SUCCESSION

CREATED BY: SAMANTHA V. MAKAYAN

When the time is right, I, the Lord,

will make it happen

PROFESSOR: ATTY. FRETTI GANCHOON

© BOOKS BY JUSTICE JURADO AND DEAN PAGUIRIGAN

SUCCESSION

TABLE OF CONTENTS Construction which sustains validity of a Will
.......................................................................................... 18
I. DEFINITION, KINDS, AND BASIC Ambiguity in the Will .............................................. 19
CONCEPTS (ARTS. 774-782; RULE 86,
2 kinds of ambiguities .............................................. 19
ROC) ................................................................ 8 2 distinct cases contemplated in Art. 789 ....... 19
CONCEPT AND BASIS OF SUCCESSION ................ 8 Rules in interpretation of Wills .......................... 20
Concept ............................................................................. 8 Disposition of property acquired after making
Basis ................................................................................... 8 the will ........................................................................... 20
ELEMENTS OF SUCCESSION .................................... 8 After-acquired property .......................................... 20

Subjective Element ...................................................... 8 Law that governs form of wills; Extrinsic and
intrinsic validity ........................................................ 21
Objective Element ........................................................ 8
Effect of changes after testator’s death ............ 21
Inheritance distinguished from succession ...... 8 Effect of changes before testator’s death ......... 21
Restricted concept of inheritance ......................... 8
Law that governs successional right of the
Causal Element ............................................................. 9 heirs of a foreign national .................................... 22
Transmission of succession rights ........................ 9 B. TESTAMENTARY CAPACITY & INTENT
Rule in case of presumptive death ...................... 10
(ARTS. 796-803) ......................................................... 22
Effect of judicial settlement ................................... 10
Nature of testamentary capacity ...................... 22
KINDS OF SUCCESSION ............................................ 11
Persons with testamentary capacity ................ 23
Testamentary succession ....................................... 11
When capacity must exist ....................................... 23
Legal or intestate succession ............................... 11
Age requirement ....................................................... 23
Testamentary vs. intestate succession .............. 11
Soundness of mind ................................................... 23
Mixed succession ....................................................... 11
Mental requirement .................................................. 23
Contractual succession ........................................... 11 Test to know if a person is of sound mind ...... 23
EXTENT OF INHERITANCE ..................................... 12 Presumption is in favor of soundness of mind
............................................................................................ 24
Property in existence at decedent’s death ...... 12 Sufficiency of evidence of mental capacity ..... 24
Transmissible rights and obligations ............... 12 Effect of old age ........................................................... 25
Effect of infirmity or disease ................................. 25
Rights acquired by virtue of a contract are Effect of insanity ......................................................... 25
transmissible ................................................................ 13 Effect of mental delusion ........................................ 26
Intransmissible rights and obligations ........... 13 Effect of belief in supernatural ............................. 26
Effect of drunkenness .............................................. 26
Money obligations ...................................................... 13
Rules on the Capacity of Spouse ......................... 27
Accretions ..................................................................... 14
C. FORMALITIES OF WILLS ..................................... 27
CLASSIFICATION OF HEIRS .................................... 14
Classification of wills .............................................. 27
Concept of heir, devisee, and legatee ................ 14
Object of formalities ................................................ 27
Kinds of heirs .............................................................. 15
1. General Formalities (Art. 804) ....................... 27
Devisees & Legatees vs. Heirs ............................... 16
Written form of wills ................................................ 27
II. TESTAMENTARY SUCCESSION ........ 16 Language of wills ........................................................ 28
A. CHARACTERISTICS & CONSTRUCTION OF 2. Formalities for Ordinary or Notarial Wills
WILLS (ARTS. 783-795) ........................................... 16 (Arts. 805-809) .......................................................... 28
Definition and concept of a Will ......................... 16 Special formalities of ordinary wills .................. 28
Subscription by testator .......................................... 29
Elements of a Will ..................................................... 17 Subscription and Attestation by witnesses .... 31
Characteristics of a Will ......................................... 17 Marginal signatures .................................................. 32
Number of pages ........................................................ 33
A personal act ............................................................... 17 Attestation clause ...................................................... 33
A unilateral act ............................................................. 17 Notarial acknowledgment ...................................... 34
Revocable ....................................................................... 17 Special Rules for Deaf-Mute and Blind Testator
A solemn act .................................................................. 18 ............................................................................................ 34
Freely and voluntarily executed by the testator Will is void if defect cannot be cured without
............................................................................................ 18 the use of extrinsic evidence ................................. 34
Delegation of testamentary acts .......................... 18 Doctrine of Liberal Interpretation ...................... 35
Delegation of non-testamentary acts ................. 18 Substantial Compliance rule ................................. 38

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3. Formalities for Holographic Wills (Arts. Issues to be resolved in probate proceedings 53
810-814) ....................................................................... 38 Effect of allowance of will ..................................... 53
Signature ........................................................................ 39
When allowance may be set aside ...................... 54
How is it dated? ........................................................... 39
Effect upon probate of codicil ............................... 54
Probate of holographic wills .................................. 39
Lost or Destroyed Holographic Will ................... 41 Exclusive Grounds for Disallowance ................ 54
Alterations or Insertions Must be
Effect of disallowance .............................................. 56
Authenticated ............................................................... 41
Ratification .................................................................... 56
Rules and effects of Alterations, Insertions, or
Interpolations Made by a Third Person ............ 42 J. INSTITUTION OF HEIRS (ARTS. 840-853, 855-
D. WILLS VIS-À-VIS DONATIONS MORTIS 856) .................................................................................. 58
CAUSA .............................................................................. 42 Concept of institution of heirs ............................. 58
E. RULES ON CONFLICT OF LAWS AND JOINT Effect of lack of institution ................................... 58
WILLS (ARTS. 815-819) ........................................... 42
Freedom of disposition ........................................... 59
Law Which Governs Formal Validity of Wills 42 Restrictions on freedom of disposition ............ 59
Where Testator is a Filipino; What Law will
Form of institution ................................................... 59
Govern ............................................................................. 42
Where Testator is an Alien; What Law will Validity of institution .............................................. 60
Govern ............................................................................. 42
Dispositions in favor of unknown persons ..... 60
Filipino Citizen Executing His Will Abroad but
Dispositions in favor of definite class ............... 61
Following Philippine Laws ..................................... 43
Joint Wills ....................................................................... 43 Institutions without designation of shares ... 61
Law Which Governs Intrinsic Validity of Wills Individual and collective institutions .............. 61
........................................................................................... 44 Institution of brothers and sisters ...................... 62
F. QUALIFICATIONS & DISQUALIFICATIONS OF Institution of a person and his children;
WITNESSES (ARTS. 820-824) ............................... 44 resumption of simultaneous institution ......... 62
Qualification of Witnesses ..................................... 44 Institution based on false cause ......................... 62
Competency and credibility of witnesses ........ 44
Effect of false cause for institution ..................... 62
Disqualification from being a Witness ............ 44 Institutions in aliquot parts ................................. 63
Effect of Subsequent Incapacity of a Witness45 Rule if entire inheritance not covered;
Competency of interested witness ..................... 45 proportional increase in the aliquot parts ...... 63
Rule if more than inheritance covered;
Competency of creditor .......................................... 45 reduction in the aliquot parts ............................... 64
G. CODICILS & INCORPORATION BY Article applied ............................................................ 64
REFERENCE (ARTS. 825-827) ............................... 45
Effect of predecease ................................................. 64
Codicils ........................................................................... 45
K. PRETERITION (ART. 854) .................................. 65
Requirements ............................................................... 45
Preterition defined ................................................... 65
Incorporation by reference ................................... 45
Requisites of Preterition ........................................ 66
H. REVOCATION, REPUBLICATION & REVIVAL
OF WILLS (ARTS. 828-837) .................................... 46 1. Character of omission ......................................... 66
2. Character of omitted heir .................................. 66
Revocation of wills ................................................... 46 3. Survival of omitted heir ...................................... 67
Governing law; rules of revocation ..................... 46 Effects of preterition ............................................... 68
Modes of Revocation ................................................. 46
Presumptions of revocation ................................... 50 Preterition vs. Disinheritance ............................. 69
Doctrine of Dependent Relative Revocation ... 50 L. SUBSTITUTION OF HEIRS (ARTS. 857-870)
False Cause for Revocation/Revocation by ............................................................................................ 69
Mistake ............................................................................ 51
Recognition of an Illegitimate Child ................... 51 Concept of Substitution of Heirs ........................ 69
Republication of wills .............................................. 51 General limitation ...................................................... 69

Revival of wills ............................................................ 51 Kinds of Substitution ............................................... 69

I. ALLOWANCE & DISALLOWANCE OF WILLS Simple or common (vulgar) substitution ....... 70
(ARTS. 838-839; RULES 75 & 76, RULES OF Instances when substitution takes place ......... 70
COURT) ........................................................................... 52 Number of substitutes ............................................. 70
Concept of Probate ................................................... 52 Shares of substitutes ................................................ 70
Effect of substitution ................................................ 71
Probate is mandatory ............................................... 52
Imprescriptibility of probate ................................. 52 Fideicommissary (indirect) substitution ........ 71

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Requisites of a valid fideicommissary Revocation by loss or destruction ...................... 94
substitution ................................................................... 72
Limitations on fideicommissary substitutions
Dispositions in favor of relatives ........................ 94
............................................................................................ 72 III. COMPULSORY SUCCESSION ............ 95
Rights of fiduciary ...................................................... 73
Obligations of fiduciary ............................................ 73 A. COMPULSORY HEIRS (ART. 887, AS
Rights of fideicommissary ...................................... 73 AMENDED BY ART. 176, FAMILY CODE) .......... 95
Void Substitutions ..................................................... 74 Kinds of compulsory heirs ..................................... 95
Effect of void fideicommissary substitutions . 75 Legitimate children or descendants .................. 95
Widow or widower ................................................... 95
Disposition of usufruct to various persons .... 75 Illegitimate children ................................................. 96
Disposition declaring estate inalienable ........ 75 Parents or ascendants .............................................. 97
M. TESTAMENTARY DISPOSITIONS WITH B. LEGITIMES (ARTS. 886, 888-907) .................. 97
CONDITION, TERM OR MODE (ARTS. 871-885) Concept of legitime .................................................. 97
............................................................................................ 76
Kinds of legitime ....................................................... 98
Conditional Testamentary Dispositions .......... 76
Legitime of Legitimate Descendants ................ 98
Freedom of disposition ............................................ 76
Conditional testamentary disposition ............... 76 Rules of division ......................................................... 98
Conditions which impair legitime ....................... 76 Legitime of Legitimate Ascendants .................. 99
Impossible conditions .............................................. 76
Absolute conditions not to contract marriage Rules of division ......................................................... 99
............................................................................................ 77 Legitime of surviving spouse ............................. 100
Relative conditions regarding marriage ........... 78
Conditions captatoria ............................................... 79 Alone as a class ......................................................... 100
Potestative, Casual, and Mixed Conditions ...... 79 With legitimate descendants .............................. 100
Suspensive and Resolutory Conditions ............. 81 With legitimate ascendant ................................... 101
With illegitimate children .................................... 101
Modal Institution ...................................................... 82
Legitime of illegitimate descendants ............. 101
Fulfillment or compliance ....................................... 82
Manner of fulfillment or compliance ................. 82 With legitimate descendants .............................. 101
Testamentary dispositions with a term ............ 83 With ascendants ....................................................... 101
With spouse ................................................................ 102
N. LEGACIES & DEVISES (ARTS. 924-959) ....... 84 With legitimate descendants and spouse ...... 102
Persons charged with legacies and devises ... 84 With legitimate ascendants and spouse ......... 102
Alone as a class ......................................................... 103
Liability for eviction ................................................ 85 Transmissibility of rights ..................................... 103
Legacy of things belonging partly to strangers Legitime of illegitimate parents ....................... 103
........................................................................................... 85
Preservation of legitime ...................................... 103
Legacy of things belonging to strangers ........ 86
Effect of impairment ............................................... 104
Legacy of things belonging to legatee ............. 87
Effect of renunciation or compromise ........... 104
Legacy of a credit and of remission of debts . 88
Effect of incomplete legitime ............................. 105
Legacy of a credit ........................................................ 88
Legacy of remission of debts ................................. 88 C. DISTRIBUTION OF THE ESTATE (LEGITIMES
Revocation of Legacy ................................................ 89 & FREE PORTION) (ARTS. 908-914) ............... 105
Legacy to creditors ................................................... 89 Steps in distribution of estate if there are
donations ................................................................... 105
Alternative legacies and devises ......................... 89
Gross value of estate ............................................... 106
Generic Legacies and Devises .............................. 90 Debts and charges .................................................... 106
Generic Legacies ......................................................... 90 Collation of donations ............................................ 106
Generic Devises ........................................................... 90 Meaning of collation ............................................... 106
Imputation .................................................................. 107
Legacy for education or support ........................ 90
Reduction of testamentary dispositions and
When right to legacy or devise vests ................ 91 donations ................................................................... 108
Transmission of right of ownership .................. 91 Procedure for reduction ....................................... 108
Order of payment of legacies and devises ...... 92 Rules of reductions of devises ............................ 108
Effect of Ineffective Legacies or Devises ......... 92 D. RULES ON COLLATION (ARTS. 1061-1077)
Revocation of legacies and devises .................... 93 ......................................................................................... 109
Revocation by implication of law ........................ 93 Concept of collation ............................................... 109
Revocation by transformation .............................. 93 When collation shall not take place ............... 110
Revocation by alienation ......................................... 94

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Property left by will .............................................. 110 Fifth Ground .............................................................. 119
Collation of representation ................................ 111 Sixth Ground ............................................................. 119
Donations to children of compulsory heirs . 111 Seventh Ground ....................................................... 120
Donations to spouse of child ............................. 111 Eighth Ground .......................................................... 120
Expenses for support ............................................ 111 GROUNDS FOR DISINHERITANCE OF SPOUSE
Expenses for a career ........................................... 111 ......................................................................................... 120

Payments for debts of children ........................ 112 Second Ground ......................................................... 120

Weddings gifts ......................................................... 113 Fourth Ground ......................................................... 120

Article applied ........................................................... 113 Fifth Ground .............................................................. 121

What must be collated ......................................... 113 EFFECT OF SUBSEQUENT RECONCILLATION

......................................................................................... 121
Rule for donations made by both parents ... 113
EFFECT OF DISINHERITANCE ............................ 121
Rules for equalization of shares of heirs ...... 113
V. RESERVA TRONCAL (ART 891) ..... 121
Rules regarding fruits and interest ................ 114
CONCEPT ..................................................................... 121
Collation in kind ..................................................... 114
HISTORICAL BACKGROUND ............................... 122
E. IN CASE OF INOFFICIOUS TESTAMENTARY
PROVISIONS OR DONATIONS ............................. 114 PURPOSE ..................................................................... 122
Effect of inofficious testamentary dispositions REQUISITES ............................................................... 122
........................................................................................ 114 NATURE ....................................................................... 123
Inofficious testamentary disposition vs. PERSONAL ELEMENT ............................................ 123
Inofficious donations inter vivios ...................... 115
Transmissions .......................................................... 123
IV. DISINHERITANCE (ARTS. 915-923)
Origin of property .................................................. 123
..................................................................... 115
Descendant-propositus ........................................ 124
CONCEPT OF DISINHERITANCE ........................ 115
Ascendant-reservista ............................................ 124
REQUISITES OF DISINHERITANCE .................. 115
Reservatarios ........................................................... 125
First requisite .......................................................... 115
PROPERTY SUBJECT TO RESERVATION ........ 127
Second requisite ..................................................... 115
RIGHTS OF RESERVISTA ....................................... 127
Third requisite ......................................................... 116
OBLIGATIONS OF RESERVISTA ......................... 128
Fourth requisite ...................................................... 116
RIGHTS OF RESERVATARIOS ............................. 128
IMPERFECT DISINHERITANCE ......................... 116
When reservatario acquires right; effect ..... 128
Distinguished from preterition ........................ 116
EXTINCTION OF RESERVA ................................... 129
Effect of imperfect disinheritance .................. 117
GROUNDS FOR DISINHERITANCE OF VI. LEGAL OR INTESTATE SUCCESSION
DESCENDANTS ......................................................... 117 ..................................................................... 130
First Ground ............................................................. 117 A. LEGAL HEIRS AND ORDER OF INTESTATE
SUCCESSION (ARTS. 978-991, 993-1014) .... 130
Second Ground ........................................................ 117
Legitimate Children or Descendants .............. 130
Third Ground ........................................................... 117
Rules of division ....................................................... 130
Fourth Ground ......................................................... 118
Legitimate and illegitimate children ............. 131
Fifth Ground ............................................................. 118
Rules of legal/intestate succession to the estate
Sixth Ground ............................................................ 118 of the adopted (Art. 190, FC) ............................... 131
Seventh Ground ....................................................... 118 Legitimate Parents or Ascendants .................. 132
GROUNDS FOR DISINHERITANCE OF Rules of division ....................................................... 132
ASCENDANTS ............................................................ 118
Illegitimate Children ............................................. 133
First Ground ............................................................. 118 Rules of division ....................................................... 133
Second Ground ........................................................ 119 Right of representation ......................................... 133
Third Ground ........................................................... 119 Illegitimate children and legitimate
ascendants ................................................................. 133
Fourth Ground ......................................................... 119

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Order of intestacy in illegitimate filiation .. 134 Capacity of representative ................................. 151
Children or descendants ....................................... 134 Effect upon division of estate ............................ 151
Illegitimate parents ................................................ 134
Surviving spouse ...................................................... 134 Repudiation by representative ......................... 151
Brothers and sisters, nephews and nieces ... 135 Effect of repudiation by heir .............................. 152
Surviving spouse ..................................................... 135 D. RIGHT OF ACCRETION (ARTS. 1015-1023)
Surviving spouse and legitimate descendants ......................................................................................... 152
......................................................................................... 136 Concept of accretion .............................................. 152
Surviving spouse and legitimate ascendants
......................................................................................... 137 Conflict of rights ....................................................... 152
Surviving spouse and illegitimate children .. 137 Accretion in testamentary succession ........... 153
Surviving spouse and legitimate and
illegitimate descendants ....................................... 137 Plurality of subjects, unity of object ................. 153
Surviving spouse, legitimate ascendants, and Vacancy in inheritance .......................................... 154
illegitimate children ............................................... 139 Accretion in intestate succession ..................... 154
Surviving spouse and brothers and sisters,
nephews and nieces ............................................... 140 Effect of accretion .................................................. 155
Collateral relatives ................................................ 140 Division in case of accretion ................................ 155
Division in case of conflict of rights ................. 155
Brothers and sisters ............................................... 140
Brothers and sisters, nephews and nieces ... 140 Summary .................................................................... 155
Nephews and nieces ............................................... 141
Transmission of rights and obligations .......... 156
Other collateral relatives ................................... 142 Effect of compulsory succession ....................... 156
The State .................................................................... 142 Effect if accretion does not take place .......... 156
Procedure for escheat .......................................... 142 E. DISTRIBUTION OF INTESTATE ESTATE ... 157
Requisites for escheat ............................................ 143
VII. SEPARATION BETWEEN
B. BASIC RULES AND PRINIPLES (ARTS. 960- LEGITIMATE & ILLEGITIMATE FAMILY
969) ............................................................................... 143
(ART. 992) ................................................ 157
Concept of legal or intestate succession ...... 143
VIII. CAPACITY TO SUCCEED,
Causes of intestacy ................................................ 144 ACCEPTANCE, & REPUDIATION OF
1. If the decedent dies without a will, or one INHERITANCE (ARTS. 1024-1057) ... 157
which has subsequently lost its validity ........ 144
2. If the testator executes a will but disposes of CAPACITY TO SUCCEED ........................................ 157
only a part of his properties ................................ 144
Requisites ................................................................... 158
3. If a testamentary disposition becomes
ineffective or inoperative ..................................... 144 INCAPACITY TO SUCCEED ................................... 158
Other causes of intestacy ..................................... 145
Capacity of entities or associations ................ 158
Order of intestate succession ............................ 145
Incapacity based on undue influence or
Rule of preference between lines ..................... 145 interest ........................................................................ 158
Rules of proximity; general rule ...................... 145 Disqualification of priest or minister .............. 159
Exception ..................................................................... 145 Disqualification of guardians .............................. 160
Disqualification of witnesses .............................. 160
Rule of equal division ........................................... 146 Disqualification of physicians or nurses ........ 160
Exceptions .................................................................. 146 Incapacity based on morality or public policy
Computation of degrees ...................................... 146 ........................................................................................ 160

Effect of incapacity or repudiation ................ 147 Dispositions for benefit of testator’s soul ..... 161
Order of intestate succession in general ...... 148 Incapacity due to unworthiness ....................... 161
Nature and basis .................................................... 148 Pardon of acts of unworthiness ......................... 163

C. RIGHT OF REPRESENTATION (ARTS. 970- TIME TO DETERMINE CAPACITY ..................... 163

977) ............................................................................... 149 EFFECTS ...................................................................... 164
Concept of representation .................................. 149 Effect of incapacity upon compulsory heirs 164
Characteristics ........................................................ 149 Effect of acts of disqualified heir ...................... 164
When representation takes place ................... 150 GOVERNING LAW IF DECEDENT IS A
Representation in direct descending line .... 150 FOREIGNER ................................................................ 165

Representation in collateral line ..................... 150 REMEDY AGAINST DISQUALIFIED HEIR ....... 165

