that absolute ownership.
The reservista is not a usufructury since he does not have a
right to dispose of the property. This is different from a reservista since
the reservista can dispose of the property they inherit. While the
property is in the hands of the reservista the reservatarios cannot
perform any act whatsoever of disposal or recovery.
If the reservista alienates the property - the alienation is valid,
although not altogether effective, BUT under a condition subsequent:
That at the death of the reservista there are no reservatarios. Thus in
this case the reservatarios cannot impugn the alienation of the
reservista – so long as the condition subsequent is pending. But if the
reservista dies, and the reservatario is still alive, then the condition
subsequent never occurred. Thus the reservitario must outlive the
reservista.
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Conclusion: The person required to reserve has all the rights
of use and usufruct, But he even has more since he was legal title and
dominion – although under a condition subsequent.
Clearly the reservista has the power to dispose of the property
that he has acquired, although under a condition. He even has the right
to recover it, because he is the one who possess or should possess it.
After the right required by law to be reserved has been assured, he can
do anything that a genuine owner can do.
On the other hand relatives within the third degree cannot
dispose of property because:
1. He is in no way either actually, constructively, or formally in their
possession
2. Because they have no title of ownership or of fee simple which
they can transmit.
But the person in whose favor the reservation is for has the right
to have this right registered in the registry of property. But this person
dare to dispose of even nothing more than the fee simple of the
property to be reserved, his act shall be null and void. This is since the
nature and scope of the right required by law to be reserved the extent
of this right cannot be forseen, for it may disappear by his dying before
the person required to reserve it, just as it may even become absolute
should that person die.
Thus no act of disposal inter vivos of the person required by law
to reserve the right can be impugned by him in whose favor it is
reserved, because such person has all the rights inherent in
owenership. EXCEPT the legal title is burdened with a condition that
the third party acquirer may ascertain from the registry in order to
know that he is acquiring a title subject to a condition subsequent.
The person required to reserve the right has all the rights inherent
in ownership. He may use, enjoy, dispose of and recover it. He is in
fact and in law the real owner and can alienate it, although under a
condition.
Ruben: A property can go to an heir through a combination of
compulsory and intestate succession. Ex: You are a compulsory heir
and the decedent has no will – so you get your legitime through
intestate succession.
Nature of the Reservetario’s Right
From Sienes the following can be derived:
1. The reservatarios have a right of expectance over the property
2. The right is subject to a suspensive condition
o That the expectancy ripens into ownership if the reservatarios
survive the reservista.
o What is the condition?
 The survival of reservatarios when the reservista dies.
o Why is it a condition?
 Because it is not sure.
o Why is it suspensive?
 Because the happening of the condition creates the right.
3. The right is alienable, but subject to the same suspensive
condition.
4. The right is regeistrable.
o If registered real property.
o If not real property then it is NOT registrable.
 E.x. if it is a ring, then you cannot. Why? Because there
is no such thing as a ring registry.
 So the right can be registered if the property can be
registered.
Since both rights are registrable, will there be two titles?
 NO! You just annotate it to the title. The reservista and the
reservatarios do not get separate titles.
Sienes vs. Esparcia
In connection with reservable property, the weight is that the
reserva creates two resolutory conditions:
1. The death of the ascendant obliged to reserve
2. The survival, at the time of his death, of relatives within the third
degree belonging to the line from which the property came.

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A reservista has legal title and dominion to the reservable property
but subject to a resolutory condition – i.e. that he is like a usufructury
of the reservable property, but subject to the reservation. In the event
that he alienates it, then what is transmitted is only the revocable and
conditional ownership of the reservista. Thus the rights of the
transferee will be revoked or resolved by the survival of the
reservatarios at the time of the death of the reservista.
REMEMBER: In Reserva Troncal ALL the relationships must be
LEGITIMATE.
Q: Can the reservista appoint by will which reservatarios were to get
the reserved property?
A: NO. this was given in the case of Gonzales vs. CFI.
Gonzales vs. CFI
In reserva troncal (1) a descendant inherited or acquired by
gratuitous title property from an ascendant or from a brother or sister;
(2) the same property is inherited by another ascendant or is acquired
by him by operation of law from the said descendant, and (3) the said
ascendant should reserve the said property for the benefit of relatives
who are within the third degree from the deceased descendant
(prepositus) and who belong to the line from which the said property
came.
So, three transmissions are involved: (I) a first transmission by
lucrative title (inheritance or donation) from an ascendant or brother
or sister to the deceased descendant; (2) a posterior transmission, by
operation of law (intestate succession or legitime) from the deceased
descendant (causante de la reserve) in favor of another ascendant, the
reservor or reservista, which two transmissions precede the
reservation, and (3) a third transmissions of the same property (in
consequence of the reservation) from the reservor to the reservees
(reservatarios) or the relatives within the third degree from the
TANTOCO 3B
deceased descendant belonging to the line of the first ascendant,
brother or sister of the deceased descendant.
If there are only two transmissions there is no reserva. Thus,
where one Bonifacia Lacerna died and her properties were inherited
by her son, Juan Marbebe, upon the death of Juan, those lands should
be inherited by his half-sister, to the exclusion of his maternal first
cousins. The said lands are not reservable properties.
In this case the decedent bequeathed to her grandchildren the
property which she inherited from her daughter, thus it was reservable
property. REMEMBER: the reservista cannot make a disposition
mortis causa of the reservable properties as long as the reservatarios
survived the reservista. The reservatarios inherit the reservable
properties from the prepositus, NOT from the reservor.
To allow the reservista in this case to make a testamentary
disposition of the reservable properties in favor of the reservees in
the third degree and, consequently, to ignore the reservees in
the second degree would be a glaring violation of article 891. That
testamentary disposition cannot be allowed.
Note: the reservista may be half-brothers or sisters.
So what is the rule?
 The rule in this jurisdiction is that upon the reservista’s death, the
property passes by strict operation of law to the proper
reservatarios – according to the rules of intestate succession.
 Thus the selection of which reservatarios will get the property is
made my law and not by the reservista.
Property Reserved
Q: What is the kind of property that is reserved?
A: Any Kind. As a matter of fact in one case a sugar quota, which is
an intangible property, was held to be reservable.
 Provided that it can be identified.
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Q:What is the effect of substitution (i.e. getting rid of the property)?
A: The very same property must go through the process of
transmissions, described above, in order for the reserva to arise. Thus
the self-same property must come from the mediate source, to the
prepositus by gratuitous title, and to the reservista by operation of law.
 If the prepositus substitutes the property by selling, bartering, or
exchanging it, the substitute cannot be reserved.
 While the property is with the prepositus there is yet no reserva –
which commences only when the property is received by the
reservista.
 Consequently the prepositus has plenary powers of ownership
over the property, and he may exercise these powers of ownership
and he may exercise these powers to thwart a potential reserva.
o The prepositus is the arbiter of the reserva.
The reserved property is not part of the reservista’s estate.
Cano vs. Cano
In this case the reservista died, and the reservatario said that
the property should now go to him. This was granted by the director
of lands. The hiers of the reservista said that this is not allowed, since
the ownership of the reservatario cannot be decreed in a mere
proceeding, rather there has to be a judicial administrative proceeding.
In this case he land to whom the property went was the daughter, the
oppositors were the grandchildren. The SC said that the nearer exclue
the more remote.
The only requisites for the passing of the title from the
reservistas to the appellee are:
1. The death of the reservista
2. The fact that the reservatario has survived the reservista.
Here the oppositors say that there is a need for intestacy procedings.
They are incorrect. The reservatario is not the reservista’s successor
mortis causa nor is the reservable property part of the reservista’s
estate.
The reservatario receives the property as a conditional heir of
the descendant (prepositus), said property merely reverting to the line
TANTOCO 3B
of origin from which it had temporarily and accidentally strayed
during the reservatarios that survive the reservista, the latter must be
deemed to have enjoyed no more than a life interest in the reservable
property.
Upon the death of the reservista the reservetarios become the
owners of the reservable property by operation of law. That property
is no part of the estate of the reservista, and he does not even answer
for the debts of the latter. Thus there is no need for a separate
proceeding to declare the reservatarios the owners, and the ownership
may be entered already in the registry of property.
BUT: if the registration decree merely specifies the reservable
character of the property, WITHOUT (1) determining the identity of
the reservatario or, (2) where several reservatarios dispute the property
among themselves – Further proceedings would be unavoidable.
Ruben: It may even happen that the reservista’s sole property is the
reserved property. In this case the reservista will die without anything.
Thus the compulsory heirs will not have any legitime.
Reserva Maxima and Reserva Minima
Note: A problem will arise if two circumstances concur:
1. The prepositus makes a will institutiong the ascendant-reservista
to the whole or a part of the free portion.
2. There is left in the Prepositus’ esate, upon his death, in addition to
the reserved property, property NOT reservable.
Two Possible Solutions:
1. Reserva Maxima
o As much of the potentially reservable property as possible
must be deemed included in the part that passes by operation
of law.
2. Reserva Minima (this is what we follow more, but pwede both)
o Every single property in the Prepositus’ estate must be
deemed to pass, partly by will and partly by operation of law,
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in the same proportion that the part given by the will bears to
the part not so given.
Rights and obligations of the reservatario and reservatario:
1. To inventory the reserved properties
2. To annotate the reservable character in the registry of property
o Within 90 days from acceptance by the reservista.
3. To apprise the movables
o It has to be appraised by someone qualified.
o The reservatarios may compel the reservista to have the
movable appraised.
4. The secure by means of mortgage
o The indemnity for any deterioration of or damage to the
property occasioned by the reservista’s fault or negligence.
o There must be some sort of security that is placed by the
reservista to answer for any damage that the reservista may
cause
 Now, you may also use a bond in lieu of the mortgage.
Note: it is unsure whether or not the obligations that are stated above
are still applicable. All that is sure is the obligation to annotate.
Note: Upon demand of the reservatarios, the reservista is obliged to
annotate on the title the reserva. PD 1529 says that you must annotate
all lens and encumbrances – Reserva is a lien or encumbrance over the
property.
Ruben: the view of most of the commentators, is that the keeping of
the troncal we also kept all the jurisprudence that went along with it.
And in the jurisprudence of the troncal say that the obligations that are
present in the troncal include those that are in the viudal.
Note: The person who is obliged to reserve has the obligation to
annotate in the registry of property the reservable character of the
property. In reserva troncal, the reservoir has the duty to reserve and
therefore, the duty to annotate also (Sumaya vs. IAC). But this case
TANTOCO 3B
was silent as to (1) within what period must the annotation be made,
(2) whether the other requirements of the old viudal remain.
Ruben: What we have here is the problem of the maxima and the
minima – this is best explained by an example
These are competing theories on the principles of the RT. So when do
they apply and compete? Let’s take an example:
SC 1
Let us say the prepositus inherits or acquires by GT a piece of property
from the mediate source. It is worth 4M pesos. It is also the only
property that the prepositus owns. He then dies without legitimate
issue – so this is his only estate, he dies without a will. So his net estate
is 4M pesos.
Now this whole property goes up to the mom by legitime – so 1/2. The
other half also goes to the mother through intestacy – so the whole
things goes to the mom. ½ by legitime, ½ by intestacy – so the whole
thing goes to the mother by operation of law.
So... What is reservable property? ALL 4M – so the whole estate.
SC 2
So what if the son gives to the mother ½ of the estate to the mother
THROUGH A WILL. So ½ will go to the mom through legitime, and
the other ½ will go to the mom by will.
So legitime – Reserved
Will – Not reservable.
SC 3
What if in addition to the property that is 4M the son has a property
has a property worth 6M – which he bought with his own money.
In this case the son has an aggregate estate of 10M and if he dies
without a will everything will go to the mom – as in SC 1. Thus the
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entire estate goes to the mom by operation of law. The 4M prop goes
to the mom by RT, BUT the 6M property goes to the mom but is NOT
reservable property (but this 6M prop still goes by operation of law).
Dispute: What if the prepositus makes a will – which he says that the
mother will get ½ of the estate. So when he dies – 5M will go through
intestate, and 5M will go by will. So the question now is how you will
apportion the RT.
View 1: Reserva maxima: the RT is there in order to be complied with
– therefore the only property that you can possible conclude is that the
RT property is the 4M prop. So you maximize the RT – so you fit as
much of it in the portion of RT. So OL = 5M, so sik sik as much as you
can in the 5M – so in this the WHOLE 4M goes into the RT.
View 2: Reserva Minima: It says that since ½ is given by will and ½ is
given by OL – so you should just follow the division.
Division – 4 M prop – 2M OL, 2M will
6M property – 3M OL, 2M will.
In this case only the 2M value in the 4M property is reservable
property
What if we reverse the values:
Reservable property – 6M
Property of Son – 4M
Maxima – Fit all as you can in the property that goes to a person by
operation of law – ½ is 5M, the reservable property is 6M. So under
Maxima only 5/6 of the reservable property will be reserved. So 5M.
What if we differ the proportion? (Contemplating Minima)
Reservable property – 4M
Property of Son – 6M
I give to my mom ¼ - through will.
So in this case ½ by legitime, ¼ by will, ¼ by intestacy
TANTOCO 3B
In this case 3/4 ths is transferred by operation of law.
So reservable property: 4M – ¾ ths of the property is reservable, and
¼ ths is not. So 3M reservable, and 1M not reservable.
Extingushment of the Reserva
1. Death of the reservista
o If there are reservatarios when the reservista dies, then the
property goes to the reservatarios according to the rules of
intestacy.
2. The death of ALL the reservatarios. (JBL)
o If one subscribes to the theory that the reservista can belong
to the line of origin as the reservatario – then this will NOT
ipso facto extinguish the reserva since the reservista could
have a child subsequently, who would be a reservatario.
(MANRESA).
3. Renunciation by ALL the reservatarios
o Provided that NO other reservatario is born subsequently.
4. Total fortuitous loss of the reserved property.
o It must be total and fortuitious
o If the loss is only partial, then there will be reserva as to the
remainder.
5. Confusion or merger of rights, as when the reservatarios acquire
the reservista’s right by a contract inter vivos.
6. Prescription/adverse possession
Art. 904. The testator cannot deprive his compulsory heirs of their
legitime, except in cases expressly specified by law.
Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever. (813a)
Notes:
 This article reiterates the principle that the legitime is not within
the testator’s control. It passes to the compulsory heirs by strict
operation of law.
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Does the testator have the power to deprive compulsory heirs of
legitime?
 GR: It is the law and not the testator which determines the
transmission of the legitimes.
o Consequently it is not within the testator’s power to deprive
the compulsory heirs of their legitimes.
 EX: The only instance in which the law allows the testator to
deprive the compulsory heirs of their legitmies is disinheritance.
o This is the ONLY case where a testator may deprive an heir
of his legitime.
Can the testator impose burdens on legitime? GR: NO. But 2 EX.
 There are 2 instances when the testator has some power over the
legitime:
o Art: 1028 par 1: This is where a parent who wants to keep any
agricultural. Industrial, or manufacturing enterprise intact
may say that the legitime of the other children, to whom the
property is not assigned, to be paid in cash.
 In this case you are not breaking up the legitime, rather
you are preserving a particular property.
 This is not impairing it, it is just partitioning it – i.e.
forming what goes to whom.
o Art. 1083 par 1: “Every co-heir has a right to demand the
division of the estate unless the testator should have expressly
forbidden its partition. In which case the period of indivision
shall not exceed 20 years as provided in 494. This power of
the testator to prohibit division applies to legitime.
 The testator as a general rule cannot impose conditions or burdens
on the legitime – the only exceptions are those above. Note that
these exceptions are not to break apart legitimes, rather they are to
keep properties intact.
TANTOCO 3B
What are the restrictions that are imposed on the legitime by law?
 Art. 158 (FC): “The family home shall continue for a period for
10 years or for as long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of whoever owns
the property or constituted the family home.
 Reserva Troncal
o The reserva troncal can operate to deprive a person of their
legitime – i.e. if the legitime is reserved property, thus the
property shall go to the reservatarios.
Art. 905. Every renunciation or compromise as regards a future
legitime between the person owing it and his compulsory heirs is
void, and the latter may claim the same upon the death of the
former; but they must bring to collation whatever they may have
received by virtue of the renunciation or compromise. (816)
Every renunciation or compromise by the predecessor and the
compulsory heir over the legitime is VOID – there is no estoppel
between them. This agreement is void talaga.
Scenario 1
What if Canoy wants to put up a Jollibee – a Jollibee is worth 40M,
but he has only 20M. Instead of going to a bank he goes to his daddy
and asks 20M from the dad. And canoy says that so that there is no ill
will from the siblings he waives his legitime from the dad. So the dad
agrees and gives the 20, subject to the agreement that the legitine is
waived.
Not the dad dies, and the devil enter’s canoy’s heart – and now he files
a claim with the estate of the father since the supposed legitime of each
child is 50M. The siblings of canoy were saying that wala na kasi may
kasunduan kayo ni papa. Thus he cannot claim.
Canoy can still claim since 905 is on his side – but in this case Canoy
cannot claim 50M, rather he can only claim 30M. What he received
earlier shall be subtracted from the earlier donation. IN this case that
original 20M shall be treated as a donation.
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Scenario 2
What if Canoy made an agreement with his brother Dennis – who is
loaded. So he goes into a deal with his borhter and says that Dennis
gives him 20 M and Canoy will waive his legitime in favor of Dennis.
Now the dad dies, Canoy says that the waiver is void, Dennis says no
since 905 is between the decedent and the compulsory heir. But canoy
can use 1347 – that a person cannot enter into a contract regarding
future inheritance. Any renunciation during the lifetime of the
predecessor is VOID.
What is the reason for the Rule?
 Before the predecessor’s death, the right of the heirs is simply
inchoate.
What is the Duty to Collate?
 Any property which the compulsory heir may have gratuitously
received from his predecessor by virtue of the renunciation or
compromise will be considered an advance on his legitime.
What is the scope of the Prohibition?
 The article applies ONLY to transactions of compromise or
renunciation between the predecessor and the prospective
compulsory heir.
Q: Is a transaction between the prospective compulsory heir and
another prospective compulsory heir or between a prospective
compulsory heir and a stranger interdicted/prohibited?
A: YES – but by article 1347: “No contract may be entered into upon
future inheritance except in cases expressly authorized by law”.
Art. 906. Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may demand that
the same be fully satisfied. (815)
TANTOCO 3B
Notes:
 This article ONLY applies to transmissions by gratuitous title.
So when this article says “any tite” its meant to be GT.
 This is known as the right of completion of legitime – accion
supienda legitima
o So any donation inter vivos that I given to you is regarded as
legitime – but if what is given to you is less than your legitime,
you have the right of completion.
 See with:
o 855: “The share of a child or descendant omitted in a will must
be first taken from the part of the estate not disposed of by
will, if any, if that is not sufficient, so much as may necessary
must be taken proportionately from the shares of other
compulsory heirs.”
o 909: “Donations given to children shall be charged to their
legitime.”
o 910: “Donations which illegitimate children may have
received shall be charged to his legitime.”
What is the principle underlying this article?
 Anything that a compulsory heir receives by gratuitous title from
the predecessor is considered an advance on the legitime and is
deducted therefrom.
 Exceptions:
o Art 1062 – If the predecessor gave the compulsory heir a
donation inter vivos and provided that it was not to be charged
against the legitime
o Art 1063 – Testamentary dispositions made by the
predecessor to the compulsory heir, UNLESS the testator
provides that it should be considered as part of the legitime.
Art. 907. Testamentary dispositions that impair or diminish the
legitime of the compulsory heirs shall be reduced on petition of the
same, insofar as they may be inofficious or excessive. (817)
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This article states that if:
 The testamentary dispositions that impair or diminish the legitime
of the compulsory heirs
 This shall be reduced on petition of the same
 Insofar as the dispositions may be inofficious or excessive.
Art. 908. To determine the legitime, the value of the property left
at the death of the testator shall be considered, deducting all debts
and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value
of all donations by the testator that are subject to collation, at the
time he made them. (818a)
Sir: 908 is as important as 777. What this article gives is the NET
ESTATE. Dito mo iaaply lahat ng fraction fraction.
What is the net hereditary estate?
 883-903 set forth the legitimes of the compulsory heirs. These
articles give proportions by which the heirs are to inherit. This is
why 908 is needed. This article makes possible the computation
of the absolute amounts of the legitimes by laying down the
manner of computing the net value of the estate on which the
proportions are based.
How do you compute the Net Hereditary Estate?
 The Process has three steps:
1. Inventory  Gives you the Gross Assets
2. Deducting unpaid debts and charges  Gives Available
Assets
 These may be due or not yet due. Basta they are not yet
paid, you deduct it.
3. Adding the value of donations inter vivos.
 The value is the value at the time that the donation is made
TANTOCO 3B
Inventory – Gives you the gross assets.
1. This will involve an appraisal/valuation of these existing assets at
the time of the decedent’s death
2. Assets include only those properties that survive the decedent –
i.e. those which are not extinguished by his death.
3. The value determined by this inventory will constitute the gross
assets
Deducting unpaid debts and charges – this gives the available assets.
1. All unpaid obligations of the decedent shall be deducted from the
gross assets.
2. Only those obligations with monetary value
o Which are not extinguished by death are considered here.
o Thus those obligations which are purely personal are not taken
into account.
3. The difference between the gross assets and the unpaid obligations
will be the available assets.
Adding the value of the donations inter vivos – this gives you the net
hereditary estate.
1. All the donation inter vivos made by the decedent should be
added.
2. The donations shall be valued as of the time they were respectively
made.
o Any increase or decrease in value from the time they were
made to the time of the decedent’s death shall be for the
donee’s account. This is since the donation transfers
ownership to the donee.
3. The sum of all available assets and all the donations inter vivos is
the net hereditary estate.
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Ruben: It is at the point when you have the net estate that you can now Should they exceed the portion that can be freely disposed of, they
determine the exact amount of the legitimes. shall be reduced in the manner prescribed by this Code. (847a)

E.x. 100 inventory, deductible 20, 40 donations = NE = 120. Ruben: This is incomplete – this article covers ALL donations that are
 But in reality you do not have 120, you have only 80. made to any compulsory heirs, and not just children.
 So the donations that are made from compulsory heirs shall be
Vizconde vs. CA deducted from their legitime. This is why they can ONLY ask for
Collation is the act by virtue of which descendants and other completion of legitime.
forced heirs bring into the common mass, the property which they
received from the predecessor, so that the division may be made Ruben: In simple terms – any person who is not a compulsory heir is
according to law and the will of the testator. a stranger.
Collation is required only of compulsory heirs succeeding  The donations that are made to strangers are taken from the free
with other compulsory heirs. It also involves only properties received portion.
by donation or gratuitous title during the lifetime of the decedent.  In case the donations to third persons are in excess of the free
The purpose is to attain equality among the compulsory heirs. portion, then they shall be reduced.
Collation does not impose any lien on the property. What is
brought to collation is not the property donated itself, but rather the 909: Donations given to 910 : Donations Given to
value of such property at the time it was donated. The rationale is that Children and Compulsory Strangers
donation is a real alienation which conveys ownership upon Heirs
acceptance. Shall be charged to their It shall be charged to that part of
Collation applies only to property given to compulsory heirs legitime the estate of which the testator
of the decedent. could have disposed by his will.
Legitimes can NEVER be In so far as they may be
Art. 909. Donations given to children shall be charged to their impaired. inofficious or may exceed the
legitime. disposable portion, they shall be
reduced according to the rules
Donations made to strangers shall be charged to that part of the
established in this code
estate of which the testator could have disposed by his last will.
Applies to whom: Applies to whom:
Insofar as they may be inofficious or may exceed the disposable
 Donation inter vivos to ALL  A stranger is anyone who is
portion, they shall be reduced according to the rules established compulsory heirs are not a compulsory heir – ex.
by this Code. (819a) imputed to the legitime Brother or sister
o Applies to descendants
Art. 910. Donations which an illegitimate child may have received AND ascendants. Donations to strangers are
during the lifetime of his father or mother, shall be charged to his imputed to the free portion
legitime.

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Note: The spouses are They may also be reduced if

prohibited from donating to they impair the legitimes. What is the method of Reduction (in this order)?
each other during the marriage. 1. Reduce Pro Rata the non-preferred legacies and devises, and the
EXCEPTION: Note: Donations to illegitimate testamentary dispositions the heirs.
Art 1062: If the testator provides children are subject to reduction o Among these legacies, devisees, and testamentary
otherwise, that the donation will should they exceed the free dispositions there is no preference
not be counted or imputed in the portion. o How do you reduce them?
legitime.
 You start with the testamentary dispositions which are
non-preferred: You reduce them proportionately and to
What happens here?
In this case this donation is the extent that you need.
imputed to the free portion.  So once the values do not impair the legitime you stop
na. If the legitimes are not yet covered then reduce –
Art. 911. After the legitime has been determined in accordance even up to zero.
with the three preceding articles, the reduction shall be made as 2. Reduce pro rata the preferred legacies and devises
follows: o You go to this step when you have exhausted na the non-
(1) Donations shall be respected as long as the legitime can be preferred L and D’s.
covered, reducing or annulling, if necessary, the devises or 3. Reduce the donations inter vivos according to the inverse order of
legacies made in the will; their dates.
(2) The reduction of the devises or legacies shall be pro rata, o i.e. the oldest is the most preferred.
without any distinction whatever. o Prius in tempore… (prior in time stronger in right).
If the testator has directed that a certain devise or legacy be paid o You go to this step once you exhaust the preferred legacies
in preference to others, it shall not suffer any reduction until the and devisees.
latter have been applied in full to the payment of the legitime. o In this case you DO NOT reduce pro rata – rather you exhaust
(3) If the devise or legacy consists of a usufruct or life annuity, the donations based on when they were made.
whose value may be considered greater than that of the disposable
portion, the compulsory heirs may choose between complying Q: Is there an instance when you reduce everything, but you still
with the testamentary provision and delivering to the devisee or impair the legitime?
legatee the part of the inheritance of which the testator could A: YES – In cases when there is a concurrence of legitimate and
freely dispose. (820a) illegitimate children. In these cases there may be no free portion and
you still have to give the legitime of the illegitimate children, and they
This article gives you the way reduce the donations or the testamentary are super many. In this case you reduce the shares of the illegitimate
dispositions that are made which exceed the free portion. children.
 Remember – all donations and testamentary dispositions should  Ex. 1 LC, 5 IC.
not go past the free portion. This is since this would mean that it o LC – ½
would start infringing on the legitime.
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o 1 IC – ¼, but they are 5, so it ends up 5/4, but you only have
2/4 left since ½ is to the LC, here you have to reduce.
Note: Do not forget: This contemplates that the legitimes have been
given already. This is since you only know the free portion once the
legitimes are given to the heirs.
Note: These reductions shall be to the extent required to complete the
legitimes – even if in the process the disposition is reduced to nothing.
When it comes to Devises/legacies of Usufructuries/life
Annuties/pensions the FF should be borne in mind:
1. If the value of the grant exceeds the free portion – it has to be
reduced sicne the legitime cannot be impaired.
o This presupposes the grant has been capitalized according to
actuarial standards.
2. The testator cannot impose any usufruct or any other encumbrance
on the part that passes as legitime.
3. Subject to the 2 above, the compulsory heirs may elect between:
o Ceeding to the devisee/ legate the entire free portion
 Or the proportional part thereof corresponding to the
devise/legacy, in case there are other dispositions
o Comply with the terms of the usufruct or life annuity or
pension.
Art. 912. If the devise subject to reduction should consist of real
property, which cannot be conveniently divided, it shall go to the
devisee if the reduction does not absorb one-half of its value; and
in a contrary case, to the compulsory heirs; but the former and
the latter shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the entire
property, provided its value does not exceed that of the disposable
portion and of the share pertaining to him as legitime. (821)
TANTOCO 3B
Note: This article covers the case where:
1. The devise has to be reduced AND
2. The thing that is given is indivisible.
Rules:
1. If the extent of the reduction is LESS THAN ½ of the value of the
thing – It should be given to the devisee.
2. If the reduction is ½ or more of the value of the thing – it should
be given to the compulsory heir.
Note: In either case there should be pecuniary reimbursement to the
party who did not get his physical portion of the thing devised.
What happens if the devisee is also a compulsory heir?
 He may retain the property provided that its value does not exceed
that of the disposable portion and his legitime.rrr
Art. 913. If the heirs or devisees do not choose to avail themselves
of the right granted by the preceding article, any heir or devisee
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. (822)
When does this article apply/come into effect?
 This article applies if neither party elects to exercise his right
under 912
 This article is called “Constructive Partition”
In this case how is the thing devised supposed to be disposed of?
1. Any other heir who elects to do so – may acquire the thing and
PAY the parties their respective share in money.
o The parties here are the compulsory heir, and the devisee.
o Note: It is heir or devisee, thus the right is not just limited to
the heirs.
2. If no heir or devisee elects to acquire it – it shall be sold at public
auction.
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o The net proceeds shall be divided between the parties  NOTE: Conditional as to the compulsory heirs with
concerned. regard to disinheritance.
 Remember: you can have conditional dispositions.
Note: this rule of constructive partition is similar to that in co- 7. It must be total (Manresa)
ownership and in partition of a decedent’s estate. EXCEPT in these o You cannot say that I only don’t want to give ½ of the
two cases the by one of the co-owners can be done ONLY if ALL the legitime. There can be NO partial disinheritance.
co-owners or co-heirs agree to such acquisition.
Note: The laws are strict since it indicates the policy of the law that
Art. 914. The testator may devise and bequeathe the free portion disinheritance is disfavored.
as he may deem fit. (n)
What is the effect of Disinheritance?
 The effect of disinheritance is not just a deprivation of the legitime
SECTION 6. - Disinheritance but total exclusion of the disinherited heir from inheritance. Thus
Art. 915. A compulsory heir may, in consequence of he forfeits:
disinheritance, be deprived of his legitime, for causes expressly 1. Legitime
stated by law. (848a) 2. Intestate portion
3. Testamentary dispositions made in the prior will of the
GR: The testator cannot deprive the compulsory heirs of their legitime. disinheriting testator.
EX: DISINHERITANCE – Disinheritance is the only instance in
which the testator may deprive his compulsory heirs of their legitime. Art. 916. Disinheritance can be effected only through a will
 This is the only instance when the testator may deprive his wherein the legal cause therefor shall be specified. (849)
compulsory heirs of his legitime.
Clauses in the article:
Requisites of a valid disinheritance: 1. Made in a will
1. Must be made in a will (916) o This constitutes the first element of disinheritance, it must be
2. Must be for a cause specified by law (916, in relation to 919-921) made in a will.
3. The will must specify the cause (916 and 918) o The will must be formally valid and it must be admitted to
4. The cause must be true (918) probate.
5. If the truth is denied, then it must be proved by the proponent(917) 2. Legal Cause
6. It must be unconditional (Manresa) o This means that the disinheritance must be due to one of the
o The disinheritance must be unconditional. If it is based on a causes that are mentioned in 919-921
condition, then it is NOT a valid disinheritance.
o Ex. I revoke the inheritance of Diana if she does not apologize Art. 917. The burden of proving the truth of the cause for
to me within three months. disinheritance shall rest upon the other heirs of the testator, if the
disinherited heir should deny it.(850)
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Q: Who has the burden of proof in proving a cause of disinheritance?
A: The heirs of the testator who maintain that there is a valid
disinheritance. It is sufficient for the disinherited heir to say that he
was invalidly disinherited, then the burden will automatically shift to
the heirs.
Art. 918. Disinheritance without a specification of the cause, or for
a cause the truth of which, if contradicted, is not proved, or which
is not one of those set forth in this Code, shall annul the institution
of heirs insofar as it may prejudice the person disinherited; but
the devises and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitime. (851a)
When the testator decides that he wants to disinherit an heir, he must:
1. Specify a Cause
2. The cause must be true
o If the testator does not prove that the cause is true, this shall
annul the institution of the heirs as it may prejudice the person
disinherited.
o But the other testamentary dispositions shall be valid insofar
as they do not impair the legitime.
What is Ineffective Disinheritance?
 If the disinheritance lacks one of the requisites that are mentioned
in this article, then the heir gets his legitime.
 With regard to the intestate portion, then it depends.
o If the testator gave away the free portion through testamentary
dispositions – then none.
o If there was no testamentary disposition – then the heir gets
also his intestate portion.
Preterition Disinheritance
In preterition it annuls the In disinheritance it annuls the
institution of an heir. institution of an heir.
TANTOCO 3B
The devisees and legates will The D, L and other testamentary
still be operative as long as they dispositions will still be
do not infringe on the legitime. operative as long as they do not
infringe on the legitime.
Art. 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more,
if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to change
one already made;
(5) A refusal without justifiable cause to 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. (756, 853, 674a)
Note: When it comes to disinheritance, the causes that are stated here
are exclusive, as long with those in 920 and 921. There may be others
which are more heinous, but the law is strict, so these are the only
grounds.
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What are the grounds for the disinheritance of a CHILD or
DECENDANT?
1. *C/D has been found guilty of an attempt against the life of the
testator, his spouse, descendants or ascendants.
o The word attempt here is used non-technically, thus it is not
the same as the attempted stage when it comes to felonies.
 It may fall under any stage
o Felony – this must be an intentional one
o Here it does not matter that you are a principal, accomplice,
or accessory.
o There must be a conviction by final judgement.
2. C/D has accused the testator of a crime for which the law
prescribes imprisonment for 6 years or more – if the accusation
has been found to be groundless
o What are the operative elements?
1. There is an accusation by the heir of a crime against the
testator.
2. The crime must be punished by imprisonment of 6 (more
than) years or more.
3. It must have been found to be groundless
 It is something that is made up and all it does is tarnish
the reputation of the testator.
o The word accused is used generically, and this will include:
 Filing of a complaint before the prosecutor
 Presenting incriminating evidence
 Or even suppressing exculpatory evidence
o Crime – must carry with it 6 yrs.
 Ruben is of the opinion that it should have been more than
6 years since this still falls under prision correctional,
which is 6 mo to 6 years.
o The testator must be acquitted
o The accusation must be found to be groundless
 i.e. that the judgement of acquittal must state:
 No crime has been committed
 Or that the accused did not commit the crime.
TANTOCO 3B
 If the acquittal is based no reasonable doubt, this will not
be a ground of disinheritance.
3. *C/D has been convicted of adultery or concubinage with the
spouse of the testator
o Final conviction is required.
4. C/D by fraud, violence, intimidation, or undue influence causes
the testator to (1) make a will or to (2) change one already made.
5. Refusal, without justifiable reasons to support the parent or
ascendant who inherits such child or descendant.
o There must have been a:
 Need AND
 Demand for support
 Must have been unjustifiably refused
 There may be times when the refusal is valid.
o There the refusal itself is not the ground – it is the fact that it
is unjustified.
6. Maltreatment by word or deed
o This will include a wide range of misdeeds, but t is required
that the act of verbal or physical assault be of serious nature.
o In this case conviction is not required, as a matter of fact you
are not even required to file a criminal case.
o Here you do not need conviction, but it has to be serious.
7. C/D leads dishonorable or disgraceful life
o The operative word = Lead = Habitual, or some idea of
continuity.
o One act will not generally suffice.
o This is not just sex, there are many things that can fall under
this that are not sexually related.
 E.x. You are a drug dealer, hitman, or a money launderer.
8. *Conviction of a crime which carries with it civil interdiction
o This is the accessory penalty if you are sentenced to Death,
RP, RT.
Note: The tricky part here is that some grounds require conviction, and
others don’t. the implication of this is that if it requires a conviction
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then you need PBRD, and some no, so a mere preponderance of
evidence would do. (* are the ones with)
Art. 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been convicted of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery
or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to change
one already made;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to 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. (756, 854,
674a)
What are the grounds for the disinheritance of a PARENT OR
ASCENDANT?
1. Parents have abandoned their children or induced their daughters
to live a corrupt or immoral life, or attempted against their virtue
o This encompasses three grounds:
1. Abandonment:
 This is not restricted to the grounds of abandonment
that are punished by the RPC – rather it includes all
TANTOCO 3B
conduct constituting a repeated or total refusal or
failure to care for the child.
 Mere acquiessence is not sufficient to constitute
abandonment – it is completely withholding presence
love, care, and the opportunity to display parental
affection, and totally deny the child support and
maintinace.
 Ruben: This means a culpable/deliberate or negligent
failure to support the child.
 Does Adoption lead to disinheritance under
abandonment?
o No – this is not culpable, as a matter of fact the
law encouraged adoption, this is since it is for the
benefit of the child.
2. Inducement to live a corrupt and immoral life:
 The terms of this article seem to only apply to
daughters, but Tolentino is of the view that it should
be made applicable to ALL female descendants.
 What about sons?
o Gender equality cuts both ways – so it should
apply.
o Furthermore – the FC makes no distinctions
3. Attempt against Virtue:
 No conviction is required.
 These are things such as Rape, abduction, Acts of
Lasciviousness, etc.
2. P/A has been found guilty of an attempt against the life of the
testator, his spouse, descendants or ascendants.
3. P/A has accused the testator of a crime for which the law
prescribes imprisonment for 6 years or more – if the accusation
has been found to be false
o Note in this article the word that is used is false, in the other
articles the word that is used is groundless. This does not have
any significant meaning, rather it is stylistic.
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4. P/A has been convicted of adultery or concubinage with the
spouse of the testator
o Final conviction is required.
5. P/A by fraud, violence, intimidation, or undue influence causes
the testator to (1) make a will or to (2) change one already made.
6. Loss of parental authority for cause specified in this code
o Not all causes for loss of parental authority are grounds for
disinheritance – for example emancipation.
o Only those causes which involve culpability on the part of the
parents will provide grounds for disinheritance:
1. Judicial Deprivation of Parental Authority
2. Loss of parental authority as a result of judicial
declaration of abandonment of the child
3. Judicial Deprivation of parental authority on the grounds
of:
a. Excessively harsh or cruel treatment of the child
b. Giving the child corrupt orders or example
c. Compelling the child to beg
d. Subjecting the child or allowing him to be subject to
acts of lasciviousness.
o There the loss of parental authority must be culpable. This is
since there are grounds that are not culpable – i.e. reaching the
age of majority.
7. 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 reconciliation.
o No conviction is required.
o If there is reconciliation between the parents, this removes the
right of the child to disinherit, OR it rescinds the
disinheritance that was already made.
Art. 921. The following shall be sufficient causes for disinheriting
a spouse:
TANTOCO 3B
(1) When the spouse has been convicted of an attempt against the
life of the testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue
influence cause the testator to make a will or to change one already
made;
(4) When the spouse has given cause for legal separation;
(5) When the spouse has given grounds for the loss of parental
authority;
(6) Unjustifiable refusal to support the children or the other
spouse. (756, 855, 674a)
What are the grounds for the disinheritance of a SPOUSE?
1. S has been found guilty of an attempt against the life of the
testator, descendants or ascendants.
2. S 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. S by fraud, violence, intimidation, or undue influence causes the
testator to (1) make a will or to (2) change one already made.
4. S has given cause for legal separation
o A decree of legal separation is NOT required, it is sufficient
that you give cause.
 Remember: the guilty spouse in legal separation shall not
be entitled to any inheritance from the innocent spouse.
o There are 10 grounds for legal separation:
1. Repeated physical violence or grossly abusive conduct
against the petitioner or their child
2. Physical violence or pressure to change religious belief
3. Attempt to corrupt or induce the petitioner or child to
engage in prostitution, or connivance in such corrupt
inducement
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4. FJ to imprisonment for more than 6 years – EVEN IF

pardoned.
5. Drug addiction or habitual alcoholism
6. Lesbian or Homosexuality
7. Subsequent bigamous marriage
8. Sexual infidelity or perversion
9. Attempt against the life
10. Abandonment, without justifiable cause, for more than
one year.
5. When the spouse has given grounds for the loss of parental
authority
o This is different from the previous article, since 920 NEEDS
the ACTUAL loss of parental authority.
o In this article it is sufficient that you give the GROUNDS for
the loss of parental authority.
6. Unjustifiable refusal to support the children or the other spouse
Art. 922. A subsequent reconciliation between the offender and
the offended person deprives the latter of the right to disinherit,
and renders ineffectual any disinheritance that may have been
made. (856)
What is the meaning of reconciliation?
 Reconciliation is either an:
1. Express pardon extended by the testator to the offending heir
 A general pardon extended by the testator on his deathbed
WILL NOT suffice.
 If must be a pardon which is expressly extended and the
offender accepts it.
2. Or an unequivocal conduct of the testator towards the
offending heir which reveals the testator’s intent to forgive the
offense.
 The intent to forgive must be clear.
 This is ultimately a question of fact which will be
resolved, in case of controversy, by the courts.
What is the effect of reconciliation?
1. If it occurs before the disinheritance was made
o Right to disinherit is extinguished
2. If it occurs after the disinheritance is made
o Disinheritance is set aside.
Effect of setting aside of the disinheritance:
1. The disinherited is restored to his legitime
2. The disinheriting will did not dispose of the disposable portion,
the disinherited heir is entitled to his proportionate share in the
intestacy of the disposable portion
3. If the disinheriting will or any subsequent will disposed of the
disposable portion in favor of heirs, legates and devisees – such
dispositions remain valid.
Ruben: a reconciliation subsequent to knowledge by the heir of the
testator of the cause for the disinheritance. So reconciliation
subsequent to this will sweep away a disinheritance already made. If
one has already been made, then it prevents one from taking place. In
this case the heir recovers their right to the legitime and their right to
the intestate portion. It also restores him to his status as a
testamentary heir, in the event that he was institutes as one in a
previous will.
Ruben: there is no specific form for reconciliation – as a matter of
fact, it may be even taken from behavior. But this is more than just
shaking hands. It must be more definitive, but at the same time there
is no specific form.
Art. 923. The children and descendants of the person disinherited
shall take his or her place and shall preserve the rights of
compulsory heirs with respect to the legitime; but the disinherited
parent shall not have the usufruct or administration of the
property which constitutes the legitime. (857)

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Right of Representation in Disinheritance:
 The right of representation is ONLY granted descendants of of
disinherited descendants.
o This is given by 972 which states that: “The right of
representation only takes place in the direct descending line,
but never in the ascending line.”
o Thus a disinherited child shall be represented by his children
or other descendants. (disinheriting going down)
o BUT if the one that is disinherited is parent/ascendant or
spouse, then the children of the disinherited do not have the
right of representation. (disinheriting going up and sideward)
Extent of Representation:
 The representative takes the place of the disinherited heir – to both
the legitime and intestate share (if any).
When does representation occur?
 It applies to succession by legitime and intestate succession, but
NOT to testamentary succession
The last part of the article provides that: the disinherited parent shall
not have the usufruct or administration of the property which
constitutes the legitime.
 This is since the family code provides in articles 225 and 226 that
the parents shall exercise legal guardianship over the properties of
their minor children.
 They even have the right to use the fruits and income of the
property to support the needs of the child and secondarily the daily
needs of the family
Ruben: this article is inaccurately worded. You have to remember that
representation only goes down. If the person that is disinherited here
is the parent or the spouse, there shall be no right of representation.
Take note of 1035.
TANTOCO 3B
SECTION 7. - Legacies and Devises
Art. 924. All things and rights which are within the commerce of
man be bequeathed or devised. (865a)
Q: What may be the subject of testamentary dispositions?
A: Anything that is within the commerce of man.
 Anything which is appropriable and alienable
Definition of legacies and devises
 Legacy:
o Article 660 SCC – Testamentary disposition of personal
property by particular title
o Castan – Testamentary disposition of specific or generic
property by particular title.
 Devise
o Article 660 SCC – Testamentary disposition of real property
by particular title.
o Castan – Testamentary disposition of real property.
Why is it important to know if a thing is a devise or a legacy?
 Remember Preterition?
 In this case the heir, who gets an aliquot portion, will have his
institution annulled in favor of an heir who was completely
omitted from the inheritance.
What is the limitation on legacy or devises?
 It should not impair the legitime
Sir: The next three provisions are defective.
Art. 925. A testator may charge with legacies and devises not only
his compulsory heirs but also the legatees and devisees.
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The latter shall be liable for the charge only to the extent of the REMEMBER: What is to be given here is a D or L NOT an heir’s
value of the legacy or the devise received by them. The compulsory portion. So here it should be a determinate thing already. If it is an
heirs shall not be liable for the charge beyond the amount of the aliquot portion of the estate, then bawal. But if it is an aliquot portion
free portion given them. (858a) of a specific thing, then pwede.
Art. 926. When the testator charges one of the heirs with a legacy
or devise, he alone shall be bound. (this is a mode) RUBEN: the wording of this article is erroneous. This is since it says
that you can place a charge on the legitime.
Should he not charge anyone in particular, all shall be liable in the
 We have learned time and time again that this is NOT allowed.
same proportion in which they may inherit. (859)
 ONLY testamentary dispositions can be burdened.
 This is wrong, this is since if there is no charge, then it will be the
estate that honors the legacy.
What is the extent of the liability of the heir?
 The value of the benefit that he received from the testator.
Note: This should not be confused with MODAL substitution. Under
modal substitution the first heir holds on to the property till the second
Art. 927. If two or more heirs take possession of the estate, they
heir becomes qualified to inherit it.
shall be solidarily liable for the loss or destruction of a ting devised
 Under this article the heir still gets the property, the charge here is
or bequeathed, even though only one of them should have been
that he should give a part of it, or whatever is specified to another
negligent. (Provision is similar to Joint Tortfeasors)
heir.
 In this case it is NOT a substitution, rather it is an institution with
Q: Does this article only apply to heirs?
an obligation to give.
A: No – this article may apply to the executor or an administrator, in
the proper cases.
Who is charged with the legacy – i.e. who has to give it?
 GR – The estate
What does this article say?
o The estate is the one that has to comply with what the testator
 If two or more heirs take possession of the entire estate, and a
wants – this is done through the executor or the administrator.
thing forming part of the estate is destroyed or lost.
o The liability for the estate shall ALAWYS be liable for the
o And the thing that was lost or destroyed was given as a devise
direct legacy.
or a legacy.
 EX – Subsidiary or Indirect L or D
 They shall be liable SOLIDARILY for that loss.
o The testator may impose the burden on a testamentary HDL.
o If the testator does so, then the HDL will be bound to deliver
Note: This article contemplates that the thing that was lost or
the LD to the specified person.
destroyed was lost or destroyed based on:
o In this case this becomes a modal disposition.
1. Malice
 This is actually a species of a mode. (871-885)
2. Fault
3. Negligence