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Period of prescription .......................................... 165 MONEY CLAIMS AGAINST THE ESTATE;
CONCEPT OF ACCEPTANCE AND NOTICE TO CREDITORS ........................................ 173
REPUDIATION ........................................................... 166 Time within which claims shall be filed ........ 173
Characteristics ........................................................ 166 Publication of notice to creditors .................... 173
Effects in general ................................................... 166 Filing copy of printed notice .............................. 173
Requisites for acceptance or repudiation ... 166 Filling of claims ....................................................... 173
Who may accept or repudiate .......................... 166 Time bar ..................................................................... 173
Manner of acceptance .......................................... 167 Set off ........................................................................... 173
Manner of repudiation ........................................ 168 How to file a claim ................................................. 173
Effect of repudiation upon creditors ............. 168 Disposition of admitted claim ........................... 174
Repudiation as testamentary or as legal heir Trial of contested claim ....................................... 174
........................................................................................ 168 Judgment appealable ............................................ 174
Irrevocability of acceptance or repudiation PAYMENT OF DEBTS .............................................. 174
........................................................................................ 169
Source of payment as designated by the
IX. EXECUTORS & ADMINISTRATORS testator ........................................................................ 174
(ARTS. 1058-1060) ............................... 169
Personality first chargeable for debts, then
REQUIREMENTS FOR THE ISSUANCE OF realty ............................................................................ 174
LETTERS TESTAMENTARY AND OF LETTERS
Preference of payment if estate insolvent .... 174
OF ADMINISTRATION ........................................... 169
When and how claim proved outside the
APPOINTMENT OF EXECUTORS ....................... 170
Philippines against insolvent resident's estate
APPOINTMENT OF ADMINISTRATORS; paid ............................................................................... 174
PRIORITIES ................................................................ 170
Time for paying debts and legacies ................ 174
APPOINTMENT OF SPECIAL ADMINISTRATORS
ACCOUNTABILITY AND COMPENSATION OF
......................................................................................... 170
EXECUTORS AND ADMINISTRATORS ............. 174
Powers and duties .................................................. 170
Increase or decrease in value ............................ 174
Termination ............................................................. 170
Accountable for income from realty used by
BOND OF ADMINISTRATOR OR EXECUTOR 170 him ................................................................................ 175
Further bond ............................................................ 171 Accountable for delay ........................................... 175
GENERAL POWERS AND DUTIES OF Expenses and fees allowed executor or
EXECUTORS AND ADMINISTRATORS ............ 171 administrator ........................................................... 175
INVENTORY AND APPRAISAL ............................ 171 Two or more executors or administrators .. 175
Exclusions from the inventory .......................... 171 Attorney’s fees prohibited ................................... 175
Allowance to widow and family ...................... 171 Compensation provided in the will ................. 175
Questions of title ..................................................... 171 When executor or administrator to render
SALES AND MORTGAGES ..................................... 171 account ........................................................................ 175

Circumstances when the court may approve Examinations on oath with respect to account
the sale or mortgage of specific estate ........................................................................................ 175
property ..................................................................... 171 Notice to examine the account of the executor
ACTIONS BY AND AGAINST EXECUTORS AND or administrator ..................................................... 175
ADMINISTRATORS .................................................. 172 X. PARTITION OF ESTATE (ARTS. 1078-
Mortgages due estate may be foreclosed .... 172 1087, 1089-1105) .................................. 176
Proceedings when property concealed, CONCEPT AND CLASSIFICATION OF
embezzled, or fraudulently conveyed ............ 172 PARTITION ................................................................. 176
Rendition of account ............................................ 172 WHO MAY EFFECT PARTITION ......................... 176
Embezzlement before letters issued .............. 172 PARTITION BY DECEDENT .................................. 176
Remedy for fraudulent conveyance by the PARTITION BY THIRD PERSON ......................... 177
deceased during his lifetime .............................. 172 WHO CAN DEMAND PARTITION ....................... 177
Action by executor or administrator ............... 172
Action by the creditor ............................................ 173
When partition cannot be demanded ............ 177

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RECISSION OF PARTITION DUE TO LESION . 178
EFFECT OF INCLUSION OF INTRUDER IN
PARTITION ................................................................. 179
XI. LEGAL REDEMPTION (ART. 1088)
..................................................................... 180
LEGAL REDEMPTION IN FAVOR OF CO-HEIRS
......................................................................................... 180
XII. PROVISIONS OF THE FAMILY CODE
THAT AFFECT THE LAWS ON
SUCCESSION ............................................. 180

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I. DEFINITION, KINDS, AND BASIC CONCEPTS ELEMENTS OF SUCCESSION
(ARTS. 774-782; RULE 86, ROC)
Subjective Element

CONCEPT AND BASIS OF SUCCESSION
Article 775. In this Title, “decedent” is the
general term applied to the person whose
Article 774. Succession is a mode of acquisition property is transmitted through succession,
by virtue of which the property, rights and whether or not he left a will. If he left a will, he
obligations to the extent of the value of the is also called the testator.
inheritance, of a person are transmitted through
his death to another or others either by his will Parties involved:
or by operation of law.
1. Decedent – The person whose property is
Concept transmitted through succession, whether or
not he left a will.
Broadest juridical sense 2. Heirs, Devisees, or Legatees – Those who
are called to succeed such decedent either by
It signifies the substitution or subrogation of a will or by operation of law; those who are
person in the transmissible rights and obligations called to the inheritance.
of another. It embraces not only succession mortis
causa, but even succession inter vivos. Heir. A person called to the whole or to an aliquot
portion of the inheritance either by will or by
Strict juridical sense operation of law.

It signifies the substitution or subrogation of a Devisee. A person to whom a gift of real property
person in the transmissible rights and obligations is given by virtue of a will.
of a deceased person. It is limited to succession
mortis causa. Legatee. A person to whom a gift of personal
property is given by virtue of a will.
Under Art. 774
Objective Element
It is a mode of acquisition by virtue of which the
property, rights, and obligations to the extent of Article 776. The inheritance includes all the
the value of the inheritance, of a person are property, rights and obligations of a person
transmitted through his death to another or which are not extinguished by his death.
others either by his will or by operation of law. It
is a derivative mode of acquiring ownership Refers to what is being transmitted, which is the
because the ownership or property is merely inheritance, which includes all the property,
transferred from a previous owner to another. It rights, and obligations of a person which are not
is not synonymous with inheritance. extinguished by his death.

NOTE: This is in conformity with Art. 712 Inheritance distinguished from succession
which enumerates the different modes of
acquiring ownership and other real rights. It is INHERITANCE SUCCESSION
distinguished from the original modes like
occupation intellectual creation, and Refers to the universality
Refers to the legal
prescription. of all the property, and
mode of acquisition
transmissible rights and
whereby the
Basis obligations of the
inheritance of a
decedent which are not
person is
The necessity of perpetuating man’s patrimony extinguished by his death
transmitted to
beyond one’s existence. and which are available
another or others
for distribution after
by his death.
If man has the right to own private property, he settlement or liquidation.
has the power to dispose of such property freely,
imposing such licit terms and conditions as he Restricted concept of inheritance
might deem convenient.
No succession shall be declared unless and until a
He may distribute them by means of a testament, liquidation of the assets and debts left by the
since a testament is nothing more than an decedent shall have been made and all his
instrument of alienation conditioned upon his creditors fully paid. Until a final liquidation is
death. made and all debts are paid, the right of the heirs

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SUCCESSION

to inherit remains inchoate. It partakes of the efficient cause of the transmission of successional
nature of a mere hope and nothing more. rights, while the fact of his death is the condition.

Reason: Under our rules of procedure, It is the moment of death which is the time when
liquidation is necessary in order to determine the rights are transmitted to the heirs. Prior to the
whether or not the decedent has left any liquid death of the predecessor, all that the heirs have
assets which may be transmitted to his heirs. over his estate is a mere expectancy.

Limjoco v. Intestate Estate of Pedro Fragante Transmission of succession rights
The heirs were formerly considered as the
continuation of the decedent’s personality simply Principle: The rights to the succession are
by legal fiction. Under the present legal system, transmitted from the moment of the death of the
such rights and obligations as survived after decedent as contemplated in Arts. 1042 and 533.
death have to be exercised and fulfilled only by
the estate of the deceased. It is the executor or After the death of the decedent, anyone of the
administrator who exercises those rights and to heirs may enter into a contract with respect to his
fulfill those obligations of the deceased. share in the inheritance even before partition has
been effected because his right with respect
Therefore, it is no longer the heirs who are thereto is already in the nature of a vested right in
responsible for the payment of the debts or accordance with the principle declared in Art. 777
obligations of the decedent, but the estate itself; of the Civil Code, to the effect that the rights to the
and if the estate should not be sufficient to pay for succession are transmitted at the moment of the
such debts or obligations, the heirs cannot be death of the decedent.
made to pay for the unpaid balance. Simply, such
debts or obligations do not become the debts or Lorenzo v. Posadas
obligations of the heirs after the death of the The principle that rights to succession are
decedent; they remain as debts or obligations of transmitted from the moment of death likewise
the decedent, to the payment of which his makes the transmission of inheritance taxable at
property may be subjected wherever it be found. the time of death of the predecessor despite the
postponement of actual possession by the
Estate of Hemady v. Luzon Surety Co., Inc. beneficiary. Whatever may be the time when
While in our successional system the actual transmission of the inheritance takes place,
responsibility of the heirs for the debts of their succession takes place in any event at the moment
decedent cannot exceed the value of the of the decedent’s death. If death is the generating
inheritance they receive from him, these heirs source from which the power of the state to
succeed not only the rights of the deceased but impose inheritance taxes takes its being and if,
also to his obligations. Under our law, the general upon the death of the decedent, succession takes
rule is that a party’s contractual rights and place and the right of the state to tax vests
obligations are transmissible to the successors. instantly, the tax should be measured by the value
No property or portion of the inheritance may be of the estate as it stood at the time of the
transmitted to his heirs unless the debt has first decedent’s death, regardless of any subsequent
been satisfied. When the action is for recovery of contingency affecting value or any subsequent
money arising from contract, express or implied, increase or decrease in value. The SC holds that a
and the defendant dies before entry of final transmission by inheritance is taxable at the time
judgment in the court in which the action was of the predecessor’s death, notwithstanding the
pending at the time of such death, it shall not be postponement of the actual possession or
dismissed but shall instead be allowed to enjoyment of the estate by the beneficiary, and
continue until entry of final judgment. the tax is measured by the value of the property
transmitted at the time regardless of its
Causal Element appreciation or depreciation.

Article 777. The rights to the succession are Uson vs. Del Rosario
transmitted from the moment of the death of the The right of ownership of Maria Uson over the
decedent. lands in question became vested in 1945 upon the
death of her late husband and this is so because of
Refers to the will caused by the death of the the imperative provision of the law which
decedent, which is the final cause of the commands that the rights to the succession are
transmission of successional rights. transmitted from the moment of death. The new
right recognized by the new Civil Code in favor of
It is the expressed will of the decedent as the illegitimate children of the deceased cannot,
manifested in his last will and testament or his therefore, be asserted to the impairment of the
presumed will as provided by law which is the vested right of Maria Uson over the lands in
dispute.

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SUCCESSION

Rule in case of presumptive death partition of his haeriditas jacens among his heirs,
does not deprive such heirs of the right to
GR: For purposes of the opening of succession, intervene in the administration of the estate for
death may either be actual or presumed. In order the protection of their interests.
that an absentee is presumed dead for the
purpose of opening his succession, it is necessary Despite the appointment of a judicial
that he must have been absent for at least 10 administrator, the heirs have a right to intervene
years, it being unknown whether or not he still when they believe that the administrator’s acts
lives (Arts. 390 and 391). are prejudicial to their interests. Under our legal
XPNs: system, the formal declaration or recognition of
1. If the absentee disappeared after the age of the right of the heirs requires judicial
75 years, in which case an absence of 5 years confirmation in the proper testate or intestate
shall be sufficient in order that his succession proceedings.
may be opened (Art. 390).
2. If the absentee disappeared under any one of Nevertheless, such right has always been
the three circumstances enumerated in Art. protected from encroachments made or
391, in which case an absence of 4 years shall attempted before the judicial declaration. Hence,
be sufficient. even before there has been a judicial declaration
of heirship, it is well established that an heir has a
A waiver of the inheritance made by any of the right to assert a cause of action as an heir,
heirs prior the moment of death would be void for although he has not been judicially declared to be
lack of a valid object. However, the moment death so.
occurs, whatever rights the decedent may have
over his properties passes to his heirs regardless Principle: The property of a deceased person,
of whether there has been actual partition of the both real and personal, becomes the property of
properties or not. his heir by the mere fact of death of his
predecessor in interest.
Question: When or at what precise moment will
there be a transmission of successional rights in NOTE: Just because the heirs acquire
case of presumptive death? As applied to the case ownership over their inheritance from the very
of normal or ordinary presumption of death, will moment of the death of the decedent, they can
it be at the beginning of the 10-year period or at then compel the administrator to deliver to
the end or expiration of such period, and as them the respective portions to which they are
applied to the case of abnormal or extraordinary entitled either by will or by operation of law.
presumption of death, will it be at the beginning While it is very true that they acquire
of the 4-year period or at the end or expiration of ownership thereof from the moment of the
such period? death of their predecessor, yet upon the
GR: As a general rule, the time when the absentee appointment of a judicial administrator, the
died must be proved in accordance with the latter, by virtue of his appointment, acquires a
ordinary rules of evidence. If this is not possible, right to the possession of the estate, subject to
then he is deemed to have died at the time of the the orders of the court, unless he consents to
that expiration of the period designated by law. the heirs continuing in possession thereof.
XPN: When the absentee disappeared under any
one of the extraordinary circumstances Once the administration proceedings is
enumerated in Art. 391 of the Code. Because the terminated and the heirs will finally accept their
absentee disappeared under danger of death, in respective portions in the inheritance, the
such case, he is deemed to have died at or about possession thereof is deemed transmitted to them
the time when he disappeared. without any interruption and from the moment of
the death of the decedent.
Since the moment of the death of the decedent is
the determining factor when the heirs acquire a A co-owner’s right over the co-owned
definite right to the inheritance, whether such property passes to his heirs from the moment
right is pure or contingent, it is immaterial of death
whether a short or long period of time lapses
between the moment of the death of the decedent Heirs of Ignacio Conti v. CA
and the heir’s entry into the possession of his Prior settlement of the estate is not essential
inheritance. before the heirs can commence an action
originally pertaining to the deceased. Under Arts.
Effect of judicial settlement 777 and 494, the rights of Lourdes as co-owner of
the land incidental to which is the right to ask for
The fact that the law provides for the partition at any time or to terminate the co-
appointment of a legal administrator for the ownership were transmitted to her heirs upon
liquidation of the decedent’s estate and the her death.

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SUCCESSION

Testamentary vs. intestate succession
KINDS OF SUCCESSION

TESTAMENTARY INTESTATE
Article 778. Succession may be:
1. Testamentary; It is the expressed will of
It is his presumed
the testator manifested in
2. Legal or intestate; or will as provided
his last will and testament
3. Mixed by the law itself
which is the supreme law
which governs.
in the succession
Article 779. Testamentary succession is that
which results from the designation of an heir,
made in a will executed in the form prescribed Mixed succession
by law.
The succession may be effected partly by will and
Article 780. Mixed succession is that effected partly by operation of law.
partly by will and partly by operation of law.
Instances when mixed succession takes place:
1. Compulsory Succession – It reserves a
portion of the net estate of the decedent in a. If certain dispositions in the will of the
favor of certain heirs, or group of heirs, or decedent are invalidated or not given effect
combination of heirs, prevailing over all kinds either because of an imperfect description of
of succession. The portion that is so reserved the property, or when no person or property
is the legitime (Raymundo v. Vda. De Suarez). exactly answers the description contained in
2. Testamentary Succession the will of the deceased (Art. 792).
3. Legal or Intestate b. When the testator failed to distribute his
whole estate or the free portion thereof, and
NOTE: Mixed Succession happens if the will did no substitution or accretion takes place, the
not distribute remaining portion, then it leads balance remaining shall be subject to the
to legal heirs. rules on intestacy.

Testamentary succession Hence, in the distribution of the hereditary estate
of the testator after his death, testamentary
It is that which results from the designation of an succession shall take place with respect to that
heir, made in a will executed in the form part of his property which he has disposed of in
prescribed by law. It occurs when the decedent his will, while legal succession shall take place
specifies his wishes with respect to the with respect to that part which he has not
distribution of his property through a will which disposed of.
must be executed in the manner required by law.
Here, if the intention of the deceased cannot be
NOTE: The designation of an heir is not ascertained from the words in his will, the
essential for the validity of a will. What is disposition shall become inoperative. The
essential is that the succession must be vacancy created by reason of the invalidation of a
effected through the testator’s will executed in particular disposition shall be distributed in
the form prescribed by law. accordance with the rules on intestacy.

Legal or intestate succession Contractual succession

In the absence of a will, the law steps in and GR: According to Art. 1347, no contract may be
proceeds to distribute the property of the entered into regarding future inheritance except
deceased in accordance with his presumed will. in cases expressly authorized by law. This is based
on the fact that the object of a contract should
Instances when legal or intestate succession shall exist at the moment of its celebration or, at least,
take place (Art. 960): it can exist in the future.
XPN: Under Art. 130, however, the future spouses
1. If the will is declared void for failure to may give or donate to each other in their marriage
comply with the formalities prescribed by settlements their future property to take effect
law; or upon the death of the donor and to the extent laid
2. If the will does not institute an heir, or all the down by the provisions of the Civil Code relating
heirs instituted are incapable of succeeding to testamentary succession.
the decedent.
As a consequence of the limitation that the
donation shall only be to the extent laid down by
the provisions of the Civil Code relating to
testamentary succession, it is imperative that the

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SUCCESSION

rule that the donor cannot give by way of NOTE: Under RA 349, as amended by RA 1056,
donation more than he can dispose of by will shall a person may validly grant to a licensed
have to be complied with. physician, surgeon, known scientist, or any
medical or scientific institution, authority to
Since a donation by reason of marriage is a true detach at any time after the grantor’s death,
contract and since it shall take effect only after the any organ of his body, and to utilize the same
death of the donor, it is evident that it is in reality for medical, surgical or scientific purposes.
a contractual disposition mortis causa.
Requisites of a valid grant or authorization:
Question: How does it differ from testamentary
succession? 1. The grant or authorization must be in
Answer: In testamentary succession, it is writing
essential that the testamentary dispositions must 2. It must specify the person to whom or the
be contained in a will executed in accordance with institution to which the grant is given
the formalities prescribed by law, while in 3. It must specify the organ to be detached
contractual succession, the donation or 4. It must specify the use or uses of the organ
disposition does not have to be contained in a will. to be employed
It is, however, essential that it must be executed 5. It must be signed by the grantor and two
in accordance with the form prescribed for disinterested witnesses.
donations by reason of marriage. Simply, it must
comply with the Statute of Frauds. If all of these requirements have been complied
with, after the death of the grantor, the grant or
EXTENT OF INHERITANCE authorization shall be binding upon the
executor or administrator, successors of the
deceased and members of his family.
Article 781. The inheritance of a person
includes not only the property and the Transmissible rights and obligations
transmissible rights and obligations existing at
the time of his death, but also those which have Rules in determining the transmissible or
accrued thereto since the opening of the intransmissible character of a right or obligation:
succession.
1. Rights relative to persons and family or purely
The inheritance of a person includes: personal rights are, by their very nature,
intransmissible in character.
1. All the properties of the decedent existing at
the time of his death; They are not included in the inheritance.
2. All his transmissible rights and obligations
which are existing at the time of his death; 2. Rights relative to property or patrimonial
3. All the property and rights which may have rights are generally transmissible in character.
accrued to the estate since the death of the
decedent. They may be included in the inheritance.
Excepted from this rule are those which are
Property in existence at decedent’s death expressly made intransmissible by operation
of law such as personal and legal usufructs
Requisites for any property to be subject to and personal easements.
distribution among the heirs of the decedent:
3. Rights arising from obligations or rights of
1. It must be existing at the time of his death (ex. obligations, whether contractual or otherwise,
still part of the decedent’s estate); and are generally transmissible in character.
2. Before the heirs may lay a claim over the
assets of the deceased, the debts and GR: They may be included in the inheritance.
obligations of the latter must have been fully XPNs: Those arising from contracts which by
settled. their very nature are intransmissible, those
which are expressly made intransmissible by
Succession to the estate is limited to the net estate, agreement of the parties, and those which are
or to whatever remains after all the creditors expressly made intransmissible by operation
have been paid their respective claims. of law.

Question: Does the body or mortal remains of the
decedent form a part of the inheritance?
Answer: NO. It cannot be considered as a part of
the inheritance inasmuch as it is not property.


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SUCCESSION

Rights acquired by virtue of a contract are Example: Where a natural child dies survived
transmissible by his mother, it has been held that the right of
action for the acknowledgment of the child is,
Inocencio v. Hospicio de San Jose in principle and without exception,
A contract of lease is not essentially personal in extinguished by his death, and cannot be
character. Thus, the rights and obligations therein transmitted as a portion of the inheritance of
are transmissible to the heirs. such child. Similarly, where a merchant dies
leaving a mercantile business to his widow and
GR: Heirs are bound by contracts entered into by children, it has been held that such fact alone
their predecessors-in-interest. does not make such widow and children
XPN: Except when the rights and obligations merchants.
arising there from are not transmissible by their
nature, by stipulations, or by provision of law. Conde v. Abaya
The power to transmit the right of such action by
The death of a party does not excuse non- the natural child to his heirs cannot be sustained
performance of a contract which involves a under the law. Although the Civil Code
property rights, and the rights and obligations considerably improved the conditions of
thereunder pass to the successors or recognized natural children, granting them rights
representatives of the deceased. and actions that they did not possess under the
former laws, they were not, however, placed upon
Intransmissible rights and obligations the same plane as legitimate ones. The difference
that operates these two classes of children is still
Those which are purely personal, either by great, as proven by so many articles dealing with
provision of law (ex. cases of partnerships [Art. the rights of the family and with succession in
1830] and agency) or by the very nature of the relation to the members thereof. Whatever the
obligations arising therefrom (ex. those requiring Code does not grant to the legitimate children
special personal qualifications of the obligor, must still less be understood as granted to
contract of usufruct). recognized natural children or in connection with
their rights. There is not a single exception in its
Thus, contracts for the payment of money debts provisions. The right of action pertaining to the
are not transmitted to the heirs of a party, but child to claim his legitimacy is in all respects
constitute a charge against his estate. Art. 1713. superior to that of the child who claims
acknowledgment as a natural child. And it is
Some intransmissible rights and obligations: evident that the right of action to claim his
legitimacy is not one of those rights which the
1. Rights and obligations between husband and legitimate child may transmit by inheritance to
wife; his heirs; it forms no part of the component rights
2. Property relations between husband and of his inheritance. If it were so, there would have
wife; been no necessity to establish its transmissibility
3. Action for legal separation; to heirs as an exception in the terms and
4. Action to compel acknowledgment of a conditions of Article 268 of the Code. So that, in
natural child; order that it may constitute a portion of the child’s
5. Action to obtain judicial declaration of inheritance it is necessary that the conditions and
illegitimate filiation of an illegitimate child the terms contained in Article 268 shall be
who is not natural; present, since without them, the right that the
6. Parental authority or patria potestas; child held during his lifetime, being personal and
7. Rights of a guardian; exclusive in principle and, therefore, as a general
8. Right to receive and the obligation to give rule not susceptible of transmission, would and
support; should have been extinguished by his death.
9. Right to hold a public office as well as the Therefore, where no express provision like that of
right to exercise a profession or vocation; Article 268 exists, the right of action for the
10. Right of usufruct; acknowledgment of a natural child is, in principle
11. Right of personal easement; and without exception, extinguished by his death,
12. Rights and obligations arising from a contract and cannot be transmitted as a portion of the
of partnership; inheritance of the deceased child.
13. Rights and obligations arising from a contract
of agency; and Money obligations
14. Criminal responsibility.
When the law speaks of transmissible rights and
NOTE: The enumeration are intransmissible obligations as being included in the inheritance, it
rights and obligations because they are either can only refer to those rights and obligations to
purely personal in character or they are made which the persons called to inherit either by will
so by operation of law.