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Art. 928. The heir who is bound to deliver the legacy or devise
shall be liable in case of eviction, if the thing is indeterminate and
is indicated only by its kind.(860)
Who is liable in case of eviction?
 GR: The estate
 EX: When there is subsidiary or indirect legacy or devise.
o In this case it will be the subsidiary D or L who shall warrant
against eviction.
 BUT when you talk about eviction here it is eviction from an
indeterminate thing, and it is ONLY indicated by its kind.
Ruben: You CANNOT have warranty against eviction against a
SPECIFIC legacy.
Art. 929. If the testator, heir, or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise shall be
understood limited to such part or interest, unless the testator
expressly declares that he gives the thing in its entirety. (864a)
This gives the situation where the legacy or devise is of a thing that is
owned in part by the tesataor.
GR: the testator is only able to convey the interest or the part that is
owned by him (see with 794)
 Ex. If you are the absolute ownership, then you convey absolute
ownership. If you are a co-owner, you only convey your share or
right to a share in the co-ownership.
EX: If the testator provides otherwise.
 If the testator coveys more than what he owns
o The estate should try to acquire the part or the interest owned
by the other parties.
 If the other parties are unwilling to alienate, then the estate
should give the monetary equivalent.
TANTOCO 3B
o The validity of the dispositions will be determined by the next
two articles (930 and 931)
 The testator may convey less than he owns.
Art. 930. The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards
becomes his, by whatever title, the disposition shall take
effect. (862a)
Art. 931. If the testator orders that a thing belonging to another
be acquired in order that it be given to a legatee or devisee, the
heir upon whom the obligation is imposed or the estate must
acquire it and give the same to the legatee or devisee; but if the
owner of the thing refuses to alienate the same, or demands an
excessive price therefor, the heir or the estate shall only be obliged
to give the just value of the thing. (861a)
What are the rules if the testator gave a D or L which belongs to
another?
1. If the testator ordered the acquisition of the thing.
a. The order should be complied with.
b. If the owner is unwilling to part with the thing, the
legate/devisee should be given the monetary equivalent.
2. If the testator believed that the thing belonged to him
o GR: The legacy or devise shall be VOID
o EX: If the testator is able to subsequently able to acquire the
property.
3. If the testator knew that the thing did not belong to him, and he
did not order acquisition
o The code is silent on this. BUT the disposition should be
considered as valid. Why? Because:
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 The fact that the testator knew that the thing was owned
by another person, yet he ordered its acquisition IMPLIES
an order to acquire.
 At worst there is a doubt. Remember: Doubts should be
resolved in favor of testacy.
Requisites for the Testator to bequeath something that does not belong
to him:
1. Testator must know that it did not belong to him
2. He ordered its acquisition
Art. 932. The legacy or devise of a thing which at the time of the
execution of the will already belonged to the legatee or devisee
shall be ineffective, even though another person may have some
interest therein.
If the testator expressly orders that the thing be freed from such
interest or encumbrance, the legacy or devise shall be valid to that
extent. (866a)
Art. 933. If the thing bequeathed belonged to the legatee or devisee
at the time of the execution of the will, the legacy or devise shall
be without effect, even though it may have subsequently alienated
by him.
If the legatee or devisee acquires it gratuitously after such time,
he can claim nothing by virtue of the legacy or devise; but if it has
been acquired by onerous title he can demand reimbursement
from the heir or the estate. (878a)
What if the testator gave a D or L that already belonged to, or was
subsequently acquired by the Devisee or Legate?
1. If the thing already belonged to the Dee or Legate at the time of
the execution of the will:
o The devise or legacy shall be void.
o It is not validated by an alienation by the legate or devisee
subsequent to the making of the will.
TANTOCO 3B
 Why is this important to mention? See #3 of the previous
set of articles.
Sir: how can you give him something that he already owns? In this
case the disposition is void. The fact that the legatee alienates the thing
does not mean that the estate has to acquire the thing.
 The only exception is if that the alienation was in favor of the
testator. In this case the institution shall be deemed effective.
o This is not something that is found in the code, rather it is
Manresa.
2. If the thing was owned by another person at the time of the making
of the will, and the thing was acquired subsequently by the legate
or devisee:
o If the testator thought that the thing belonged to him – VOID
o IF the testator was not in error
a. If it was acquired ONEROUSLY by the devisee or legate,
then he is entitled to REIMBURSEMENT
b. If the thing was acquired GRATUITOUSLY then
nothing.
3. If the ting was owned by the testator at the time of the making of
the will and acquired thereafter from him by the legate or devisee
o The alienation of the thing to the person revoked the legacy or
devise.
What if the testator said that an encumbrance over the property of the
devisee or legate be removed?
 This is valid, but the encumbrance must be of a character that it
can be removed for a consideration.
o For example, three are some encumbrances that cannot be
removed – ex. Easement of right of way.
 Here the subject matter of the legacy is the paying off of the
encumbrance.
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Art. 934. If the testator should bequeath or devise something
pledged or mortgaged to secure a recoverable debt before the
execution of the will, the estate is obliged to pay the debt, unless
the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged
after the execution of the will.
What if the testator gives a D or L a thing pledged or mortgaged?
 The encumbrance must be removed by paying the debt, UNLESS
a contrary intention appears.
 It also does not matter of the pledge or mortgage was done after
the execution of the will. Basta at the time of the decedent’s death
the property was P or M already.
Note: It is super important to remember that this article ONLY applies
to a PLEDGE, ANTECHRESIS or a MORTGAGE if it any other kind
of burden, see next.
Ruben: This is different from the preceding article. In the former
article it is the thing of the legate and devisee which is encumbered,
and the testator says remove that. In this case it is the property of the
decedent which is subject to the encumbrance.
 The general rule is that the estate should pay off the debts
 The exception, is if the testator provides that the H or L will be the
one that will have to take care of the encumbrance.
Art. 934 (Last Par.). Any other charge, perpetual or temporary,
with which the thing bequeathed is burdened, passes with it to the
legatee or devisee.
Art. 935. The legacy of a credit against a third person or of the
remission or release of a debt of the legatee shall be effective only
as regards that part of the credit or debt existing at the time of the
death of the testator.
TANTOCO 3B
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 second case, by giving the legatee an acquittance,
should he request one.
In both cases, the legacy shall comprise all interests on the credit
or debt which may be due the testator at the time of his
death. (870a)
Art. 936. The legacy referred to in the preceding article shall lapse
if the testator, after having made it, should bring an action against
the debtor for the payment of his debt, even if such payment
should not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood
to discharge only the right of pledge. (871)
Art. 937. A generic legacy of release or remission of debts
comprises those existing at the time of the execution of the will,
but not subsequent ones. (872)
What if there is a charge OTHER than a pledge or a mortgage (ex.
Usufrust or easement)?
 A charge other than a pledge or a mortgage passes to the legate or
the devisee together with the thing.
 So if the land is with an easement of right of way, the easement of
right of way must be respected.
Legacies of Credit or Remission:
1. Applies ONLY to amount still unpaid at the time of the testator’s
death (935).
o This contemplates the situation where:
a. A legacy is given to a person to collect the debt, and the
proceed will be his
 In this case the estate shall assign to the legatee all the
rights of action it may have against the debtor.
b. A legacy is given to a person such that the legacy will be
a release of the debt of that person.
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 In this case the estate should give that person an
acuittance, if he requests for one.
2. It is revoked of the testator subsequently sues the debtor for
collection (936).
o This article states that under the scenario of 1.a, the legacy
shall lapse of the testator brings an action for payment.
o It does not even matter of payments effected or not at the time
of the death of the testator.
 So, one the testator brings an action to collect, the legacy
has lapsed already and the legatee cannot exercise it
anymore, and he may not say that he was given the right.
o This has to be done through judicial demand
 Here it is the mere filing of the suit. It does not matter of
the testator prosecute or not. It can even be dismissed for
failure to prosecute. The one that only really matters is
that there is judicial demand.
o Conversely, if there only extrajudicial demand, then it is not
deemed cancelled.
3. If the testator leaves a legacy to the debtor of the thing which the
debtor pledged to the testator, then it is understood to discharge
ONLY the right of pledge.
o This means that the obligation on which the pledge is based
on is still effective. What happens here is that it is only the
security which is removed, but the debt subsists.
4. If generic legacy of release or remission of debts applies only to
those existing at the time of the execution of the will, unless
otherwise provided. (937 and 793)
Art. 938. A legacy or devise made to a creditor shall not be applied
to his credit, unless the testator so expressly declares.
In the latter case, the creditor shall have the right to collect the
excess, if any, of the credit or of the legacy or devise. (837a)
Art. 939. If the testator orders the payment of what he believes he
owes but does not in fact owe, the disposition shall be considered
as not written. If as regards a specified debt more than the amount
TANTOCO 3B
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. (n)
What if there is a legacy or a devise to a creditor?
GR: It will be treated like any other legacy or devise and it shall not
be counted against what the testator owed to the creditor.
EX: It will be imputed to the debt of the testator provides.
 But if the debt is even more substantial than the devise or legatee
then it may demanded as an obligation of the estate.
Sir: If it is through a natural obligation, then this is a real disposition.
Example, I have a debt which has prescribed already. An in my will I
place in my will that the debt that I owe to my creditor shall be paid.
In this case you aren’t bound to pay, yet you pay.
Note: If the testator provides that the legacy or devise should be
imputed to the debt and of the debt is equivalent to or more than the
valie of the debt, it is silly to accept the “benefit”.
 Why?  because if he claims his debt as an heir, then his debt
will be subject to all the rules on succession – for example, non-
impairment of the legitime. If he claims them as a creditor, then
he gets them even before the legitime is given. Remember: What
is given as legitimes is from the net estate, and debts are subtracted
from to the gross estate to arrive at net estate
What if there is a testamentary instruction to pay a debt?
1. This is NOT a testamentary disposition, rather it is a direction to
discharge of a civil obligation.
2. If it is an instruction to pay a non-existing debt – this should be
disregarded. This is since it would be solutio indebiti.
o Solutio indebiti - The case where one had paid a debt, or done
an act or remitted a claim because he thought that he was
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bound in law to do so, when he was not. In such cases of
mistake there is an implied obligation (quasi ex contractu) to
pay back the money.
3. Instruction to pay more than what is due:
o This is effective ONLY to what is due.
o UNLESS the bigger amount constitutes a natural obligation.
Art. 940. In alternative legacies or devises, the choice is presumed
to be left to the heir upon whom the obligation to give the legacy
or devise may be imposed, or the executor or 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 the alternative legacies or devises, except as herein provided,
the provisions of this Code regulating obligations of the same kind
shall be observed, save such modifications as may appear from the
intention expressed by the testator. (874a)
What is an alternative devise or legacy?
 It is a devise or legacy which provides that among several things
mentioned, only ONE is to be given.
Who has the right to choose?
GR:
 If it is a DIRECT legacy or devise
o The estate, through an executor or an administrator
 If it is a SUBSIDIARY legacy or devise
o Then the HDL charged.
 The position of these parties are, analogously, in the position of a
debtor.
EX: If the testator provides that the devisee or legate can choose –
given that it is a direct D or L. Since if it is subsidiary then sila talaga.
TANTOCO 3B
 As a matter of fact it may even be left to any other person.
Remember: this is one of the things that the testator can delegate.
What happens if the person who is supposed to choose dies before the
choice is made?
 If the choice belonged to the executor or the administrator
o Then the one who will replace him is the one who substitutes
him as executor or administrator
 If the choice belongs to a HDL
o Then the right is transmitted to his own heirs.
Note: When you choose it is already touch move – i.e. final – i.e. you
cannot change it anymore – i.e. irrevocable – i.e. touch move talaga.
The provisions on natural obligations apply suppletorily.
Art. 941. A legacy of generic personal property shall be valid even
if there be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if there
be immovable property of its kind in the estate.
The right of choice shall belong to the executor or administrator
who shall comply with the legacy by the delivery of a thing which
is neither of inferior nor of superior quality. (875a)
Art. 942. Whenever the testator expressly leaves the right of choice
to the heir, or to the legatee or devisee, the former may give or the
latter may choose whichever he may prefer. (876a)
Art. 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. (877a)
These articles talk about generic legacies and devises.
Rules on Validity
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Generic Legacy Generic Devise some professional, vocational or general course, provided he
This is valid even of no such Valid ONLY if there exists such pursues his course diligently.
movables exist. an immovable in the testator’s A legacy for support lasts during the lifetime of the legatee, if the
estate at the time of his death.
testator has not otherwise provided.
In such a case the estate will
simply have to acquire what is If the testator has not fixed the amount of such legacies, it shall be
given by legacy. fixed in accordance with the social standing and the circumstances
of the legatee and the value of the estate.
Right of Choice: If the testator or during his lifetime used to give the legatee a
 GR: Executor or administrator, acting for the estate. certain sum of money or other things by way of support, the same
 EX: amount shall be deemed bequeathed, unless it be markedly
a. If the testator gives the right of choice to the legatee/devisee, disproportionate to the value of the estate.(879a)
b. There is a subsidiary legacy or devise.
Art. 945. If a periodical pension, or a certain annual, monthly, or
weekly amount is bequeathed, the legatee may petition the court
Limitation on Choice:
for the first installment upon the death of the testator, and for the
 The choice must be limited to something which his neither
following ones which shall be due at the beginning of each period;
superior nor inferior in quality.
such payment shall not be returned, even though the legatee
 This rule applies when whether the choice belongs to the should die before the expiration of the period which has
executor/administrator of the legate/devisee commenced.(880a)
 There is something that is called limited generic.
 Ex. I give to A one of my watches.
Legacy for Education:
Finality of choice:  Duration:
 Once the choice is made, it is irrevocable. o Until age of majority, or until the completion of a
professional, vocational, or general course.
Transmissibility of the right to choose:  Whichever of the two comes later
1. If the choice belonged to the executor or the administrator  In the latter case, it only apples if the legatee pursues his
o Then the one who will replace him is the one who substitutes studies diligently.
him as executor or administrator  Amount:
2. If the choice belongs to a DL o Primarily
o Then the right is transmitted to his own heirs.  That which is fixed by the testator.
o Secondarily
 That which is proper as determined by the following 2
Art. 944. A legacy for education lasts until the legatee is of age, or
variables:
beyond the age of majority in order that the legatee may finish
a. The social standing and circumstances of the legatee.
b. The value of the disposable portion of the estate.
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Testator dies on March 1, 1996. He has a will giving A a monthly

Legacy of support: pension of P1,000.
 Duration
o The legatee’s lifetime 1. If we follow Art. 945 literally, A can compel the estate to give him
o UNLESS the testator provides otherwise his pension from March 1, 1996.
 Amount
o Primarily 2. In reality, A has to wait. The estate should be settled first (will
 The amount that is fixed by the testator probated, payment of debts, determine if legacy is effectual, etc.)
o Secondarily After settlement of the estate, A can demand his legacy and its
 That the testator would give to the legatee by way of effectivity will retroact to March 1, 1996.
support during his lifetime
 UNLESS markedly disproportionate to the value of the Art. 946. If the thing bequeathed should be subject to a usufruct,
disposable portion. the legatee or devisee shall respect such right until it is legally
o Tertiarily extinguished. (868a)
 That which is reasonable as determined by the following
2 variables: In this case if there the L or D is subject to a usufrust then the legatee
a. The social standing and circumstances of the legatee. or devisee has to respect the usufruct until it is extinguished.
b. The value of the disposable portion of the estate.
 It actually is as follows that the above are changed due to Art. 947. The legatee or devisee acquires a right to the pure and
the Family Code. There are 2 factors. simple legacies or devises from the death of the testator, and
a. Needs of the recipient transmits it to his heirs. (881a)
b. Capacity of the estate
Art. 948. If the legacy or device is of a specific and determinate
thing pertaining to the testator, the legatee or devisee acquires the
Legacy of a periodical pension:
ownership thereof upon the death of the testator, as well as any
 Demandability – Upon the testator’s death, and the succeeding
growing fruits, or unborn offspring of animals, or uncollected
ones at the beginning of the period without duty to reimburse
income; but not the income which was due and unpaid before the
should the legatee die before the lapse of the period.
latter's death.
 This should be harmonized with the rules on the settlement of
estates – i.e. the debts would be first paid before any testamentary From the moment of the testator's death, the thing bequeathed
grants can be complied with. shall be at the risk of the legatee or devisee, who shall, therefore,
o However if the legacy should prove NOT inofficious the date bear its loss or deterioration, and shall be benefited by its increase
of effectivity shall retroact to the decedent’s death. or improvement, without prejudice to the responsibility of the
executor or administrator. (882a)
Illustration: Art. 949. If the bequest should not be of a specific and determinate
thing, but is generic or of quantity, its fruits and interests from the

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time of the death of the testator shall pertain to the legatee or o Although this article does not provide: the decedants of
devisee if the testator has expressly so ordered. (884a) illegitimate children shall inherit per capita if ALL the
illegitimate children renounce.
 If these descendants can inherit per stripes they can, in
Demandability depends on whether:
proper cases, inherit per capita.
1. Pure and determinate
o Upon the testator's death. 4. Conditional (suspensive) (884 in relation to 1197)
2. With a term (suspensive) o Upon the happening of the suspensive condition.
o Upon arrival of the term
3. Conditional (suspensive) Art. 950. If the estate should not be sufficient to cover all the
o Upon the happening of the suspensive condition. legacies or devises, their payment shall be made in the following
order:
Ownership vests as follows: (1) Remuneratory legacies or devises;
1. Pure and determinate (2) Legacies or devises declared by the testator to be preferential;
o Upon the death of the testator. (Art. 777.) (3) Legacies for support;
2. Pure and generic, It depends: (4) Legacies for education;
a. If the thing comes from the testator's estate, upon the testator's (5) Legacies or devises of a specific, determinate thing which
death forms a part of the estate;
b. If the thing has to be acquired from a third person, upon the (6) All others pro rata. (887a)
acquisition of the thing.
3. With a term This article lays down a rule of preference among the legacies and
o Upon the testator's death (effect retroacts.) devises in case the estate is not sufficient for all of them.
4. Conditional (Suspensive)
o Upon the testator's death, if the condition is fulfilled (effect What is the order of preference among the legacies or devises?
retroacts.) 1. Remuneratory legacies or devises
o This is given out of a sense of debt or gratitude.
Fruits will depend on whether: a. o Save life of testator, then gives you something out of gratitude
1. Pure and determinate (Art. 948) 2. Preferential L or D
o Upon the testator's death. 3. Support
2. Pure and generic (Art. 949) 4. Education
o Upon determination of what is to be delivered to the devisee 5. L or D of a specific, determinate thing which forms part of the
or legatee estate
o Unless the testator provides otherwise. 6. All others, PRO RATA
3. With a suspensive term (885)
o Upon arrival of the term

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This is an order of preference in case the estate cannot cover all the
legacies or devises. So you start with 6 going up. So 6 is the very first
thing that you reduce.
Note: There is a conflict between this article and 911. Under article
911 you reduce the dispositions which are not preferred, and do so
proportionally. Under this article you follow the list and preferred are
#2. How do you reconcile this?
 If you have to reduce because legitimes have been impaired,
follow Art. 911.
 For any other reason, follow Art. 950.
o If there is no question of impairment, then you follow 950.
Art. 951. The thing bequeathed shall be delivered with all its
accessories and accessories and in the condition in which it may
be upon the death of the testator. (883a)
Note:
 The obligation to deliver the accessions and accessories exists
even if the testator does not explicitly provide for it.
 The crucial time is the testator’s death – this is since this is when
the successional rights vests.
o That is why the ting must be delivered in the condition in
which it is at that time.
 This is applicable to determinate or limited generic legacies and
devises. It has no application to generic legacies or devises.
Ex. If a car is given to the heir, then kasama na dito the special sound
system, the special rims, or pag may ibang kinabit.
Art. 952. The heir, charged with a legacy or devise, or the executor
or administrator of the estate, must deliver the very thing
bequeathed if he is able to do so and cannot discharge this
obligation by paying its value.
TANTOCO 3B
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 heir or the estate, but without
prejudice to the legitime. (886a)
What does this article say?
 It says that the heir (in a subsidiary institution), or the executor or
administrator is bound to deliver what the testator left to the heir.
 They CANNOT give the cash value.
 On the other hand if the legacy is cash, cash has to be given.
o It does not matter if the estate has cash or none.
o In this case you just sell properties.
 Expenses for delivery shall be borne by the heir.
o But the legitimes should still be respected.
Ruben: This article confirms the rule of Identity in the performance
of obligations.
Art. 953. The legatee or devisee cannot take possession of the thing
bequeathed upon his own authority, but shall request its delivery
and possession of the heir charged with the legacy or devise, or of
the executor or administrator of the estate should he be authorized
by the court to deliver it. (885a)
This article says that the legate or devisee cannot take possession of
the property himself.
 In order to take possession of the property, the legate or devise
should ask the executor or the administrator, or the heir charged
with delivery to deliver it.
 But the executor or the administrator, in order to make delivery
must be authorized by the court.
Notes:
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 The efficacy of a legacy or a devise takes effect upon the death of
the testator, BUT delivery does not take place at that point.
o This is since you have to get the net estate first.
 Under this the debts, have to be paid, and the legitimes
have to be determined, and see if the testamentary
dispositions impair the legitime.
 It is only after these steps have been taken that the
beneficiaries of the will can take possession.
Art. 954. The legatee or devisee cannot accept a part of the legacy
or devise and repudiate the other, if the latter be onerous.
Should he die before having accepted the legacy or devise, leaving
several heirs, some of the latter may accept and the others may
repudiate the share respectively belonging to them in the legacy
or devise. (889a)
Art. 955. The legatee or devisee of two legacies or devises, one of
which is onerous, cannot renounce the onerous one and accept the
other. If both are onerous or gratuitous, he shall be free to accept
or renounce both, or to renounce either. But if the testator
intended that the two legacies or devises should be inseparable
from each other, the legatee or devisee must either accept or
renounce both.
Any compulsory heir who is at the same time a legatee or devisee
may waive the inheritance and accept the legacy or devise, or
renounce the latter and accept the former, or waive or accept
both. (890a)
Rules on Acceptance and Repudiation of Legacies and Devises:
GR: Acceptance may be total or partial.
EX: If the legacy or devise is partly onerous and partly gratuitous.
 In this case the heir cannot renounce the onerous part and just get
the gratuitous part.
TANTOCO 3B
Acceptance of the heirs of the devisee or legate:
 If the legatee or deivsee dies before accepting or renouncing, his
heirs shall exercise such right as to their pro indivisio share.
 The rules on total or partial acceptance apply here.
What if there are 2 legacies or devises to the same recipient?
 If both are gratuitous
o The recipient may accept or renounce either
 If both are onerous
o The recipient may accept or renounce either
 If one onerous and one gratuitous
o The heir cannot accept the gratuitous and renounce the
onerous.
o BUT he can renounce the gratuitous and accept the onerous.
What if there is a legacy or devise to a compulsory heir?
 The recipient may accept either or both.
 So he can accept either the legitime or the disposition, or both.
Note: The will may provide the rules of acceptance or repudiation.
 The rules that are stated above ONLY apply in the absence of a
stipulation in the will providing otherwise.
 If there are rules that are stated in the will for the acceptance or
the repudiation, then those will apply.
What if it the testator intended the two legacies or devises to be
indivisible?
 If it is indivisible then you can either accept or reject both. You
cannot accept one and reject the other. You have to accept both,
or reject both.
Art. 956. If the legatee or devisee cannot or is unwilling to accept
the legacy or devise, or if the legacy or devise for any reason
should become ineffective, it shall be merged into the mass of the
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estate, except in cases of substitution and of the right of
accretion. (888a)
Rules in case of repudiation by or incapacity of legatee or devisee:
1. Substitution
2. Accretion
3. Intestacy
So if the D or L does not want to accept the inheritance, then determine
if substitution or accretion can take place. In the absence of these two,
then you put it back into the net estate.
Art. 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a
manner that it does not retain either the form or the denomination
it had;
(2) If the testator by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood that in the
latter case the legacy or devise shall be without effect only with
respect to the part thus alienated. If after the alienation the thing
should again belong to the testator, even if it be by reason of nullity
of the contract, the legacy or devise shall not thereafter be valid,
unless the reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the
testator, or after his death without the heir's fault. Nevertheless,
the person obliged to pay the legacy or devise shall be liable for
eviction if the thing bequeathed should not have been determinate
as to its kind, in accordance with the provisions of Article
928. (869a)
Ruben: This is important.
TANTOCO 3B
What are the instances when the legacy or devise is revokes by
operation of law?
1. Transformation
o Ex. The testator converts a plantation into a fishpond.
o In this case the transformation must be of such a character that
it is not in the same form or denomination.
o Transformation revokes the legacy or devise.
2. Alienation
o The alienation may be gratuitous or onerous
o The alienation by the testator revokes the legacy and devise
 This is true EVEN IF the testator should acquire the thing
again.
 EXCEPT:
1. If the reversion is caused by the annulment of the
alienation and the cause of the annulment was
vitiation of consent on the grantor’s part, either by
reason of incapacity or duress
2. If the reversion is by virtue of redemption in a sale
with pactro de retro.
3. Total Loss
o This will be the case of revocation ONLY of it takes place
before the testator’s death.
o Fortuitous loss AFTER the death of the testator will not
constitute revocation.
 Remember: this is since disposition is deemed to have
taken place at the time of the decedent’s death. (777)
o Therefor a loss after the testator’s death will simply be an
instance of res perit domino and will be borne by the legatee
or devisee.
 Here kasi he owns in na from the moment of death. Since
the thing is lost, then wala na. In this case it is not a
revocation, it cannot be revoked since he owns it already.
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Art. 958. A mistake as to the name of the thing bequeathed or
devised, is of no consequence, if it is possible to identify the thing
which the testator intended to bequeath or devise. (n)
If there is a mistake in the name of the thing bequeathed, it really does
not matter, IF it is possible to identify the thing.
Here you use all modes to clear up, except oral declarations of the
testator as to his intention. (look for this article).
Art. 959. A disposition made in general terms in favor of the
testator's relatives shall be understood to be in favor of those
nearest in degree. (751)
Ruben: This article is misplaced this is since it applies not just ot
legatees or devisees but to ALL testamentary heirs as well.
What this article says is that if the disposition just says “to my
relatives” this is understood to favor those nearest in degree.
Who are the relatives?
1. The term relatives only extends up to the 5 th degree.
o This is given by Belen vs. BPI which stated in an obiter that
the law assumes that the testator intended to refer to the rules
on intestacy.
o Intestacy in the PH stops at the 5th degree. Beyond that degree
kinship is NOT recognized.
2. Representation does not operate in the application of this article.
o As a matter of fact commentators are of the view that even the
rules on preference of line and distinction between full and
half-blood should not apply – this the ONLY thing that should
apply is proximity in degree.
3. Institution of relatives of another person
o The institution of relatives of another person, and not those of
the testator, does NOT fall within the ambit of this article.
TANTOCO 3B
o There is an opinion that institutions is void for vagueness.
 BUT it was held in Belen vs. BPI that an institution, by
way of simple substitution, of the legatee’s decendientes
legitimos, was valid and covered all the legitimeate
descendants – i.e. grandchildren, children – per capita, in
accord with article 846.
 E.x. I give this piece of land to my wife’s relatives.
Ruben: You should apply the 5 degree rule. Here there is nothing that
is illegal, immoral, or against public policy. The 5 degree rule is to
apply from the instituted heir.
 Ex. I give this to the relatives of my wife. The 5 degrees is counted
from the wife.
Ruben: 959 should not only apply to legacies and devises but to ALL
testamentary dispositions.
CHAPTER 3
LEGAL OR INTESTATE SUCCESSION
SECTION 1. - General Provisions
Remember? There are three kinds of successions: (1) Compulsory, (2)
Testamentary, (3) Intestate.
Note: Intestate succession yields to the other 2 kinds of succession.
This it only operates in default of legitimes and testamentary
succession.
 But: realistically intestate succession occurs most frequently
because many people die without a will.
How do you define intestate or legal succession?
 Intestate or legal succession takes place: By operation of law, and
ONLY in default of the legitimes and testamentary dispositions.
 It is the presumed or implied will of the testator.
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Q: Can you have intestate succession, even if there are legitimes AND
testamentary dispositions?
A: YES – this happens when the whole estate is not given out through
the will and though legitimes. So there can be intestacy even if there
is a will.
Intestacy may be total or partial:
Total = Happens when the whole estate is not disposed of. This may
be because there is no will, or there are no dispositions that are made
in a will, etc.
Partial = When a part of the free portion has been given away, but not
everything.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal succession
shall take place only with respect to the property of which the
testator has not disposed;
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no substitution,
and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code. (912a)
Legal of intestate succession defined:
 “Intestate or legal succession takes place by operation of law in
the absence of a valid will.
When does Intestate Succession take place?
1. Person dies:
a. Without a will
b. A will that is void
TANTOCO 3B
 This is equivalent to dying without a will.
c. A will that has lost its validity
 This contemplates a situation where a will has been
revoked, and there is no will to take its place.
 In this case the word validity should read efficacy. This is
since if the will is valid it shall always be valid, but a valid
will may lose efficacy – e.x. when all of the heirs that are
instituted die before the testator, or if they all renounce.
 A will that has subsequently lost its validity is one that has
been revoked without a later one taking its place.
2. The will does not institute an heir to dispose of ALL the property
belonging to the testator.
a. In this case legal succession shall take place, but only with
respect to the property that has not disposed
b. Remember the case of Seangio? Where the will only
contained a provision for disinheritance – here the will was
valid, but there was no disposition, so there will be intestacy
c. In this case intestacy may be total or partial
3. If there is no substitution OR no right of accretion and either of
the FF instances take place:
a. If the suspensive condition attached to the institution of the
heir does not happen or is not fulfilled.
b. If the heir dies before the testator (Predecease)
c. If the testator repudiates the inheritance
o Here intestacy may be total or partial – depending on the
extent of the disposition that turns out to be inoperative.
4. When the heir instituted is incapable of succeeding, except in
cases that are provided by law.
5. Happening of a resolutory condition
a. Remember: A negative suspensive condition
b. I give my house and lot to L provided that she does not but a
beer garden on it.
 If L puts a beer garden, she has to return the lot – and this
lot goes to intestacy.
6. Expiration of a resolutory term
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a. Remember: A term in diem – art 885.
7. Preterition
Art. 961. In default of testamentary heirs, the law vests the
inheritance, in accordance with the rules hereinafter set forth, in
the legitimate and illegitimate relatives of the deceased, in the
surviving spouse, and in the State. (913a)
Art. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of representation
when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject
to the provisions of article 1006 with respect to relatives of the full
and half blood, and of Article 987, paragraph 2, concerning
division between the paternal and maternal lines. (912a)
Exclusion and Concurrence in Intestacy:
 Intestacy operates on the same principles as succession to the
legitime – these are exclusion and concurrence.
What is the basis for intestate succession?
 The presumed will of the decedent, which would distribute the
estate in accordance with the love and affection he has for his
family and close relatives.
Basic Rules of Intestacy
I. Rule of relationship: In order to be an intestahe heir one has to be
related to the decedent.
4 possible kinds of relationships
1. Jus famile – this is a blood relationship
o EX: Adoption – here
2. Jus Sanguinis – this is also blood relationship. This is the
relationship of the testator and his collaterals up to the 5th degree.
TANTOCO 3B
3. Jus coniugis – this is the relationship to the spouse.
o Is there a valid or voidable marriage.
o Bawal live in.
4. Jus Imperii – This is the right of sovereignty
o The right of the decedent and the state.
II. Rule of Preference of Lines: This is the same as legitimes. In this
case you have the direct ascending, direct descending, and the
collateral.
 In this case the direct are preferred.
o So if there are direct, the collateral are excluded
 The descending is preferred to the ascending.
o Subject to the same exceptions
III. Rule of Preference of Degree: the nearer exclude the more
remote
 There is no right of representation in the ascending line
 There is right of representation in the descending line.
 Is there a right of representation in the collateral line?
 YES – ONLY CASE
IV. Rule of Equality Among Reltives of the Same Degree: those of
equal degree should inherit in equal shares.
 Exceptions:
1. The rule of preference of lines
 The D is preferred to the A
 Ex. A dies, she has a mom and a daughter, both the mom
and the daughter are one degree away from each other,
but the daughter is preferred, as a matter of fact the
daughter excludes the mother.
2. The distinction of legitimate and illegitimate affiliation
3. Division by line in the ascending line
4. The distinction of full blood and half-blood relationships
between brothers and sisters, as well as nephews and nieces.
 2:1
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5. Representation
 Grandchildren who inherit by representation shall not get
per capita among themselves.
6. 1009 – As interpreted by Bacayo vs. Borromeo
 In this case if a testator dies, and he is survived by his
uncles and aunts, AND nephews and nieces – the nephews
and nieces EXCLUDE the uncles and aunts – even if they
are both three degrees away.
SUBSECTION 1. - Relationship
Art. 963. Proximity of relationship is determined by the number
of generations. Each generation forms a degree. (915)
Art. 964. A series of degrees forms a line, which may be either
direct or collateral.
A direct line is that constituted by the series of degrees among
ascendants and descendants.
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come
from a common ancestor.(916a)
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend
from him.
The latter binds a person with those from whom he
descends. (917)
Art. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.
TANTOCO 3B
In the direct line, ascent is made to the common ancestor. Thus,
the child is one degree removed from the parent, two from the
grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and
then descent is made to the person with whom the computation is
to be made. Thus, a person is two degrees removed from his
brother, three from his uncle, who is the brother of his father, four
from his first cousin, and so forth. (918a)
How do you count degrees?
Just count the number of generations – the only limitation is life
expectancy.
What is a collateral relative?
A relative of yours, related to you by BLOOD, who is not your
descendant or ascendant.
Is there a difference when you count degrees with the collateral and
with the direct? - YES
 Direct – Unlimited
 Collateral – Limited to the 5th degree
o We follow the counting of the German System.
 Under this system, you count to the nearest common
ancestor.
o There is no such thing as a first degree collateral. The nearest
na is your siblings – they are your second degree collateral.
Art. 967. Full blood relationship is that existing between persons
who have the same father and the same mother.
Half-blood relationship is that existing between persons who have
the same father, but not the same mother, or the same mother, but
not the same father.(920a)
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What is the importance of distinction between brothers and sisters of
the full blood and half-blood?
 There is a ratio of 2:1 for the full blood and the half blood.
 With other collateral relatives this distinction is not important.
Art. 968. If there are several relatives of the same degree, and one
or some of them are unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same degree, save the right
of representation when it should take place. (922)
Q: Is there accretion in intestacy?
A: YES – there is accretion among heirs of the same degree, in cases
of: (1) predecease, (2) incapacity, (3) renunciation.
 But remember when it comes to legitimes there is no accretion –
sir is very anal about this – this is since the heirs inherit in their
own right. They just don’t get the share of the other.
 In case of predecease and incapacity – there is the right of
representation.
 NOTE: Relatives must be the same kind of relationship.
o For accretion to take place the heirs involved must be in the
same kind of relationship to the decedent.
 Ex: All of them are the siblings, OR the grandparents, OR
the grandchildren.
 There is no right of accretion if it is the grandparent,
brother, and grandchild.
Art. 969. If the inheritance should be repudiated by the nearest
relative, should there be one only, or by all the nearest relatives
called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot
represent the person or persons repudiating the
inheritance. (923)
Note: this article talks about UNIVERSAL renunciation. As in all of
their hers renounce. This is seen in the first sentence which states that
TANTOCO 3B
the inheritance has been repudiated, should there by only on, or by
ALL.
What is the effect of renunciation by ALL in the same degree?
 The right of succession is passed on the heirs in the succeeding
degrees (in successive order) before the next line can succeed.
o What is the reason behind this?  Rule on Preference of
Lines
 Remember: Down, then up, then side to side. Nearer First.
 In renunciation THERE IS NO REPRESENTATION.
So what is the order?
1. Descending line first
o If all the descendants of a certain degree renounce, then
succession will pass to the next degree, and this can continue
ad infinitum.
2. Then ascending line next
o They only get it if there is NO ONE left in the descending line,
thus they acquire the right of succession
o Note: Remember  You have to follow the rule on proximity
of degree
3. Collateral Line last
o They only get it if ALL the descendants and ascendants
renounce.
What happens naman if all of the predecease or become incapacitated?
 Same rule as above – the only difference is that in this case there
is representation.
 Remember: Representation only happens in the descending line.
Note: Representation does not apply in cases of universal renunciation
– this is since there is no representation in renunciation.
SUBSECTION 2. - Right of Representation
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Art. 970. Representation is a right created by fiction of law, by right of representation when it comes to legitime). There is no right of
virtue of which the representative is raised to the place and the representation when it comes to TESTAMENTARY succession.
degree of the person represented, and acquires the rights which
the latter would have if he were living or if he could have
inherited. (942a)
Art. 971. The representative is called to the succession by the law
What is representation?
and not by the person represented. The representative does not
succeed the person represented but the one whom the person  It is a right that is created by fiction of law, by virtue of which the
represented would have succeeded. (n) representative is raised to the place and the degree of the person
represented.
Art. 972. The right of representation takes place in the direct o Ruben: It should not be fiction of law since the law has ample
descending line, but never in the ascending. authority to pre-determine who are called to inherit. Thus you
In the collateral line, it takes place only in favor of the children of do not have to resort to fiction.
brothers or sisters, whether they be of the full or half blood. (925)  Thus the term fiction is inaccurate.
Art. 973. In order that representation may take place, it is  The person who represents acquires the rights which the one who
necessary that the representative himself be capable of succeeding dies would have if he were living or if he could have inherited.
the decedent. (n)  Ruben: The more apt term for this would be successional
subrogation.
Art. 974. Whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such manner
When does representation operate?
that the representative or representatives shall not inherit more
1. Predecease
than what the person they represent would inherit, if he were
2. Incapacity
living or could inherit. (926a)
3. Disinheritance
Art. 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by Kinds of succession and if representation operates
representation, if they survive with their uncles or aunts. But if 1. Testamentary – BAWAL
they alone survive, they shall inherit in equal portions. (927) 2. Legitime - YES
Art. 976. A person may represent him whose inheritance he has o Technically yes, but there is no direct provision – except for
renounced. (928a) 923 regarding disinheritance
Art. 977. Heirs who repudiate their share may not be 3. Intestacy – YES! The provisions above bruh!
represented. (929a)
In what lines does representation obtain?
1. Legitime
NOTE: When you talk of the right of representation that is given by o The direct descending line ONLY
this article it only refers to intestate succession (but there is also the 2. Intestacy

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o Direct descending line
o The collateral
 There is only one instance of this – Article 975
What are the instances when representation NEVER operates? (There
are 3 nevers)
1. Renunciation
2. In testamentary succession
3. With respect to the legitime it can only go to the descending line
ONLY – so Never to the ascendants.
When can illegitimate children represent?
 If the child to be represented is LEGITIMATE
o Only his LEGITIMATE children or descendants can represent
him.
 If the child represented is ILLEGITIMATE
o BOTH his illegitimate and legitimate children can represent
him.
Teotico vs. Del Val
The relationship of the adopted created by law limits itself to
the parent and the adopted child. The relationship does not extend to
the relatives of the adoptor. A possible result of this is that an adopted
child cannot represent his deceased parent when it comes to the estate
of his grandparent. But it also goes the other way, a grandparent cannot
inherit by operation of law the property of their adopted grandchild.
The rationale for the rule barring an adopted from
representing and being represented is that the legal relationship
created by adoption is strictly between the adoptor and the adopted. It
does not extend to the relatives of either party.
How about Representation by a renouncer?
 A renouncer cannot be represented by his heirs. So once he
renounces kiss the inheritance goodbye talaga – even for his heirs.
TANTOCO 3B
o Why is this the case? This is since he renounces the right to
succeed, so wala na talaga. So it is not one of the rights which
the renouncer transmits upon this death. Remember 777?
How does representation operate?
 Per Stripes – Through the roots – the representatives receive only
what the person represented would have received.
 If there are more than one representative in the same degree, then
divide the portion equally, without prejudice to the distinction
between the legitimate and illegitimate children, when applicable.
Rules on Qualification:
1. The representative must be qualified to succeed the decedent
2. The representative need not be qualified to succeed the person
represented
3. The person represented need not be qualified to succeed the
decedent.
o As a matter of fact, the reason why representation is taking
place is that the person represented is NOT qualified, because
of predecease, incapacity, or disinheritance.
What is the difference when it comes to representation by
grandchildren and nephews and nieces?
 Grandchildren
o If ALL the children are disqualified (P,I,D) the grandchildren
still inherit by representation – per stripes.
 Nephews and Nieces
o If their parents (the brothers and sisters of the decedent)
renounce then they inherit per capita.
Note: When only some, not all of the children or brothers/sisters of the
decedent are disqualified, the rule is the same.
 But REMEMBER: When you talk of intestate succession the
nearer exclude the farther. Thus in the case where it is the
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collateral who are the ones who are to receive the estate through
intestacy, if there is a brother or sister they exclude the nephews
and nieces of the decedent, even though they be the children of
their siblings – in this case there is no representation – rather what
happens is that it is transmitted
Q: So will the grandchildren ever inherit per capita?
A: YES – when all the children RENOUNCE!
SECTION 2. - Order of Intestate Succession

X SUBSECTION 1. - Descending Direct Line

Who are the intestate Heirs?

A B C 1. Legitimate Children/Descendants
o Exclude – parents, collateral and state
a1 b1 c1 o Concur – SS and IC
o Excluded by – NONE
a2 b2 c2 2. Illegitimate Children and Descendants
o Exclude – IP, Collaterals, State
o Concur – SS, LC, LP
In this case you have X as the daddy and ABC are the kiddies. If B o Excluded by - NONE
and C predecease X, then this will how it goes down: 3. Legitimate Parents/Ascendants
 A – will inherit in his own right o Exclude – Collaterals and State
 The children will represent. So b1 and b2 will represent B, and c1 o Concur - SS
and c2 will represent C. o Excluded by – LC and IC
4. Illegitimate Parents
X o Exclude – Collaterals and State
o Concur – LC, IC, LP, IP, BS NN
o Excluded by
A B C
5. Surviving Spouse
o Exclude
a1 b1 c1 o Concur
o Excluded by
a2 b2 c2 6. Brothers and Sisters, Nephews and Nieces
o Exclude
o Concur
In this case ABC predecease X, so what happens here?
o Excluded by
 In this case all the GC will just represent their parents. So they are
7. Other collaterals up to the 5th degree
still per stripes and NOT per capita.
o Exclude

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o Concur o So here the safe thing that would do is to make sure that the
o Excluded by legitimes are respected – so legitimes first, then the excess
8. State should be divided according to the proportion.
o Exclude  But you only do this when there is a concurrence of
o Concur legitimate and legitimate children – i.e. #2 & #4.
o Excluded by o Correct way to do it
Note: The first 5 groups are the compulsory heirs.  A – 3M
 B – 3M
Combinations:  Each IC – 1M

The tricky scenario is # 2 LC & IC Champ Tables

o Proportion is 2:1
o Note this article forgets that if you just observe the ratio that 1. Legitimate Children ALONE
is given here, the legitimes of the LC will be impaired Legitime Free Portion Intestae Portion Total Take Home
o So in this combination make sure that the Legitime of the LC ½ of the estate ½ of the estate The ½ free The whole
are NOT IMPAIRED. portion, divided estate divided
equally equally
EXAMPLE 1:
Suppose X has 2 LC (A & B) and 1 IC (C). And the estate of X is 12M
2. Legitimate Children and Illegitimate Children
o In this case the proportion is 2:2:1 – In this case: Free Portion Intestate Portion Total Take Home
Legitime
 A – 4.8 M LC - ½ of the If ever Apportion free The whole
 B – 4.8 M estate divided something gets portion, if any, estate with each
 C – 2.4 M equally left with a ration of IC getting ½ the
EXAMPLE 2 2:1 share of a LC
Same situation above, but there are 6 Illegitimate Children. IC – ½ the
share of 1 LC
o The proportion here would be 2:2:1:1:1:1:1:1, so if you do it
SOLEY according to this article then you would get:
3. Legitimate Children and Surviving Spouse
 A – 2.4 Free Portion Intestate Portion Total Take Home
Legitime
 B – 2.4 LC - ½ of the If ever Give the residue The whole
 Each IC – 1.2 estate divided something gets to all of them estate equally
 BUT! Here the legitime was not respected… the LC have equally left among them all.
to get ½ of the estate collectively or 3M each. * the SS is
o In this case you will have to apply the reduction given in 895, S – Share of a counted as a
LC child
thus you will have to reduce the share of the IC’s
o In this case since you do not have enough for the legitime so
3a. ONE legitimate Child, and Surviving Spouse
there will be NO intestacy. Free Portion Intestate Portion Total Take Home
Legitime

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1LC – ½ of the ¼ of the estate 1LC – None Each gets ½ the IC – ¼ of the
estate estate. Here it is estate
SS- 1/4 the SS that gets
SS – ¼ the the FP
estae

4. Legitimate Children, Illegitimate Children, Surviving Spouse

8. Legitimate parents and Surviving Spouse
Legitime Free Portion Intestate Portion Total Take Home
Legitime Free Portion Intestate Portion Total Take Home
LC - ½ of the If ever Apportion free The whole
LP – ½ ¼ of estate LP – None LP – ½
estate divided something gets portion, if any, estate with each
equally left with a ratio of IC getting ½ the
SS – ¼ SS – ¼ FP SS – ½
2:1 share of a LC
SS – A share
equal to a LC * the SS is And the SS has 9. Legitimate Parents, Illegitimate Children, and Surviving Spouse
counted as a a share of a LC Legitime Free Portion Intestate Portion Total Take Home
IC – ½ the child LP – ½ 1/8 of estate LP – None LP – ½
share of a LC
IC – 1/4 IC – None IC – ¼
5. Legitimate Parents Alone
Legitime Free Portion Intestate Portion Total Take Home SS – 1/8 SS – 1/8 FP SS – 1/4
½ of the estate ½ of the estate The ½ free The whole
portion, divided estate divided 10. Illegitimate Children ALONE
equally equally Legitime Free Portion Intestate Portion Total Take Home
½ of the estate ½ of the estate ½ of the estate The whole
6. Legitimate Ascendants alone estate divided
Legitime Free Portion Intestate Portion Total Take Home among them
equally
½ of the estate ½ of the estate The ½ free The whole
portion, divided estate divided
equally equally 11. Illegitimate Children and Surviving Spouse
Note: When it comes to legitmate ascendants you have to remember Legitime Free Portion Intestate Portion Total Take Home
1. The nearer exclude the more remote IC – 1/3 1/3 of the estate IC – ½ of the IC – ½
2. Division by Line is free portion 1/3 collectively
3. Principle of Equality SS – 1/3
SS – ½ of the SS – ½
7. Legitimate Parents and Illegitimate Children 1/3 free portion
Legitime Free Portion Intestate Portion Total Take Home
LP - ½ of the ¼ of the estate LP – None LP – 1/2
estate 12. Surviving Spouse ALONE
IC – the free ¼ IC – 1/4 Legitime Free Portion Intestate Portion Total Take Home

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 AM+DG

½ of the estate ½ of the estate ½ of the estate The whole

estate 17. Illegitimate Parents, and any kind Child
Legitime Free Portion Intestate Portion Total Take Home
IP – Excluded ½ of the estate IP – NONE The children get
the whole free
Child – ½ of the Child – ½ free portion.
estate portion
18. Legitimate Brothers and Sisters ALONE
13. Surviving Spouse and Illegitimate Parents
Legitime Free Portion Intestate Portion Total Take Home
Legitime Free Portion Intestate Portion Total Take Home
LBS – NONE Whole estate Whole Free The whole
SS – ¼ ½ of the estate SS – ½ of the ¼ SS – ½
Portion estate.
IP – ¼ IP – ½ of the ¼ IP – 1/2
1. If all are
whole blood,
14. Surviving Spouse, Legitimate brothers and sisters, Nephews and then divide
nieces. equally
Legitime Free Portion Intestate Portion Total Take Home
SS – ½ ½ SS – None SS – ½ 2. If there are
half blood, then
LBS – None LBS – ½ LBS – ½ ratio 2:1

NN – None NN – they get it NN - Rep Remember: the party that gets the free portion is the one that shall
by suffer reduction of his intestate share in case of partial intestacy
representation
19. Legitimate Brothers and Sisters and Nephews and Nieces
15. Surviving Spouse. Illegitimate Brothers and Sisters, NN Free Portion Intestate Portion Total Take Home
Legitime
Legitime Free Portion Intestate Portion Total Take Home
LBS - None Whole estate LBS – Whole The whole
SS – ½ ½ of the estate SS – None SS – ½ of the Free Portion estate
estate NN – None
IBS – None IBS – ½ free 1. If all are
portion IBS – ½ of the whole blood,
NN – None estate then divide
NN – Rep. equally
NN – By Rep.
*contemplates decedent is an illegitimate child of someone. 2. If there are
half blood, then
16. Illegitimate Parents Alone ratio 2:1
Legitime Free Portion Intestate Portion Total Take Home
½ of the estate ½ of the estate ½ of the estate The whole NN – Only by
estate representation

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 AM+DG

1. If all are
whole blood,
20. Nephews and Nieces, and Aunts and Uncles then divide
equally
Legitime Free Portion Intestate Portion Total Take Home
NN – None Whole estate NN – Whole The whole 2. If there are
Free Portion estate. half blood, then
AU – None ratio 2:1
Provided that
22
AU – Excluded 24. Other Collateral Relatves
(Bacayo vs. Legitime Free Portion Intestate Portion Total Take Home
Borromeo) CR – None Whole estate The whole free The whole
portion – Per estate.
21. Illegitimate Brothers and Sisters Alone Capita
Legitime Free Portion Intestate Portion Total Take Home
The nerar
IBS – NONE Whole estate Whole Free The whole exclude the
Portion estate. more remote.

Note: When it comes to IBS you still have to distinguish if they hare 25. The State
half and full blood. Like if you parents are live in, and you have Legitime Free Portion Intestate Portion Total Take Home
siblings from that live in – those are still Full blood. If you dad has a State – None Whole estate The whole free The whole
child from another, that is half. So full and half-blood have nothing portion estate.
to do with legitimacy.

22. Illegitimate Brothers and Sisters and Nephews and Nieces

Legitime Free Portion Intestate Portion Total Take Home
IBS – NONE Whole estate IBS – Whole IBS – take the
Free Portion whole estate
NN – None

Art. 978. Succession pertains, in the first place, to the descending

direct line.(930)
23. Nephews and Nieces Alone
Legitime Free Portion Intestate Portion Total Take Home
NN – NONE Whole estate Whole FP The whole
estate.

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Art. 979. Legitimate children and their descendants succeed the Take away from the case: Adopted Children do not have the right to
parents and other ascendants, without distinction as to sex or age, represent their parents in the estate of their grandparents or other blood
and even if they should come from different marriages. relatives.
An adopted child succeeds to the property of the adopting parents
in the same manner as a legitimate child. (931a) Art. 980. The children of the deceased shall always inherit from
him in their own right, dividing the inheritance in equal
shares. (932)
This refers to #1 in the outline of intestate succession.
Art. 981. Should children of the deceased and descendants of other
children who are dead, survive, the former shall inherit in their
Q: Does the civil code govern the rights of an adopted child in relation
own right, and the latter by right of representation. (934a)
to his adopter?
Art. 982. The grandchildren and other descendants shall inherit
A: NO – this is not governed by RA 8552 Sections 17 &18
by right of representation, and if any one of them should have
Sayson vs. CA
died, leaving several heirs, the portion pertaining to him shall be
The legitimacy of a child cannot be questioned in a complant
divided among the latter in equal portions.(933)
for the partition and accounting, but it has to be done in a direct action.
This is since there is a presumption of legitimacy in the civil
GR: 982: Grandchildren inherit by right of representation
code. It does not have a purely evidential character, rather it serves a
EX: 992: Iron Curtain Provision: Illegitimate GC cannot inherit from
more fundamental purpose. It actually fixes a civil status for the child
the legitimate GP.
born in wedlock, and that civil status cannot be attacked collaterally.
BUT in this case there was also the question of WON an
Rules on Children and Grandchildren:
adopted child can represent. The SC said that while an adopted child
1. The children will inherit in their own right and in equal shares
is deemed to be a legitimate child and have the same rights as the latter,
2. If the heirs are children and grandchildren
these rights do not include the right of representation. This is since the
o Children – in their own right
relationship created by adoption is between only the adopting parents
o GC – by right of representation
and the adopted child and does not extend to the blood relatives of
3. GC inherit by representation – per stripes
wither party.
o If they die, then their children will inherit in equal shares the
portion which would have gone to GC.
Rules of Succession of an Adopted Child
1. The adopted child inherits from his adopter in exactly the same Art. 983. If illegitimate children survive with legitimate children,
way and exactly the same extent as a legitimate child. the shares of the former shall be in the proportions prescribed by
2. The adopted child remains an heir of his biological parents and Article 895. (n)
other blood relatives (as if there was no adoption). This applies to
both compulsory and intestate succession. Note: the proportion of the shares of a LC to an IC is 2:1 respectively.

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 AM+DG
But before you go all out and start following the 2:1 rule that is given
here, you have to take note of the fact that you have to respect the
legitime of the LC.
This is how you do it:
1. Segregate the legitimes of the LC and the IC
2. If there is any residue left then apportion it 2:1.
Note: it is possible that the estate may not be even be sufficient to
satisfy the legitimes. In which case step #2 wont even happen, and you
might even have to reduce pro rata the shares of the IC.
Art. 984. In case of the death of an adopted child, leaving no
children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs. (n)
This has been repealed by section 17 and 18 of RA 8552.
SUBSECTION 2. - Ascending Direct Line
Art. 985. In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives. (935a)
Art. 986. The father and mother, if living, shall inherit in equal
shares.
Should one only of them survive, he or she shall succeed to the
entire estate of the child. (936)
Art. 987. In default of the father and mother, the ascendants
nearest in degree shall inherit.
Should there be more than one of equal degree belonging to the
same line they shall divide the inheritance per capita; should they
be of different lines but of equal degree, one-half shall go to the
TANTOCO 3B
paternal and the other half to the maternal ascendants. In each
line the division shall be made per capita. (937)
Rules of the Ascending Direct line:
1. If there are no LEGITIMATE descendants, then it will be the
parents or ascendants who will inherit
2. The father and mother will inherit in equal shares
3. If only one of them survives, he/she will get the whole estate.
4. If there is not father nor mother, then the ascendants in the nearest
degree shall inherit.
5. If there is more than one ascendant of the same degree then:
o Divide by line
o Then per captia among those in the line
SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or ascendants,
the illegitimate children shall succeed to the entire estate of the
deceased. (939a)
Art. 989. If, together with illegitimate children, there should
survive descendants of another illegitimate child who is dead, the
former shall succeed in their own right and the latter by right of
representation. (940a)
Art. 990. The hereditary rights granted by the two preceding
articles to illegitimate children shall be transmitted upon their
death to their descendants, who shall inherit by right of
representation from their deceased grandparent.(941a)
Art. 991. If legitimate ascendants are left, the illegitimate children
shall divide the inheritance with them, taking one-half of the
estate, whatever be the number of the ascendants or of the
illegitimate children. (942-841a)
Art. 992. An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same manner
from the illegitimate child. (943a)
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Art. 993. If an illegitimate child should die without issue, either
legitimate or illegitimate, his father or mother shall succeed to his
entire estate; and if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit from him share and
share alike. (944)
Art. 994. In default of the father or mother, an illegitimate child
shall be succeeded by his or her surviving spouse who shall be
entitled to the entire estate.
If the widow or widower should survive with brothers and sisters,
nephews and nieces, she or he shall inherit one-half of the estate,
and the latter the other half. (945a)
Rules on Illegitimate Children:
1. If there are no legitimate decedents then the IC inherit the
WHOLE estate.
2. There is the right of representation. Thus when an IC dies, his
heirs may represent him, and his other co IC inherit in their own
right.
3. If the heirs are LP/A and IC, then they shall divide the estate
equally by group.
4. Iron Curtain Provision
o An illegitimate child has NO RIGHT to inherit ab intestato
from legitimate children and relatives of his parents.
 Ab intestato – by BOTH legitime and intestacy
o The realives of the parents cannot also inherit in the same
manner from the illegitimate children.
Note: When the law speaks of brothers and sisters, nephews and nieces
as legal hers of an illegitimate child – it refers to illegitimate brothers
and sisters as well as to the children whether legitimate or illegitimate
of such brother or sister.
Note: When you talk about the provision where it is the suriving
spouse that inherits with IBS, it contemplates that the decedent was an
TANTOCO 3B
illegitimate child. When the law speaks of brothers and sisters in
paragraph 2 of article 994, it refers to an illegitimate child who is the
decedent, and his compulsory heirs are his brothers and sister – WON
legitimate or illegitimate.
Corpus vs. Administrator
An illegitimate child of an heir of the decedent is not a legal
heir of the decedent. This since there is no reciprocal succession
between legitimate and illegitimate relatives.
Since Teodoro Yangco was an acknowledged natural child or
was illegitimate and since Juanita Corpus was the legitimate child of
Jose Corpus, himself a legitimate child, we hold that the appellant
Tomas Corpus has no cause of action for recovery of the supposed
hereditary share of his mother, Juanita Corpus, as legal heir, in
Yangco's estate. Juanita Corpus was not a legal heir of Yangco
because there is no reciprocal succession between legitimate and
illegitimate relatives.
This rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family, while the
legitimate family is in turn hated by the illegitimate child. The law
does not recognize the blood tie and seeks to avoid further grounds of
resentment.
Leonardo vs. CA
Even if the petitioner is the child of Leonardo, still he cannot,
by right of representation, claim a share of the estate left by the
decease Reyes considering that he was born outside wedlock. His
alleged putative father and mother were then not yet married. At most,
petitioner is an illegitimate child who has no right to inherit ab
intestato from the legitimate children and relatives of his father, like
the deceased Reyes.
In this case the grand son was saying that he should be able to
inherit from his grandparents. The SC said that he is not allowed since
he is the illegitimate child of his father.
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Manuel vs. Ferrer
This is the principle of absolute separation between the
legitimate family and the illegitimate family. The doctrine rejects
succession ab intestato in the collateral line between legitimate
relatives on the one hand, and the illegitimate relatives on the other.
What is meant by the law when it speaks of brothers and
sisters, nephews and nieces, as legal or intestate heirs of an illegitimate
child? It is clear that by virtue of this barrier, the legitimate brothers
and sisters, as well as the children, whether legitimate or illegitimate,
of such brothers and sisters, cannot inherit from said illegitimate child.
Diaz vs. IAC
Article 992 of the civil code proved a barrier, or iron curtain
in that it prohibits absolutely a succession ab intestate between:
1. Illegitimate child and
2. The legitimate children and relatives of the father or mother of
said legitimate child.
Between the legitimate family and the illegitimate family, there is
presumed to be an intervening antagonism and incompatibility.
Art 902, 989 and 990 clearly speak of successional rights of
illegitimate children, which rights are transmitted to their descendants
upon their death. The descendants of these illegitimate children, who
may inherit by virtue of representation may either be legitimate or
illegitimate.
In whatever manner, one should not overlook the fact that the
person to be represented are themselves illegitimate. The right of
representation is not available to illegitimate descendants of legitimate
children, in the inheritance of a legitimate grandparent.
The right to represent illegitimate children however is subject
to the limitation prescribed in Art 992 to the end that an illegitimate
child has no right to inherit ab intestato from the legitimate children,
and relatives of his father or mother.
While the NCC may have granted successional rights to
illegitimate children, they however, read in conjunction with Art 992,
TANTOCO 3B
prohibit the right of representation from being exercised where the
person to be represented is a legitimate child. Needless to say, the
determining factor is the legitimacy or illegitimacy of the person to be
represented.
When article 922 mentions the terms relatives this is a general
term and is meant to embrace not only collateral relatives but also all
the kindred of the person spoken of, UNLESS the context indicates
that it was used in a more restricted and limited sense – but in 922 this
is not the case.
Suntay vs. Cojuanco Suntay
Counsel for petitioner meticulously argues that Article 992 of the Civil
Code, the successional bar between the legitimate and illegitimate
relatives of a decedent, does not apply in this instance where facts
indubitably demonstrate the contrary—Emilio III, an illegitimate
grandchild of the decedent, was actually treated by the decedent and
her husband as their own son, reared from infancy, educated and
trained in their businesses, and eventually legally adopted by
decedent’s husband, the original oppositor to respondent’s petition for
letters of administration.
We are not unmindful of the critiques of civilists of a conflict and a
lacuna in the law concerning the bone of contention that is Article 992
of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: In
the Spanish Civil Code of 1889 the right of representation was
admitted only within the legitimate family; so much so that Article
943 of that Code prescribed that an illegitimate child cannot inherit ab
intestato from the legitimate children and relatives of his father and
mother. The Civil Code of the Philippines apparently adhered to this
principle since it reproduced Article 943 of the Spanish Code in its
own Art. 992, but with fine inconsistency, in subsequent articles (990,
995 and 998) our Code allows the hereditary portion of the illegitimate
child to pass to his own descendants, whether legitimate or
illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of
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the grandparent, the illegitimates of an illegitimate child can now do legitimate or illegitimate, the surviving spouse shall inherit the
so. This difference being indefensible and unwarranted, in the future entire estate, without prejudice to the rights of brothers and
revision of the Civil Code we shall have to make a choice and decide sisters, nephews and nieces, should there be any, under article
either that the illegitimate issue enjoys in all cases the right of 1001. (946a)
representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998.
The first solution would be more in accord with an enlightened attitude Art. 996. If a widow or widower and legitimate children or
vis-à-vis illegitimate children. descendants are left, the surviving spouse has in the succession the
same share as that of each of the children. (834a)
The factual antecedents of this case accurately reflect the basis of
intestate succession, i.e., love first descends, for the decedent, Cristina,
did not distinguish between her legitimate and illegitimate Art. 997. When the widow or widower survives with legitimate
grandchildren. Neither did her husband, Federico, who, in fact, legally parents or ascendants, the surviving spouse shall be entitled to
raised the status of Emilio III from an illegitimate grandchild to that one-half of the estate, and the legitimate parents or ascendants to
of a legitimate child. The peculiar circumstances of this case, the other half. (836a)
painstakingly pointed out by counsel for petitioner, overthrow the Art. 998. If a widow or widower survives with illegitimate
legal presumption in Article 992 of the Civil Code that there exist children, such widow or widower shall be entitled to one-half of
animosity and antagonism between legitimate and illegitimate the inheritance, and the illegitimate children or their descendants,
descendants of a deceased. whether legitimate or illegitimate, to the other half. (n)
Art. 999. When the widow or widower survives with legitimate
children or their descendants and illegitimate children or their
If the person to be represented is If the person to be represented is descendants, whether legitimate or illegitimate, such widow or
an illegitimate child a legitimate child
widower shall be entitled to the same share as that of a legitimate
Then his descendants, whether His illegitimate descendant
child. (n)
legitimate or illegitimate, may cannot represent him because
represent him the law provides that only his Art. 1000. If legitimate ascendants, the surviving spouse, and
legitimate descendants may illegitimate children are left, the ascendants shall be entitled to
exercise the right of one-half of the inheritance, and the other half shall be divided
representation by virtue of Art between the surviving spouse and the illegitimate children so that
992. such widow or widower shall have one-fourth of the estate, and
the illegitimate children the other fourth. (841a)
Art. 1001. Should brothers and sisters or their children survive
SUBSECTION 4. - Surviving Spouse
with the widow or widower, the latter shall be entitled to one-half
of the inheritance and the brothers and sisters or their children to
Art. 995. In the absence of legitimate descendants and ascendants, the other half. (953, 837a)
and illegitimate children and their descendants, whether