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SUCCESSION

or by operation of law succeed after the Accretions
settlement or liquidation of the estate.
The inheritance of a person also includes any
Doctrine: It is the estate or the mass of property, property or right which may have accrued thereto
rights and assets left by the decedent, instead of since the opening of the succession.
the heirs directly, that becomes vested and
charged with his rights and obligations which Critics
survive after his death.
According to them, it is inaccurate and
Purely money obligations of the decedent do not superfluous. Since the rights to the succession are
become the personal liability of the heirs. It is the transmitted from the time of the death of the
estate of the deceased which should answer for decedent, and, as a consequence, the heirs
the debts of the decedent; if the heirs are become the owners in common of the hereditary
answerable at all, it should only be to the extent of estate from that time up to the time when a
the value of the property received from the partition of the estate is made among such heirs,
decedent (Art. 1311). therefore, any property or right which may have
accrued thereto since the opening of the
Only monetary obligations or claims for money succession shall also belong in common to the
must be filed within the time limited by the rules heirs, not because it is included in the inheritance,
against the estate of the decedent; otherwise, they but because of the principle of accession.
are barred forever. It is only these claims which
must be liquidated in the testate or intestate Defenders
proceedings. After liquidation, the court which
has jurisdiction over the proceedings, on They maintain that since such property or right
application of the executor or administrator, or a which may have accrued to the hereditary estate
person interested in the estate, and after hearing since the opening of the succession is subject to
upon notice shall assign the residue of the estate the payment of the debts of the decedent, in the
to the persons entitled to the same, naming them same way as any existing property or
and the proportions, or parts, to which each is transmissible right originating from such
entitled. Hence, under our system of procedure decedent, and since what will actually be
for the settlement of the estates of deceased distributed to the persons who are called to the
persons, monetary obligations of the decedent inheritance either by will or by operation of law
can only be charged against his estate and not will be the net remainder or residue of the estate,
against his heirs. therefore, we must include in the inheritance all
property and transmissible rights which may
NOTE: The claims or obligations which can be have accrued thereto since the opening of the
charged against the estate of the decedent after succession.
his death are those monetary obligations
contracted by the decedent himself during his CLASSIFICATION OF HEIRS
lifetime and not those contracted by his heirs.
A creditor of one of the heirs has no standing
or legal personality to intervene in the testate Article 782. An heir is a person called to the
or intestate proceedings for the settlement of succession either by the provision of a will or by
the estate of the decedent by filing a motion operation of law.
praying that the participation of such heir in Devisees and legatees are person to whom gifts
the inheritance should be sold in order to pay of real and personal property are respectively
for the obligation. This is so because the given by virtue of a will.
creditor is not a creditor of the decedent but of
the heir, and, therefore, is entitled to proceed Concept of heir, devisee, and legatee
against the participation of such heir only after
the settlement or liquidation of the estate of Heir. A person called to the whole or to an aliquot
the decedent. portion of the inheritance either by will or by
operation of law.
Monetary obligations cannot be included in the
inheritance. Other obligations, however, may be Devisee. A person to whom gifts of individual
included. Most of these obligations which may items of real property, chargeable, as a general
form a part of the inheritance are those arising by rule, against the disposable portion of the
operation of law from patrimonial rights which testator’s hereditary estate, are respectively
are adjudicated to the heirs after liquidation of given by virtue of a will.
the estate, such as those connected with
ownership, possession or real easements, as well Legatee. A person to whom gifts of individual
as those arising from contracts the object of which items of personal property, chargeable, as a
is the delivery of a thing other than money. general rule, against the disposable portion of the

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SUCCESSION

testator’s hereditary estate, are respectively a. Legatees – Succeeds to a pro
given by virtue of a will. indiviso part of the estate or may
be given specific items of
Considerations regarding devisees and legatees: PERSONAL property.

ii. Devises and legacies are possible only in Legacy. Specific property
testamentary succession. This is evident from bequeathed by a particular or
the provision of Art. 782(2). special title.
iii. A devisee or legatee always succeeds to
individual items of property by means of a b. Devisees - Succeeds to a pro
particular or special title. indiviso part of the estate or may
iv. The devise or legacy which is given to a be given specific items of REAL
devisee or legatee by means of a will is, as a property.
general rule, a charge against the free portion
of the testator’s property. NOTE: In both, the real and
personal property are given by
NOTE: This rule is important only in case virtue of a will.
the testator is survived by compulsory Example: If the testator makes a
heirs who are entitled to a legitime. Here, will devising a certain parcel of
the testator’s hereditary estate is divided, land to A and bequeathing his
as a general rule, into the legitime or legal automobile to B, A is a devisee,
portion and the disposable free portion. while B is a legatee.
Since it is a rule that the testator has no
testamentary control over the legitime, it GR: The devise or legacy which is given
follows that devises and legacies can only to a devisee or legatee by means of a will
be charged against the disposable free is, as a general rule, a charge against the
portion. If the testator is not survived by free portion of the testator’s property.
compulsory heirs, his entire property is
considered as free property, in which case, NOTE: This rule is of practical
the devises and legacies can be charged importance only in case the testator
against the entire property. is survived by compulsory heirs who,
under our system of compulsory
Kinds of heirs succession, are entitled to a legitime.
In such case, the testator’s hereditary
1. Testamentary heirs estate is divided, as a general rule,
into the legitime or legal portion and
a. Compulsory heirs – An heir called by law the disposable free portion.
to succeed to a portion of the testator’s
estate known as the legitime (Art. 887). Since it is a rule that the testator has no
b. Voluntary heirs – An heir called to testamentary control over the legitime,
succeed to the whole or an aliquot part of devises and legacies can only be
the disposable free portion of the charged against the disposable free
hereditary estate by virtue of the will of the portion. If the testator is not survived by
testator. compulsory heirs, his entire property is
considered as free property, in which
The classification is based on the fact that case, the devises and legacies can be
if the testator is survived by certain charged against the entire property.
relatives for whom the law as a matter of
policy has reserved a portion of his 2. Legal or intestate heirs – An heir called to
hereditary estate, such estate is divided succeed by operation of law when legal or
into 2 parts: intestate succession takes place.

i. Disposable free portion. The testator a. Those who inherit by their own right (Arts.
has absolute testamentary control and 978 and 1014).
which may be disposed of by will in b. Those who inherit by the right of
favor of any person not disqualified by representation (Art. 981).
law to succeed.
ii. Legal portion or Legitime. The NOTE: All compulsory heirs are intestate heirs,
testator has no testamentary control but not all intestate heirs are compulsory heirs.
because the law has already reserved it
for the compulsory heirs, and which Example: Collateral relatives may inherit in
cannot be disposed of by will in favor of intestacy although they are not compulsory
any other person. heirs of the decedent.

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SUCCESSION

extent that the legitime of the disinherited
heir is prejudiced, but legacies and devises
shall be valid insofar as they are not
20% inofficious.

3. In case properties are acquired by the testator
50% after the execution of the will: According to
Art. 793, such properties are not, as a rule,
30% included among the properties disposed of
unless it should expressly appear in the will
itself that such was the testator’s intention. It
is evident that this rule is applicable only to
Compulsory Succession legacies and devises and not to institution of
Testamentary Succession heirs.

Legal Succession
II. TESTAMENTARY SUCCESSION

Devisees & Legatees vs. Heirs
A. CHARACTERISTICS & CONSTRUCTION OF
DEVISEES & WILLS (ARTS. 783-795)
HEIRS
LEGATEES
Always called to Always called to succeed Definition and concept of a Will
succeed to in- to an indeterminate or
dividual items of aliquot portion of the Article 783. A will is an act whereby a person is
property. Simply, decedent’s hereditary permitted, with the formalities prescribed by
they succeed by estate. Simply, they law, to control to a certain degree the
particular title. succeed by universal title. disposition of this estate, to take effect after his
death.
Called to succeed either by
Always called to means of a will, Question: What is meant by a will?
succeed by means (voluntary) or by Answers:
of a will operation of law • A will is an act whereby a person is permitted,
(compulsory and legal) with the formalities prescribed by law, to
Always called to control to a certain degree the disposition of
Always called to succeed
succeed to his estate, to take effect after his death.
to an indeterminate or
individual items • It is an instrument by which a person makes
aliquot portion of the
of property, as a disposition of his property, to take effect
testator’s hereditary
when the testator after his death, and which by its own nature
estate, as when the
bequeaths an is ambulatory and revocable during his
testator institutes a friend
automobile or lifetime.
to succeed to one-half or
devises a parcel of • It is a disposition, made by a competent
one-fourth of the free
land or a house to testator in the form prescribed by law, of
portion of his estate.
a certain person property over which he has legal power of
On the other hand, they are similar in the sense disposition, which disposition is of such
that both are called to succeed by means of a nature as to take effect after his death.
will and also in the sense that the shares of
both are chargeable against the disposable free A person may dispose of his property as he may
portion of the testator’s estate. deem fit through the execution of a will in the
form prescribed by the Code. The formalities to be
Instances why the distinction is important observed in the execution of the will would
depend on whether the will is a —
1. In case of preterition or pretermission in the 1. Notarial will (Arts. 804-809); or
testator’s will of one, some, or all of the 2. Holographic will (Arts. 804, 810-814)
compulsory heirs in the direct line: According
to Art. 854, the effect is to annul entirely the “To certain degree” refers to the untouchability of
institution of heirs, but legacies and devises the legitimes.
shall be valid insofar as they are not
inofficious. A will is the testator speaking after death. Its
provisions have substantially the same force and
2. In case of imperfect or defective effect in the probate court as if the testator stood
disinheritance: According to Art. 918, the before the court in full life making the
effect is to annul the institution of heirs to the declarations by word of mouth as they appear in

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SUCCESSION

the will. That was the special purpose of the law disposition is valid, and not violative of the
in the creation of the instrument known as the last personal nature of the making of a will because
will and testament. All doubts must be resolved in all that is left to the third person is the
favor of the testator having meant just what he distribution of the specific property to entities
said. which were also predetermined by the
testator. However, if testator X states that he
Elements of a Will leaves the sum of P1M to charity and leaves the
discretion to his father F whether to give it or
1. A written instrument not, the testamentary provision is considered
2. Duly executed and attested, inoperative because the testator cannot leave
3. By which a competent person the discretion to a third person the efficacy of
4. Makes a voluntary disposition the designation of heirs, devisees, or legatees
5. Of property or the determinations whether a particular
6. In favor of another competent person testamentary disposition is to be given effect
7. To take effect after the maker’s death (Art. 785).
8. Meantime being revocable
Castenada v. Alemany
Characteristics of a Will If the will is signed by the testator or by someone
else in his presence, and under his express
1. It is a strictly personal act; direction, it is a matter of indifference by whom
2. It is an individual and unilateral act; the mechanical work of writing the will is done. In
3. It is a free and voluntary act; this case, the will of the testatrix Dona Juana
4. It is a formal and solemn act; Moreno was opposed on the ground that it was
5. It is a disposition of property; typewritten in the office of her lawyer. It is clear
6. It is an act mortis causa; and from the decision here that the mechanical act of
7. It is ambulatory and revocable during the typing the will need not be personally doe by the
testator’s lifetime. testator or provided that the dispositions are
supplied by him.
A personal act
The right to dispose of one’s property is not only
Article 784. The making of a will is a strictly restricted as to formal requisites. If the decedent
personal act; it cannot be left in whole or in part left compulsory heirs, his freedom to dispose of
to the discretion of a third person, or his property is limited to the free portion of his
accomplished through the instrumentality of an estate after satisfying the legitimes of his
agent or attorney. compulsory heir of his legitime, which must be
effected through a valid disinheritance, the
You yourself have to make the will. The making of omission by the testator of one or some of his
a will cannot be delegated or left in whole or in compulsory heirs in the direct line would render
part to the discretion of a third person, or the will void. Thus, failure to observe the formal
accomplished through the instrumentality of an or substantive requirements necessarily affects
agent or attorney. the validity of the will itself.

However, it must be observed that the mere act of A unilateral act
drafting or writing of the will does not fall within
the purview of the prohibition. Thus, it has been The heirs are not required to signify their
held that who does the mechanical work of conformity or acquiescence to the testamentary
writing the will is a matter of indifference. The disposition in order for it to be valid. However,
fact, therefore, that the will was typewritten in the being an act of liberality of the testator, the heirs
office of a lawyer is of no consequence. are free to accept or repudiate the disposition in
their favor after the testator’s death.
NOTE: The characteristic of being a personal
act is not destroyed by the fact that the testator NOTE: A Joint will is not allowed.
entrusts to a third person the disposition of
specific sums of money or property, which he Principle: No one may be compelled to accept the
may leave in general to specified classes or liberality of another.
causes by way of exception to the general rule.
Revocable
Example: The testator X makes a will
bequeathing the sum of P1M which he has Being a disposition mortis cause, it only takes
deposited in ABC Bank Manila in favor of the 2 effect upon the death of the testator, and the
oldest public schools in Bicol. He leaves the testator is free to revoke or the change of his will
task to his executor to determine these 2 prior to that time.
schools and distribute the sum equally. The

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SUCCESSION

NOTE: The testator cannot state that the will is 1. The power to distribute specific property or
irrevocable. sums of money which he may have left in
general to specified classes or causes; and
A solemn act 2. The power to designate the persons,
institutions or establishments to which such
It cannot just be written un any form but it has to property or sums of money are to be given or
comply with formalities prescribed by law. applied.

Freely and voluntarily executed by the Testator may entrust to a third person the
testator distribution of specific property or sums of
money that he may leave in general, to specified
Hence, any circumstance which would affect the classes or causes, and also the designation of the
voluntariness of the act like the presence of persons, institutions or establishments to which
violence, intimidation, or undue influence will such property or sums are to be given or applied.
render the will void and will not be allowed to
probate (Art. 839). NOTE: What you can delegate are non-
testamentary acts.
Delegation of testamentary acts
Example: One may bequeath P100,000 to a
Article 785. The duration or efficacy of the specified class, such as the different charitable
designation of heirs, devisees or legatees, or the institution of Manila, or to a specified cause,
determination of the portions which they are to such as the cause of labor, entrusting, at the
take, when referred to by name, cannot be left to same time, to the executor of his estate the
the discretion of a third person. power to distribute the amount and also the
power to designate the different institutions or
GR: Acts which testator cannot do: organizations to whom the said amount shall
1. The duration of the designation of heirs, be given. It is evident, therefore, that in the
devisees or legatees; cases contemplated by the article under
2. The efficacy of the designation; and discussion, the testator has already completed
3. The determination of the portions which they the testamentary act of making a will; what he
are to take when referred to by name. entrusts to the third person are merely the
details thereof in order to make the devise or
NOTE: What you can’t delegate are legacy more effective.
testamentary acts.
Article 787. The testator may not make a
Testator is prohibited from making the duration testamentary disposition in such manner that
or efficacy of a testamentary disposition or the another person has to determine whether or not
determination of the portions which the heirs are it is to be operative.
to receive dependent upon the will or discretion
of another (Arts. 785, 787). Art. 787 prohibits the testator from making a
testamentary disposition which would allow
Delegation of non-testamentary acts another person to determine whether it is to be
operative or not.
Article 786. The testator may entrust to a third
person the distribution of specific property or Although the act determining whether a
sums of money that he may leave in general to testamentary disposition is to be operative or not
specified classes or causes, and also the is not exactly testamentary in character, it is
designation of the persons, institutions or evident that the delegation of such act to a third
establishments to which such property or sums person would be tantamount to allowing the
are to be given or applied. testator to substitute the will of a third person for
his own, which is precisely what the law intends
Article 787. The testator may not make a to prevent when it states that the making of a will
testamentary disposition in such manner that cannot be left in whole or in part to the discretion
another person has to determine whether or not of a third person.
it is to be operative.
Construction which sustains validity of a
XPNs: Although the making of a will, including all Will
the testamentary acts, cannot be left in whole or
in part to the discretion of a third person, the Ascertainment and effectuation of the intention of
testator, in order to make the different devises or the testator is controlling in the construction of
legacies more effective, is allowed to entrust to a wills.
third person:

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SUCCESSION

The chief object and purpose in construing a will An ambiguity may result —
is to ascertain and give effect to the intention of a. from an imperfect description either of the
the testator. Thus, the cardinal rule of person instituted, or of the property
testamentary construction is to ascertain the bequeathed in the will, or
intention of the testator and give it effect. b. when no person or property corresponds to
the description made by the testator.
You can only interpret and construe the law if it is
ambiguous. In construing the provisions of the As far as possible, mistakes or omissions must be
will, the construction that will sustain and uphold corrected if the error appears from the context of
the will in all its parts shall be preferred. the will itself. Extrinsic evidence may also be
admitted to resolve the ambiguity and determine
Example: The language used in the will if the testator’s intention.
susceptible of 2 different interpretations, one
which will defeat and the other which will However, Art. 789 prohibits the admission of the
sustain the disposition, the doubt must be oral declarations of the testator as to his
resolved in favor of the construction which will intention.
effect to the will, rather than the one which will Rationale: To prevent prevarication by the
defeat it. witnesses whose testimony as to the oral
declarations of the testator may no longer be
Article 788. If a testamentary disposition disputed by the latter whose lips have been sealed
admits of different interpretations, in case of by death. It is tantamount to hearsay.
doubt, that interpretation by which the
disposition is to be operative shall be preferred. 2 kinds of ambiguities

Under Art. 788, if a testamentary disposition PATENT LATENT
admits of different interpretations, in case of Does not appear on
doubt, that interpretation by which the Appears on the face of the face of the will and
disposition is to be operative shall be preferred. the will itself is discovered only by
extrinsic evidence
Under this rule, that construction is to be adopted Ex. I institute one of
which will sustain and uphold the will in all its Ex. I institute my
my 3 nephews (but
parts, if it can be done consistently with the sister (but there are 2
the nephew is not
established rules of law. If the language used is sisters); I give my
named); I give X one
reasonably susceptible of two different piano to Lisa (but
of my 3 cars (without
interpretations, one which will defeat, and the there are 2 pianos)
stating which car)
other sustain, the provisions, the doubt is to be
resolved in favor of the construction which will Art. 789 refers o a will where there are mistakes
give effect to the will, rather than the one which or omissions with regard to persons or property
will defeat it. or where there are uncertainties with regard to
the application of its provisions.
Preference on Testacy over Intestacy
2 distinct cases contemplated in Art. 789
Testacy is favored. Doubts are resolved in favor of
testacy especially where the will evinces an 1. When there is an imperfect description or
intention on the part of the testator to dispose of when no person or property exactly answers
his whole estate. the description.

Ambiguity in the Will In this case, the mistake or omission must be
corrected by ascertaining the testatorial
Article 789. When there is an imperfect intention using for this purpose either
description, or when no person or property intrinsic or extrinsic evidence or both, but
exactly answers the description, mistakes and excluding the oral declarations of the testator
omissions must be corrected, if the error as to his intention.
appears from the context of the will or from
extrinsic evidence, excluding the oral 2. When there is an uncertainty arising upon the
declarations of the testator as to his intention; face of the will as to the application of any of
and when an uncertainty arises upon the face of its provisions.
the will, as to the application of any of its
provisions, the testator's intention is to be In this case, the testatorial intention is to be
ascertained from the words of the will, taking ascertained from the context of the will and
into consideration the circumstances under the circumstances under which it was made,
which it was made, excluding such oral but again excluding the oral declarations of
declarations. the testator as to his intention.

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SUCCESSION

Rules in interpretation of Wills Disposition of property acquired after
making the will
Article 790. The words of a will are to be taken
in their ordinary and grammatical sense, unless Article 793. Property acquired after the making
a clear intention to use them in another sense of a will shall only pass thereby, as if the testator
can be gathered, and that other can be had possessed it at the time of making the will,
ascertained. should it expressly appear by the will that such
Technical words in a will are to be taken in their was his intention.
technical sense, unless the context clearly
indicates a contrary intention, or unless it According to Art. 793, the testator is deemed to
satisfactorily appears that the will was drawn dispose only the property owned by him at the
solely by the testator, and that he was time of the execution of his will. With respect to
unacquainted with such technical sense. the property which the testator had acquired
thereafter, it will only pass to the instituted heirs
Article 791. The words of a will are to receive as if the testator had already possessed or owned
an interpretation which will give to every it at the time of the execution of his will if it
expression some effect, rather than one which expressly appears that it was the testator’s
will render any of the expressions inoperative; intention.
and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy. Art. 793 should only apply to legacies and devices
and not to the institution of heirs in general.
Article 792. The invalidity of one of several Rationale: To apply it to the latter case would
dispositions contained in a will does not result create a conflict with the concept of inheritance
in the invalidity of the other dispositions, unless under Arts. 776 and 781 which includes all
it is to be presumed that the testator would not property, rights, and obligations of a person
have made such other dispositions if the first which are not extinguished by a person’s death.
invalid disposition had not been made.
After-acquired property
GR: When the words of the will are clear, they
shall be taken in their ordinary or grammatical Article 794. Every devise or legacy shall cover
sense all the interest which the testator could device
XPN: Unless it appears that the testator intended or bequeath in the property disposed of, unless
to give another meaning to them. it clearly appears from the will that he intended
to convey a less interest.
GR: Words which are technical shall be
interpreted in their technical sense GR: Under Art. 794, property acquired during the
XPN: In case when it indicates a contrary interval between the execution of the will and the
intention on the part of the testator, or if it death of the testator are not included among the
appears that the will was solely drafted by the properties disposed of
testator who was unacquainted with the technical XPN: Unless it should expressly appear in the will
sense of the language used. itself that such was the intention of the testator.

Primordial rule: The testator’s intent is of Example: If the testator made a will in 1965
paramount importance. The words of the will are disposing of his properties in the form of gifts
to receive an interpretation which will give every or bequests of specific or determinate real or
disposition some effect, and the interpretation personal properties, and subsequently, during
which will prevent intestacy shall be preferred. the period from 1965 to the time of his death
in 1978 he is able to acquire other properties,
Dizon-Rivera v. Dizon according to Art. 793, the will shall only pass
To give effect to the intention and wishes of the those properties which he had at the time of its
testator is the first and principal law in the matter execution in 1965, but not those which he had
of testaments. acquired subsequent thereto.

Where some of the provisions of a will are valid However, the rule can be applied only to devises
and others invalid, the valid parts will be upheld and legacies and not to institution of heirs (Art.
if they can be separated from the invalid ones 776, 781). According to Art. 781, the inheritance
without defeating the intention of the testator or of a person includes not only the property and the
interfering with the general testamentary transmissible rights and obligations existing at
scheme, or doing injustice to the beneficiaries. the time of his death, but also those which may
have accrued thereto since the opening of the
succession.

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SUCCESSION

Example: If the testator had executed a will in force would certainly be equivalent to a
1960 instituting his three children, A, B and C, deprivation of property rights without due
as his universal heirs in such a way that A shall process of law.
be entitled to 1/2, B to 1/4, and C the
remainder, and he died only in 1978, leaving Bona v. Briones (Before the NCC)
considerable properties, most of which were Although his will did not comply with the
acquired during the period between 1960 and additional formalities prescribed by a law enacted
1978. It is evident that the division of the estate after the death of the testator, yet it can still be
as dictated in the will shall be applied not only admitted to probate since it had complied with all
to those properties existing at the time of the of the formalities prescribed by the law in force at
execution of the will in 1960, but even to those the time of its execution.
that were acquired subsequent thereto.
When the testator executes a will which is invalid
Law that governs form of wills; Extrinsic for failure to comply with the formalities
and intrinsic validity prescribed by law at the time of its execution, then
upon his death he should be regarded and
Article 795. The validity of a will as to its form declared as having died intestate, and his heirs
depends upon the observance of the law in force will then inherit in accordance with the rules of
at the time it is made. intestate succession, and no subsequent law with
more liberal requirements or which dispenses
Under Art. 795, the validity of a will as to its form with such requirements as to execution should be
depends upon the observance of the law in force allowed to validate a defective will and thereby
at the time it is made. divest the heirs of their vested rights in the estate
by intestate succession.
If a law different from the law in force at the time
of the execution of the will goes into effect before Enriquez vs. Abadia (Under the NCC)
or after the death of the testator, such a law shall Here, the will which was presented for probate
not affect the validity of the will, provided that - was a holographic will executed in 1923 when
such will was duly executed in accordance with holographic wills were not yet recognized by law.
the formalities prescribed by the law in force at It was held that although such wills are now
the time it was made. recognized under Art. 810 of the New Civil Code,
nevertheless, under Art. 795 of the same Code, it
Art. 795 is an expression of the view that the is evident that the will cannot be admitted to
formal validity of a will is to be judged not by the probate.
law in force at the time of the testator’s death, or
at the time the supposed will is presented in court Therefore, a will perfectly valid at the time of its
for probate, or when the petition is decided by the execution cannot be invalidated by a law enacted
court, but at the time the instrument was after the death of the testator; neither can a will
executed. totally void at the time of its execution be
Reason: Although the will operates only after the validated by such subsequent legislation.
death of the testator, in reality, his wishes
regarding the disposition of his estate among his Effect of changes before testator’s death
heirs, devisees and legatees are given solemn
expression at the time the will is executed and GR: Any statutory change enacted after the
thus becomes a completed act. execution of the will but before the death of the
testator cannot have any retroactive effect upon
Effect of changes after testator’s death the formal validity of a will.
XPN: When a retroactive effect is expressly
Upon the death of the testator, successional rights declared by the statute itself or is necessarily
arising from the will are vested in the persons implied from the language used therein.
called to the inheritance either as heirs or as
devisees or legatees. Simply, the title of such heirs, NOTE: This exception does not violate the
devisees or legatees becomes a vested right, constitutional prohibition regarding
protected under the due process clause of the deprivation of property without due process of
Constitution against any subsequent change in law because the statute is enacted before the
the law which would have the effect of death of the testator, and as a consequence, no
invalidating the will. rights are as yet vested in the persons called to
the inheritance either as heirs, devisees or
To allow retroactivity of effect to any statutory legatees.
change enacted after the death of the testator so
as to invalidate a will which was perfectly valid at
the time of its execution since it has complied with
all of the formalities prescribed by the law then in

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SUCCESSION

EXTRINSIC VALIDITY Miciano v. Birmo
Time of execution Place of execution The high court declared as invalid the provision in
Brimo’s will instructing that his properties shall
Dictated by the law Governed by Art. 17 be distributed in accordance with Philippine law
existing at the time of and Arts 815-819 of and not in accordance with his national law and
its execution. the Civil Code. that any legatee or devisee who opposes his will
shall forfeit his legacy. The SC ruled that the
INTRINSIC VALIDITY condition is void because it expressly ignores the
- Pertains to the successional rights of the testator’s national law. Hence, the condition is
heirs as well as the validity of the considered unwritten, and the institution of
distribution of the property of the testator legatees in said will is unconditional and valid and
- Governed by the law in force at the time of effective even as to the oppositor.
the testator’s death.
Aznar v. Garcia
Law that governs successional right of the The issue here is whether or not Art. 16 insofar as
heirs of a foreign national it mentions the national law of the deceased
means any general American law or its conflict
rules. The SC ruled that there is no single
Article 16. Real property as well as personal
American law governing the validity of
property is subject to the law of the country
testamentary provisions in the US, each state of
where it is situated.
the Union having its own private laws applicable

to its citizens only and in force only within the
The lex situs rule in Art. 16 provides that the
state. The “national law” cannot possibly mean or
following aspects of succession which are:
apply to any general American law. In this case, it
1. Order of succession
refers to the private law of the State of California.
2. Amount of successional rights
Following the doctrine of renvoi, the validity of
3. Intrinsic validity of testamentary dispositions
the testamentary provision should be referred
4. Capacity to succeed (Art. 1039)
back to the law of the decedent’s domicile which
Shall be governed by the national law of the
is the Philippines.
person whose succession is under consideration.


Article 1039. Capacity to succeed is governed B. TESTAMENTARY CAPACITY & INTENT
by the law of the nation of the decedent. (ARTS. 796-803)

Ancheta v. Dalaygon Nature of testamentary capacity
Being a foreign national, the intrinsic validity of
Audrey’s will especially with regard to who are Testamentary capacity refers to the ability as well
her heirs is governed by her national law as as the power to make a will. Although there is
provided in Art. 16. However, the intestate and authority for the view that the right to make a will
testamentary succession, both with respect to the is an inherent or natural right, according to most
order of succession and to the amount of authorities, it is purely a creature of statute, and,
successional rights and to the intrinsic validity of as such, is subject to legislative regulation and
the testamentary provisions shall be regulated by control.
the national law of the person whose succession
is under consideration. Whatever may be the TESTAMENTARY TESTAMENTARY
nature of the property and regardless of the CAPACITY POWER
country wherein said property may be found.
Petitioner was duty bound to introduce evidence Concerns the ability of Involves a privilege
of the pertinent laws of Maryland and the court the testator under the law
cannot accept petitioner’s protestation of good
faith. Hence, although a person may have testamentary
capacity to make a will, it does not necessarily
Bellis v. Bellis follow that he also has testamentary power to do
The illegitimate children of a foreign national so. Thus, formerly at common law, convicts and
cannot invoke that they were deprived of their married women had the capacity and yet were
legitimes under Philippine law because their denied the power to make a will.
father, who is a citizen of Texas, gave them a
minimal amount by way of legacy. The SC ruled Who may make a will
that since the deceased is not a Filipino citizen,
successional rights of his children should be 1. Only a natural person
determined in accordance with his national law. 2. Testator must at least be 18 years old at the
time of the execution of his will (age of
majority [Art. 234])


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SUCCESSION

3. Must possess a sound mind at the time of the Soundness of mind
making of the will
Article 798. In order to make a will it is
Persons with testamentary capacity essential that the testator be of sound mind at
the time of its execution.
Article 796. All persons who are not expressly
prohibited by law may make a will. In order that the testator can make a will it is
essential that he must be of a sound mind at the
The only persons who are expressly prohibited time of its execution.
from making a will are those who do not possess
the necessary age and mental requirements. Mental requirement
Other circumstances such as family relations, civil
interdiction, prodigality, insolvency, alienage, and Article 799. To be of sound mind, it is not
others of similar nature, which ordinarily modify necessary that the testator be in full possession
or limit capacity to act, do not affect or restrict of all his reasoning faculties, or that his mind be
testamentary capacity. wholly unbroken, unimpaired, or unshattered
by disease, injury or other cause. It shall be
When capacity must exist sufficient if the testator was able at the time of
making the will to know the nature of the estate
Testamentary capacity must exist at the time of to be disposed of, the proper objects of his
the execution of the will (Arts. 798, 800, and 801). bounty, and the character of the testamentary
act.
Thus, in the probate proceedings for the
allowance of the will either during the lifetime or Soundness of mind. Ability of the testator
after the death of the testator, one of the principal mentally to understand in a general way the
questions which must be presented for nature and extent of his property, his relation to
determination to the probate court is whether or those who naturally have a claim to benefit from
not the testator had the necessary testamentary the property left by him, and a general
capacity at the time of the execution of the will. understanding of practical effect of the will as
executed.
Age requirement
NOTE: Absolute soundness of mind and
Article 797. Persons of either sex under memory is not essential in order that a person
eighteen years of age cannot make a will. can make a will.

Under Art. 797, in order that a person can make a Test to know if a person is of sound mind
will, it is necessary that he must be at least
eighteen years of age. Failure to conform with the 1. If he knew, at least in a general way, the
requirement shall invalidate the will. nature of the estate to be disposed of.
2. If he knew, at least in a general way, the
Question: When does a person reach the age of proper objects of his bounty.
eighteen, does he reach it at the commencement 3. If he understood or comprehended the
of the day which is popularly known as his character of the testamentary act.
birthday or at the commencement of the day 4. If he knows the fact that he is executing a will
preceding his birthday? at the time of affixing his signature on the
Answer: A person is said to have reached the document.
required age at the commencement of the day
preceding what is popularly known as his NOTE: The testator is not expected to be in the
birthday. prime of health for as long as the abovementioned
is present.
NOTE: Under Art. 13, which states that when
the law speaks of years, it shall be understood Causes of unsoundness of mind
that it consists of 365 days, and that in
computing a period, the first day shall be Incapacitates a person from making a will may be
excluded, and the last day included. A person is due to:
said to have reached the age of 18 within the 1. Mental aberration
meaning of the law only at the commencement 2. Senile dementia (not mere senility)
of the day which is popularly known as his 3. Use of prohibited drugs
birthday. 4. Many others

Baltazar v. Laxa
The SC allowed the will. The SC did not agree with
petitioners’ contention that Paciencia was

23 Succession Reviewer by S. V. Makayan

SUCCESSION

“magulyan” or forgetful so much so that it proper evidence that the testator made the will
effectively stripped her of testamentary capacity. during a lucid interval.
The SC agreed with the position of the CA that the
state of being forgetful does not necessarily make Question: What is a lucid interval?
a personal mentally unsound so as to render him Answer: It is that period in which an insane
unfit to execute a will. Forgetfulness is not person is so far free from his disease, that the
equivalent to being of unsound mind. The state of ordinary legal consequences of insanity do not
being forgetful does not necessarily make a apply to acts done therein. It refers to that period
person unsound so as to render him unfit to in which an insane person has so far recovered
execute a will. Bare allegations of duress or from his insanity so that he is in a position to be
influence of fear or threats, undue and improper able at the time of making his will to know the
influence and pressure, fraud and trickery cannot nature of the state to be disposed of, the proper
be used as basis to deny the probate of the will. objects of his bounty, and the character of the
testamentary act. Hence, if it cannot be
Presumption is in favor of soundness of established that the testator was publicly known
mind to be insane within the required period of one
month or less before the making of his will, the
Article 800. The law presumes that every presumption of mental capacity stands, and as a
person is of sound mind, in the absence of proof consequence, there will be no need on the part of
to the contrary. the proponents of the will to prove that the
The burden of proof that the testator was not of testator made it during a lucid interval.
sound mind at the time of making his
dispositions is on the person who opposes the Second XPN:
probate of the will; but if the testator, one Torres and Lopez de Bueno vs. Lopez
month, or less, before making his will was Where the testator was under guardianship at the
publicly known to be insane, the person who time of the making of his will, there arises a prima
maintains the validity of the will must prove that facie presumption of mental incapacity; the
the testator made it during a lucid interval. burden of proving soundness of mind in such case
is cast upon the proponents of the will.
Article 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an Sufficiency of evidence of mental capacity
incapable validated by the supervening of
capacity. Whether the burden is cast upon the contestants
of the will to prove mental incapacity of the
GR: The law presumes that every person is of testator or upon the proponents to prove mental
sound mind and anyone who alleges that the capacity, the rule is that the evidence which
testator is of unsound mind at the time of the should be presented must cover a wide range in
execution of the will has the burden of proving the order that all facts may be brought out which will
same. assist the court in determining the question of
XPNs: mental capacity.
1. This burden shifts to the proponent of the will
if one month or less prior to the execution of The testimony of the subscribing witnesses as
the will, the testator was publicly known to be well as that of those present at the execution of
insane. the will, and of the attending physician
2. When the testator makes a will at a time when concerning the testator’s mental condition is
he is still under guardianship. entitled to great weight where they are truthful
and intelligent.
NOTE: If the testator was of sound mind at the
time of execution of the will, the subsequent Where the testimony of the attending physician is
loss of capacity will not have any effect on the based on mere professional speculation, such
validity of the will. But if the testator was testimony cannot prevail over the positive
insane at the time of the execution of the will, statements of credible witnesses whose
the subsequent acquisition of testamentary testimony does not in itself seem unreasonable.
capacity will not legalize the will. However, if the testimony of such physician is not
in the nature of mere professional speculation, as
Inversion of presumption; presumption of when it is established that he attended the
incapacity testator during his last illness and saw him on the
day when the will was supposed to have been
First XPN: If the testator, one month or less, executed, such testimony shall be given more
before making his will, was publicly known to be credence.
insane, the presumption of soundness of mind is
inverted. The burden of proof is shifted to the
proponents of the will. They must prove by

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Effect of old age Neyra v. Neyra
The mental faculties of a person suffering from
The will of an aged person should be regarded Addison’s disease like the testatrix in the case
with great tenderness, where it appears not to remain unimpaired on account of the sleep they
have been procured by fraudulent means, but enjoy, they necessarily receive the benefit of
contains those very dispositions which the physical and mental health rest. They preserve
circumstances of his situation and natural their mental faculties until the moments of their
affections dictated. death.

To an aged person as well as to one in the prime Examples:
of life, the usual tests as to testamentary capacity • The fact that the testator, at the time of the
will be applied. execution of the will, was suffering from
the last stages of tuberculosis and asthma,
NOTE: Mere senility or infirmity of old age or from paralysis and loss of speech, or
does not necessarily imply that a person lacks from cholera, or from a combination of
testamentary capacity. It is, however, different sleeping sickness, insomnia, tuberculosis,
in case of senile dementia. and diabetes, will not affect his
testamentary capacity, so long as it cannot
Senile dementia has been defined as that peculiar be proved by competent evidence that, at
decay of the mental faculties whereby the person the time when the will was executed, he
afflicted is reduced to second childhood. Senile was no longer in a position to know the
dementia, not senility, is the one which produces nature of the estate to be disposed of, the
testamentary incapacity. To constitute senile proper objects of his bounty, and the
dementia in such a legal sense as to deprive one character of the testamentary act.
of testamentary capacity, there must be such a • The fact that the testator, at the time of the
failure of mind as to deprive him of intelligent execution of the will, was already in a
action. But so long as a person “still possesses that comatose or semi-comatose condition,
spark of reason and of life, that strength of mind caused by cerebral hemorrhage, or by
to form a fixed intention and to summon his apoplexy, or by diarrhea and
enfeebled thoughts to enforce that intention, so gastroenteritis with complications of
long will he be considered to possess what the law miocarditis, or by cerebral thrombosis, so
terms testamentary capacity. that nothing around him could cause any
impression or reaction, would certainly
Bagtas v. Paguio destroy his testamentary capacity.
The testator’s infirmities were of a very serious
character and it is evident that his mind was not Effect of insanity
as active as it had been. Neither age, sickness,
extreme distress, nor debility of body will affect Mental disease or insanity refers to any disorder
the capacity to make a will if sufficient intelligence of the mind resulting from disease or defect in the
remains. Failure of memory is not sufficient to brain, whereby mental freedom may be
create the incapacity, unless it be total or extend perverted, weakened or destroyed. Sometimes it
to his immediate family or property. is used as the equivalent of mental incapacity.

Effect of infirmity or disease It is, however, evident that there may be mental
incapacity to make a will without actual insanity.
Neither is physical infirmity or disease At other times, it is confused with idiocy,
inconsistent with testamentary capacity, imbecility or senile dementia. Idiocy, however, is
although there is no question that evidence of used to describe only, those who are congenitally
such fact is admissible on the issue of deficient in intellect, imbecility, those who are
testamentary capacity. Just as in the case of old mentally deficient as a result of disease, and senile
age, the usual tests of testamentary capacity must dementia, those who are incapable of any
still have to be applied. intelligent action due to old age.

The same rule can be applied even if, at the time Since these are absolute and permanent forms of
when the will was being executed, the testator mental disease or insanity, persons suffering from
was so sick that it was necessary for somebody them do not possess the necessary mental
else to guide his hand in order that he could sign capacity to make a will.
it, or even if a few months before the execution of
the will, the testator, who was 85 years old, had a There are, however, other forms or degrees of
stroke of cerebral hemorrhage, with hemiplegia, mental disease or weakness which do not
caused by high blood pressure. necessarily negative testamentary capacity.



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Under our law, to be of sound mind, it is not Effect of belief in supernatural
necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be A belief in spiritualism is not in itself sufficient
wholly unbroken, unimpaired, or unshattered by evidence of testamentary incapacity. Those who
disease, injury or other cause. Hence, mental believe in spiritualism, when testamentary
aberrations which do not result in such capacity is in question, must be considered in the
impairment of the faculties as to render the same light as those who share in any other
testator unable to know or understand the nature religious belief.
of the estate to be disposed of, the proper objects
of his bounty, and the character of the That the basis for such belief may seem
testamentary act will not destroy testamentary unsubstantial to the great majority of persons
capacity. does not characterize it as an insane delusion
which incapacitates the believer to make a will.
Between the highest degree of soundness of mind
and memory which unquestionably carries with it Example: A testator’s belief that he was saved
full testamentary capacity, and the degree of from harm on several occasions by a guiding
mental aberration generally known as insanity or spirit does not establish in- sane delusions on
idiocy, there are numberless degrees of mental his part.
capacity or incapacity, and while on one hand, it
has been held that mere weakness of the mind, or Testamentary capacity cannot be determined
partial imbecility from disease of body, or from alone by what one believes, nor by the character
age, does not render a person incapable of making of the tales he tells concerning spirits, spooks, and
a will, provided that he has understanding and supernatural things. Even a belief in witchcraft is
memory sufficient to enable him to know what he not necessarily conclusive evidence of insanity.
is about, and how or to whom he is disposing of
his property, on the other hand, it has been held It is, however, possible that belief in spiritualism
that testamentary incapacity does not necessarily may establish lack of testamentary capacity. One
require that a person shall be actually insane or of may become a monomaniac upon the subject of
an unsound mind. spiritualism by dwelling upon it too persistently
and profoundly, so that his will may be
Weakness of intellect may render the testator invalidated upon the ground of an insane
incapable of making a valid will, provided such delusion.
weakness really disqualifies him from knowing or
appreciating the nature, extent or consequences A will executed by one under such an
of the act he is engaged in. extraordinary belief in spiritualism that he
follows blindly and implicitly supposed directions
Effect of mental delusion of spirits in constructing the will is not admissible
to probate.
An insane delusion which will render one
incapable of making a will may be defined as a Effect of drunkenness
belief in things which do not exist, and which no
rational mind would believe to exist. This does not invalidate his will on the ground of
lack of testamentary capacity, provided he then
The essence of an insane delusion is that it has no comprehends the nature, extent, and disposition
basis in reason, cannot be dispelled by reason and of his estate and his relation to those who have or
can be accounted for only as the product of mental might have a claim on his bounty; and clearly, a
disorder. person addicted to the use of drugs or of liquor, if
lucid and sober when a will is made, does not lack
To justify the setting aside of a will on the ground testamentary capacity merely by reason of the
that the testator was possessed of an insane habit.
delusion, it must be shown that the will was the
product or offspring of the delusion, or at least, GR: The admission of a will to probate will not be
that it was influenced by the delusion. denied merely on proof that the testator was
addicted to the excessive use of alcoholic liquors
The validity of a will is not affected by the fact that or drugs.
the testator was under a delusion unless the XPN: Unless it is shown that, at the time of the
delusion influenced him, at the time he executed making of the will, he was so much under the
the will, in his determination of the manner in influence of the intoxicants or drugs as to be
which he should dispose of his property. unable to bring to the business at hand the calm
judgment which the law requires of a testator, or
unless the mind of the testator has been impaired
by such habit to the extent that he is not of sound
and disposing mind and memory.