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Art. 1002. In case of a legal separation, if the surviving spouse gave
cause for the separation, he or she shall not have any of the rights
granted in the preceding articles. (n)
Rules on the surviving Spouse:
1. The surviving spouse shall get the entire estate if there is the
absence of any DECENDANT (so add na rin here bro and sis)
o But you have to respect right of brothers and sisters.
2. If there are LEGITIMATE children, the surviving spouse gets the
share equivalent to one child.
o But if there is only ONE legitimate child, then they split it
equally.
3. When does the spouse get half of the estate?
o When she succeeds with legitimate parents or ascendants
o When she succeeds and there is only ONE legitimate child
o When she succeeds with ILEGITIMATE children
4. If she survives with legitimate and illegitimate children, she gets
the share of a legitimate child.
5. If she survives with legitimate ascendants and illegitimate
children.
o Ascendants shall get ½
o Spouse and the IC will get 1/4th each
6. If she survives with the brothers and sisters or nephews and nieces
of the spouse.
o She gets ½
o Siblings get ½
7. If there is legal separation and the SS is the guilty party, she cannot
succeed.
Santinllion vs. Miranda
Art 892 falls under the chapter on testamentary succession,
while Art 996 comes under intestate succession. Art 892 merely fixes
the legitime of the surviving spouse and the legitime of children in
TANTOCO 3B
testate succession. While it may indicate the intent of the law with
respect to the ideal shares that a child and a spouse should get when
the concur with each other. It does not fix the amount of shares that
such child and spouse are entitled when intestacy occurs.
In intestacy, if there is only one legitimate child surviving
with the spouse, since they share equally, ½ of the estate goes to the
child and the other ½ goes to the surviving spouse Although the law
refers to children or descendants, the rule in statutory construction that
the plural can be understood to include the singular is applicable in
this case.
If the surviving spouse and 1 legitimate child are life, the
surviving spouse has the same share as that of the child.
SUBSECTION 5. - Collateral Relatives
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased in accordance with the
following articles. (946a)
Art. 1004. Should the only survivors be brothers and sisters of the
full blood, they shall inherit in equal shares. (947)
Art. 1005. Should brothers and sisters survive together with
nephews and nieces, who are the children of the descendant's
brothers and sisters of the full blood, the former shall inherit per
capita, and the latter per stirpes. (948)
Art. 1006. Should brother and sisters of the full blood survive
together with brothers and sisters of the half blood, the former
shall be entitled to a share double that of the latter. (949)
Art. 1007. In case brothers and sisters of the half blood, some on
the father's and some on the mother's side, are the only survivors,
all shall inherit in equal shares without distinction as to the origin
of the property. (950)
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Art. 1008. Children of brothers and sisters of the half blood shall
succeed per capita or per stirpes, in accordance with the rules laid
down for the brothers and sisters of the full blood. (915)
Art. 1009. Should there be neither brothers nor sisters nor
children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood. (954a)
Art. 1010. The right to inherit ab intestato shall not extend beyond
the fifth degree of relationship in the collateral line. (955a)
Rules on Collateral Relatives:
1. If there are no ascendants or descendants, or a surviving spouse,
the collaterals shall succeed to the entire estate.
2. Heirs: Brothers and sisters of the full blood – they shall inherit in
equal shares
3. Heirs: Brothers and Sisters, Nephews and Nieces
o BnS – Per Capita
o NnN – Per Stripes (representation)
4. Heirs: Brothers and Sisters, some full blood some half blood
o The estate shall be divided in the proportion of 2:1.
5. In case of brothers and sisters of the half-blood some from the
father and some from the mother, all shall inherit in EQUAL
shares – WITHOUT distinction as to the origin o the property.
o This means that RESERVA TRONCAL will NOT apply.
o Why?  because property did not go to a reservista.
6. Children of the siblings of half-blood will inherit the same way as
children of the whole blood – i.e. #3
7. If there are no brothers or sisters, nephews or nieces, then the other
collateral relatives shall succeed to the estate.
o It will also not matter WON they are full blood or half blood.
Thus there will be NO:
 Preference among them by reason of blood – i.e. 2:1
 Distinction of lines
TANTOCO 3B
o This goes up to the 5th degree
Ining vs. Vega
Having succeeded to the property as heirs of Gregoria and Romana,
petitioners and respondents became coowners thereof. As co-owners,
they may use the property owned in common, provided they do so in
accordance with the purpose for which it is intended and in such a way
as not to injure the interest of the co-ownership or prevent the other
co-owners from using it according to their rights. They have the full
ownership of their parts and of the fruits and benefits pertaining
thereto, and may alienate, assign or mortgage them, and even
substitute another person in their enjoyment, except when personal
rights are involved. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share is
concerned. Finally, no prescription shall run in favor of one of the
co-heirs against the others so long as he expressly or impliedly
recognizes the co-ownership.
What escaped the trial and appellate courts’ notice, however, is that
while it may be argued that Lucimo Sr. performed acts that may be
characterized as a repudiation of the co-ownership, the fact is, he is
not a coowner of the property. Ineed, he is not an heir of Gregoria; he
is merely Antipolo’s son­inlaw, being married to Antipolo’s daughter
Teodora. Under the Family Code, family relations, which is the
primary basis for succession, exclude relations by affinity. Art. 150.
Family relations include those: (1) Between husband and wife; (2)
Between parents and children; (3) Among other ascendants and
descendants; and (4) Among brothers and sisters, whether of the full
or half blood. In point of law, therefore, Lucimo Sr. is not a coowner
of the property; Teodora is. Consequently, he cannot validly effect a
repudiation of the co-ownership, which he was never part of. For this
reason, prescription did not run adversely against Leonardo, and his
right to seek a partition of the property has not been lost.
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SUBSECTION 6. - The State
Art. 1011. In default of persons entitled to succeed in accordance
with the provisions of the preceding Sections, the State shall
inherit the whole estate.(956a)
Art. 1012. In order that the State may take possession of the
property mentioned in the preceding article, the pertinent
provisions of the Rules of Court must be observed. (958a)
Art. 1013. After the payment of debts and charges, the personal
property shall be assigned to the municipality or city where the
deceased last resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is situated.
If the deceased never resided in the Philippines, the whole estate
shall be assigned to the respective municipalities or cities where
the same is located.
Such estate shall be for the benefit of public schools, and public
charitable institutions and centers, in such municipalities or cities.
The court shall distribute the estate as the respective needs of each
beneficiary may warrant.
The court, at the instance of an interested party, or on its own
motion, may order the establishment of a permanent trust, so that
only the income from the property shall be used. (956a)
Art. 1014. If a person legally entitled to the estate of the deceased
appears and files a claim thereto with the court within five years
from the date the property was delivered to the State, such person
shall be entitled to the possession of the same, or if sold the
municipality or city shall be accountable to him for such part of
the proceeds as may not have been lawfully spent. (n)
Rules on the State:
1. The state shall succeed only in default of persons entitled to
succeed.
2. In order for the state to take control of the property, you have to
follow the rules of court
TANTOCO 3B
3. How is the property disposed of?
o Pay debts
o Personal Property
 To the municipality where the deceased last resided in the
Philippines
o Real Property
 To the municipalities where they are located
o If the deceased never resided in the Philippines
 The whole estate shall be assigned to wherever they are
located
4. To whom will the estate benefit?
o PUBLIC schools
o PUBLIC charitable institutions and centers
5. Who and how shall distribute the estate?
o The courts – according to the needs of the beneficiaries
6. The court at the insistence of any interested party on its own
motion, may order the establishment of a permanent trust, so that
only the income from the property shall be used.
Note: if the estate has been given to the state, but eventually there is a
party that seeks to claim the estate because they have a right to it
(legally entitled) he has to be do the FF:
 Files a claim with the court
o Prescriptive Period – This must be done within 5 years from
the date the property was delivered to the state.
 This person shall be entitled to the possession of the estate.
o This person could be an heir either by legitime, testamentary,
intestate.
 If the estate is SOLD – the municipality or city shall be
accountable to him for such aprt of the proceeds as may not have
been lawfully spent.
Reserva Adoptiva – Under this principle any property that has been
given to the adopted child has to be given back to the adopter. This is
since that under the old law it was the biological parents of the adopted
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child that got the inheritance of the adopted child. This is not the case o You cannot divide the remaining 10.5M between the SS and
now. Under our present rules, it is the adopter who gets the estate of LP since this would impair the legitime of the LP
the adopted child.  You would end up with
The problem of Partial Intestacy  Ateneo – 1.5 M
The problem here is an unnecessary one. This is since the CC does not  LP – 5.25 M (legitime should be 6M)
provide for a solution. The good news is that ALL the major  SS – 5.25 M
commentators have the same solution. o You also cannot also give the legitime to the SS and the LP,
then split the FP among the SS and the LP, this is since the
The situation here is that the decedent dies with a will, and he makes parents would get more than what they would get when it
dispositions BUT the dispositions do not cover the ENTIRE estate. comes to intestate succession.
Thus there will be intestacy to that portion. (It is presumed in this  In this case you would have
scenario that the legitimes have been respected. If they were not, then  Ateneo 1.5
there will be no partial intestacy since the free portion will have to  LP – 6M +250K
answer for the legitime, and it may even happen that the testamentary  SS – 4M +250K
dispositions would have to be reduced proportionally to answer for  Correct way:
the non-fulfillment of the legitime.)
o Ateneo = 1.5
o LP = 6M
Example: Combination #8 (LP & SS) o SS = 4M (legitime) +500K (remainder of the FP)
 A and B begot X, and X has spouse Y, and his estate is 20M  This is since the law intended that the SS get the FP, so
 In this case the legitime respect the law and give her the free portion.
o ½ parents, and 1/4th spouse  That is why it is important to know to whom the free
 Will said that I give ateneo ¼ of my estate. portion of the estate was intended for in intestacy.
o Here there is no problem…  Kasi if it was intestacy then the share would have been
 Parents 10M 6M-6M
 Spouse 5M
 ADMU 5M There are instances when the heirs share the free portion. (ex. 11)
o In this case what is left is divided among the 2
Example 2: Same, but no will = intestacy = no problem too
 LP = ½ = 10M CHAPTER 4
 SS = ½ = 10M PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSIONS
Example 3: Same, BUT estate is 12M, but gave to Ateneo 1/8 SECTION 1. - Right of Accretion
 In this case he only gave away half of the free portion.
 In this case ateneo gets 1.5M – this is valid. Art. 1015. Accretion is a right by virtue of which, when two or
 How about the LP and SS? more persons are called to the same inheritance, devise or legacy,
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the part assigned to the one who renounces or cannot receive his
share, or who died before the testator, is added or incorporated to
that of his co-heirs, co-devisees, or co-legatees. (n)
Art. 1016. In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same inheritance, or
to the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or
renounce the inheritance, or be incapacitated to receive it. (928a)
Note:
 These are overlapping – you do not need both. You can do without
1016, this is since 1016 just gives you the requisites.
What is accretion?
 It is a way of filling up a vacancy.
 A vacancy with is created by:
o Renunciation
o Predecease
o Incapacitation
Note: In testamentary succession it is inferior/subordinate to
substitution. Thus it ONLY takes place if there is NO substitution.
 Substitution prevails since it is the express will of the testator
Note: IN intestacy it is subordinate to representation.
Requisites of Accretion
1. Two or more persons are called to the same inheritance pro
indivisio.
o This also applies to legacies and devises
o What do you mean by pro indiviso?
 This means FRANCTIONAL, spiritual, ALIQUOT – i.e.
there is no specification of concrete portions.
TANTOCO 3B
 Remember: If the testator does not specify then it means
that it is equal.
o BUT, what if they are called to different fractions?
 A and B to 1/3. A 2/3 and B 1/3.
 In this case there is still the right of accretion. This is
since pro indiviso means that you get it in a fraction
form, it does not mean that all of you get the same
proportion.
 Take note of 1019 – here it says that the heirs take it
in the proportion in which they inherit.
 Here I am calling them to the same portion, but in unequal
shares.
BUT! If there is already a specification of whom things are to go –
then there will be NO accretion.
o In this case it will pass onto intestacy.
2. There must be either: (1) Predecease, (2) renunciation, (3)
Incapacity of the heirs.
o REMEMBER accretion is SUBORDINATE to
 Testamentary – Substitution
 Intestate – Representation.
When does accretion operate?
1. Predecease
2. Incapacity
3. Renunciation
Art. 1017. The words "one-half for each" or "in equal shares" or
any others which, though designating an aliquot part, do not
identify it by such description as shall make each heir the exclusive
owner of determinate property, shall not exclude the right of
accretion.
In case of money or fungible goods, if the share of each heir is not
earmarked, there shall be a right of accretion. (983a)
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Art. 1018. In legal succession the share of the person who
repudiates the inheritance shall always accrue to his co-
heirs. (981)
Note:
 Repudiation means that there can be no representation.
When does accretion occur in Intestacy?
1. In repudiation or renunciation
2. In precdecease
o ONLY IF REPRESENTATION DOES NOT TAKE PLACE
3. In Incapacity or unworthiness
o ONLY IF REPRESENTATION DOES NOT TAKE PLACE
Note: 2&3 are not are not mentioned by article 1018
Note2: When it comes to Intestacy – accretion is subordinate to
representation. This means that representation comes first.
What if you are talking about co-heirs?
 Co-heirs in whose favor accretion occurs must be co-heirs in the
same category as the excluded heir.
o Ex. X has a Spouse, and brothers A,B,C. If B dies,there will
be accretion with respect to the shares of A and C. BUT there
will be no accretion with respect to the share of Spouse.
Art. 1019. The heirs to whom the portion goes by the right of
accretion take it in the same proportion that they inherit. (n)
Illustration:
 A, B and C. A ½, B 1/3, C 1/6.
 A predeceases. In this case B and C get the share of A in the ratio
of 2:1.
TANTOCO 3B
NOTE: 1019 opens accretion up to an unequal institution – i.e. pwede
iba-ibang fraction.
Art. 1020. The heirs to whom the inheritance accrues shall succeed
to all the rights and obligations which the heir who renounced or
could not receive it would have had. (984)
GR: The heirs to whom the inheritance accrues shall succeed to all
rights and obligations which the heir who renounced or could not
receive would have had.
EX: 2 instances:
1. Testamentary Succession – if the testator provides otherwise
2. If the obligation is Purely personal
Art. 1021. Among the compulsory heirs the right of accretion shall
take place only when the free portion is left to two or more of them,
or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall
succeed to it in their own right, and not by the right of
accretion. (985)
Note:
 There is no accretion when it comes to the legitime
o In this case the heirs get it in their own right.
o Ex. If you have 3 kids and one dies, then each child will get
1/4th each – the result may be the same but the concept is
different. Accretion you get from someone, legitime you get
it in your own right.
o But this is also subject to the right of representation.
Q: But can accretion occur among and between compulsory heirs?
A: YES! If they are given a part or whole of the free portion.
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Note: There shall only be a right of accretion among compulsory heirs
ONLY when the free portion is left to two or more of them, or to any
one of them and to a stranger. In this case those who are instituted to
the free portion get by accretion the share of the co-heir who dies. So
in this case it contemplates that there is a testamentary disposition in
their favor.
Note: Accretion is restricted in its operation within the conflines of the
particular kind of succession involved. (But remember there is no such
thing as accretion when it comes to legitime. The effect is the same,
but Ruben gets pissed as hell if you call it accretion. This is since the
correct term would be that the remaining compulsory heirs inherit in
their own right.)
 But this will have an effect on the share of the SS and the IC. In
this case the less children that there are the bigger the share of the
SS and the IC.
Art. 1022. In testamentary succession, when the right of accretion
does not take place, the vacant portion of the instituted heirs, if no
substitute has been designated, shall pass to the legal heirs of the
testator, who shall receive it with the same charges and
obligations. (986)
Testamentary Succession the hierarchy is:
1. Substitution
2. Accretion
3. Intestacy
In Intestate Succession the hierarchy is:
1. Representation
2. Accretion
3. Intestacy
TANTOCO 3B
Note: If you give your compulsory heirs a testamentary disposition –
it is understood that you are giving them something beyond their
legitime.
Sir: You cannot give the CH their legitime – the legitime is given by
law. So in essence when you make a will you are just disposing of the
free portion.
Art. 1023. Accretion shall also take place among devisees, legatees
and usufructuaries under the same conditions established for
heirs. (987a)
SECTION 2. - Capacity to Succeed by Will of by Intestacy
Note: this article deals with testamentifaccion pasiva – i.e. the capacity
of the heir to succeed.
 Contra testamentifaccion active – which is testamentary capacity
Art. 1024. Persons not incapacitated by law may succeed by will
or ab intestato.
The provisions relating to incapacity by will are equally applicable
to intestate succession. (744, 914)
Notes:
 Persons should have capacity to succeed.
 This article says that incapacity to succeed by will means that you
are incapacitated to succeed. THIS IS WRONG.
o It does not follow that if you are incapacitated to succeed in
testamentary succession, it apples to all.
 E.x. 1027 is incapacity to succeed by will
 Same with 1028 – only applies to testamentary succession
 1032 on the other hand covers all kinds of succession
GR: the general rule is in favor of capacity to succeed, as long as the
successor has juridical personality.
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 Incapacity must be based on some legal ground and must be X has sons A and B,
shown. X disinherits A in 2010, and X dies the same year
In 2015 A begets a child – A1
Codal Provisions Applicability: In this case A1 cannot represent A.
1. Art 1027, par.1-5
o Testamentary succession only. See there is no exception – you have to be alive at the time the testator
2. Art 1027, par. 6 dies.
o All kinds of succession.
3. Art 1028 Note: In order to inherit the HDL must be – Living at the moment the
o Testamentary succession only. succession opens (when the decedent dies)
4. Art 1032
o All kinds of succession. Note2: When is a person considered living?  A child is already
conceived at the time of the death of the testator.
Art. 1025. In order to be capacitated to inherit, the heir, devisee  It shall be sufficient that it is conceived and it be born later.
or legatee must be living at the moment the succession opens,
except in case of representation, when it is proper. If institution of HDL is If institution of HDL is
A child already conceived at the time of the death of the decedent subject to a subject to a
is capable of succeeding provided it be born later under the SUSPENSIVE CONDITION SUSPENSIVE TERM
conditions prescribed in article 41. (n) 1. Successor HDL must be Successor HDL must be living
living at the time the at the time the decedent dies.
decedent dies, AND
Notes:
2. 2. At the time the
 This applies only to natural persons. condition happens.
 Thus the rule for natural persons: Requirement #1 is absolute for both cases. Not even representation
o Is that he must be living and qualified at the time that is an exception because for representation to occur, the
succession opens – this is ABSOLUTE, there is no exception. representative must also be at least already conceived when the
o When you say living you must be born – i.e. complete decedent dies. (Art 971 and 973)
separation from the maternal womb
 Except – if it had an intrauterine for less than 7mo – then This also applies to juridical persons.
you have to survive for at least 24 hours.
o But rights favorable to the child retroact to the time that it was Note: There is no exception to the rule that the successor should be
conceived – succession is favorable alive when the decedent dies. This rule is absolute.
 For a child: The minimum is that it was conceived, BUT it has to  If you want representation to occur the person that is to be
be born. represented should be alive already (or at least conceived).