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Habitual drunkenness does not give rise to a acknowledged before a notary public by
presumption that the testator was incapacitated the testator and the said witnesses.
at the time he executed the will. But where the
testator has used intoxicating liquor or drugs 2. Holographic
excessively to such an extent as to impair his
mind, so that, at the time the will is executed, he A written will which must be entirely written,
does not know the extent and value of his dated, and signed by the hand of the testator
property, or the names of the persons who are the himself, without the necessity of any witness.
natural objects of his bounty, the instrument thus
executed will be denied probate for lack of Object of formalities
testamentary capacity.
The object of formalities is to avoid bad faith and
Rules on the Capacity of Spouse fraud, to avoid substitution of wills and
testaments and to guarantee their truth and
Article 802. A married woman may make a will authenticity.
without the consent of her husband, and
without the authority of the court. But on the other hand, one must not lose sight of
the fact that it is not the object of the law to
Article 803. A married woman may dispose by restrain and curtail the exercise of the right to
will of all her separate property as well as her make a will. So when an interpretation already
share of the conjugal partnership or absolute given assures such ends, any other interpretation
community property. whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and
With respect to the right of a married woman (or frustrative of the testator’s will, must be
a married man for that matter) to dispose of her disregarded.
share in the conjugal partnership or absolute
community property, although there is no 1. General Formalities (Art. 804)
question regarding the existence of the right,
nevertheless, such right of disposition is subject Article 804. Every will must be in writing and
to the result of the settlement or liquidation of the executed in a language or dialect known to the
partnership or of the community. testator.

Furthermore, what can be disposed of would be 1. Written
merely the ideal share of the spouse making the a. Notarial or Attested
will and not any specific or determinate property b. Holographic
belonging to the partnership or community. 2. In a language or dialect known to the testator

C. FORMALITIES OF WILLS A nuncupative will is an oral expression of a
person’s wishes as to the disposition of his or her
property to be performed or to take effect after
Classification of wills the person’s death, dictated by the person in his
or her final illness before a sufficient number of
1. Ordinary or Notarial or Attested witnesses and afterward reduced to writing.

a. A written will NOTE: Oral or nuncupative wills are not
b. Executed in a language or dialect known allowed in our jurisdiction.
to the testator
c. Subscribed at the end thereof by the Written form of wills
testator himself or by the testator’s name
written by some other person in his It is mandatory that ever will must be in writing.
presence and by his express direction
d. Attested and subscribed by three or more NOTES:
credible witnesses in the presence of the • If the will is holographic, it is essential that
testator and of one another it must be entirely written in the
e. All of the pages of which are signed, handwriting of the testator himself.
except the last, on the left margin by the • If the will is ordinary, so long as it is in
testator or the person requested by him to writing it does not matter on what
write his name and by the instrumental material, whether on paper or parchment,
witnesses, and numbered correlatively in it is written.
letters placed on the upper part of each
page It may be written by hand or typewritten, or
f. Containing an attestation clause executed printed from plates or type. The validity of an
by the witnesses, and properly instrument as a will is not affected by the fact that

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it is written partly in pen and partly in pencil, or 2. Formalities for Ordinary or Notarial Wills
that it was written wholly in lead pencil; such a (Arts. 805-809)
will is as valid as if written in ink.
Article 805. Every will, other than a
Castañeda v. Alemany holographic will, must be subscribed at the end
The law does not specify that the testator himself thereof by the testator himself or by the
must perform the act of writing. However, Art. testator's name written by some other person in
810 provides that in the case of holographic wills, his presence, and by his express direction, and
the will must be written entirely in the attested and subscribed by three or more
handwriting of the testator himself. It is only in credible witnesses in the presence of the
the case of ordinary wills that whoever performs testator and of one another.
the mechanical act of writing or drafting the will The testator or the person requested by him to
becomes a matter of indifference. write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and
Language of wills every page thereof, except the last, on the left
margin, and all the pages shall be numbered
Art. 804 also requires that every will must be correlatively in letters placed on the upper part
executed in a language or dialect known to the of each page.
testator. This requirement is applicable both to The attestation shall state the number of pages
ordinary and holographic wills. used upon which the will is written, and the fact
that the testator signed the will and every page
NOTE: There is no statutory requirement that thereof, or caused some other person to write
the testator’s knowledge or understanding of his name, under his express direction, in the
the language or dialect in which the will is presence of the instrumental witnesses, and
executed should be expressed either in the that the latter witnessed and signed the will and
body of the will itself or in the attestation all the pages thereof in the presence of the
clause. testator and of one another.
If the attestation clause is in a language not
Lopez v. Liboro; Javellana v. Javellana known to the witnesses, it shall be interpreted
It is a matter that may be established by proof to them.
aliunde.
Special formalities of ordinary wills
Abangan v. Abangan
But where a will is drawn up in the dialect of a 1. The will must be in writing;
certain locality and it is established that the 2. The will must be written in a language or
testator was living in or was a resident of that dialect known to the testator;
locality, there arises a presumption that the will is 3. The will must be subscribed at the end
drawn up in a language or dialect known to the thereof by the testator himself or by the
testator, in the absence of evidence to the testator’s name written by some other person
contrary. The testator is presumed to know the in his presence and by his express direction;
dialect of the locality where he resides, unless 4. The will must be attested and subscribed by
there is proof to the contrary, cannot be applied three or more credible witnesses in the
to this case because it was not proven that English presence of the testator and of one another;
is the language of the City of Baguio where the 5. The testator or the person requested by him
deceased Piraso lived and the record contains to write his name and the instrumental
positive proof that Piraso knew no other language witnesses of the will, shall also sign each and
than the Igorrote dialect, with a smattering of every page thereof, except the last, on the left
Ilocano; that is, he did not know the English margin;
language in which his will is written. The SC ruled 6. All the pages of the will shall be numbered
the will should not be allo9wed because it was correlatively in letters placed on the upper
written in a language not know to the decedent. part of each page;
7. The will must contain an attestation clause;
Acop v. Piraso and
The question raised in the appeal that Piraso 8. The will must be acknowledged before a
knew how to speak the Ilocano dialect is notary public by the testator and the
immaterial to the adjudication of the case, it witnesses.
having been proven that the instrument in
question purporting to be the last will and In addition to the above formalities, there are also
testament of the deceased Piraso was written in other special safeguards or solemnities which are
the English language with which the latter was prescribed by the Code in case the testator is deaf,
unacquainted. or a deaf-mute, or in case he is blind.

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Subscription by testator De Gala v. Gonzales and Ona
The construction put upon the word ‘signed’ by
Under Art. 805(1), every will, other than a most courts is the original meaning of a signum or
holographic will, must be subscribed at the end sign, rather than the derivative meaning of a
thereof by the testator or by the testator’s name handwriting.
written by some other person in his presence, and
by his express direction. The subscription may be Payad v. Tolentino
made by means of one’s mark provided the he The evidence established that Tolentino, assisted
intended such mark as his signature. by her lawyer, placed her thumb mark on each
and every page of the questioned will and the said
Subscription refers to the manual act of the attorney merely wrote her name to indicate the
testator and also of the instrumental witnesses of place where she placed said thumb mark. Simply,
affixing their signatures to the instrument. the lawyer did not sign for the testatrix. She
signed for herself placing her thumb mark on each
As applied to the testator, the purpose of the and every page. A statute requiring a will to be
statutory requirement of a signature is two-fold: signed is satisfied if the signature is made by the
1. To identify the testator; and testator’s mark. Thus, where the testator signs
2. To authenticate the documents. with his thumbmark, intending such mark to be
his signature, there is a sufficient compliance with
The absence of subscription is a fatal defect and the statutory requirement.
cannot be cured by the testator’s marginal
signature. Garcia v. Lacuesta; Lopez v. Liboro
GR: Where the testator affixes a cross against his
Manner of signing name, intending such cross to be his signature,
there is a sufficient compliance with the statutory
Depends largely on the custom of the time and requirement.
place, the habit of the individual, and the XPN: However, if the signature is only a mere
circumstances of each particular case, but it cross, without any proof that it is the usual
should be manifest that whatever is used is signature of the testator or at least one of the
actually intended as a signature. ways by which he signed his name, it is not a
sufficient signature, because a mere cross cannot
Generally, the use of any signature intended by and does not have the trustworthiness of a
the testator to authenticate the instrument thumbmark.
renders the will sufficiently signed by the testator. XPN to XPN: But if it can be properly established
that it is the testator’s usual signature or at least
It will be a sufficient signature if he intended it as one of the ways by which he had signed his name
his signature, and it should be manifest that before, there is no reason why it is not acceptable
whatever he used as his signature was intended as a valid signature.
for that purpose. The fact that the testator’s
signature is imperfect or illegible does not Rules if a third person signs for the testator;
invalidate the will if his name can be made out signature by another
readily and he intended such name to be his
signature. The will is not invalidated by the fact Under the law, the requirement that the testator
that the testator’s name is abbreviated or must subscribe the will at the end thereof is
misspelled. complied with not only when the testator affixes
his signature thereto, but also when the testator’s
Example: It is sufficiently signed by writing his name is written by some other person in his
initials, or his first name only, or he may even presence, and by his express direction.
use an assumed name or a name different from
the one used to designate him as a testator in NOTE: This fact, among others, should be
the body of the will. If the testator has been in stated in the attestation clause.
the habit of using a rubber stamp or engraved
die in making his signature, he may properly It must be the testator’s name that should be
use the same in signing his will. written by the third person. If what is written is
the third person’s own name and not that of the
Signature by mark testator, the will is not valid, even if it can be
established that the document in question was in
Any mark or combination of marks placed on a fact executed for and as the last will and
will by the testator as his signature is a sufficient testament of the testator.
compliance with a statute requiring a will to be
subscribed by the testator. If the testator requests for another person to sign
for him, the signing by this third person must be
done in the presence of the testator. Such a

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requirement cannot be complied with unless the In re Will of Siason
testator was conscious of what was going on at Are the words ‘Señora Maria Siason’ her name
the time. written by some other person? They undoubtedly
are her name, but occurring as they do after the
The law requires that the third person must have words ‘at the request of,’ it is contended that they
affixed the testator’s name at his express form a part of the recital and not a signature, the
direction. This means that the testator shall, by only signature being the names of the witnesses
word of mouth or action, clearly indicate to the themselves. Jurisprudence holds that there was
proxy a desire to have his name signed to the no signature although the attestation clause
instrument, although in the absence of a specific which followed the will contained the name of the
requirement, any manner of signifying such testatrix and was thereafter signed by the
desire will suffice. witnesses. The distinction between that case and
the present one is one of extreme nicety, and in
NOTE: The testator’s knowledge that his name the judgment of the writer of this opinion should
was being signed for him, or his acquiescence not be attempted. The majority of the court,
in such an act, does not meet this requirement. however, are of the opinion that the distinction is
a tenable one inasmuch as in the Concepcion will,
Although an express direction to sign for the the name of the testatrix occurred only in the
testator may be given by him without using body of the attestation clause after the first
words, a mere implied assent to the signing by signature of the witnesses, whereas in this will, it
another person is not sufficient to meet the immediately follows the testament itself and
requirement of an express direction. If the precedes the names of the witnesses. In
authorization is predicated upon conduct such as sustaining this form of signature, this court does
gestures, the conduct must be as clear and not intend to qualify the decisions in Ex parte
unambiguous as words authorizing the signature. Santiago, Ex parte Arcenas, or Abaya vs. Zalamero.
A request addressed to the signer by a third In the Arcenas case the court pointed out the
person is sufficient where it was made in the correct formula for a signature which ought to be
presence of the testator and with his manifest followed but did not mean to exclude any other
approval. form substantially equivalent.

The law does not require any specific form in Place of signature
which the name of the testator should be affixed
at the end of the will when written at his request The law fixes the location of the signature and
by another person. However, it has been held that requires that it must be at the foot or end of the
where the testator does not know how, or is will.
unable for any reason to sign the will himself, it
shall be signed in the following manner: John Doe, Purpose: To show that the testamentary purpose
by the testator,- Richard Roe, or in this form: By therein expressed is completed, and also to
the testator, John Doe, Richard Roe. But this does prevent any opportunity for fraud or
not mean that other forms may not be used. interpolations between the written matter and
the signature.
Barut v. Cabacungan (Prior the amendment)
Where a testator is unable to write and his name The position of the signature at the end of the will
is signed by another at his request, in his presence furnishes in itself internal evidence of finality or
and I that of the subscribing witnesses thereto, it completion of intent. If a will is not signed at the
is unimportant, so far as the validity of the will is end as required by law, a writing in the form of a
concerned, whether the person who writes the will is a nullity and probate thereof should be
name of the testator signs his own or not. denied.

De Gala v. Gonzales and Ona (After the Presence of witnesses
amendment)
The testator or the person requested by him to Under Art. 805(3), it is also mandatory that the
write his name and the instrumental witnesses of subscription of an ordinary will by the testator
the will, shall also sign each and every page, on should take place in the presence of the
the left margin. instrumental witnesses. Also, the attestation
clause shall state, among others, the fact that the
Payad v. Tolentino testator signed the will or caused some other
It is not necessary that the attestation clause in person to write his name, under his express
question should state that the testatrix requested direction, in the presence of the instrumental
her lawyer to sign her name inasmuch as the witnesses.
testatrix signed the will in question in accordance
with the law.


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Subscription and Attestation by witnesses Order of signing

The law requires that the witness should both Question: Is it essential for the validity of the will
attest and subscribe to the will in the presence of that the testator or the person requested by him
the testator and of one another. to write his name should sign the will at the end
thereof ahead of the three attesting witnesses? In
Under Art. 805, it is also mandatory that an other words, will the fact that the testator signed
ordinary will must be attested and subscribed by the will after one, two, or all of the witnesses have
three or more credible witnesses in the presence already signed impair its validity?
of the testator and of one another. This fact must Answer: Where the execution of the will by the
be stated, among others, in the attestation clause. testator and the signing of the same by the
subscribing witnesses constitute one continuous
Instrumental witness. One who takes part in the transaction, the signing by each, taking place in
execution of an instrument or writing. the presence of the others, is sufficient and is to
all intents and purposes and attestation by the
Attestation of the will. Consists in the act of the subscribing witnesses to a fact which has al-
witnesses of witnessing the execution of the will ready taken place.
in order to see and take note mentally that such
will has been executed in accordance with the Gordon v. Parker
requirements prescribed by law. It is the act of the The instrumental witnesses had signed the will
witnesses not that of the testator, although it ahead of the testatrix. Is the defect fatal? Where
necessarily involves the acts of the testator in the execution and publication of a will by the
executing the will. testator or testatrix and its attestation by the
Purpose: To render available proof during the subscribing witnesses is one continuous
probate proceedings that the will has been transaction; the will is valid, despite the
executed in accordance with the requirements subscribing witness may sign their names before
prescribed by law and that the instrument offered the testator does.
for probate is authentic.
Meaning of presence
ATTESTATION SUBSCRIPTION
The law also requires that the will must be
The act of senses The act of the hand
attested and subscribed by the instrumental
Mental Mechanical witnesses in the presence of the testator and of
Caneda v. CA one another.
To attest a will is to
To subscribe a paper
render available proof Purpose: To prevent the substitution of a
published as a will is
during the probate of surreptitious will.
only to write on the
the will, not only of
same paper the names
the authenticity of the Under this rule, each one of the three
of the witnesses ,for
will, but also of its due instrumental witnesses must actually sign, in the
the sole purpose of
execution presence of the testator and also in the presence
identification
Taboada v. Rosal of the other witnesses. Simply, the execution of a
Consists in witnessing will is supposed to be a single act or transaction
Taboada v. Rosal and cannot be legally effective if the various
the testator’s
The signing of the participants signed on various days or occasions
execution of the will
witnesses’ names and in various combinations of those present.
in order to see and
upon the same paper
take note mentally
for the purpose of Hence, it is not sufficient if the witnesses merely
that those things are
identification of such acknowledged their previously affixed signatures
done which the
paper as the will in the presence of the testator or in the presence
statute requires for
which was executed by of each other. It is not, however, essential that the
the execution of a will
the testator testator must have actually seen the signing of the
and that the signature
of the testator exists will by each one of the instrumental witnesses.

The phrase “in the presence of the testator and of
Taboada v. Rosal one another” has a technical meaning. It implies a
As it involves a mental act, there would be no contiguity with an uninterrupted view between
means of ascertaining by a physical examination the testator and the witnesses, so that, if he so
of the will whether the witnesses had indeed desires, he can see the act of attestation, whether
signed in the presence of the testator and of each in the same room or not, and an attestation in the
other unless this is substantially expressed in the same room with the testator is generally held to
attestation. be a sufficient subscription in his presence, unless
there is some obstruction or physical obstacle


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which intervenes and prevents him from knowing Marginal signatures
of his own knowledge or perceiving by his senses
the act of attestation. GR: Under Art. 805(2), the testator or the person
requested by him to write his name and the
The testator need not actually see the witnesses instrumental witnesses of the will, shall also sign,
sign provided he could have seen them sign if he as aforesaid, each and every page thereof, except
desired to do so, even though it would have been the last, on the left margin. The attestation clause
necessary for him to move slightly in order to do shall state the fact. This requirement is
so. There is no signing in his presence where the mandatory and acts as an additional safeguard.
testator for any reason is not aware of the nature
of the act being done, no matter how close to him Under this requirement, all of the pages of the
it may be done. will, except the last, should be signed by the
testator and also by all of the instrumental
The testator’s consciousness of the fact that the witnesses.
attesting signatures are being written is held to be
an indispensable requirement under a statute If even one of the pages of the will does not
requiring attestation in the presence of the contain the required marginal signature or the
testator. pages are not signed by the witnesses although
they are signed by the testator or such pages are
Also, the testator must have actually seen, or have not signed by the testator although they are
been in such position that he could have seen, not signed by the witnesses, the will which is offered
only the witnesses but the instrument itself, for probate shall be disallowed.
considering both his position and the state of his
health at the time, but, according to some Icasiano v. Icasiano
authorities, if the testator is unable to move by The inadvertent failure of one witness to affix his
reason of physical infirmities, this will not signature to one page of a testament, due to the
prevent the act of attestation being considered as simultaneous lifting of two pages in the course of
performed in his presence. signing, is not per se sufficient to justify the denial
of probate. Impossibility of substitution of this
The witnesses must subscribe in his presence, but page is assured not only the fact that the testatrix
in cases where the testator has lost or cannot use and two other witnesses did sign the defective
his sense of sight, if his mind and hearing are not pages, but also by its bearing the coincident
affected, if he is sensible of what is being done, if imprint of the seal of the notary public before
the witnesses subscribe in the same room or in whom the testament was ratified by testatrix and
such close proximity as to be within the line of all three witnesses. The law should not be so
vision of one in his position who could see, and strictly and literally interpreted as to penalize the
within his hearing, they subscribe in his presence. testatrix on account of the inadvertence of a single
witness over whose conduct she had no control,
In case the testator is blind, the superintending where the purpose of the law to guarantee the
control, which in other cases is exercised by sight, identity of the testament and its component pages
must be transferred to the other senses; and if is sufficiently attained, no intentional or
they are, or may, at his discretion, be made deliberate deviation existed, and the evidence on
sensible that the witnesses are subscribing the record attests to the full observance of the
same will that he signed, it should be deemed a statutory requisites.
sufficient compliance with the statute.
Abangan v. Abangan
Test of presence XPNs: Such requirement is not necessary:
1. In the last page, when the will consists of two
Jaboneta v. Gustilo or more pages;
Question: What test should be applied to 2. When the will consists of only one page; and
determine whether or not the witnesses signed 3. When the will consists of two pages, the first
the will in the presence of the testator and of one of which contains all the testamentary
another? dispositions and is signed at the bottom by
Answer: The true test of presence of the testator the testator and the witnesses and the second
and the witnesses in the execution of a will is contains only the attestation clause duly
whether they might have seen each other sign, signed at the bottom by the witnesses.
had they chosen to do so, considering their mental
and physical condition and position with relation Location of signatures, not mandatory
to each other at the moment of inscription of each
signature. The law requires that the signatures of the
testator and the instrumental witnesses should be
on the left margin of every page of the will except
the last. This is not mandatory, provided, that

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such signatures are present in every page of the formalities prescribed by law. It is made for the
will, except the last. purpose of preserving in permanent form, a
record of the facts attending the execution of a
Avera v. Garcia will, so that in case of failure of the memory of the
The testator and the instrumental witnesses shall instrumental witnesses or in case such witnesses
sign their names on the left margin of each and are no longer available, such facts may still be
every page; and that all the statutory proved. The attestation clause is a memorandum
requirements as to the execution of wills must be of facts attending the execution of the will
fully complied with. The signature of the testator required by law to be made by the attesting
and witnesses being written on the left margin of witnesses, and it must be signed by the witnesses.
each page rather than on the right margin makes It must be located right after the signature of the
no possible difference whether the names appear testator at the end of the will.
on the left or on the right margin provided they
are on one or the other. The object of the Examples:
solemnities surrounding the execution of wills is • Where the attestation clause is written on
to close the door against bad faith and fraud, to a separate page and not on the last page in
avoid substitution of wills and testaments and to direct continuation of the body of the will,
guarantee their truth and authenticity. Therefore, although there might still be a space at the
when an interpretation already given assures bottom thereof not big enough to contain
such ends, any other interpretation whatsoever, the whole clause, the defect, if it can be
that adds nothing but demands more requisites considered a defect, is a matter of minor
entirely unnecessary, useless and frustrative of importance and will not invalidate the will.
the testator’s last will, must be disregarded. In the • Where the clause is found in the body of
case before us, where ingenuity could not suggest the will itself followed by the signatures of
any possible prejudice to any person, as attendant the testator and of the instrumental
upon the actual deviation from the letter of the witnesses, so that, on its face, it appears to
law, such deviation must be considered too trivial be an attestation made by the testator
to invalidate the instrument. himself more than by instrumental
witnesses, it has been held that, although
Number of pages the attestation clause is clearly defective,
the anomaly is not serious and substantial
GR: Under Art. 805(4), it is mandatory that all of as to affect the validity of the will.
the pages of the will shall be numbered
correlatively in letters placed on the upper part of While perfection in the drafting of a will may be
each page. desirable, unsubstantial departure from the usual
forms should be ignored, especially where the
Purpose: To forestall any attempt to suppress or authenticity of the will is not assailed.
substitute any of the pages of the will.
NOTE: If the attestation clause is in a language
XPN: It is not necessary when all of the dispositive not known to the witnesses it must be shown
parts of a will are written on one sheet only. that it was interpreted to them.
Neither is it necessary that the pages of the will
shall be numbered correlatively in letters such as Contents of attestation clause
“one,” “two” or “three.” According to the weight of
authority, substantial compliance with the 1. The number of pages in which the will is
statutory requirement is sufficient. If the page of written.
a will are numbered by mere alphabetical letters, 2. The fact that the testator signed the will on
or by Arabic numerals, or by any form of each and every page or that he requested
identification, there is sufficient compliance with another person to sign for him in his presence
the statutory requirement. and under his express direction in the presence
of the instrumental witnesses.
Attestation clause 3. The fact that the instrumental witnesses
signed the will and all the pages in the presence
There must be an attestation clause and that it of the testator and of one another.
must express the material matters as provided in
Art. 805 with substantial accuracy. Absence of Language of attestation
this clause will render the will a nullity. This rule
is elastic or flexible in character. If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to them.
Attestation Clause. A memorandum or record of
facts wherein the witnesses certify that the This rule is different from that which is required
instrument has been executed before them, and of the will itself because in the case of the latter
that it has been executed in accordance with the

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the rule is that it must be executed in a language acknowledging witnesses, would have the effect
or dialect known to the testator. of having only two attesting witnesses to the will
which would be a contravention of the provisions
Effect of defects or imperfections of Article 805 requiring at least three credible
witnesses to act as such and of Article 806 which
If the defect of the attestation clause goes into the requires that the testator and the required
very essence of the clause itself or consists in the number of witnesses must appear before the
omission of one, some or all of the essential facts notary public to acknowledge the will. The result
which must be stated in such clause, and such would be, as has been said, that only two
omission cannot be cured by an examination of witnesses appeared before the notary public for
the will itself, the defect is substantial in character, that purpose. In the circumstances, the law would
as a consequence of which the will is invalidated. not be duly observed.
This is true even where the authenticity of the will
which is offered for probate is not assailed. Special Rules for Deaf-Mute and Blind
Testator
Reason: The requirements regarding the
attestation clause affords additional security Article 807. If the testator be deaf, or a deaf-
against the danger that the will may be tampered mute, he must personally read the will, if able to
with; and as the Legislature has seen fit to do so; otherwise, he shall designate two persons
prescribe these requirements, they must be to read it and communicate to him, in some
considered material in determining whether or practicable manner, the contents thereof.
not the will or instrument should be admitted to
probate. Deaf-Mute Testator. The law requires that if he
is not able to personally read the will, he must
Notarial acknowledgment designate two persons to read and communicate
the contents thereof to him in some practicable
Article 806. Every will must be acknowledged manner (ex. Sign language).
before a notary public by the testator and the
witnesses. The notary public shall not be Article 808. If the testator is blind, the will shall
required to retain a copy of the will, or file be read to him twice; once, by one of the
another with the office of the Clerk of Court. subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.
The will must be acknowledged before a notary
public by the testator and the instrumental Blind Testator. The will must be read to him
witnesses. The notary public shall not be required twice, first, by one of the subscribing witnesses
to retain a copy of the will, or file another with the and second, by the notary public before whom the
office of the Clerk of Court as in the case of other will is acknowledged.
instruments.
Alvarado v Gaviola
NOTE: This requirement is applicable only to A blind testator includes one whose vision is so
ordinary wills. impaired such as those suffering from cataract of
both eyes.
Cruz v. Villasor
ISSUE: Whether or not the supposed law will and Will is void if defect cannot be cured
testament of Cruz was executed in accordance without the use of extrinsic evidence
with law, particularly Arts. 805 and 806, the first
requiring at least three credible witnesses to Azuela v. Castillo
attest and subscribe to the will, and the second The will is void. There are 3 defects in the will of
requiring the testator and the witnesses to Eugenia:
acknowledge the will before a notary public. 1) A will whose attestation clause does not
HELD: NO, the last will and testament was not contain the number of pages on which the will
executed in accordance with law. The notary is written is fatally defective.
public before whom the will was acknowledged 2) A will whose attestation clause is not signed by
cannot be considered as the third instrumental the instrumental witnesses is fatally defective.
witness since he cannot acknowledge before 3) A will which does not contain an
himself his having signed the will. To acknowledge acknowledgement, but a mere jurat, is fatally
before means to avow to own as genuine, to defective.
assent, to admit; and before means in front or Any one of these defects is sufficient to deny
preceding in space or ahead of. Furthermore, the probate. A notarial will with all 3 defects is just
function of a notary public is, among others, to aching for judicial rejection. While it is true that in
guard against any illegal or immoral Taboada v. Rosal, the SC allowed the probate of
arrangements. To allow the notary public to act as the wills despite the fact that the attestation
third witness, or one of the attesting and clause did not state the number of pages of the

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will, the ruling is not applicable because while the Limitation
attestation clause in the wills did not state the
number of pages used in the will, the same was One limitation is with regard the admissibility of
found in the last part of the body of the will. evidence aliunde in order to prove or establish
Simply, the ratio in the Taboada case is that the the fact that the will was in fact executed and
failure to state the number of pages used in the attested in substantial compliance with all the
attestation clause would have been a fatal defect requirements prescribed by law.
and would have rendered the will void if the
deficiency cannot be supplied from a The law states that defects or imperfections in the
consideration or examination of the will itself. form of attestation or in the language used therein
There is no substantial compliance with the shall not render the will invalid if it is proved that
requirements of Art. 805 since there is no the will was in fact executed and attested in
statement in the attestation clause or anywhere in substantial compliance with the requirements of
the will itself as to the number of pages which Article 805.
comprise the will.
Question: Does this mean that such defects or
Lopez v. Lopez and Tuazon imperfections can be cured by evidence aliunde?
While Art. 809 allows substantial compliance for If the attestation does not state that the testator
defects in the form of the attestation clause, had signed the will and all of the pages in the
Richard likewise failed in this respect. The presence of the instrumental witnesses and
statement in the Acknowledgement portion of the nothing can be inferred of such fact from the
subject last will and testament that it consists of 7 context of the will itself, can evidence aliunde be
pages including the page on which the ratification presented in order to prove that the testator
and acknowledgement are written cannot be actually signed the will and all of the pages
deemed substantial compliance. The will actually thereof in the presence of the instrumental
consists of 8 pages including its witnesses?
acknowledgement which discrepancy cannot be Answer: Under the old law, there was no
explained by mere examination of the will itself question. According to the cases decided by the
but through the presentation of evidence. Supreme Court under the old law, whether
applying the doctrine of liberal interpretation or
Doctrine of Liberal Interpretation the doctrine of strict interpretation, such
evidence cannot be presented in order to fill a
Article 809. In the absence of bad faith, forgery, void in any part of the document or supply
or fraud, or undue and improper pressure and missing details that should appear in the will
influence, defects and imperfections in the form itself. There can only be a probe into the will, an
of attestation or in the language used therein exploration within its confines, to ascertain its
shall not render the will invalid if it is proved meaning or to determine the existence or absence
that the will was in fact executed and attested in of the requisite formalities of law.
substantial compliance with all the
requirements of article 805. Question: Is this limitation still applicable under
the present law considering the phraseology of
However, if the defects of the attestation clause do Art. 809?
not go into the very essence of the clause itself or Answer: YES. The doctrine of liberal
they consist in defects or imperfections in the interpretation can only be applied to defects or
form of the attestation or in the language used imperfections either in the form of the attestation
therein, such defects are merely formal in or in the language used therein. It cannot be
character, as a consequence of which the validity applied to defects which are substantial, such as
of the will is not affected, provided that it is when there is an absolute omission in the
proved that such will was in fact executed and attestation clause of one, or some, or all of these
attested in substantial compliance with all the essential facts, which, according to the law, must
requirements of Art. 805 of the Code. be stated in such clause, and such an omission
cannot be cured by an examination of the entire
The rule is predicated upon the concurrence of 2 will itself. Such an omission cannot be classified
essential pre-requisites: as a defect or imperfection in the form of the
attestation or in the language used therein.
1. The will must have been executed and
attested without bad faith, forgery, fraud, or Abangan v. Abangan
undue and improper pressure and influence The object of the solemnities surrounding the
2. It must be proved that the will was in fact execution of wills is to close the door against bad
executed and attested in substantial faith and fraud, to avoid substitution of will and
compliance with all the requirements of Art. testaments and to guarantee their truth and
805 authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain

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these primordial ends. It is not the object of the compliance with the legal mandate that the will be
law to restrain and curtail the exercise of the right signed on the left-hand margin of all its pages. If
to make a will, hence when an interpretation an attestation clause not signed by the three
whatsoever that adds nothing but demands more witnesses at the bottom thereof, be ad- mitted as
requisites entirely unnecessary, useless and sufficient, it would be easy to add such clause to a
frustrative of the testator’s last will, must be will on a subsequent occasion and in the absence
disregarded. of the testator and any or all of the witnesses.

In re Will of Andrada Caneda v. CA and Cabrera
FACTS: The attestation clause of the will which is The will should be denied probate. An attestation
questioned, is incorporated in the will itself, clause refers to that part of an ordinary will
constituting the last paragraph thereof; and its whereby the attesting witnesses certify that the
defect consists in the fact that it does not state the instrument has been executed before them and to
number of sheets or pages upon which the will is the manner of the execution of the same. It is a
written. According to the contestant, the defect in separate memorandum or record of the facts
the attestation clause goes into the very essence surrounding the conduct of execution and once
of the will itself, and therefore, it should be signed by the witnesses, it gives affirmation to the
disallowed. fact that compliance with the essential formalities
HELD: The defect pointed out in the attesting required by law has been observed. It is made for
clause is fatal. The law plainly says that the the purpose of preserving in a permanent form a
attestation clause shall state the number of sheets record of the facts that attended the execution of
or pages used, the evident purpose being to a particular will, so that in case of failure of the
safeguard the document from the possibility of memory of the attesting witnesses, or other
the interpolation of additional pages or the casualty, such facts may still be proved. The
omission of some of the pages actually used. It is purpose of the law in requiring the clause to sate
true that this point is also safeguarded by the the number of pages on which the will is written
other two requirements that the pages shall be is to safeguard against possible interpolation or
consecutively lettered and that each page shall be omission of one or some of its pages and to
signed on the left margin by the testator and the prevent any increase or decrease in the pages;
witnesses. In the light of these requirements it is whereas the subscription of the signature of the
really difficult to see any practical necessity for testator and the attesting witnesses is made for
the additional requirement that the attesting the purpose of authentication and identification,
clause shall state the number of pages or sheets and thus indicates that the will is the very same
used. Nevertheless, it cannot be denied that the instrument executed by the testator. The SC ruled
last mentioned requirement affords additional that the absence of that statement required by law
security against the danger that the will may be is a fatal defect or imperfection which must
tampered with; and as the Legislature has seen fit necessarily result in the disallowance of the will
to prescribe this requirement, it must be that is here sought to be admitted to probate.
considered material.
Cuevas v. Achacoso
Cargo v. Cargo The attestation clause complies with the
FACTS: The main objection insisted upon by the requirements. The only apparent anomaly we
appellants is that the will is fatally defective, find is that it appears to be an attestation made by
because its attestation clause is not signed by the the testator himself more than by the
attesting witnesses. There is no question that the instrumental witness. This apparent anomaly,
signatures of the three witnesses to the will do not how- ever, is not in our opinion, serious nor
appear at the bottom of the attestation clause, substantial, as to affect the validity of the will, it
although the page containing the same is signed appearing that right under the sig- nature of the
by the witnesses on the left-hand margin. testator, there appear the signatures of the three
HELD: The position taken by the appellants is instrumental witnesses. Instrumental witnesses
correct. The attestation clause is a memorandum are those who take part in the execution of an
of the facts attending the execution of the will instrument or writing. An instrumental witness,
required by law to be made by the attesting therefore, does not merely attest to the signature
witnesses, and it must necessarily bear their of the testator but also to the proper execution of
signatures. An unsigned attestation clause cannot the will. The fact that the three instrumental wit-
be considered as an act of the witnesses, since the nesses have signed the will immediately under
omission of their signatures at the bottom thereof the signature of the testator, shows that they have
negatives their participation. The petitioner- in fact attested not only to the genuineness of his
appellee contends that the signatures of the three signature but also to the due execution of the will
witnesses on the left-hand margin conforms as embodied in the attestation clause.
substantially to the law and may be deemed as
their signatures to the attestation clause. This is
untenable, because said signatures are in

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Dichoso v. Gorostiza possible. The propositional phrase ‘in our
Placing the attestation clause under the judicial presence’ denotes an active verb and the verb a
microscope, we observe, after analytical study, subject. The verb could be no other than signed
that it shows compliance with statutory and the subject no other than the testatrix. The
provisions. We must reject as untenable the use of the word ‘also’ is no less enlightening. It de-
interpretation of the appellant relative to the notes that, as each of the witnesses signed in the
word ‘herein- above,’ for this simply has reference presence of the testatrix and of one another, so
to the signature at the end of the will. We must the testatrix signed in similar or like manner — in
reject also as untenable the interpretation of the their presence. In consonance with the principle
appellant that the word ‘same’ refers back to of liberal interpretation, adhered to in numerous
‘pages’ and not to for such an interpretation later decisions of this Court and affirmed and
would be considered with the language used translated into enactment in the new Civil Code
further in the attestation clause where mention is (Art. 809), the SC ruled that the attestation clause
made of the signing by the witnesses of the same under consideration is sufficient and valid.
and each page thereof, meaning the will and each
page thereof. However, when the attestation Effect of the failure to state the number of
clause states that the testatrix ‘has published unto pages on which the will was written
us the foregoing will consisting of two pages as
her last will and testament, and has signed the The failure of the attestation clause to state the
same, the word ‘same’ signifies the foregoing will number of pages on which the will was written is
consisting of two pages, which necessarily implies a fatal flaw, despite Art. 809. The purpose of the
the signing by the testatrix of the will and every law in requiring the clause to state the number of
page thereof. In our judgment, an interpretation pages on which the will is written is to safeguard
sustaining the validity of the attestation clause is against possible interpolation or omission of one
neither forced nor illogical. Precision of language or some of its pages and to prevent any increase
in the drafting of an attestation clause is desirable. or decrease in the pages.
However, it is not imperative that a parrot-like
copy of the words of the statute be made. It is The failure to state the number of pages equates
sufficient from the language employed if it can with the absence of an averment on the part of the
reasonably be deduced that the attestation clause instrumental wit- nesses as to how many pages
fulfills what the law expects of it. Legalistic consisted the will, the execution of which they had
formalities should not be committed to obscure ostensibly just witnessed and subscribed to.
the use of good sound common sense in the There is substantial compliance with this
consideration of wills and to frustrate the wishes requirement if the will states elsewhere in it how
of deceased persons solemnly expressed in many pages it is comprised of.
testaments, regarding the execution of which
there is not even a hint of bad faith or fraud. We Felix Azuela vs. CA, et al.
find the attestation clause legally sufficient, and However, there could have been no substantial
order that the will of the deceased Caridad compliance with the requirements under Art. 805
Alcantara de Gorostiza be admitted to probate. since there is no statement in the attestation
clause or anywhere in the will itself as to the
Merza v. Porras number of pages which comprise the will
The opponent objected that this clause did not
state that the testatrix and the witnesses had Effect of an unsigned attestation clause
signed each and every page of the will or that she
had signed the instrument in the presence of the Felix Azuela vs. CA, et al
witnesses. The premise of this conclusion is An unsigned attestation clause results in an
incorrect. It must be admitted that the attestation unattested will. The attestation clause is a
clause was very poorly drawn; its language memorandum of the facts attending the execution
exceedingly ungrammatical to the point of being of the will required by law to be made by the
difficult to understand; but from a close attesting witnesses, and it must necessarily bear
examination of the whole context in relation to its their signatures. An unsigned attestation clause
purpose the im- plication seems clear that the cannot be considered as an act of the witnesses
testatrix signed in the presence of the witnesses. since the omission of their signatures at the
Considering that the witnesses’ only business at bottom thereof negates their participation. The
hand was to sign and attest to the testatrix’s signatures on the left-hand corner of every page
signing of the document, and that the only actors signify that the witnesses are aware that the page
in the proceeding were the maker and the they are signing forms part of the will. On the
witnesses acting and speaking collectively and in other hand, the signatures to the attestation
the first person, the phrase ‘in the presence,’ used clause establish that the witnesses are referring
as it was in connection with the process of signing, to the statements contained in the attestation
cannot imply anything but, that the testatrix clause itself. An unsigned attestation clause
signed before them. No other inference is results in an unattested will.

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Effect of a notarial will that has been Substantial compliance rule must be limited to
subscribed and sworn to before a notary disregarding those defects that can be supplied by
public but has not been acknowledged before an examination of the will —
the notary public by the testator and the a. Whether all the pages are consecutively
witnesses numbered
b. Whether the signatures appear in each and
It is fatally defective, even if it is subscribed and every page
sworn to before the notary public. c. Whether the subscribing witnesses are 3 or
the will was notarized
A jurat is that part of an affidavit where the notary
public certifies that before him, the document was 3. Formalities for Holographic Wills (Arts.
subscribed and sworn to by the executor. 810-814)

On the other hand, an acknowledgment is the act Article 810. A person may execute a
of one who has executed a deed in going before holographic will which must be entirely written,
some competent officer or court and declaring it dated, and signed by the hand of the testator
to be his act or deed. It involves an extra step himself. It is subject to no other form, and may
undertaken whereby the signor actually declares be made in or out of the Philippines, and need
to the notary that the executor of a document has not be witnessed.
attested to the notary that the same is his own
free act and deed. Holographic Will

Substantial Compliance rule A will that is executed by the testator himself by
writing, dating, and signing it by his own hand.
Caneda v. CA and Cabrera
Under the substantial compliance rule, the defect Formalities:
must only be with respect to the form of the
attestation or the language employed. Such 1. The will must be entirely written by the
defects or imperfections would not render a will hand of the testator himself.
invalid should it be proven that the will was really 2. The will must be entirely dated by the hand
executed and attested in compliance with Art. of the testator himself.
805. However, the manner of proving the due 3. The will must be entirely signed by the hand
execution and attestation has been held to be of the testator himself.
limited to merely an examination of the will itself 4. The will must be executed in a language or
without resorting to evidence aliunde, whether dialect known to the testator.
written or oral.
NOTE: The word “entirely” modifies the words
Taboada v. Rosal “written,” “dated,” and “signed.”
If the defect of the attestation clause consists in
the failure of the instrumental witnesses to state Purpose: In addition to insuring and
one or some of the essential facts which are safeguarding the authenticity of the holographic
required by law to be stated ,the omission would will, it will also serve to deter or prevent any
not be fatal provided it can be established or possible insertion or interpolation by others or
deduced from an examination of the will itself any possible forgery.
that all of the statutory requirements have been
complied with. Thus, the failure of an attestation NOTE: The doctrines of liberal interpretation
clause to state the number of pages upon which and substantial compliance as applied to
the will is written would not invalidate the will ordinary or notarial wills cannot be applied to
where the acknowledgement portion expresses holographic wills.
such number of pages of which the will indeed
consists. Examples:
• If the holographic will is partly printed or
NOTE: The foregoing considerations do not typewritten and partly written in the
apply where the attestation clause totally handwriting of the testator, it is clearly
omits the fact that the attesting witnesses void.
signed each and every page of the will in the • The same is also true in case there are
presence of the testator and of each other. In insertions or interpolations made by a
such a situation, the defect is the total absence third person at the time of the execution of
of a specific element required by Art. 805 to be the will.
specifically stated in the attestation clause of a • The same is also true if the date used is the
will. printed date of a diary because of non-
compliance with an essential requisite.

38 Succession Reviewer by S. V. Makayan

SUCCESSION

• The same is also true if the signature of the was to die on February 15th. His last hope of life
testator is a mark, such as a cross or even a was gone; and, knowing that he was to die on the
thumbmark, because of non-compliance 15th, he wrote this letter to his daughters. The
with an essential requisite. letter shows on its face that it is inartistically
• A blind testator can certainly execute a written, but his meaning is sufficiently apparent.
holographic will if he can still write despite He did not have in mind that he was thereafter to
his blindness. make his daughters a deed to the house and lot,
• The same is also true in the case of one and not to have any trouble over it; for he added:
whose hands or arms have been ‘I don’t do this because I think more of you and
amputated. So long as he has found an Lula than I do of Mary and Bettie, but I do it
effective substitute for his hands so that he because you both attended to your dear old
can still write, there is no reason why he mother so good.’ These words show that he had in
cannot execute a holographic will. mind, not something that he was going to do, but
something he was then doing. In other words,
Advantages of a Holographic Will they show that he intended to give the house and
lot by virtue of the letter he was then writing, and
1. Easier to execute since it need not be not by virtue of some instrument he was
witnessed or acknowledged before a notary thereafter to write. A will may be in any form. The
public. words in which the intention of the testator is
2. Only requirement for the validity is that it expressed are immaterial, if it sufficiently appears
must be written, dated, and signed by the from the instrument that he was making a
hand of the testator himself. disposition of his property testamentary in
character. In some cases, papers were probated as
Disadvantage of a Holographic Will a will, if properly executed, whatever its form be,
if the intention of the maker to dispose of his
1. Easier to falsify given that by its nature, it is estate after his death is sufficiently manifested.
only the testator who has knowledge of its
execution. How is it dated?
2. The safeguards present in a notarial will both
with respect to form, as well as the absence of Old Civil Code: YYYY/MM/DD of execution must
any of the vices of consent are not available. be stated.
New Civil Code: It is sufficient that it will be dated.
Signature
Roxas de Jesus v De Jesus
Article 812. In holographic wills, the If the testator in executing his will, attempts to
dispositions of the testator written below his comply with all the requisites, although
signature must be dated and signed by him in compliance is not literal, it is sufficient of the
order to make them valid as testamentary objective or purpose sought to be accomplished
dispositions. by such requisite is actually attained by the form
followed by the testator
Article 813. When a number of dispositions
appearing in a holographic will are signed GR: The date in a holographic will should include
without being dated, and the last disposition has the day, month, and year of its execution.
a signature and a date, such date validates the XPN: When there is no appearance of fraud, bad
dispositions preceding it, whatever be the time faith, undue influence and pressure and the
of prior dispositions. authenticity the Will is established, and the only
issue is whether or not the date appearing on the
Art. 810 does not require that the testator must Will is a valid compliance with Art 810.
sign the will with his full signature, although this
is required when it comes to the authentication of Labrador vs CA
an insertion, cancellation, erasure, or alteration. The date may be in the body of the holographic
will. The law does not specify the location of the
The testator may sign the will with his initials, or date. It merely provides that the date be in the will
nickname, or appellation. All that the law requires itself and written in the hand of the testator.
is that such signature must be entirely signed by
the hand of the testator. Probate of holographic wills

Milam v. Stanley Article 811. In the probate of a holographic will,
In determining whether the paper is it shall be necessary that at least one witness
testamentary or not the court will look not only at who knows the handwriting and signature of
the language of the instrument, but at the the testator explicitly declare that the will and
situation of the maker and at his intention. W.R. the signature are in the handwriting of the
Fletcher knew when he wrote this paper that he