Example: Paris Priest vs .Rigor

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There was a devise in favor of the nearest male relative who
would become a parish priest, who was forbidden to sell such land and
would lose the devise if he discontinued his studies for the priesthood.
Issue: the time when the nearest male relative would study for the
priesthood should be determined. Did the testator contemplate only his
nearest male relative at the time of his death or at anytime after his
death?
SC: Only at the time of his death. Not an indefinite time thereafter. In
order to be capacitated to inherit, the HDL must be living at the
moment the succession opens. To construe them as referring to the
testator's nearest male relative at anytime after his death would create
uncertainty as to the disposition of the estate. The testator must have
known that such a broad provision would suspend for an unlimited
period of time the efficaciousness of his bequest.
Since the testator was not survived by any nephew who
became a priest, the devise in question was ineffectual or inoperative.
Art. 1026. A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless
there is a provision to the contrary in their charter or the laws of
their creation, and always subject to the same. (746a)
Note: Juridical person can only succeed by testamentary dispositions.
 It is a consideration that when the heir is a juridical person, then
they have to be existing at the time that the testator dies.
 i.e. it must already be a juridical person at the time of the death of
the testator.
o This is different from establishing a trust. In this case pwede.
TANTOCO 3B
 E.x. I give this for the purpose of setting up a foundation
under my name.
 But you have to make sure that you do not make this a
pre-condition for the legitime. This is since will burden
the legitime – which is BAWAL.
 What is the basis for this?
o 777 = successional rights are established at the moment of
death.
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his
last illness, or the minister of the gospel who extended spiritual aid
to him during the same period;
(2) The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary dispositions given by
a ward in his favor before the final accounts of the guardianship
have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward
in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse,
parents, or children, or any one claiming under such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who
took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by
law to inherit. (745, 752, 753, 754a)
Note: Paragraphs 1-5 apply only to TESTAMENTARY succession.
Thus they have no application to legitime or to intestacy.
 Thus a person may be disqualified to succeed by will under these
paragraphs but entitled to a legitime or to an intestate portion
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 What is the rationale behind these paragraphs?
o It seeks to prevent any possible abuse of the moral or spiritual
ascendancy for the purposes of testamentary benefit.
Q: Does there have to be ACTUAL influence for this article to apply?
A: NO – The disqualification that is places here is one that is
preemptory.
 There is no need to show the presence of actual duress or influence
o These two are conclusively presumed
 This is due to the fact that these are CONCLUSIVE
PRESUMTIONS – when you say CP this mens that it CANNOT
be disputed.
Q: Does the proof that there was no duress nor influence cure the
disposition?
A: NO – this is irrelevant, and it will not remove the disqualification.
Note: Paragraph 6 is misplaced
 This is since this provides for TOTAL disqualification, it should
have been made a separate article.
Who are not allowed?
I. Preists, Ministers, etc
 They must have heard confession or given him spiritual aid –
DURING HIS LAST ILLNESS.
 Requisites:
1. The will must have been executed during his last illness
 It must be a deathbed will. If it not a deathbed will – forget
about it.
2. The spiritual ministration must have been extended during the
last illness (at the point of death).
3. The will must have been executed during or after the spiritual
ministration
 So the will must have been executed during or after the
spiritual ministration.
TANTOCO 3B
 If the will is made BEFORE then this does not apply
 There is a conclusive presumption here that the priest used
influence in order to attain the testamentary disposition.
 A reading of this paragraph does not clearly indicate that the will
must have been made during the last illness of the testator, noe
that the spiritual ministration be anterior to, or simultaneously
with, the making of the will.
 This ONLY applies to testamentary dispositions.
o Suppose Fr. Lito’s dad asks him to come and hear his
confession. After he hears the confession he gives Fr. L a
portion of the free portion.
 In this case – Legitime is NOT impaired – so he can still
get it.
 BUT – the testamentary disposition is not valid.
II. Relatives of #1 within the 4th degree, or their Church, Chapter,
Community, Order, Organization, or
 This is since what you may not do directly you may not do
indirectly.
 Note: This law forgets to mention that it may apply to the spouse.
This is since ministers may get married – i.e. a protestant minister.
o In this case if it is given to the spouse you will have to prove
it. This is since this is a disqualification so you will have to
prove this under 1030.
III. A guardian with respect to the testamentary dispositions that are
made to him by his ward
 There are 2 kinds of guardians:
o Over the person
o Over the property
 While the guardian referred to guardians over the property, this is
since the law talks about the approval of the accounts, but RUBEN
says that this should mean for BOTH kinds of guardians
GR: Basta guardian, CANNOT get any testamentary disposition
EX: If the guardian is the:
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1. Ascendant Notes:
2. Descendant  The disqualifications that are contained in this article only apply
3. Brother to testamentary dispositions.
4. Sister  Those who are disqualified from receiving donations under 739
5. Spouse are disqualified from receiving testamentary disposition from the
 Note: This article does not mention the spouse of the guardian, or parties specified in the article.
the brother or sister of the guardian, so if it is given to them it shall
be valid. Art. 1029. Should the testator dispose of the whole or part of his
property for prayers and pious works for the benefit of his soul,
IV. An attesting witness, or his spouse, parents, or children, or anyone in general terms and without specifying its application, the
that claims under them executor, with the court's approval shall deliver one-half thereof
or its proceeds to the church or denomination to which the testator
V. A medical professional who tended to the testator during his last may belong, to be used for such prayers and pious works, and the
illness. other half to the State, for the purposes mentioned in Article
 Requisites: 1013. (747a)
o The will must have been executed during the last illness
o Medical ministration must have been given during the last Requisites:
illness 1. Disposition for prayers and pius works for the benefit of the
o The will must have been executed during or after the last testator’s sould
illness. 2. No specification of the application of the disposition.
o Note: this was made in 1949. Now there are different kinds of
healthcare people, like caretakers, physical therapists, etc. How do you apportion the disposition or its proceeds?
1. One half to the church or denomination to which the testator
VI. Individuals, associations, or corporations not allowed by LAW to belonged
inherit. 2. One half to the state, to be applies as provided for in article 1013.
 When it comes to individuals it applies to all kinds of succession
 When it refers to associations and corporations – it applies ONLY RUBEN: This article comes into play when there is no specific
to testamentary dispositions. disposition. But if there is then this article will not apply.
o EXCEPT – the STATE – it is a juridical person that may  Ex: If I say that I give 1M to the Binondo Church to offer masses
receive something through a mode other than testamentary for my soul for the next 10 years.
disposition (intestacy) o In this case article 1029 will NOT apply.

Art. 1028. The prohibitions mentioned in article 739, concerning Art. 1030. Testamentary provisions in favor of the poor in general,
donations inter vivos shall apply to testamentary provisions. (n) without designation of particular persons or of any community,
shall be deemed limited to the poor living in the domicile of the
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testator at the time of his death, unless it should clearly appear
that his intention was otherwise.
The designation of the persons who are to be considered as poor
and the distribution of the property shall be made by the person
appointed by the testator for the purpose; in default of such
person, by the executor, and should there be no executor, by the
justice of the peace, the mayor, and the municipal treasurer, who
shall decide by a majority of votes all questions that may arise. In
all these cases, the approval of the Court of First Instance shall be
necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite
locality. (749a)
Testamentary provisions
1. In favor of the poor in general,
o Take note of general – as in it is not given to a specific set of
poor persons.
o This also applies if the disposition was for the poor of a
definite locality.
2. Without designation of the particular persons or
of any community,
Shall be deemed limited to the:
 Poor living in the domicile of the testator at the time of his death
 Unless, it should clearly appear that his intention was otherwise.
Who shall designate to whom the proceeds will go to?
1. It shall be made by the person appointed by the testator for the
purpose;
2. In default of such person, by the executor,
3. Should there be no executor, by the justice of the peace, the mayor,
and the municipal treasurer, who shall decide by a majority of
votes all questions that may arise.
TANTOCO 3B
4. In all these cases, the approval of the Court of First Instance shall
be necessary.
Note: It is absurd for it to go beyond #3 this is since there is a will, so
if there is a will then there will be an executor for sure.
Art. 1031. A testamentary provision in favor of a disqualified
person, even though made under the guise of an onerous contract,
or made through an intermediary, shall be void. (755)
Here any intent to circumvent 1027 and 1028 will result in the nullity
of the testamentary disposition. But this will always be a matter of
evidence. So this will apply ONLY if you are able to prove that there
is an intent to circumvent.
Rationale – what cannot be done directly cannot be done indeiractly.
In this case the simulation must be proved
Effect of simulation or circumvention – the article provides that the
disposition is VOID, hence ineffective both as to the intended
beneficiary and the intermediary.
 The intestate heirs, to whom the property should go to, have the
right to claim the nullity.
Art. 1032. The following are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue;
(2) Any person who has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
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(4) Any heir of full age who, having knowledge of the violent death 4. Authorities have not taken action
of the testator, should fail to report it to an officer of the law within 5. There is a legal obligation for the heir to make an accusation.
a month, unless the authorities have already taken action; this
prohibition shall not apply to cases wherein, according to law, there #7
is no obligation to make an accusation; Grounds are the same as number 6.
(5) Any person convicted of adultery or concubinage with the In this case you do not need conviction
spouse of the testator;
#8
(6) Any person who by fraud, violence, intimidation, or undue Forgery
influence should cause the testator to make a will or to change one
already made; Q: What is the effect of unworthiness?
(7) Any person who by the same means prevents another from A: Total Exclusion of the unworthy heir. It means total
making a will, or from revoking one already made, or who supplants, disqualification – i.e. the unworthy heir is incapacitated to succeed
conceals, or alters the latter's will; from the offended party by ANY form of succession – Legitime,
(8) Any person who falsifies or forges a supposed will of the testamentary, and intestate.
decedent. (756, 673, 674a)
Q: From what?
A: FROM EVERYTHING. May it be testamentary, compulsory, or
Q: When does article apply?
intestate.
A: TO ALL KINDS OF SUCCESSION!
Note: Unworthiness and disinheritance have identical effects. Its just
Note: These are the same grounds as disinheritance. The only new
that unworthiness is disinheritance given imposed by law.
grounds are #4, 7, and 8.
In this case you do not need disinheritance. This is called legal
#4 – there is no such crime as misprision of murder – i.e. that you do
disinheritance. The offended party need not do anything. It is
not report a murder.
automatic.
Ex. You see your father get killed, and you do not report it – you are
not guilty of anything, but you may be a horrible son.
Art. 1033. The cause of unworthiness shall be without effect if the
testator had knowledge thereof at the time he made the will, or if,
This is inoperative since there is no law that punishes such.
having known of them subsequently, he should condone them in
writing. (757a)
What are the requisites?
1. The heir has knowledge of violent death of the decedent
2. The heir is of legal age Testator knew of the Testator knew of the ground of
3. The heir fails to report it to all officer of law within a month after unworthiness at the time that he unworthiness AFTER he made
made the will the will
learning of it.
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The cause of unworthiness shall There has to be condonation in
be without effect writing.
How is an unworthy heir restored to capacity:
1. A written condonation
2. The execution by the offended party of a will with knowledge of
the cause of unworthiness
Q: When it comes to the execution of a new will (#2) is it enough that
the testator execute a new will with knowledge of the ground of
unworthiness?
A: NO – Ruben thinks that the better opinion is that it is not enough.
The will must either institute or restore the heir to capacity.
Q: How is lifted?
A: By WRITTEN pardon – the type does not matter (public
instrument, private, on tissue, on paper), what is essential is that it
must be written.
 This is the ONLY way that you can reinstate the unworthy heir.
But this creates a problem…
In the case of disinheritance 922 says that it is lifted by mere reconciliation
and here there is no need for writing, it may be as simple as conduct
Why is this a problem? This is since most of the grounds are similar.
Example:
Ledesma is guilty for an attempt on his father’s life. And he is
convicted by final judgement. And in this case the father makes a will to
disinherit Robin. In this case the act makes Robin BOTH unworthy and
disinherited.
But they eventually reconcile, BUT the father does not make any
pardon in writing. Then the father dies.
TANTOCO 3B
Question: What happens now? They reconciled but at the same time he is
also deemed unworthy by law… So conflict: reconciliation enough? Or do
you need a written document?
In this case the reconciliation must do. This is since disinheritance is the
express will of the testator. If you say that a written is needed, then you are
saying that the express will is trumped by the implied will.
So if it is a common ground, then the matter should fall under the rules on
disinheritance.
In this case if there was no disinheriting will – then the laws on unworthiness
should apply.
Art. 1034. In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the decedent
shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered, and in the case
falling under No. 4, the expiration of the month allowed for the
report.
If the institution, devise or legacy should be conditional, the time
of the compliance with the condition shall also be
considered. (758a)
When is capacity determined?
GR: At the time of the death of the decedent.
WHY? This is the time when the successional rights vest (remember
777?)
If the institution is subject to a suspensive condition:
1. The time of the death of the decedent
2. Time of the happening of the condition.
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Remember: When the institution is subject to a suspensive condition,
then the heir gets the inheritance only at the happening of the condition
– BUT his right retroacts to the time when the testator died.
Note: When Final Judgement is a requisite of unworthiness – then at
the time of final judgement.
Art. 1035. If the person excluded from the inheritance by reason
of incapacity should be a child or descendant of the decedent and
should have children or descendants, the latter shall acquire his
right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his
children. (761a)
Note: There is representation when it comes to unworthiness. BUT the
one who is unworthy to succeed MUST be a child of the testator.
 This extends to BOTH compulsory and intestate succession.
o Note: There is NO representation when it comes to
testamentary succession.
What is the extent of representation?
 Representation in unworthiness extends not only to the legitime,
but also to whatever portion in intestate succession the person
represented may have been entitled to.
Q: is there representation when it comes to the collateral line?
A: YES – if the unworthy heir is the brother or sister, then their
children will represent.
Consideration for wit the 2nd paragraph:
 To the usufruct – this is not applicable because of article 26 of the
family code. The article states that the right of the parents to the
income of the child’s property shall be limited to: Primarily the
support of the child, and secondarily the support of the family.
TANTOCO 3B
 To the administration – the disqualification shall still remain the
same. Thus the right of administration shall be exercised either
by a judicially appointed guardian or those vested by law with
substitute parental authority.
Art. 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the judicial
order of exclusion, are valid as to the third persons who acted in
good faith; but the co-heirs shall have a right to recover damages
from the disqualified heir. (n)
Notes:
 The validity of the alienation is determined by the good faith or
bad faith of the transferee, NOT of the transferor or the excluded
heir.
What is required for the transferee to be in good faith?
 For the transferee to be in good faith he must have acquired the
thing for value and without knowledge of the defect of the
transferor’s title.
o This a done cannot claim the benefit of this provision since he
did not acquire the thing for value.
So what is the remedy of the not disqualified heirs against the
disqualified heir who sells the property?
 They can go after the disqualified heir for damages
Art. 1037. The unworthy heir who is excluded from the succession
has a right to demand indemnity or any expenses incurred in the
preservation of the hereditary property, and to enforce such
credits as he may have against the estate. (n)
Under this article the heir is given the right of reimbursement
irrespective of his bad faith. This is since the expenses referred to in
this article are those that are necessary expenses.
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These are also the expenses that have to also be reimbursed to a
possessor in bad faith.
Art. 1038. Any person incapable of succession, who, disregarding
the prohibition stated in the preceding articles, entered into the
possession of the hereditary property, shall be obliged to return it
together it its accessions.
He shall be liable for all the fruits and rents he may have received,
or could have received through the exercise of due
diligence. (760a)
What is the scenario contemplated in this article?
 This article contemplates that there is a disqualified heir who too
possession of the property.
o In this case the law treats him as if he is a possessor in bad
faith.
o This is since he took possession of the property disregarding
the provisions stated in the preceding articles.
 Thus the disqualified heir has:
o The obligation to return the property with its accessions
o Liability for fruits which were received and could have been
received.
Art. 1039. Capacity to succeed is governed by the law of the nation
of the decedent. (n)
This just states that it is the law of the nationality of the decedent that
determines the capacity to succeed of the heirs.
So I am the one that makes the will, and my heir is my American
Citizen wife, the capacity to succeed of my American wife is
determined by the laws of the PH and NOT by the laws of the USA.
TANTOCO 3B
Art. 1040. The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be brought
within five years from the time the disqualified person took
possession thereof. It may be brought by any one who may have
an interest in the succession. (762a)
Five year prescriptive Period – The prescriptive period of 5 years
applies to BOTH:
1. The declaration of incapacity of the heir and
2. The recovery of inheritance or portion thereof wrongfully
possessed by the disqualified heir.
SECTION 3. - Acceptance and Repudiation of the Inheritance
Outline:
I. Freedom to accept or Renounce
 This is since there is no pressure for you to accept
 Non Potest Leberitas Nolenti adquiri – kung gusto mo tanggapin,
tanggapin mo. Kung ayaw mo, walang pipilit sayo.
o You are always free to accept or renounce.
II. When is the time for acceptance or renouncement? (1043)
 You must be certain of the death – so this means you can ONLY
renounce when the testator dies.
o You cannot renounce why the testator is still living.
III. Retroactivity of the acceptance (1042)
 Retroacts to the death of the decedent – by virtue of 777.
IV. Rules on acceptance or renouncement
1. If the heir has capacity to act
o He may renounce personally (1044 par. 1)
o Through an agent (1878 par. 3)
 But you need SPA.
2. Married Woman
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o Has to be of age, but this is defunct since to marry you have 8. Renunciation by the heirs of the heir (1053 & 1054)
to be of age. o The right to renounce is a transmissible right
o Then they do not need the consent of the husband – sexist 9. The rules on intestate and testamentary succession shall apply
provision which should DIE o What is the situation here: the heir is both a testamentary and
3. If the heir is an incompetent- the may ONLY renounce or accept intestate heir. Ex. You are a brother of the testator who has no
through an agent (1044 par. 2) issue, and he left a will giving you something.
o Acceotance - kaya ni agent o The rule is that if you renounce the testamentary disposition
o Renounce – you need judicial approval. This is since you are deemed to have renounce the intestate portion.
renouncement is prejudicial to the heir.  This is since if you have no regard for his express will,
4. Deaf Mutes then you are deemed to have no regard for his implied
o Able to read and write – not incompetent, thus normal under will.
the eyes of the law o BUT if you renounce as an intestate heir, you may still inherit
o Not able to read and write and illiterate: as a testamentary heir.
 To accept need: guardian, o What about the LEGITIME?
 To renounce need: guardian + court approval  It is completely independent. So you may renounce or
5. Juridical Person (1045-46) accept it and it will not affect the other dispositions
o To accept need: guardian,  This is since the testator has no part in the legitime. This
o To renounce need: guardian + court approval is passed through operation of law.
6. Rule on acceptance are more liberal than those on renouncement 10. Finality of Acceptance or Renunciation.
o This is since acceptance is beneficial, and renouncement is o Once you make your choice known it is FINAL AND
prejudicial to the person IRREVOCABLE.
o Cases: o UNLESS there are grounds for vitiated consent – i.e. those
1. A or R by representative that effect the freedom of contracts
 Accept – No Court Approval o OR if there is a new will – in this case you may not even be
 Renounce – Court Approval Required. an heir anymore.
2. Forms of acceptance or renunciation
 Accept – In a public or private document, express, Latin Terms:
tacit, or implied. 1. Non potest liberalitas nolenti adquiri – No one can be required to
 Renunciation – has to be in a public or authentic accept a benefit
instrument or motion in the settlement court. 2. Qui tacet consentire videtur – implied acceptance when you fail
o Thus if you renounce it must be in writing. to state WON you accept or not
7. You cannot renounce if it is prejudicial to creditors. (1052)
o ONLY exception to the non potest liberalitas nolenti. Art. 1041. The acceptance or repudiation of the inheritance is an
o This is a species of accion pauliana. act which is purely voluntary and free. (988)
o This is a renunciation that is in fraud of creditors

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Acceptance of inheritance is a free act:
 The accetance of property through succession – whether in the
form of intestate succession, legitime, or testamentary succession
– is like the acceptance of a donation. It is a FREE act.
Note: The laws on acceptance of inheritance are more liberal as vis-à-
vis the ones on renunciation. The reason behind this is that acceptance
is beneficial, while repudiation is prejudicial to the successor.
Art. 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent. (989)
Same principle as 777. The effects of the renunciation or acceptance
shall retroact to the moment of death of the decedent.
happen, then the property goes to the appropriate successor
with the same retroactive effect.
o But remember there are instances in conditional institutions
there are instances when the property is placed in
administration or the person who gets the property has to give
the supersedas bond.
But take note of Aticle 1057 which states that:
 Within 30 days from the time that the court has issued an order for
the distribution of the estate the HL shall signify to the court
having jurisdiction WON they accept or repudiate the inheritance.
 If they do not do so within that time – then they are deemed to
have accepted it.
o Here there is such a thing as silent acceptance.

Retroactivity: Q: Once you make a choice – can you change?

1. Acceptance A: GR: Touch move na – so NO.
o The successor shall be deemed to have owned AND possessed A2: EX: (1) Vitiation of consent (2) when an unknown will appears
the property from the precise moment of the death of the
decedent. Person that inherits Person who can accept or renounce
o This rule has consequences when it comes to prescription People in general ART 1044: Any person having
(time will start to run from the point when the decedent dies), the free disposal of his property
capacity to succeed (if you didn’t have capacity at the time may accept or repudiate an
when the testator died, then you do not have capacity to inheritance.
succeed), representation, etc.
Capacity to act is required for
2. Renunciation personal acceptance and
o The renouncer is deemed NEVER to have owned the OR renunciation.
possessed the property.
o This the substitute or co-heir, or intestate heir who gets the An agent, when authorized, may
property in default of the renouncer is deemed to have owned accept, in behalf of his principal.
and possessed it from the moment of the decedent’s death. An Heir In Without having accepted or
3. Conditional Institutions General. repudiate the inheritance
o Upon the happening of the condition the property passes to ART 1053: If
the heir but with retroactive effect. If the condition does not the heir His right shall be transmitted
should die to his heirs.

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Literate deaf-mute Deaf-mutes who can read and write, may

*Obviously, this will apply only if accept or repudiate the inheritance”
the heir's heir accepts.  Personall
 Through an agent
ART 1054: Should there be Illiterate deaf-mutes It may be accepted by:
several heirs called to the  Their guardians
inheritance, some of them may
accept and the others may It may be repudiated by
repudiate.  Their guardians, but it needs court
Testamentary Grants It may be accepted by: approval
to the Poor  The person that stated in article 1030
 The poor persons selected as How can acceptance be made?
recipients. Express Acceptance An express acceptance may be
made in a public or private
It may be repudiated by document.
 The poor persons selected as Tacit Acceptance ART 1049: A tacit acceptance is
recipients. one resulting from acts:
Any inheritance that It may be accepted by: 1. By which the intention to
is left to minors or to  Their parents or guardians accept is necessarily
incapacitated persons implied, or
It may be repudiated by 2. By which one would have
 Their parents and guardians ONLY no right to do except in the
by judicial authorization. capacity of the heir.
ART 1045: It may be accepted by:
Corporations,  The lawful Representatives may What is tacit acceptance?
Associations, accept any inheritance left to the  Acts revealing an intent to
Institutions, Entities latter accept.
(when qualified to  Inferred from acts of
acquire property) It may be repudiated by ownership performed by the
 It needs court approval heir over the property.
The government Public official establishments can
neither accept nor repudiate an inheritance What is not a tacit acceptance?
without the approval of the government.  Acts of mere preservation or
Married Person A married person of age and not provisional administration
incapacitated for any reason, may accept do not imply an acceptance
or renounce an inheritance without his or of the inheritance if through
her spouse consent. such acts title or capacity of

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an heir has not been beneficiaries and distribute the property, or in their default, to
assumed. those mentioned in Article 1030. (992a)

What are examples of tacit

Implied Acceptance
acceptance?
▪ ART 1050
If the heirs do not signify to the
Court whether they accept or
renounce the inheritance within
30 days after the court has issued
an order for the distribution of
the estate,
 They are deemed to have
accepted the inheritance.
Requirement for personal acceptance or renunciation – Capacity to act
is required for personal acceptance or renunciation
How about for minors or incapacitated parties?
 Acceptance – only through their legal representatives
 Repudiation – it needs the approval of the court.
But remember: that these authorized individuals can ONLY accept
and NOT reject the grant. Furthermore the persons that are selected as
qualified recipients are free to accept or renounce the benefit.

Art. 1043. No person may accept or repudiate an inheritance
unless he is certain of the death of the person from whom he is to
inherit, and of his right to the inheritance. (991)
This article is logical – you can only accept or repudiate inheritance
when you are certain of the death of the testator.
Under this article what are the 2 things that an heir must know in order
for him to accept or repudiate an inheritance?
1. Certain of the death of the person he is to inherit from
2. His right to the inheritance.
Art. 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire property
may accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary.(993a)
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government. (994)
Same rule as minors and incapacitated persons – approval pwede na
representative, BUT renunciation – need court approval.

Art. 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be
accepted by their parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall belong to
the persons designated by the testator to determine the
TANTOCO 3B
Art. 1047. A married woman of age may repudiate an inheritance
without the consent of her husband. (995a)
This is more accurately worded to: “A married person of age and not
incapacitated for any reason may accept or renounce an inheritance
without his or her spouse’s consent.
Art. 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should
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they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the
same with judicial approval. (996a)
This article must be correlated with article 1327 which states that
unemancipated minors or insane or demented persons, and deaf mutes
who cannot read nor write cannot give consent to a contract.
Q: Does a deaf mute always have to accept or renounce with the aid
of someone else?
A: NO – A deaf mute who can read and write and write has contractual
capacity, and can accept or renounce on his own behalf.
Note: But if the deaf must is illiterate, then the rules on acceptance and
renunciation through a representative apply.
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one would have
no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not
imply an acceptance of the inheritance if, through such acts, the
title or capacity of an heir has not been assumed. (999a)
Express Acceptance is made through a:
 Public document
 Private writing
Tacit Acceptance is:
 One resulting from acts by which the intention to accept is
implied, or which one would have no right to do except in the
capacity of an heir.
TANTOCO 3B
Q: DO acts of preservation and administration imply acceptance?
A: It depends. NO – if the title or capacity of an heir has not been
assumed. Yes – if the title and capacity of an heir has been assumed.
Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or
to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously, for
the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous,
and the co-heirs in whose favor it is made are those upon whom
the portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted. (1000)
What is tacit acceptance?
 It is inferred from acts revealing an intent to accept.
 I general it is inferred form acts of ownership performed by the
heir over his property.
Q: Is the list given here exclusive?
A: No – the list given is merely illustrative.
Grounds in 1050:
1. If the heirs sells, donates, or assigns his right to a stranger, or to
his co-heirs, or to any of them
o This is an act of ownership, which necessarily imples that the
heir has accepted the inheritance
2. If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs
o This is NOT in fact a renunciation but a conveyance in favor
of the co-heirs specified.
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o It partakes of the nature of a donation – so the rules and laws
on donations must be applied.
o If the renunciation is for an onerous consideration there is
acceptance.
3. Onerous renunciations in favor of the co heirs indiscriminately
o His is not a renunciation but a sale of his portion – thus tacit
acceptance
Indiscriminate renunciation:
 Means a renouncement gratuitously made in favor of all the co-
heirs who would get the renounced portion by virtue of accretion.
 The same rule applies even if the par renounced in this manner is
the legitime
o Notwithstanding that there is no accretion in the legitime as
long as the renunciation is indiscriminate.
 This is true renunciation and this cannot be treated as tacit
acceptance.
But note: If the heir states that he is renouncing his inheritance in favor
of ALL is co heirs, but they are to get different proportions than those
that they would have gotten through accretion – there is an implied
acceptance here.
 In this case the heir, even if he said that he is renouncing it is
actually disposing of it as if it was his already. This is in essence
a conveyance.
Art. 1051. The repudiation of an inheritance shall be made in a
public or authentic instrument, or by petition presented to the
court having jurisdiction over the testamentary or intestate
proceedings. (1008)
The repudiation of an inheritance shall be made:
1. In a public or authentic instrument, or
TANTOCO 3B
2. By petition presented to the court having jurisdiction over the
testamentary or intestate proceedings.
Art. 1052. If the heir repudiates the inheritance to the prejudice
of his own creditors, the latter may petition the court to authorize
them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess, should
there be any, shall in no case pertain to the renouncer, but shall
be adjudicated to the persons to whom, in accordance with the
rules established in this Code, it may belong. (1001)
Notes:
 This is an instance of accion pauliana – which is the right of the
creditors to impugn or set aside contracts, transactions, or
dispositions of their debtors which will prejudice or defraud them.
 This will only apply if they the debtor has no other properties with
which to pay.
 The right of the creditor to make the heir accept the inheritance
extends only to the amount or value needed to satisfy the credit.
 Any amount in excess of that is considered validly renounced.
How does this work?
1. If the heir repudiates the inheritance to the prejudice of his own
creditors:
o The creditors may petition the court to authorize them to
accept it in the name of the heir.
2. The acceptance shall benefit the creditors only to the extent
sufficient to cover the amount of their credits.
o So the heir is not compelled to accept the whole thing – but
only an amount sufficient to cover his debts.
3. The excess (should there be any), shall in no case pertain to the
renouncer,
o But shall be adjudicated to the persons to whom it may belong.
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 So the excess will go to those to whom it should go to –
either by accretion, substitution, intestacy, etc.
Art. 1053. If the heir should die without having accepted or
repudiated the inheritance his right shall be transmitted to his
heirs. (1006)
Notes:
 The right of the heir who dies before accepting or renouncing is
already vested and is transmitted to the heir’s heirs.
 The right to the inheritance itself forms part of the inheritance of
the heir.
o This the heir of the heir can exercise the right granted by this
article ONLY if the heir’s heir accepts his own predecessor’s
inheritance.
o So if the heir if the heir renounced the inheritance of the heir,
he cannot represent the heir.
o So if apo renounces the inheritance of his dad, he cannot
represent his dad to the estate of his lolo.
Art. 1054. Should there be several heirs called to the inheritance,
some of them may accept and the others may repudiate it. (1007a)
If there are several heirs their right to accept or to renounce
corresponds to the aliquot share to which they are entitled.
Example:
X died on Jan. 1, 1996. A died on Jan. 14, 1996 without having
accepted or repudiated the inheritance. a, b and c get the rights of A.
Any of them may renounce.
TANTOCO 3B
If a and b renounce, then 2/3 of A's share is deemed renounced. No
accretion takes place between a, b and c.
Partial acceptance is allowed – so I can choose not to get the whole
thing, but only a portion of what I am to get through inheritance.
E.g., B renounces 2/3 of what he will get.
Art. 1055. If a person, who is called to the same inheritance as an
heir by will and ab intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of
his being a testamentary heir, he may still accept it in the latter
capacity. (1009)
If the heir is both a testate and intestate heir:
1. If he renounces in a testate capacity
o He is deemed to have renounced in both capacities.
o Why?
 If the heir rejected an express will, then he is deemed to
have rejected the implied will.
2. If he renounces in an intestate capacity
o Whether he had knowledge that he was a testate heir or not,
only his capacity to inherit as an intestate heir is renounced.
o Even if he had knowledge, he may want to accept the testate
share to show respect for the will of the testator.
o Philosophy behind this is that testamentary succession is
superior to intestate succession.
Note: Legitime is treated separately. This may be accepted or
renounced separately. The heir may accept the testate share and reject
the legitime and vice versa.
Note: Ab Intestato in this article refers solely to intestate succession.
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Art. 1056. The acceptance or repudiation of an inheritance, once
made, is irrevocable, and cannot be impugned, except when it was
made through any of the causes that vitiate consent, or when an
unknown will appears. (997)
Here by doing or saying nothing after the order of the court for
distribution, and you do not say that you accept or not, then the law
deems that you have accepted it.
SECTION 4. - Executors and Administrators