39 Succession Reviewer by S. V. Makayan

SUCCESSION

testator. If the will is contested, at least three of Art. 810 of the Civil Code as well as the special
such witnesses shall be required. requirements for their probate as stated in Art.
In the absence of any competent witness 811 of the same Code, it is clear that the law
referred to in the preceding paragraph, and if regards the document itself as material proof of
the court deem it necessary, expert testimony authenticity. A holographic will cannot be
may be resorted to. probated unless the document itself is presented
to the probate court for examination and unless
In order that a holographic will may be admitted there is compliance with the special requirements
to probate, it is essential that it must be entirely stated in Art. 811. It is, however, possible that a
written, dated and signed in the handwriting of photostatic copy, or even a mimeographed or
the testator himself. carbon copy may be substituted for the original
document. This is so, because, after all, in these
GR: If the probate of a holographic will is not cases, compliance with the requirements stated in
contested, it shall be necessary that at least one Art. 811 would still be possible. The authenticity
witness who knows the handwriting and of the handwriting and signature of the testator
signature of the testator shall explicitly declare may still be examined and tested by the probate
that the will and the signature of the testator are court.
in the handwriting of the testator.
XPN: Three-Witness Rule. If the will is Gan v. Yap
contested, the proponent must present at least When ordinary wills are submitted to the courts
three witnesses who know the handwriting and for allowance, authenticity and due execution are
signature of the testator and explicitly declare the dominant requirements to be fulfilled. For
that the will and signature are in the handwriting that purpose, the testimony of one of the
of the testator. Nevertheless, in the absence of any subscribing witnesses would be sufficient if there
competent witness, expert testimony may be is no opposition. If there is, the three must testify,
resorted to, if the court deems it necessary. if available. In the matter of holographic wills, no
such guaranties of truth and veracity are
Question: If the testator himself, while he is still demanded, since they need no witnesses;
living, will present his holographic will for provided, however, that they are ‘entirely written,
probate, shall the above requirements still have to dated and signed by the hand of the testator
be complied with? himself.’ The law, it is reasonable to sup- pose,
Answer: According to Sec. 12, Rule 76 of the Rules regards the document itself as material proof of
of Court, where the testator himself petitions for authenticity, and as its own safeguard, since it
the probate of his holographic will and no contest could at any time, be demonstrated to be — or not
is filed, the fact that he affirms that the to be — in the hand of the testator himself. In the
holographic will and the signature are in his own probate of a holographic will, it shall be necessary
handwriting, shall be sufficient evidence thereof. that at least one witness who knows the
If the holographic will is contested, the burden of handwriting and signature of the testator
disproving the genuineness and due execution explicitly declare that the will and the signature
thereof, shall be on the contestant. The testator are in the handwriting of the testator. If the will is
may, in his turn, present such additional proof as contested, at least three of such witnesses shall be
may be necessary to rebut the evidence for the required. The witnesses so presented do not need
contestant. to have seen the execution of the holographic will.
They may be mistaken in their opinion of the
Question: If the holographic will was lost or was handwriting, or they may deliberately lie in
destroyed by a third person without any affirming that it is in the testator’s hand. However,
authorization given by the testator during the the oppositor may present other witnesses who
lifetime of the latter, or if it was lost or destroyed also know the testator’s handwriting, or some
or stolen after his death, would it still be possible expert witnesses, who after comparing the will
to have the will admitted to probate, granting that with other writings or letters of the deceased,
its loss or unauthorized destruction, as well as its have concluded that such will has not been
due execution and contents can be properly written by the hand of the deceased. And the
established by secondary evidence in accordance court, in view of such contradictory testimony
with the Rules of Court? may use its own visual sense, and decide in the
Answer: NO. While it is true that under the Rules face of the document, whether the will submitted
of Court, the proof of lost or destroyed wills by to it has indeed been written by the testator.
secondary evidence, such as by the testimony of Obviously, when the will itself is not submitted,
witnesses, in lieu of the original documents, is these means of opposition, and of assessing the
expressly recognized, nevertheless, such Rules, evidence are not available.
which were promulgated in 1940, could not have
contemplated holographic wills which were not Azaola v. Singson
then recognized. Furthermore, because of the Since the authenticity of the will was not
special nature of holographic wills as stated in contested, he was not required to produce more

40 Succession Reviewer by S. V. Makayan

SUCCESSION

than one witness; but even if the genuineness of that the requirement can be considered
the holographic will were contested, we are of the mandatory only in the case of ordinary
opinion that Article 811 cannot be interpreted as testaments, precisely because the presence of at
to require the compulsory presentation of three least three witnesses at the execution of ordinary
witnesses to identify the hand- writing of the wills is made by law essential to their validity (Art.
testator, under penalty of having the probate 805). Where the will is holographic, no witness
denied. Since no witness may have been present need be present (Art. 810), and the rule requiring
at the execution of a holographic will, none being production of three witnesses must be deemed
required by law (Art. 810), it becomes obvious merely permissive if absurd results are to be
that the existence of witnesses possessing the avoided.
requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a Codoy v. Calugay (1999)
question of finding and producing any three Article 811 is mandatory. The word “shall” in a
witnesses; they must be witnesses “who know the statute commonly denotes an imperative
handwriting and signature of the testator” and obligation and is consistent with the idea of
who can declare (truthfully, of course, even if the discretion and the presumption is that the word
law does not so express) “that the will and the “shall” when used in a statute is mandatory.
signature are in the handwriting of the testator”.
There may be no available witness acquainted When there are no witnesses to testify explicitly
with the testator’s hand; or even if so familiarized, that they are familiar with the handwriting of the
the witnesses may be unwilling to give a positive testator, the court may resort to expert testimony
opinion. Compliance with the rule of Article who may conduct visual examination of the
811(1) may thus become an impossibility. That is signature and the strokes used in writing the
evidently the reason why the second paragraph of holographic will.
Article 811 prescribes that in the absence of any
competent witness referred to in the preceding Alterations or Insertions Must be
paragraph, and if the court deems it necessary, Authenticated
expert testimony may be resorted to.
Article 814. In case of any insertion,
Lost or Destroyed Holographic Will cancellation, erasure or alteration in a
holographic will, the testator must authenticate
The will cannot be probated. However, a the same by his full signature.
photostatic copy, even a mimeographed or carbon
copy, of the holographic will may be allowed The alterations or cancellations or erasures in a
because comparison can be made with the holographic will must be authenticated by the full
standard writings of the testator. signature of the testator to make them valid.

Gan v. Yap No Authentication
The execution and contents of a lost or destroyed
holographic will may not be proved by the bare Will not render the entire will void but it will only
testimony of the witnesses who have seen and/or result in the disallowance of the particular
read such will. Unlike holographic wills, ordinary disposition.
wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the Ajero vs CA
nature of the will. The only guaranteed of If the testator fails to sign and date some of the
authenticity is the handwriting itself and the dispositions, the result is that the dispositions
testimony of the subscribing instrumental cannot be effectuated but such failure does not
witnesses. render the whole testament void. Unless the
unauthenticated alterations, cancellations or
Rodelas v. Aranza insertions were made on the date of the
If a holographic will has been lost or destroyed holographic will or on testator’s signature, their
and no other copy is available, the will cannot be presence does not invalidate the will itself.
probated because the best and only evidence is
the handwriting of the testator in said will. It is Kalaw vs Relova
necessary that there be a comparison between When the holographic will in dispute has only one
sample handwritten statements of the testator substantial provision, which was altered by
and the handwritten will. substituting the original heir with another, but
such alteration did not carry the requisites of full
Azoala v. Singson (1960) authentication by the full signature of the
The rule of Article 811(1) is merely directory and testator, the effect must be that the entire Will is
is not mandatory. It may be true that the rule of voided or revoked because nothing remains in the
article 811 was derived from the rule established Will.
for ordinary testaments. But it cannot be ignored

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Rules and effects of Alterations, Insertions, E. RULES ON CONFLICT OF LAWS AND JOINT
or Interpolations Made by a Third Person WILLS (ARTS. 815-819)


Such insertion is
Article 815. When a Filipino is in a foreign
Alteration was considered as not
country, he is authorized to make a will in any of
made after the written, because the
the forms established by the law of the country
execution of the will validity of the will cannot
in which he may be. Such will may be probated
without the consent be defeated by the malice
in the Philippines.
of the testator or caprice of a third

person.
Article 816. The will of an alien who is abroad
Alteration was produces effect in the Philippines if made with
made after the the formalities prescribed by the law of the
The will remains valid,
execution of the will place in which he resides, or according to the
but the insertion is void.
with the consent of formalities observed in his country, or in
the testator conformity with those which this Code
It becomes part of the prescribes.
Alteration was will, and therefore, the
made after the entire will becomes void, Article 817. A will made in the Philippines by a
execution of the will because of failure to citizen or subject of another country, which is
and is validated by comply with the executed in accordance with the law of the
the testator by his requirement that it must country of which he is a citizen or subject, and
signature. be entirely written by the which might be proved and allowed by the law
hand of the testator. of his own country, shall have the same effect as
Alteration was if executed according to the laws of the
The will is void because Philippines.
made
it is not entirely written
contemporaneous
by the hand of the Law Which Governs Formal Validity of
to the execution of
testator. Wills
the will

Article 815 is just a reiteration of the recognized
D. WILLS VIS-À-VIS DONATIONS MORTIS principle of lex loci celebrationis in Article 17.
CAUSA
GR: The forms and solemnities of wills shall be
Heirs of Fedelina Sestoso Estella v. Estella governed by the laws of the country in which they
If the donation is made in contemplation of the are executed (Arts. 17[1], 815-819).
donor's death, meaning that the full or naked XPN: Joint will executed by Filipinos abroad. Even
ownership of the donated properties will pass to if the law of the place of execution allows a joint
the donee only because of the donor's death, then will, it will be considered void in the Philippines.
it is at that time that the donation takes effect, and
it is a donation mortis causa which should be Where Testator is a Filipino; What Law will
embodied in a last will and testament. Govern

Characteristics 1. Will executed in the Philippines – The law of
the Philippines.
Aluad v. Aluad
In donation mortis causa, the formalities of a will 2. Will executed outside of the Philippines – The
should be observed. If the formalities are not law of the country in which it is executed.
observed, the donation is void. The Court vinds the
donation to petitioners’ mother one of mortis Where Testator is an Alien; What Law will
causa having the following characteristics: Govern
1. It conveys no title or ownership to the
transferee before the death of the transferor; 1. Will executed in the in the Philippines
2. that before the death of the transferor, the
transfer should be revocable; and a. The law of the Philippines in accordance
3. that the transfer should be void if the with the general rule established in Art. 17;
transferor should survive the transferee. or
b. The law of the country of which he is a
citizen or subject in accordance with the
special rule established in Art. 817.




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2. Will executed outside of the Philippines Thus, a joint will may either be mutual or
reciprocal, although not necessarily so, just as
a. The law of the place where the will is mutual or reciprocal wills may be joint if they are
executed in accordance with the general contained in a single testamentary instrument.
rule established in Art. 17; or
b. The law of the place in which he resides in Mutual will is valid provided that the testator’s
accordance with the special rule institution of the heir is not made dependent upon
established in Art. 816; or the latter’s act of likewise instituting the testator
c. The law of his country in accordance with in his own will because such is prohibited under
the special rule established in Art. 816; or Art 875.
d. The law of the Philippines again in
accordance with the special rule Example: Husband and wife ordinarily make
established in Art. 816. mutual or reciprocal wills contained in
separate instruments. Such a practice is not
Filipino Citizen Executing His Will Abroad prohibited by the provisions of Art. 818. What
but Following Philippine Laws is prohibited is the execution of a joint will or a
will contained in the same instrument, either for
Question: May a will executed in a foreign their reciprocal benevit or for the benevit of a
country in accordance with the formalities third person.
prescribed by the law of the Philippines, by a
Filipino citizen, who is either a resident or a Vda. de Perez v. Tolete
transient in that country, be probated in the What is prohibited is joint will either for the
Philippines? testator’s reciprocal benevit or the benevit of a
Answer: YES. A Filipino, who is either a resident third person and not its joint probate.
or a transient in a foreign country, may execute a
will in that country in accordance with any of the De la Cerna v. Potot
forms established by the law of the Philippines, Art. 818 prohibits the making of a will jointly by
because it would be absurd to allow a will which two or more persons either for their reciprocal
is executed in accordance with any of the forms benevit or for the benevit of a third person.
established by the law of the country in which he However, the joint last will and testament has
may be and, at the same time, disallow one which been admitted to probate by vinal order of a Court
is executed in accordance with any of the forms of competent jurisdiction, so that there seems to
established by the law of his own country. be no alternative except to give effect to the
Besides, under Art. 816, the will of an alien which provisions thereof that are not contrary to law.
is executed abroad in conformity with the
formalities which the Civil Code prescribes may Joint will executed by filipinos
be probated in the Philippines. Not to grant the
same privilege to a Filipino citizen would be not A joint will wherever executed by Filipinos is
only illogical, but unjust. considered void under Philippine law and this
rule is absolute.
Joint Wills
Joint will executed by aliens
Article 818. Two or more persons cannot make
a will jointly, or in the same instrument, either If allowed in the place of execution (except
for their reciprocal benefit or for the benefit of a Philippines) or national law of the alien is
third person. considered valid under Philippine law because
the prohibition on joint wills does not apply to
It is a single testamentary instrument which foreign nationals.
contains the will of two or more persons jointly
executed by them either for their reciprocal Joint Will Executed by Filipinos in a Foreign
benevit or for the benevit of a third person. Country

Distinguished from mutual and reciprocal Article 819. Wills, prohibited by the preceding
wills article, executed by Filipinos in a foreign
country shall not be valid in the Philippines,
Mutual wills. Are wills executed pursuant to an even though authorized by the laws of the
agreement between two or more persons to country where they may have been executed.
dispose of their property in a particular manner,
each in consideration of the other. This shall not be valid in the Philippines, even
though authorized by the laws of the country
Reciprocal wills. Are wills in which the testators where they may have been executed. It is evident
name each other as beneviciaries under similar that this rule is an exception to the rule stated in
testamentary plans. Art. 815.

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SUCCESSION

It is, however, in conformity with the provision of will or comprehend the contents thereof. Hence,
Art. 17(3) which states: “Prohibitive laws even if the will is written in a dialect or language
concerning persons, their acts or property, and unknown to them, the requirements of the law are
those which have for their objects public order, still complied with.
public policy and good customs shall not be
rendered ineffective by laws or judgments Competency and credibility of witnesses
promulgated, or by determinations or
conventions agreed upon in a foreign country.” Gonzales v. CA
Question: Is there a difference between the
NOTE: Art. 819 is applicable only to joint wills competency of a person to be an instrumental
executed by Filipinos in a foreign country; it witness to a will and his credibility?
does not apply to joint wills executed by aliens. Answer: The competency of a person to an
instrumental witness to a will is determined by
Law Which Governs Intrinsic Validity of the statute, that is Art. 820 and 821, whereas his
Wills credibility depends on the appreciation of his
testimony and arises from the belief and
Governed by the national law of the person whose conclusion of the Court that said witness is telling
succession is under consideration. the truth. Courts may allow a person to testify as
a witness upon a given matter because he is
This is the precept or principle which is enshrined competent, but may thereafter decide whether to
in Art. 16(2) which states that intestate and believe or not to believe his testimony.
testamentary succession, both with respect to the
order of succession and to the amount of Disqualification from being a Witness
successional rights and to the intrinsic validity of
testamentary provisions shall be regulated by the Article 821. The following are disqualified from
national law of the person whose succession is being witnesses to a will:
under consideration, whatever may be the nature (1) Any person not domiciled in the
of the property and regardless of the country Philippines;
wherein said property may be found. (2) Those who have been convicted of
falsification of a document, perjury or false
F. QUALIFICATIONS & DISQUALIFICATIONS testimony.
OF WITNESSES (ARTS. 820-824)
1. Any person not domiciled in the Philippines;
2. Those who have been convicted of
Qualification of Witnesses falsification of a document, perjury or false
testimony;
Article 820. Any person of sound mind and of 3. Any person who is not of sound mind;
the age of eighteen years or more, and not blind, 4. Any person who is less than eighteen years of
deaf or dumb, and able to read and write, may age;
be a witness to the execution of a will mentioned 5. Any person who is blind, deaf, or dumb; and
in article 805 of this Code. 6. Any person who cannot read and write.

1. 18 years of age of more NOTE: Conviction of a crime which carries
2. Of sound mind with it the accessory penalty of civil
3. Able to read or write interdiction will not disqualify a person from
4. Must not be dumb, deaf and blind making a will because civil interdiction
5. Must be domiciled in the Philippines disqualifies the convict from managing his
property or conveying it by act inter vivos.
Even if a person has the capacity to make a will, it While a will is a disposition mortis causa.
does not necessarily follow that he can qualify as
an instrumental witness. A blind, deaf or dumb The rule that the instrumental witnesses in order
person or even a deaf-mute can make a will, but to be competent must be shown to have the
he cannot be a witness to the making of a will. A qualifications under Article 820 and none of the
person who cannot read and write can make a disqualifications under Article 821 and for their
will, but he cannot be a witness to the making of a testimony to be credible, that is worthy of belief
will. and entitled to credence, it is not mandatory that
evidence be first established on record that the
Question: Is it necessary that the witnesses must witnesses have a good standing in the community
know the contents of the will? or that they are honest and upright or reputed to
Answer: NO. All that the law requires is that they be trustworthy and reliable, for a person is
must attest and subscribe the will in the presence presumed to be such unless the contrary is
of the testator and of each other. To attest and established otherwise.
subscribe do not mean that they must read the

44 Succession Reviewer by S. V. Makayan

SUCCESSION

Tanchanco v. Santos of the testator’s death does not prevent his
Article 820 provides that, “any person of sound creditors from being competent witnesses to his
mind and of the age of eighteen years or more, and will.
not blind, deaf or dumb, and able to read and
write, may be a witness to the execution on of a Under our law, a creditor is also competent, by
will mentioned in Article 805 of this Code.” In the express provision of Art. 824, although the
case, the attesting witnesses to the will in testator in his will may have imposed a charge
question are all lawyers equipped with the upon his estate for the payment of his debts.
aforementioned qualifications. In addition, they
are not disqualified from being witnesses under G. CODICILS & INCORPORATION BY
Article 821, even if they all worked at the same REFERENCE (ARTS. 825-827)
law firm at the time. As pointed out by Natividad,
these lawyers would not risk their professional
licenses by knowingly signing a document which Codicils
they knew was forged or executed under duress;
moreover, they did not have anything to gain from Article 825. A codicil is a supplement or
the estate when they signed as witnesses. addition to a will, made after the execution of a
will and annexed to be taken as a part thereof,
Effect of Subsequent Incapacity of a Witness by which any disposition made in the original
will is explained, added to, or altered.
Article 822. If the witnesses attesting the
execution of a will are competent at the time of A supplement or addition to a will which is made
attesting, their becoming subsequently after the execution of the will. It is annexed to be
incompetent shall not prevent the allowance of taken as part of the Will to explain, add, or alter
the will. provisions in the original Will.

It will not have the effect of invalidating the will There may, however, be a valid codicil to a
or the denial of its probate because the revoked will.
competency of a witness is judged at the moment
of the execution of the will and not at any other Requirements
time.
Article 826. In order that a codicil may be
Competency of interested witness effective, it shall be executed as in the case of a
will.
Article 823. If a person attests the execution of
a will, to whom or to whose spouse, or parent, It must be executed following the formalities
or child, a devise or legacy is given by such will, prescribed by law for wills.
such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or In order to operate as a republication of the will,
child of such person, or any one claiming under it is sufficient if the codicil refers to the will in
such person or spouse, or parent, or child, be such a way as to leave no doubt as to the identity
void, unless there are three other competent of that instrument. A reference to the will in the
witnesses to such will. However, such person so codicil constitutes a sufficient identification of the
attesting shall be admitted as a witness as if such will.
devise or legacy had not been made or given.
Incorporation by reference
An attesting witness is disqualified from being a
legatee, devisee or from being instituted as heir in Article 827. If a will, executed as required by
the will. This extends to the spouses, or parent, or this Code, incorporates into itself by reference
child of such attesting witness or anyone claiming any document or paper, such document or
under such witness, or spouse or parent or child. paper shall not be considered a part of the will
unless the following requisites are present:
A person with interest so attesting shall be 1. The document or paper referred to in the
admitted as a witness. However, the validity of the will must be in existence at the time of the
devise or legacy is affected. Simply, the devise or execution of the will;
legacy given to such person, or to his spouse, 2. The will must clearly describe and identify
parent, or child, shall be void, unless there are the same, stating among other things the
three other competent witnesses. number of pages thereof;
3. It must be identified by clear and
Competency of creditor satisfactory proof as the document or paper
referred to therein; and
Article 824. A mere charge on the estate of the 4. It must be signed by the testator and the
testator for the payment of debts due at the time witnesses on each and every page, except in

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case of voluminous books of account or Governing law; rules of revocation
inventories.
Article 829. A revocation done outside the
Doctrine: A will, duly executed and witnessed Philippines, by a person who does not have his
according to statutory requirements, may domicile in this country, is valid when it is done
incorporate into itself by an appropriate according to the law of the place where the will
reference a written paper or document which is in was made, or according to the law of the place in
existence at the time of the execution of the will, which the testator had his domicile at the time;
irrespective of whether such document is one and if the revocation takes place in this country,
executed by the testator or a third person, when it is in accordance with the provisions of
whether it is in and of itself a valid instrument, this Code.
provided the document referred to is identified by
clear and satisfactory proof. So incorporated, the 1. Revocation takes place in the Philippines
extrinsic paper takes effect as part of the will and
is admitted to probate as such. It is essential that it must be done in
accordance with the laws of the Philippines.
In case a will incorporates by reference any This is true whether the testator is domiciled
document, such document must already be in in this country or in some other country.
existence at the time of the execution of the will.
It must be clearly described and identified in the 2. Revocation takes place outside of the
will. It must be signed by the testator and the Philippines by a testator who is domiciled in
witnesses on each and every page, except in case the Philippines
of voluminous books of account or inventories.
It is essential that it must be done in
H. REVOCATION, REPUBLICATION & accordance with the laws of the Philippines.
REVIVAL OF WILLS (ARTS. 828-837)
3. Revocation takes place outside of the
Philippines by a testator who is not domiciled
Revocation of wills in the Philippines

Article 828. A will may be revoked by the It is essential that it must be done either in
testator at any time before his death. Any waiver accordance with the laws of the place where
or restriction of this right is void. the will was made or in accordance with the
laws of the place where the testator had his
Revocation domicile at the time of revocation.