General rule: Once you accept or repudiate your inheritance it is Art. 1058. All matters relating to the appointment, powers and
IRREVOCABLE. duties of executors and administrators and concerning the
Exceptions: 1. administration of estates of deceased persons shall be governed by
1. Vitiated consent the Rules of Court. (n)
o The factors that vitate consent are Art. 1059. If the assets of the estate of a decedent which can be
 Violence applied to the payment of debts are not sufficient for that purpose,
 Intimidation the provisions of Articles 2239 to 2251 on Preference of Credits
 Undue Influence shall be observed, provided that the expenses referred to in Article
 Mistake 2244, No. 8, shall be those involved in the administration of the
 Fraud decedent's estate. (n)
2. When an unknown will appears.
o You cannot renounce what you do not know.
o This applies of the newly discovered will is subsequent to any Art. 1060. A corporation or association authorized to conduct the
will which may have formed the basis for the acceptance or business of a trust company in the Philippines may be appointed
renouncement. as an executor, administrator, guardian of an estate, or trustee, in
o The new will reopens the whole affair and it will call for a like manner as an individual; but it shall not be appointed
new renunciation or acceptance. guardian of the person of a ward. (n)

Art. 1057. Within thirty days after the court has issued an order SECTION 5. – Collation
for the distribution of the estate in accordance with the Rules of
Court, the heirs, devisees and legatees shall signify to the court Three (3) senses:
having jurisdiction whether they accept or repudiate the 1. Computation
inheritance. o Get together all assets, subtract the debts and add the
If they do not do so within that time, they are deemed to have donations to get the net hereditary estate.
accepted the inheritance. (n) 2. Imputation
o Determine if the donation is chargeable/ imputable to the
legitime or the free portion.
o General rule: If compulsory heir, imputable to the legitime.
o Exception: If testator has provided otherwise.

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3. Restoration/ return
o If donation to a stranger exceeds the free portion, he would
have to give back to the estate as much as is needed to
complete the legitimes.
o This will not happen if the legitimes are not impaired.
Art. 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of
the partition.(1035a)
 This in collation in the first sense – by Computation
Notes:
 This article states that a compulsory heir must being into the mass
of the estate anything that he may have received from the testator
by gratuitous title. If he acquires the thing for onerous title, then
there is no need to bring it into the mass of the estate.
 This is the same step as the 3rd step in 908
What must the compulsory heir who succeeds with other compulsory
heirs bring into the mass of the estate?
 Any property or right which he may have received from the
decedent
 During the lifetime of the decedent,
 By way of donation or any other gratuitous title
Why is this done?
 In order to determine the legitime of each heir
o Remember – donations inter vivos are considered an advance
from the legitime.
 And in account of the partition
TANTOCO 3B
What should be included in the computation for the purpose of
determining the value of the net estate?
 ALL donations inter vivos,
 Whether made to compulsory heirs or to strangers (non-
compulsory heirs).
 This is because every donation is imputable to either the legitime
or the free portion.
 You compute only the value of the property donated at the time
the donation was made.
Art. 1062. Collation shall not take place among compulsory heirs
if the donor should have so expressly provided, or if the donee
should repudiate the inheritance, unless the donation should be
reduced as inofficious. (1036)
 This in collation in the second sense – by Imputation
Collation shall not take place among compulsory heirs,
1. If the testator should have so expressly provided, or
2. If the donee should repudiate the inheritance
 UNLESS the donation should be reduced as inofficious
GR: Donation to a compulsory heir shall be collated to his legitime
EX: There are 2
1. The donor provides otherwise
o In this case it will be imputed to the free portion.
o In this case it will also be subject to a deduction in the event
that it infringes on the legitime.
2. Donee repudiates the inheritance – i.e. gives up his status as a
compulsory heir.
3. The donation exceeds the legitime.
o But this only will pertain to the portion that exceeds the
legitime that the heir is owed.
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Art. 1063. Property left by will is not deemed subject to collation, o Even though such grandchildren have not inherited the
if the testator has not otherwise provided, but the legitime shall in property.
any case remain unimpaired.(1037)  They shall also bring into collation:
 This in collation in the second sense – by Imputation o All that they may have received from the decedent during his
lifetime,
Q: Are all property that is given to compulsory heirs subject to o Unless the testator provided otherwise
collation?  In which case, his wishes must be respected,
A: NO – property that is left by will is not deemed to be subject to  If the legitime of the co-heirs is not prejudiced.
collation if the testator has not provided otherwise.
 But in this case the legitime should be unimpaired "Grandchildren" refer to all descendants who inherit by
How are the testamentary dispositions to CH imputed? representation.
 GR: To the free potion
 EX: If the testator has provided otherwise Illustration:
o For example says that this will form part of the legitime. X
/ \
A B
Art. 1064. When the grandchildren, who survive with their uncles,
/ \
aunts, or cousins, inherit from their grandparents in
b1 b2
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been obliged to
B predeceased X.
bring, even though such grandchildren have not inherited the
1. In 1988, X donated to B P70,000.
property.
2. In 2001, X donated to b1 and b2 P50,000
They shall also bring to collation all that they may have received
from the decedent during his lifetime, unless the testator has What will b1 and b2 impute when X dies?
provided otherwise, in which case his wishes must be respected, if Par. 1.-- 1988 donation.-- Yes bec. B would have imputed it (if he)
the legitime of the co-heirs is not prejudiced. (1038) were he alive.
 This in collation in the second sense – by Imputation
Par. 2.-- 2001 donation.-- Yes. This is not logical bec. b1 and b2
What is the situation that is given by this article? inherit by representation. The general rule is that only persons who
 When the grandchildren (who survive with their uncles, aunts, receive the donation are bound to impute it.
cousins) inherit from the grandparents in representation of their
father or mother, Art. 1065. Parents are not obliged to bring to collation in the
o They shall bring to collation all that their parents, if alive, inheritance of their ascendants any property which may have been
would have been obliged to bring, donated by the latter to their children. (1039)
 This in collation in the second sense – by Imputation

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What are parents not obliged to bring into collation?
 They are not obliged to bring into collation in the inheritance of
their ASCENDANTS
 Any property which may have been donated by their ascendants
to their children
Ex. Lolo gives apo property, does the dad have to bring this into
collation when lolo dies?
So how is this donation treated?
 The parent should not collate the what lolo gave to apo
o Why?  because he was not the recipient of the conveyance.
 Since the donation was made to a stranger – it should be imputed
to the free portion of the estate.
So  Donation to a grandson is treated as DONATION TO A
STRANGER.
 Why he is considered a stranger?  Because he is not a
compulsory heir.
o So once the apo becomes a compulsory heir, what he received
from lolo now has to be included in collation.
 When does this happen? His dad and all his titos and tita’s
renounce. In which case the apos will now inherit per
capita and not anymore pre stripes.
Art. 1066. Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the parent to
the spouses jointly, the child shall be obliged to bring to collation
one-half of the thing donated. (1040)
 This in collation in the second sense – by Imputation
GR: The donations that are given to the spouse of a child are not
brought into collation.
EX: If they have been given by the parent to the spouse and the child
JOINTLY.
TANTOCO 3B
 In this case the child shall be obliged to bring into collation ½ of
the thing donated.
What happens if parent donated property to daughter-in-law?
 The donation to the daughter-in-law is her separate property, and
should NOT be imputed to the son's (husband) legitime.
 The donation is made to a stranger and therefore imputable to the
free portion of the parent's estate.
What if the donation is made by parent to the spouses jointly (the son
and the daughter-in-law)?
 Then ½ of the donation belonged to the son
o Imputable to the son's legitime.
 The other ½ is still a donation to a stranger
o Imputable to the free portion.
Illustration:
X
|
A' ----A
Two cases:
1. X donates to A' only, imputed to the free portion.
2. X donates to both A and A', impute 1/2 to legitime of A and 1/2 to
the free portion.
Rule: Donation given to the spouse will not be imputed to the legitime
of the descendant spouse because the spouse is considered a stranger.
Art. 1067. Expenses for support, education, medical attendance,
even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation. (1041)
 This is collation in the first sense – computation.
What are the items that are not subject to collation?
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1. Support
2. Education
3. Medical attendance, even those which are extraordinary
4. Apprenticeship
5. Ordinary equipment
6. Customary gifts
Art. 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the sum
which the child would have spent if he had lived in the house and
company of his parents shall be deducted therefrom. (1042a)
 This in collation in the second sense – by Imputation
How about expenses that your parents spend to give you a profession,
vocation or carrer? Are they subject to collation?
 Expenses incurred by the parent in giving their children a
profession, vocation, or other career shall not be brought into
collation UNLESS:
1. If the parents provide otherwise
2. If what is spent impairs the legitime
 Ruben says that these are the courses that are beyond the
secondary level.
Note: But when the heir has to bring into collation what he has
received, or when collation is required:
 The sum which the child would have spent if he had lived in the
house and company of his parents shall be deducted therefrom.
GR: Expenses for “support” should not even be included in the
computation of the estate. (Imagine, you will account for every cup of
rice you ate and every medicine you took!)
EX: Expenses for “professional, vocational and other career” (ex. law
school!). They are chargeable to the free portion. UNLESS, the
parents provide otherwise.
TANTOCO 3B
What happens if the parents provide otherwise? That my law school
expenses will be charged to my legitime?
 Then the child (me) is entitled to deduct the sum corresponding to
what the parents would have spent on him had he stayed at home
and loafed.
Art. 1069. Any sums paid by a parent in satisfaction of the debts
of his children, election expenses, fines, and similar expenses shall
be brought to collation. (1043a)
 This in collation in the second sense – by Imputation
What items paid for by the parents shall be brought into collation?
1. Satisfaction of the debts of their children
2. Election expenses
3. Fines
4. Similar expenses
Why?
 This is since they are considered as donations to the child.
 So they are generally imputable to the legitime, UNLESS (1062)
the donor expressly provides, or the done repudiates the
inheritance.
Art. 1070. Wedding gifts by parents and ascendants consisting of
jewelry, clothing, and outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth of the sum which is
disposable by will. (1044)
 This in collation in the second sense – by Imputation
What is covered by this article?
 Wedding gifts given by parents and ascendants consisting of:
1. Jewelry
2. Clothing
3. Outfit
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 GR: they shall NOT be reduced as inoffciious.
 EX: Of they exceed 1/10 the sum of the free portion, or that which
may be disposed of by will.
So what happens if your parents give you wedding gifts?
 The gifts will still be imputed to the free portion, after all, the
parents may give the entire free portion as wedding gift!
 The value imputed will be to the extent of 1/10 of the free portion.
Beyond that value, the excess will be imputed to the child's
legitime.
 EXAMPLE:
o Free portion is 1M
o 300 K is the wedding gift
o Here you Impute 1/10 – so max wedding gift is 100K
 So there the 200L given in excess of the 100K is imputed
to the legitime.
Illustration:
Wedding gifts.-- Two views:
1. Literal.-- Cannot be beyond 1/10 of the free portion. If it exceeds,
return the excess.
2. Liberal.-- a. below 1/10 of the free portion, impute to the free
portion b. above 1/10 of the free portion, impute to the legitime.
Example: Estate is worth 600. There are 3 children. Legitimes = 300.
When A got married, he was given a gift of 40. This is more than 1/10
of the free portion.
Literal = 30, impute to the legitime and 10, return
Liberal = 30, impute to the free 10, impute to the legitime
Here you just have to take note that there are 2 competing views when
it comes to the excess in wedding donations. But for our purposes the
TANTOCO 3B
more accepted view is the liberal one – the one which imputes it to the
legitime.
Art. 1071. The same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation, even though their just value may not then have been
assessed.
Their subsequent increase or deterioration and even their total
loss or destruction, be it accidental or culpable, shall be for the
benefit or account and risk of the donee. (1045a)
 This article uses collation in 2 senses – imputation and
computation
What is the value that is brought in to the collation for donations
received?
 This article states that the value that is to be brought into collation
is the value at the time that the donation was made/received.
For whose benefit or prejudice is the loss or increase of value of the
property?
 If the property increases or deteriorates – it shall be for the account
of the donee.
 It also does not matter if the property was toally loss or destroyed
 EX:
o Value at the time of donation – 1M; value when it has to be
collated – 10M
 In this case the done only has to being into collation 1M,
this is since the 9M increase accrues to his benefit
o Value at the time of the donation 1M, value at the time of
collation P1.
 The donee still has to bring into collation 999,999 even if
the property is now worth P1 only.
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In general, since we only look at the values in collation, what value
should be computed and imputed?
 Compute – the value of the thing donated at the time the donation
was made.
o So here you add into the estate of the donor the value of the
thing at the time that it was donated.
 Impute – the value of the thing donated at the time the donation
was made.
o This is done against the free portion or the legitime, whatever
is applicable.
Reason  Any appreciation or depreciation of the thing after that time
should be for the donee’s account, since the donation transfers
ownership to him.
Imperial vs. CA
A claim for legitime does not amount to a claim for title. In
Vizconde vs. CA, what is brough to collation is not the donated
property itself, but the value of the property at the time it was donated.
The rationale for this is that the donation is a real alienation which
conveys ownership upon its acceptance, hence any decrease or
increase in value is for the account of the donee.
Therefore, the prescriptive period for an action for reduction
of an inofficious donation is 10 years, since it is an action upon an
obligation created by law. From when is this 10 year period counted?
The cause of action to enforce a legitime accrues upon the death of the
decedent, since it is only then that the net estate may be ascertained
and the legitimes be determined.
Art. 1072. In the collation of a donation made by both parents,
one-half shall be brought to the inheritance of the father, and the
other half, to that of the mother. That given by one alone shall be
brought to collation in his or her inheritance.(1046a)
 This article uses collation in 2 senses – computation and
imputation
TANTOCO 3B
Joint Donations – the first sentence of this article presupposes that
there is a regime of ACP or CPG between the donor spouses.
 A joint donation by them shall be treated, upon the dissolution of
the property – i.e when one of them dies – as pertaining to equal
shares to the estate of each.
Donations by one parent – such a donation will come out of the estate
of that deceased parent only and in full. (Duh…) this is since the
donation will be from the separate property of the parent.
Art. 1073. The donee's share of the estate shall be reduced by an
amount equal to that already received by him; and his co-heirs
shall receive an equivalent, as much as possible, in property of the
same nature, class and quality. (1047)
 This article give collation as imputation.
This article states that:
 The share of the one shall be reduced by an amount equal to that
he already received.
 His co heirs shall receive an equivalent, or as much as possible, in
the property of the same nature, class and quality.
Ruben: So what this article really aims to achieve is not only
equivalence in amount but also, as far as possible, equivalence in the
kind of property received.
 But take note: that this article will yield if there is a different
agreement among the heirs.
Art. 1074. Should the provisions of the preceding article be
impracticable, if the property donated was immovable, the co-
heirs shall be entitled to receive its equivalent in cash or securities,
at the rate of quotation; and should there be neither cash or
marketable securities in the estate, so much of the other property
as may be necessary shall be sold at public auction.
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If the property donated was movable, the co-heirs shall only have  For the purposes of ascertaining the amount:
a right to select an equivalent of other personal property of the o The fruits and interest of the property of the estate of the same
inheritance at its just price. (1048) kind and quality as that subject to collation shall be made the
standard of assessment.
This article gives the solution when the donation is of such a character
that equality among the heirs cannot be obtained. Rationale of the article – if any donation turns out to be inofficious,
Property Donated: Immovable Property Donated: Movable then the obligation to return it to the estate arises as of the time the
1. The co-heirs shall be The co-heirs shall only have the succession vests.
entitled to receive its right to select an equivalent of  The succession vests at the time of the decedent’s death. Because
equivalent in cash or other personal property of the it is from this time that the compulsory heirs right to the
securities inheritance at its just price. inheritance becomes absolute.
o At the rate of quotation  It is also only from this time that the CH is entitled to the fruits.
2. Should there be neither
cash or securities in the
What is the extent of right to the fruits?
estate
o So much of the 1. Donation is TOTALLY inofficious
property as may be o The entirety of the fruits and interests shall pertain to the
necessary shall be sold compulsory heir.
at public auction. 2. Donation is PARTIALLY inofficious
o The right to the fruits and interests shall be prorated between
Note: just as the previous article – this will yield to a contrary the CH and the done, in proportion to their respective interests
agreement among the heirs. over the property.

Art. 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on
which the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and quality
as that subject to collation shall be made the standard of
assessment. (1049)
 This article gives collation as – return. ‘
This article states that:
 The fruits and interest of properties that are subject to collation
o Shall not pertain to the estate – EXCEPT on the day on which
succession is opened (i.e. death of the decedent)
TANTOCO 3B
What happens if the donation turns out to be inofficious?
 The done should return the donated property to the estate
 The fruits and interests accruing from the time of the decedent’s
death should also be returned.
o This is since it is from that time that the rightful heirs should
have acquired it.
Illustration:
1. Assume that the property donated has to be returned because the
legitime has been impaired. The return may be total or partial.
2. Donee may return: (a) property; (b) cash value
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3. Obligation to return the property arises at the time of death. The  The necessary expenses which he has incurred for the preservation
fruits are also returned from that time. The amount depends on of the property donated to him
how much of the property has to be returned.  Though they may not have augmented its value.
o So here you return the property AND the fruits. This is since
if the donation is inofficious, then you have to give back the The donee who collates in kind an immovable which has been given
property. And remember 777? Right vests upon the death of to him:
the testator, so the property should belong to the CH at the  Must be reimbursed by co-heirs for the improvements
time of the death, so technically he should be the one getting  Which may have increased the value of the property, and
those fruits and NOT the donee.  Which exist at the time of the partition.
o But if the donation is NOT inofficious, then there is absolutely
no need to return the property nor give the fruits. As to the works made on the estate for mere pleasure of the donee,
 No reimbursement is due him for them
EX. A donated to X a mango plantation.
 He has however, the right to remove them if he can do so without
1. If X has to return all, return all the fruits from the time of the death injuring the estate.
of A.
2. If X has to return 1/2, return 1/2 of the fruits from the time of the
So now, the donation turns out to be inofficious, and the donee should
death of A.
return the property donated. However, is he entitled to reimbursement
on expenses he made to the property?
Baviera: At the moment of death of donor, donee's right over the
Total Return Partial Return
property is modified
Necessary Exp Yes. Reimburse to Yes. Proportional to
the full extent. the value to be returned
Art. 1076. The co-heirs are bound to reimburse to the donee the Useful Exp. Yes. Reimburse to Yes. Proportional to
necessary expenses which he has incurred for the preservation of the full extent. the value to be
the property donated to him, though they may not have returned.
augmented its value. PROVIDED that the
improvement is still
The donee who collates in kind an immovable which has been
in existence.
given to him must be reimbursed by his co-heirs for the
Ornamental Exp No. That's for the No. But, if the
improvements which have increased the value of the property, donee's account. ornament is located in
and which exist at the time the partition if effected. (But donee can the portion which will
As to works made on the estate for the mere pleasure of the donee, remove it, provided not be returned
no reimbursement is due him for them; he has, however, the right no injury to the (donee's portion), then
to remove them, if he can do so without injuring the estate. (n) property) it's the donee's.

So there is right of
What are the co-heirs are bound to reimburse to the donee? reimbursement –

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BUT there is a right
of removal provided
that the property is
not damaged.
Ruben: There is a confusion when it comes to terminology. This is
sine what is really being refered to here is reduction of inofficious
donations. This would have been placed alongside the provisions of
inofficious donations and NOT with the provisions on collation. So
read this article with articles 909-911.
Art. 1077. Should any question arise among the co-heirs upon the
obligation to bring to collation or as to the things which are subject
to collation, the distribution of the estate shall not be interrupted
for this reason, provided adequate security is given. (1050)
 This is collation in ALL three senses
Art. 51. xxx
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of the
children accruing upon the death of either or both of the parents; but
the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their
legitime. (Family Code, par. 3 thereof.)
Art. 227.
If the parents entrust the management or administration of any
of their properties to an unemancipated child, the net proceeds of such
property shall belong to the owner. The child shall be given a
reasonable monthly allowance in an amount not less than that which
the owner would have paid if the administrator were a stranger, unless
the owner, grants the entire proceeds to the child. In any case, the
proceeds thus given in whole or in part shall not be charged to the
child's legitime. (Family Code.)
TANTOCO 3B
Should any question arise among the co-heirs:
1. Upon the obligation to bring to collation, or
2. As to the things which are subject to collation,
 The distribution of the estate shall NOT be interrupted,
o Provided adequate security is given.
Ruben: The division and distribution of the estate can be made
partially even if there is controversy as to the inclusion of certain items
either in the computation of the estate’s value or the imputation of
heirs’ shares. The distribution can proceed on the items that are not
controverted.
SECTION 6. - Partition and Distribution of the Estate
Q: What is the immediate effect of the decedent’s death?
A: The vesting of the successional rights. For the purposes of
successional law a co-ownership among the heirs is created over the
entire mass.
 This co-ownership lasts until partition
Q: What rights do the successors acquire?
A: They acquire the vested rights over the net estate.
 The net estate is what remains after all the unpaid debts of the
decedent are paid, and the value of all the donations inter vivos
are added.
Note: There is a possibility that after all of the debts are paid there will
be no more estate left.
The actual partition of the estate can be done through two methods:
1. Extrajudicial agreement among the heirs
2. Judicial proceedings
What is the sequence?
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1. Upon the decedent’s death – co-ownership vests over the net
hereditary or partible estate
2. Subsequent partition
o By extrajudicial agreement (Rule 74)
o Through judicial order in appropriate settlement proceedings
(Rule 90)
SUBSECTION 1. – Partition
Art. 1078. Where there are two or more heirs, the whole estate of
the decedent is, before its partition, owned in common by such
heirs, subject to the payment of debts of the deceased. (n)
This article just states the obvious. If there are two or more heirs they
hold the estate in common.
Their share is also TBD, pending the payment of debts.
Art. 1079. Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value. (n)
Partition of the estate ENDS the co-ownership among the co-heirs
Kinds of Partition:
1. Actual
o Physical division of the thing among the co-heirs
2. Constructive
o Any act other than the physical division which terminates the
co-ownership.
 E.x. sale to a 3rd person.
Note: One thing that you HAVE TO REMEMBER is that even if the
partition is made YEARS later, you have to remember that the
TANTOCO 3B
successional rights vest at the time of the decedent’s death, and the
heirs are deemed to have acquired the property at that time.
Casilang v.s Dizon
Partition may be done orally. The Statute of Frauds has no operation
in this kind of agreements, for partition is not a conveyance of property
but simply a segregation and designation of the part of the property
which belong to the co-owners.
Sps. Marcos vs. Heirs Bagani
Partition is the separation, division and assignment of a thing held in
common among those to whom it may belong. Every act which is
intended to put an end to indivision among coheirs and legatees or
devisees is deemed to be a partition. Partition may be inferred from
circumstances sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of partition may be
presumed.
Heirs Breta vs. Heirs Ureta
This Court finds that Article 1878 (5) and (15) is inapplicable to the
case at bench. It has been held in several cases that partition among
heirs is not legally deemed a conveyance of real property resulting in
change of ownership. It is not a transfer of property from one to the
other, but rather, it is confirmation or ratification of title or right of
property that an heir is renouncing in favor of another heir who accepts
and receives the inheritance. It is merely a designation and segregation
of that part which belongs to each heir. The Deed of Extra-Judicial
Partition cannot, therefore, be considered as an act of strict dominion.
Hence, a special power of attorney is not necessary. In fact, as between
the parties, even an oral partition by the heirs is valid if no creditors
are affected. The requirement of a written memorandum under the
statute of frauds does not apply to partitions effected by the heirs
where no creditors are involved considering that such transaction is
not a conveyance of property resulting in change of ownership but
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merely a designation and segregation of that part which belongs to
each heir
Art. 1080. Should a person make partition of his estate by an act
inter vivos, or by will, such partition shall be respected, insofar as
it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to keep
any agricultural, industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in this article, by
ordering that the legitime of the other children to whom the
property is not assigned, be paid in cash. (1056a)
Can the decedent himself effect a partition of his estate? YES:
1. By will
o But this is not a testamentary disposition
2. An act inter vivos
o But this should be in writing and in a public instrument
o It must observe the formalities of a will.
o But an oral partition is also valid
Ruben: There the testator may do the partition himself. But he must
not impair the legitime
Example: The dad owns a patis factory, and the oldest son is a patis
master, and the dad wants him to be the one to manage the business.
In this case the dad can say in his will that the patis factory will be the
legitime of the son – BUT this should not impair the legitime.
If you are doing partition in a document which is not a will – then you
need it to be based on a prior will which first disposes of property.
 The exception to this is if you make the partition in accordance
with the rules on intestacy.
Q: When it comes to partitions inter vivos, must there be a prior will?
A: NO
TANTOCO 3B
 BUT if the partition is not based on a will then, it IS STILL
VALID as long as it strictly conforms to the rules of INTESTATE
SUCCESSION.
o E.X. In this case a father has 6000 sqm of land. Then the father
writes on a piece of paper that he wants child A to have the
western most 2000sqm, 2000sqm in the center to child B, and
the eastern most 2000sqm to child C.
 But it is a very important consideration that whatever instruement
it is in – IT SHOULD NOT DISPOSE of the property. If it
disposes of property then it is a will. And if it is a will, it has to
follow the rules on holographic or attested wills.
The partition by the decedent (causante) has the following
characteristics/nature:
1. Only takes effect upon the death of the testator
2. Is REVOCABLE as long as he lives
3. The partition by the decedent should not impair the legitimes.
The above characteristics stem from the fact that the partition is based
on succession as the mode of transfer, and succession is mortis causa.
There is no such thing as succession during the causante’s lifetime –
this would be a donation inter vivos.
Such partition shall be respected
 In so far as it does not prejudice the legitime of the compulsory
heirs.
There is a special provision for a parent who:
1. In the interest of his or her family
2. Desires to keep any agricultural, industrial or manufacturing
enterprise intact,
3. May avail himself of the right granted him in this article, by:
o Ordering that the legitime of the other children to whom the
property is not assigned:
 Be paid in cash.
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Chavez vs. IAC
In the case, Manuela assigned or distributed her estate equally
among her six (6) children. Three of those sold their share to a sister,
Concepcion, with the consent of Manuela. Manuela then sold the
entire property to Ferrer. Was the partition by an act inter vivos valid?
Yes. Art. 1080 allows the person to make a partition. If the partition
is by will, it must be with the formalities on wills. If the partition is
by an act inter vivos, the partition may be oral or written, and need not
be in the form of a will, provided the partition does not prejudice the
legitime of the compulsory heirs. The deeds of sale between
Concepcion and her sisters are valid because they are not contracts
with respect to future inheritance but rather a contract perfected and
consummated during the lifetime of Manuela, who signed and gave
her consent.
Legasto vs. Verzosa
A testator may, by act inter vivos, partition his property, but
he must first make a will with all the formalities provided for by law.
The idea is to divide the estate among the heirs designated by the
testator.
This designation constitutes the disposition of the properties,
and hence must necessarily appear in the testament since it is an
expression of the testator's last will.
There is therefore a necessity of a prior will, before making
the partition. A condition for the testator in partition his estate by an
act inter vivos, is that he have made a valid will disposing of said estate
among his heirs. If this will is nullified, then the partition itself is also
nullified.
Note:
 The Legasto case was based on the Spanish Code. Now Art 1080
does not say “testator” but “person”
 It no longer applies under present rules.
TANTOCO 3B
Illustrations:
X has no compulsory heirs. He states in his will "I give to A 1/3 of
my estate. To comprise A's share, I would like her to get my house in
Alabang."
The testator is allowed to do so even if he has compulsory heirs. The
partition is valid as long as the items given do not impair the legitime.
Note: Article 1080 does not say testator – it says person. This was a
shift from the old civil code which stated testator. Is this change
significant? YES.
 We can now conclude that under the present provision a partition
inter vivos can be made even without a prior supporting will.
 PROVIDED it is not used to make mortis causa dispositions.
NOTHING can take the place of a will to to dispose of property
mortis causa.
 Hence the ONLY way a partition without a will can be valid is if
the partition should conform STRICTLY to the portions that are
provided for in intestate succession.
o This is since in this case the causante would not be making
testamentary dispositions, rather the dispositions would be by
virtue of intestacy.
Limitation on partition by the Causante: It CANNOT impair the
legitime of the CH of the causante , whether in a will of by an act inter
vivos.
Partition to keep enterprise intact:
1. It seems that only a PARENT is allowed the privilege of this
article.
2. It is understood that this privilege can be exercised only if enough
cash or other property is available to satisfy the legitimes of the
other children
o Under NO circumstances can the legitime be impaired.
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Again: Can the predecessor make a partition without a vaid will?
 YES!
 A partition inter vivos can be validly made even without a prior
will provided, it is not used to make mortis causa dispositions.
 You can just put it in a simple document.
 In other words, by following strictly the intestate portions and
legitimes provided for by law. The partition should conform
exactly to the portions under the rules on intestacy and legitimes.
 Hence, the dispositions should be by virtue of intestate and
compulsory succession.
Art. 1081. A person may, by an act inter vivos or mortis causa, in
trust the mere power to make the partition after his death to any
person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or a
person subject to guardianship; but the mandatary, in such case,
shall make an inventory of the property of the estate, after
notifying the co-heirs, the creditors, and the legatees or
devisees. (1057a)
Special job of the mandatary:
 If there is one among the co-hers who is a minor or a person
subject to guardianship
 The mandatary is such case shall:
o Notifying the co-heirs, the creditors, and the legatees and
devisees.
o Then, Make an inventory of the property of the estate.
 The wording of the article leads to the proposition that this
step takes place after the notification of the co-heirs.
Ruben: the tesatory can appoint somebody to make a partition. He can
do this in his will or in a simple document. As a matter of fact he can
appoint anyone to partition the property. The only exception is that it
cannot be a co-heir. Thus it has to be from someone outside of the
estate.
Art. 1082. Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, and exchange, a
compromise, or any other transaction. (n)

Ruben: Under this article, partition may be made by: Every act which is intended to put an end to indivision among co-
1. The testator himself heirs and legatees or devisees:
2. Third person who is not an heir.  Is deemed to be partition.
Even though it should purport to be
Does this article also prohibit a devisee or legatee from being  Sale,
appointed?  An exchange,
 It is not certain. If he is given a specific portion, then there is no  A compromise,
temptation to favor himself. But if his share be a generic portion,  Or any other transaction.
then the temptation exists.
Partition may be actual or constructive. This article refers to
Q: What is a mandatary? constructive partition.
A: Mandatary refers to a person entrusted to make the partition.
 A Mandatary CANNOT be a co-heir.
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Ruben: Any act or any mode of distribution that ends the co-ownership
is a partition. The rules on co-ownership apply.
 Physical partition, e.g., actually dividing the land.
 Constructive partition- Art. 1086
o If indivisible (e.g., a house) or if it will be greatly impaired if
partitioned. How do you partition?
 By constructive partition.
 Assign the property to the one who will give the other
share in cash.
 If any object, the property is sold at public auction.
o Why will any object? Public auction will usually
bring a higher selling price.
Q: How do you determine if the property is indivisible or not?
A: By agreement between the co-owners. If none, the courts will
decide.
Tuason vs. Tuason
The agreement was that the co-owners would improve the
property and construct roads and then subdivide it into small lots for
sale. In return, they would receive the gross selling price and the rents
that may be collected from the property.
The contract itself has for its purpose and object, the
dissolution of the co-ownership by selling the lots owned in common
and dividing the proceeds of the sale among the co-heirs.
The obligation in the contract to preserve the co- ownership
until all the lots shall have been sold, is merely an incident to the main
object of dissolving the co-ownership. By virtue of the document the
partied thereto practically and substantially entered into a contract of
partnership as the best and most expedient means of eventually
dissolving the partnership to end when the object of its creation shall
have been attained.
In this case there was an agreement to partition the property
and sell it to the public. The court said here that there was a partnership
since there was a contribution of property to a common fund, their
TANTOCO 3B
respective shares in the co-owernship. They were not anymore co-
owners, rather they were already engaged in business – thus a
partnership.
Ruben: As a matter of fact there can be a partial partition in this case
some of the co-heirs want to partition the property and the others
don’t. In this case those that want to partition can have the property
partitioned – but those who do not want may still remain as co-owners.
Art. 1083. Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator
to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one of
the co-heirs. (1051a)
GR: Partition is a matter of right, thus a co-heir may demand partition
at any time.
EX: There are some instances when partition cannot be demanded.
1. When it is forbidden by the testator (but this cannot be for a period
longer than 20 years)
o This forced co-ownership may even cover the legitimes. This
is since you are not impairing it.
o BUT EX to the EX
 When any of the causes for the dissolution of a
partnership occurs
 When the court finds compelling reason for partition
o Here the testator may provide for an indivision for 20 years.
If he provides for more than 20 years, then it shall only be
valid for 20 years.
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2. When the co-heirs agree on indivision for a period not exceeding
10 years, renewable for like periods.
o This is because there is a freedom to contract between the
parties. So the co-heirs may agree not to partition, but this
cannot be more than 10 years.
3. When the law prohibits partition
o An example of this is that you cannot partition the family
home.
In the above cases, even if it cannot be partitioned there will be
partition if:
 Any of the cases in articles 1830 and 1831 happen – i.e. the
dissolution of partnerships OR
 The co-ownership cannot carryout anymore – for example
magpapatayan na sila.
Art. 1084. Voluntary heirs upon whom some condition has been
imposed cannot demand a partition until the condition has been
fulfilled; but the other co-heirs may demand it by giving sufficient
security for the rights which the former may have in case the
condition should be complied with, and until it is known that the
condition has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional. (1054a)
This article applies to institutions with a suspensive condition.
 It stats that if the institution of the heir is subject to a suspensive
condition – that heir CANNOT demand for the partition of the
estate UNTIL the condition is fulfilled.
 But this does not mean that the estate cannot be divided. The estate
may be partitioned on the demand of the other co-heirs. BUT the
heirs who are demanding the partition should furnish adequate
security in the event that the suspensive condition does indeed
occur.
Rationale:
TANTOCO 3B
1. The heir instituted under a suspensive condition acquires no rights
unless and until the condition happens
2. The other heirs not so instituted should not be deprived of their
right to demand partition, SUBJECT to the obligation to protect
the inchoate right of the conditional heir by furnishing adequate
security.
Art. 1085. In the partition of the estate, equality shall be observed
as far as possible, dividing the property into lots, or assigning to
each of the co-heirs things of the same nature, quality and
kind. (1061)
Equality Among Co-heirs:
1. Quantitative Equality
o The shares of the co-heirs are not necessarily equal in value,
but are determined by law and by will.
2. Qualitative Equality
o Whatever those aquilot portions be the law mandates equality
in NATURE, KIND, and QUALITY.
o Ex. If A gets a parcel of rice land B should also get a parcel
of rice land
o Note: Here we are talking about aliquot – so heirs in
proportion. Malmang if they get a devise of legacy, then this
will not apply.
Thus the ideal is qualitative and quantitative equality. But this, again,
is just an ideal.
Exceptions/ Qualifications to the requirement of qualitative equality:
1. If the causante has made the partition himself
2. If the co-heirs agree otherwise
3. Of the qualitative equality is impossible or impracticable
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Art. 1086. Should a thing be indivisible, or would be much
impaired by its being divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be
sold at public auction and that strangers be allowed to bid, this
must be done. (1062)
If a thing is:
1. Indivisible
2. It would be impaired if it were divided
In such a case it may be adjudicated to one of the heirs, and this heir
shall pay the others in CASH.
 But if the other heirs demand that the thing be sold at public
auction, and that strangers be allowed to bid, then this must be
done.
Note: This is another instance of constructive partition: It is the sale
of the thing and a division of the proceeds among the heirs. This will
have to be resorted to if the thing is essentially indivisible or it physical
partition will diminish the value to the point that it becomes
unserviceable or useless.
To whom may the thing be sold?
1. To a 3rd person
2. If NONE of the co-heirs object: then to any one of them who is
interested.
o If more than one is interested, then they can purchase it
together and have the proceeds distributed among the other
co-heirs to the extent of their respective shares. But the co-
ownership will continue as to the buyers.
Ruben: So in this case you can have the dog in the manger mentality
– I don’t want it but I also don’t want it to go to you. So public auction
nalang.
TANTOCO 3B
Art. 1087. In the partition the co-heirs shall reimburse one
another for the income and fruits which each one of them may
have received from any property of the estate, for any useful and
necessary expenses made upon such property, and for any damage
thereto through malice or neglect. (1063)
Mutual Accounting:
 Upon partition the co-heirs shall render a mutual accounting of
benefits received by them and expenses incurred by each of them.
o This accounting shall only include the necessary and useful
benefits.
 Any heir who received fruits between the decedent’s death and the
time for partition shall reimburse his co-heirs they respective
shares in proportion to the hereditary interest of each.
 Similarly, any heir who incurred necessary and useful expenses
may demand reimbursement from his co-heirs in the same
proportion.
For example there are three siblings
One held the banana plantation
One held the fish pond
One held the apartments which were being rented.
When the decedent dies, they bring all the profits here and they split
the profits. But in this case there can be offsetting. But at the end of
the day dapat they get what they are due.
At the same time they have the right of reimbursement of the useful
and the necessary expenses.
Ex. To repair the dike of the fishpond, or to fix the roof of the
buildings, or the expenses for gathering.
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
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subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by
the vendor. (1067a)
Right of an heir to convey share before partition: An heir may dispose
of his aliquot share after the death of the decedent (777) – he may do
this gratuitously or onerously.
Right of Redemption in case of Sale: In the event any co-heir sells his
aliquot portion to a stranger before partition this article allows ANY
co-heir to redeem the property sold. BUT:
1. The sale must be to a stranger
o A stranger is anyone who is NOT a co-heir.
2. The right may only be exercised BEFORE partition and NOT after
A WRITTEN NOTICE IS REQUIRED
 The SELLING CO-HEIR has to give his co-heirs written notice
that he is selling the property.
 If there is no written notice the period to redeem does not begin to
run.
o This is since the period that is given is one month from the
time that the non-selling heirs were notified.
 This one month is interpreted to be 30 days.
Ruben: But this is not all the time. This is since the SC flip flops.
Sometimes they apply the need for a written notice, on the other hand
there are some times where they say actual notice is enough.
Garcia vs. Calaliman
Written notice is required, even if there's already a registration
of the deed of sale with the Register of Deeds (actual notice). Written
notice is indispensable. It also does not matter of the redemptioner has
actual knowledge of the sale the redemptioner is entitled to that notice.
TANTOCO 3B
Can the other co-owners redeem the portion sold?
 YES. But they can do so only BEFORE partition and within one
month from the notice by the vendor.
 These co-heirs should be notified in writing by the selling heir.
Otherwise, the period does not commence to run.
The rule today is that written notice is required.
What happens when more than one co-owner wished to redeem?
 In such a case all the co-owners wishing to redeem may do so. But
they shall only redeem in proportion to each one’s hereditary
interest over the mass.
Ruben – this is the same right of redemption as 1620 of a co-owner.
Art. 1089. The titles of acquisition or ownership of each property
shall be delivered to the co-heir to whom said property has been
adjudicated. (1065a)
Self-explanatory
Art. 1090. When the title comprises two or more pieces of land
which have been assigned to two or more co-heirs, or when it
covers one piece of land which has been divided between two or
more co-heirs, the title shall be delivered to the one having the
largest interest, and authentic copies of the title shall be furnished
to the other co-heirs at the expense of the estate. If the interest of
each co-heir should be the same, the oldest shall have the
title. (1066a)
Rule that this article gives:
 Where the title to the land comprises two or more pieces of land
which have been assigned. The title shall be delivered to the one
with the largest interest.
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o But copies of the title shall be given to each of the co-heirs.
 If all of them have the same interest – then it shall be given to the
oldest.
This article only provides for the right over the document. The co heirs
however have the right to have the title divided into individual titles,
a separate one for each co-owner to corresponding to the separate
portions held by them respectively.
SUBSECTION 2. - Effects of Partition
Art. 1091. A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him. (1068)
This article just states that when partition is done – the heir now has
exclusive ownership of his share.
This is if it is a physical partition.
If it is a constructive partition – then he shall be the exclusive owner
of what he received – ex. Money.
Art. 1092. After the partition has been made, the co-heirs shall be
reciprocally bound to warrant the title to, and the quality of, each
property adjudicated.(1069a)
Obligation of Mutual Warranty – partition among co-heirs imposes
upon them the warranties that are imposed on co-owners in general.
The two warranties of sale are applied to partition in succession:
1. Warranties against eviction/warranty of title
2. Warranty of fitness/merchantability/against hidden defects.
In order for these warranties to apply the defects must have pre-existed
the partition.
TANTOCO 3B
Furthermore if it was the testator himself who made the partition, then
the warranties will NOT apply.
Art. 1093. The reciprocal obligation of warranty referred to in the
preceding article shall be proportionate to the respective
hereditary shares of the co-heirs, but if any one of them should be
insolvent, the other co-heirs shall be liable for his part in the same
proportion, deducting the part corresponding to the one who
should be indemnified.
Those who pay for the insolvent heir shall have a right of action
against him for reimbursement, should his financial condition
improve. (1071)
Proportional liability of co-heirs on warranty
 What this means is that the burdens should be proportional to the
benefits.
o Thus what they would be answerable for in the co-ownership
is dependent on the proportion of their share in the estate. The
bigger the share the greater the burden.
Illustration
A,B, and C, D and E are co heirs and they are thus the co-owners in
equal shares in an estate worth 300M, thus they have a share of 60M
each.
B is evicted from this share of the estate since the land that was given
to him did not pala belong to their daddy. Thus he claims a warranty
(remember there is a warranty against eviction when it comes to a
partition among co-owners).
Scenario 1: No one is insolvent.
In this case A, C, D and E will have to contribute 12M each to make
good on the warranty. Why 12? This is since the original amount was
300M, but 60M was lost since B was evicted. Thus the total estate that
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should be divided is 240M. this would give each heir a share of 48M
instead of 60M. So 48M/4 (the ones not evicted) = 12M each as
warranty.
Scenario 2: Someone is insolvent
Same as above each would contribute is 12M. Supposing A is
insolvent. In this case that 12M will have to be shouldered by ALL the
remaining heirs, yes even the one that is evicted. Thus 12/4 = 3.
So C, D, and E will have to give 15M, and B will have to also bear the
3M loss.
GR: When it comes to insolvency the other heirs have the right to ask
for reimbursement from theinsolvent co-heir when he regains
financial capacity.
EX: If there is a judicial declaration of insolvency.
 In this case the debts are all wiped out – i.e it extinguishes all
obligations.
Art. 1094. An action to enforce the warranty among heirs must be
brought within ten years from the date the right of action
accrues. (n)
Prescriptive period to enforce warranty among heirs – 10 years
from the date that the right of action accrues.
Art. 1095. If a credit should be assigned as collectible, the co-heirs
shall not be liable for the subsequent insolvency of the debtor of
the estate, but only for his insolvency at the time the partition is
made.
The warranty of the solvency of the debtor can only be enforced
during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted
by, the distributee. But if such debts are not assigned to a co-heir,
TANTOCO 3B
and should be collected, in whole or in part, the amount collected
shall be distributed proportionately among the heirs. (1072a)
What happens if the heir gets a credit due to the decedent or the estate?
 The warranty of solvency only covers the insolvency of the
decedent’s debtor at the time of the partition, not any subsequent
insolvency.
o So the insolvency has to happen at the time of the partition, if
it happens AFTER that then there is no more warranty.  So
that dumb heir shoulders his loss. Bobo eh…
 Kasi if you accept it then this is a risk that you take
o The action to enforce the warranty has to be made within 5
years from the time that the partition is made.
 This situation contemplates that an heir accepts an accounts
receivable, or an utang to the decedent as part of his inheritance.
BUT! NOT ALL DEBTS ARE WARRANTED
 There is no warranty for bad debts
o But the heir who gets the debt has to know that it is a bad debt
and it has to be accepted.
 So the heir has to know and he has to accept.
o But if the bad debt is subsequently collected, then the amount
collected shall be distributed proportionally among the heirs.
 This indicates that BD’s are not included in the net estate?
So do you include them in counting the legitime?
o Why? Because the law does not protect you from your own
foolishness.
Art. 1096. The obligation of warranty among co-heirs shall cease
in the following cases:
(1) When the testator himself has made the partition, unless it
appears, or it may be reasonably presumed, that his intention was
otherwise, but the legitime shall always remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of
partition, unless there has been bad faith;
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(3) When the eviction is due to a cause subsequent to the partition,
or has been caused by the fault of the distributee of the
property. (1070a)
Instances when there is NO mutual warranty
1. Partition by the testator himself
2. Agreement among the co-heirs to suppress the warranty
3. Supervening events causing the loss of the diminuation in value.
o For the warranty to apply the defect must have come about
BEFORE the partition.
4. Fault of the co-heir
5. Waiver
o Unless there has been bad faith
Here it is wrong to say shall cease – it should say not arise. This is
since cease implies that it previously existed. Here it does not pre-
exist.
1. Lesion where the value of the thing has decreased by 1/4 th
considering the value of the tings at the time they were
adjudicated. (this is from 1098 which modifies the first 2 grounds)
2. Those undertaken in fraud of creditors
3. Those which refer to things under litigation and they have been
entered into by the defendants without knowledge and approval of
the litigants or of competent judicial authority.
4. All other contracts declared by law to be subject of recession.
Art. 1098. A partition, judicial or extra-judicial, may also be
rescinded on account of lesion, when any one of the co-heirs
received things whose value is less, by at least one-fourth, than the
share to which he is entitled, considering the value of the things at
the time they were adjudicated. (1074a)
Here because of lesion you ask for the partition to be cancelled and
you have to partition it again accordingly.

SUBSECTION 3. - Rescission and Nullity of Partition What is lesion?

 Lesion is the economic injury where the party receives less that he
Art. 1097. A partition may be rescinded or annulled for the same is entitled to receive.
causes as contracts. (1073a)
What is the amount of Lesion?
Cases for annulment:  Minimum extent of the lesion is 25% or ¼  so at least 1/4th
1. One of the parties is incapable of giving consent o This is different when it comes to the oblicon provisions. This
2. Those where consent is vitiated by: is since that needs MORE than ¼.
o Mistake
o Undue influence What are exceptions to the rule on lesions?
o Intimidation  If the partition was made by the testator himself.
o Violence
o Fraud What are the exceptions to the exception?
1. Impairment of legitime
Cases for Recession: 2. Mistake by the testator
3. Vitiation of his intent

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What if the lesion is not 1/4th but less?
In this case the other co-heirs will just pay the air for the value that
would make them have the proper share.
Art. 1099. The partition made by the testator cannot be impugned
on the ground of lesion, except when the legitime of the
compulsory heirs is thereby prejudiced, or when it appears or may
reasonably be presumed, that the intention of the testator was
otherwise. (1075)
GR: A partition that is made by the testator is not subject to recession
even if there is lesion (the ¼)
EX: There are 2 instances:
1. Impairment of the legitime
o Even if the lesion is less than 1/4th
2. Mistake by the testator
3. Vitiation of his intent
Art. 1100. The action for rescission on account of lesion shall
prescribe after four years from the time the partition was made.
(1076)
Prescriptive Period to file recession on account of lesion – 4 years
from the time that the partition was made.
Art. 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
Indemnity may be made by payment in cash or by the delivery of
a thing of the same kind and quality as that awarded to the
plaintiff.
If a new partition is made, it shall affect neither those who have
not been prejudiced nor those have not received more than their
just share. (1077a)
TANTOCO 3B
Obligor’s Options – it is the co-heir who is sued for recession who has
the option. He has 2 choices :
1. To have a re-partition
o If a new partition is made it shall not affect those who have
not been prejudiced, nor those who have not received more
than their just share.
2. To indemnify the other co-heir the amount of the lesion suffered.
o This may be made by:
 Payment in case
 Delivery of a thing which is of the same kind and quality
as that awarded to the plaintiff.
Art. 1102. An heir who has alienated the whole or a considerable
part of the real property adjudicated to him cannot maintain an
action for rescission on the ground of lesion, but he shall have a
right to be indemnified in cash. (1078a)
Given the preceding article, this is unnecessary since it is the party
sued who is give the option.
Art. 1103. The omission of one or more objects or securities of the
inheritance shall not cause the rescission of the partition on the
ground of lesion, but the partition shall be completed by the
distribution of the objects or securities which have been
omitted. (1079a)
In the partition there was an item or two that were omitted. Will this
cause recession? NO  just make a supplemental partition.
So… incompleteness of partition is not a ground for rescission
 Your remedy here is supplemental partition.
Art. 1104. A partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it be proved that
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there was bad faith or fraud on the part of the other persons
interested; but the latter shall be proportionately obliged to pay
to the person omitted the share which belongs to him. (1080)

This should NOT be confused with 854. This is PRETERITION

FROM THE PARTITION and NOT in the inheritance.
 So di ka lang nakasama sa partition. Pero nasama ka sa will.
 In this case there is no need for the preterited heir to seek recession
– he may just ask for this share.
 If there is fraud or bad faith, or the other heirs do not want to give
it, then there should be recession.

Example: What if there were 4 siblings but one ran away from home
when he was 16. Eventually they never heard from him again.
Eventually the dad died. So the siblings just slit the estate among 3,
since one ran away. But sometime after the partition the brother who
ran away appeared again.
This is a case that falls under 1104. Thus this heir is preterited from
the inheritance. The 3 other siblings should give their brother his
share. You DO NOT rescind, you just give that heir the value of his
share.

Ruben: The only time that you rescind is if there was fraud or bad
faith, or if the other heirs do not want to give the preterited heir the
property.

Art. 1105. A partition which includes a person believed to be an

heir, but who is not, shall be void only with respect to such
person. (1081a)

In this case you do not have to rescind. You just get back from the
nagkamali, and just make a supplemental partition.

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