Revocation as applied to wills may be defined as Modes of Revocation
an act of the mind, terminating the potential
capacity of the will to operate at the death of the Article 830. No will shall be revoked except in
testator, manifested by some outward or visible the following cases:
act or sign, symbolic thereof. According to some 1. By implication of law; or
American decisions, it may simply be defined as 2. By some will, codicil, or other writing
an act to annul a will in whole or in part. executed as provided in case of wills; or
3. By burning, tearing, cancelling, or
Hence, a will may be revoked by the testator at obliterating the will with the intention of
any time before his death. Any waiver or revoking it, by the testator himself, or by
restriction of this right is void. Upon being some other person in his presence, and by
revoked, the will or the testamentary disposition his express direction. If burned, torn,
intended to be revoked, ceases to exist, and is as cancelled, or obliterated by some other
inoperative as if it has never been written. person, without the express direction of the
testator, the will may still be established,
Will is Ambulatory and the estate distributed in accordance
therewith, if its contents, and due
A will being a disposition mortis causa, takes execution, and the fact of its unauthorized
effect only after the death of the testator. Prior to destruction, cancellation, or obliteration
that time, no rights are vested in the heirs with are established according to the Rules of
respect to the testator’s rights and properties and Court.
as such, the latter is still free to have a change of
mind with respect to the distribution of his estate. (1) By Implication of Law

The law presumes that the testator intended a
change in the disposition of his estate because of

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the resultant change in his family or other EXPRESS IMPLIED
relations with the instituted heirs.
When in a subsequent When the

will, or codicil, or other provisions of the
Instances when a testamentary disposition may be
writing executed as subsequent will or
revoked by implication of law:
provided in case of wills, codicil are partially

there is a revocatory or absolutely
1. When there is a decree of legal separation.
clause expressly inconsistent with
Here, provisions in favor of the offending
revoking the will or a those of the
spouse made in the will of the innocent
part thereof previous will.
spouse shall be revoked by operation of law.
May be effected by a
2. Where there is a preterition of omission of subsequent will, or a May be effected
one, some, or all of the compulsory heirs in codicil, or a non- only by either a
the direct line, whether living at the time of testamentary writing subsequent will or
the execution of the will or born after the executed as provided in a codicil
death of the testator. Here, the preterition case of wills
shall annul the institution of heir.
Whether the revocation is express or implied it
3. When in the testator’s will there is a legacy of may be either total or partial depending upon
a credit against a third person or of the the circumstances of each case.
remission of a debt of the legatee, and
subsequently, after the execution of the will, Implied revocation
the testator brings an action against the
debtor for the payment of his debt. Here, the Article 831. Subsequent wills which do not
legacy is revoked. revoke the previous ones in an express manner,
annul only such dispositions in the prior wills as
4. When the testator transforms the thing are inconsistent with or contrary to those
bequeathed in such a manner that it does not contained in the later wills.
retain either the form or denomination it had,
or when he alienates by any title or for any GR: Two or more instruments, each purporting to
cause the thing bequeathed or any part be a will, may be admitted to probate if they are
thereof, or when the thing bequeathed is not inconsistent with each other.
totally lost during the testator’s lifetime or XPN: If the testator executes a first will, and
after his death without the heir’s fault. Here, thereafter executes a second will, some of the
the legacy is revoked. provisions of which are contrary to the provisions
in the original will, but without expressly
5. When the heir, devisee or legatee commits revoking the first will, the subsequent will annuls
any of the acts of unworthiness which by only the dispositions in the prior will insofar as
express provision of law will incapacitate a inconsistent with the latter will.
person to succeed. Here, any testamentary
disposition in favor of such heir, devisee, or NOTE: In order that there will be an implied
legatee is revoked. revocation there must be absolute
inconsistency between the provisions of the
(2) By Will, Codicil, or Writing will and the codicil.

According to Art. 830(2), a will may be revoked by Merza v. Forras
some will, codicil, or other writing executed as In the absence of any legal provision to the
provided in case of wills. This method of contrary, two separate and distinct wills may be
revocation may be either express or implied. probated if one does not revoke the other and
provided that the statutory requirements relative
This may be done by the execution of a new will to the execution of wills have been complied with.
with an express revocatory clause or if the new
will contains dispositions which are entirely NOTE: As regards implied revocation by a
inconsistent with the previous will. codicil, although it is possible that there might
be a revocation in whole or in part, as a rule a
codicil should not be construed as a complete
revocation of a will if any other conclusion can
be reached consistent with the terms of the
two instruments, since, if the testator intended
to make an entire disposition of his property in
substitution of that made by a prior will he
probably would have proceeded to make a new
will rather than a codicil.

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Express Revocation succeed is absolutely beyond the control of the
testator, the act of revocation is within his
Express revocation may be effected by a absolute control. The revocatory clause must be
subsequent will, or a codicil, or a non- entirely separated from the other testamentary
testamentary writing executed as provided in dispositions which are affected by the incapacity
case of wills. It is of course essential that in the or the renunciation of the heirs, devisees or
revocatory clause contained in the subsequent legatees.
will, codicil or other writing the intention of the
testator to revoke the previous will must be Effects if will is disallowed
clearly and unmistakably manifested.
If a subsequent will, containing a clause revoking
NOTE: A codicil to a will is a republication a previous will, is disallowed by the probate court
thereof. on the ground that it has not been executed in
accordance with the formalities prescribed by
As regards express revocation by a codicil: law, the revocatory clause will not produce any
effect whatsoever.
1. If the revocation is partial – It will have the
effect of republishing the will as of the date of This is logical, because, after all, the effect of the
the codicil with respect to all parts not disallowance is to nullify the will altogether,
revoked. including the revocatory clause contained in such
2. If the revocation is total – There is no will.
republication.
(3) By Overt Acts or Physical Destruction
As regards revocation by a non-testamentary
writing executed as provided in case of wills, it is According to Art. 830(3), a will may also be
not essential that the writing should contain any revoked by burning, tearing, cancelling, or
affirmative disposition of property. Neither is it obliterating with the intention of revoking it.
essential that a writing which is not in fact a will
be erroneously characterized a will in order to be Requisites:
effective as a revoking instrument.
1. Testamentary capacity at the time of
Example: A will may be revoked by express revocation
words of revocation contained in a deed of 2. Animo revocandi (intent)
trust or in a letter, signed by the testator and 3. Actual physical act of destruction
executed in accordance with the formalities manifested by burning, tearing, cancelling,
prescribed by law for the making of wills the or obliterating of the will or a part thereof
exact wording of a revocatory writing is not so 4. Act must be performed by the testator
important, if the intent to revoke the will is himself or by some other person in his
clear from the language used, and the presence and by his express direction
formalities of execution are observed. 5. The act must be complete, that is, the
testator considers his will revoked
Effect if will is inoperative
Intention of revocation
Article 832. A revocation made in a subsequent
will shall take effect, even if the new will should GR: An intent to revoke a will in its entirety is
become inoperative by reason of the incapacity necessary to effect an entire as distinguished from
of the heirs, devisees or legatees designated a partial revocation.
therein, or by their renunciation. XPN: A will, however, may be held to have been
revoked where it has been so mutilated that the
If the subsequent will which contains the portion remaining, if probated, would cause a
revocatory clause should become inoperative devolution of the property of the decedent in a
either by reason of the incapacity of the heirs, manner entirely different from his express intent.
devisees or legatees designated therein or by
reason of their renunciation or repudiation, the The intent to revoke is essential to a revocation by
revocation shall still take effect. act of the testator. In order that an act shall have
the effect of revoking a will, the intention to
Revocation of the will shall take effect even if the revoke must appear clearly and unequivocally; a
new will becomes inoperative either because the will is not revoked by any act of destruction not
heirs instituted therein are incapacitated or one deliberately done animo revocandi. Thus, neither
or some of them renounce the inheritance. destruction without intention nor intention
without destruction will revoke a will. The intent
This rule is logical, because, while the capacity or may be inferred from the nature of the act or it
the desire of the heirs, devisees or legatees to

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may be shown by extrinsic evidence, but it must effective revocation, unless the destruction is
in some competent way be made to appear. coupled with animus revocandi on the part of the
testator. It is not imperative that the physical
An act of destruction which is done accidentally, destruction be done by the testator himself. It
by mistake, or as a result of fraud or undue may be performed by another person but under
influence, does not operate as a revocation. The the express direction and in the presence of the
same rule applies to the partial destruction of a testator.
will by accident.
Diaz v. de Leon
The mere act of destroying a will or a part thereof The act of physical destruction done by a servant
is of no legal effect, unless it is done animo of the testator is a sufficient revocation as long as
revocandi. the destruction of a will was done with animo
revocandi.
Actual physical destruction
If the will is burned, torn, cancelled or obliterated
A symbolical destruction, cancellation or by some other person without the express
obliteration will not suffice. There must be the act direction of the testator, it may still be
as well as the intention. A literal destruction of the established, and the estate distributed in
instrument, however, is not essential to effect a accordance therewith if its contents, and due
revocation. execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
A will may be revoked in its entirety despite the established in accordance with the Rules of Court.
act of revocation does not accomplish the
complete physical destruction of the will. An act Lipana v. CFI
of little significance from the standpoint of If a will is shown to have been torn by some other
physical change in the instrument will constitute person without the express direction of the
a revocation if it was performed with the purpose testator, it may be admitted to probate, if its
and intent to revoke the will. But in order for an contents, due execution and the fact of its
act of destruction to effect an entire, as unauthorized destruction are established by
distinguished from a partial revocation, it must be satisfactory evidence. The petitioner, therefore,
directed against the whole or an essential part of was entitled to a hearing to prove the due
it. execution of the original will and its loss or
destruction. Hence, the respondent court had no
A will executed in duplicate, one copy being statutory authority to dismiss the petition
retained in the possession of the testator, is without such hearing.
revoked by the destruction of such copy by the
testator with intent to revoke the will. Revocation by burning

If any one of the acts prescribed by statute is To constitute revocation by burning, it would
performed in the slightest manner, joined with a seem that there must be at least a burning of a
declared intent to revoke, it may be an effectual part of the paper on which the will is written,
revocation. although a very slight burn will suffice. Otherwise,
there is no revocation.
The act of revocation is a personal act of the
testator. He cannot delegate to an agent authority Example: Where the testator, with intent to
to do the act for him. The law requires that the act revoke his will, threw it in a stove so that it
of physical destruction or cancellation must be would be burned, and a third person, who was
performed by the testator himself, or by some one of the beneficiaries, was able to save the
other person in his presence, and by his express will, without the testator’s knowledge, before
direction. Hence, a destruction not accomplished any part of it could be burned, since there was
in the testator’s presence is ineffective as a no physical act of destruction, there would be a
revocation of the will. revocation, not by burning under Art. 830(3),
but by implication of law under Art. 830(1),
Thus, another person may be selected by him as and only with respect to the testamentary
an instrument and directed to do the revocatory disposition in favor of the beneficiary. The
acts in his presence, in which case any so done in reason is that such beneficiary fraudulently
his presence and by his direction is his personal prevented the testator from revoking his will.
act and operates to the same extent as if done by Hence, he has committed an act of
his own hands. unworthiness which will incapacitate him to
inherit from the testator. But the will itself is
Casiano v. CA not revoked.
The physical act of destruction of a will, like
burning in this case, does not per se constitute an

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Revocation by tearing CANCELLING OBLITERATING
Effected by diagonal
The degree of tearing necessary to the revocation Effected by erasing or
or horizontal lines, or
of a will is not fixed by statute. A slight act of scraping off any word
crisscrosses written
tearing is generally held sufficient, although the or disposition which
upon the face of the
greater the degree of tearing the stronger is the the testator intends to
will or upon any part
presumption that the instrument was torn animo revoke
thereof
revocandi.
The words are still The words are
However, the act of tearing must be a complete legible rendered illegible
act. Otherwise, if the testator desists voluntarily
or through the persuasion of others before the act CANCELLING OR BURNING OR
of destruction could be consummated, it is clear OBLITERATING TEARING
that the act of revocation has not also been Revocation is total if it is
consummated. Thus, it will not produce any directed against an essential
effect. Revocation is
part of the will, and partial if it
always total
is directed against a non-
Revocation by cancelling and obliterating essential part of the will.

GR: Revocation by cancellation or obliteration
requires the making of marks or lines across the Presumptions of revocation
will, or of some portion thereof which is of such
significance that its elimination would cause a 1. Where the will cannot be found following the
material alteration in the meaning or legal effect death of the testator and it is shown that it
of the will. Thus, it is necessary that the testator, was in the testator’s possession when last
with an intention to revoke, must have caused seen, the presumption is, in the absence of
some physical defacement of the will adopted to other evidence, that he must have destroyed
give expression to that purpose. it animo revocandi.

Marks made upon a will by the testator are 2. Where the will cannot be found following the
effective as a revocation by cancellation, death of the testator and it is shown that the
regardless of their depth, faintness, or other testator had ready access to it, the
characteristics, if they were placed there for the presumption is, in the absence of other
purpose of cancelling the will. The act of the evidence, that he must have destroyed it
testator in drawing lines across his will animo revocandi.
constitutes a revocation in toto, if so intended by
him. 3. Where it is shown that the will was in the
custody of the testator after its execution, and
The efficacy of marks or lines upon a will as a subsequently, it was found among the
cancellation is not lessened by the fact that they testator’s effects after his death in such a state
are in the form of written and legible words. Thus, of mutilation, cancellation or obliteration as
if words indicating an intent to revoke the will are represents a sufficient act of revocation
written upon the instrument in such a manner within the meaning of the applicable statute,
that many words of the will are touched, there is it will be presumed, in the absence of
an effective revocation by cancellation. evidence to the contrary, that such act was
performed by the testator with the intention
Example: A memorandum written upon the of revoking the will.
blank margin of the instrument stating that the
will is “revoked” or that an indicated portion is Doctrine of Dependent Relative Revocation
“annulled” does not constitute a sufficient
revocation. If the memorandum, however, was Under this doctrine, if a testator revokes a will
executed in accordance with all of the with a present intention of making a new one
formalities prescribed by law for the execution immediately and as a substitute, and the new will
of wills, there would be a revocation, not by is not made, or, if made, fails of effect for any
cancellation, but by a non-testamentary reason, it will be presumed that the testator
writing executed as provided in case of wills. preferred the old will to intestacy, and the old one
will be admitted to probate in the absence of
evidence overcoming the presumption, provided
its contents can be ascertained.

The doctrine of dependent relative revocation is a
rule of presumed intention rather than a

substantive rule of law. The presumption
recognized by the doctrine is not artificial.

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Neither is it conclusive; it does not prevail as Republication of wills
against actual evidence of the testator’s intention.
Being merely a rule of presumed intention, the Article 835. The testator cannot republish,
doctrine of dependent relative revocation cannot without reproducing in a subsequent will, the
be carried so far as to defeat the real intention of dispositions contained in a previous one which
the testator in a case where the facts in evidence is void as to its form.
do not support the presumption.
Article 836. The execution of a codicil referring
Molo v. Molo to a previous will has the effect of republishing
Under this doctrine, the rule is established that the will as modified by the codicil.
where the act of destruction is connected with the
making of another will so as fairly to raise the An act of the testator whereby he reproduces in a
inference that the testator meant the revocation subsequent will the dispositions contained in a
of the old to depend upon the efficacy of the new previous will which is void as to its form or
disposition intended to be substituted, the executes a codicil to his will. It may be expressed
revocation will be conditional and dependent or constructive.
upon the efficacy of the new disposition; and if, for
any reason, the new will intended to be made as a EXPRESS CONSTRUCTIVE
substitute is inoperative, the revocation fails and
the original will remains in full force. Where act of If the testator reproduces It is constructive
destruction of the will is connected with the in a subsequent will the if the testator for
making of another will, so as to fairly raise the dispositions contained in a some reason or
inference that the testator meant the revocation previous one which is void another executes
of the old to depend upon the efficacy of the new as to its form. This is the a codicil to his
disposition intended to be substituted, the republication which is will. This is the
revocation will be conditional; and if, for any referred to in Art. 835 of republication
reason, the new will intended to be made as a the Code. Its purpose is to which is referred
substitute is inoperative, the revocation fails and cure the will of its formal to in Art. 836 of
the original will remain in full force. defects. the Code.

False Cause for Revocation/Revocation by A duly executed codicil operates as a
Mistake republication of the original will and makes it
speak from the new date, in so far as it is not
Article 833. A revocation of a will based on a altered or revoked by the codicil, although such
false cause or an illegal cause is null and void. codicil is not physically annexed to the will, and
although the will is not in the presence of the
If the testator revoked his will based on a cause testator at the time of executing the codicil where
stated therein, but the facts constituting the cause it refer to the will in such a way as to identify that
for revocation turn out to be false, the revocation instrument beyond doubt. If a codicil revokes in
cannot take effect and the will remains operative. terms portions of the will, it republishes the will
as of the date of the codicil with respect to all
It must be shown that the revocation was parts not revoked.
undertaken by the testator based on the mistaken
belief that the cause exist so that the revocation Revival of wills
will be void.
Article 837. If after making a will, the testator
Recognition of an Illegitimate Child makes a second will expressly revoking the first,
the revocation of the second will does not revive
Article 834. The recognition of an illegitimate the first will, which can be revived only by
child does not lose its legal effect, even though another will or codicil.
the will wherein it was made should be revoked.
Revival is the restoration to validity of a
The recognition made by the testator of his previously revoked will by operation of law.
illegitimate child in a will remains valid even if the
will is subsequently revoked by the testator. It seems that under our law, the only way by
which a previously revoked will may be revived is
Even if the will is revoked, the instrument still through another will or codicil, meaning the
constitutes an authentic instrument within the testator will have to make another will or codicil
meaning of Art. 278, which states that recognition either reproducing the contents of the revoked
of natural children shall be made in the record of will or incorporating thereto such revoked will by
birth, or in a will, or in a statement before a court reference.
of record, or in an authentic writing.

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REPUBLICATION REVIVAL provisions of the Rules of Court for the
allowance of wills after the testator’s death shall
It takes place by the It takes place by
govern.
act of the testator operation of law
The Supreme Court shall formulate such
additional Rules of Court as may be necessary
If the revoking will which expressly revoked the for the allowance of wills on petition of the
first is itself revoked, the prior will is not testator.
considered revived. If the second will executed by Subject to the right of appeal, the allowance of
the testator merely impliedly revoked the first the will, either during the lifetime of the testator
will, the revocation of the revoking will revive the or after his death, shall be conclusive as to its
first will. due execution.

Simply, if after making a will, the testator makes a Concept of Probate
second will expressly revoking the first, the
revocation of the second will does not revive the It is a special proceeding to establish that the
first will. instrument offered is:
1. The last will and testament of the deceased;
Question: Suppose, however, that instead of an 2. That it has been executed in accordance
express revocatory clause, the dispositions found with the formalities prescribed by law;
in the second will are merely inconsistent with 3. That the testator had the necessary capacity
those found in the first — shall the express at the time of the execution of the will
revocation of the second will by a third will or a
codicil result in the revival of the first will? It may be filed either during the lifetime of the
Answer: While the Code provides for the effect of testator or it may be filed after the death of the
the revocation of the second will which expressly testator.
revoked a first will, it does not provide for the
effect of the revocation of the second will in case Probate is mandatory
the second will merely impliedly revoked the first
will. Guevara v. Guevara
Probate of a will is dictated by public policy in
Illustration: A executed three wills — the first order to safeguard the wishes of the testator.
in 1968, the second in 1969, and the third (a Hence, the heirs cannot dispense with the probate
codicil) in 1970. The dispositions found in the proceedings and suppression of the will contrary
second will are absolutely inconsistent with to law and public policy. Probate proceeding is
those found in the first. The codicil, on the one in rem, with notice by publication to the
other hand, contains nothing but a revocatory whole world and with personal notice to each of
clause expressly revoking the will of 1969. Will the known heirs, legatees, and devisees of the
such revocation result in the revival of the will testator. Although not contested, the due
of 1968? It must be noted that the effect of execution of the will and the fact that the testator
revocation is to annul the will or disposition at the time of its execution was of sound and
which is revoked. Upon being revoked, the will disposing mind and not acting under duress must
or disposition which is revoked ceases to exist, be proved to the satisfaction of the court.
and is as inoperative as if it had never been
written. With the revocation of the will of 1969 Imprescriptibility of probate
by the codicil of 1970, only one will — the will
of 1968 — remains. It would, therefore, be The statute of limitations is not applicable to the
absurd to speak of the revival of the will since probate of wills.
it has never been validly revoked in the first
place. Besides, under the doctrine of The rights of the parties should not be left hanging
dependent relative revocation it will be in uncertainty for periods of time far in excess of
presumed that the testator preferred the old the maximum period of ten years allowed by law,
will to intestacy. but the obvious remedy is for the other interested
person either —
I. ALLOWANCE & DISALLOWANCE OF WILLS 1. To petition for the production of the will and
(ARTS. 838-839; RULES 75 & 76, RULES OF for its probate, or
COURT) 2. To inflict upon the guilty party the penalties
prescribed by Rule 75 of the Rules of Court, or
Article 838 No will shall pass either real or 3. To declare the unworthiness of the heir under
personal property unless it is proved and Art. 1032 for concealing or suppressing the
allowed in accordance with the Rules of Court. will.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent

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Guevara v. Guevara files the petition for the probate of the will;10 in
In holding the statute of limitations applicable to the second, it is any person interested in the
the probate of wills, the Court below failed to estate. Thus, there are 2 kinds of probate —
notice that its doctrine was destructive of the probate ante mortem and probate post mortem.
right of testamentary disposition and violative of
the owner’s right to control his property within Effect of allowance of will
the legal limits. The appealed order in fact leaves
wills at the mercy and whim of custodians and A judgment or decree of a court with jurisdiction
heirs interested in their suppression. Reason and of a proceeding to probate a will, which admits
precedent reject the applicability of the Statute of the will to probate, is conclusive of the validity of
Limitations to probate proceedings because these the will; it is not subject to collateral attack, but
are not exclusively established in the interest of stands as final, if not modified, set aside, or
the surviving heirs, but primarily for the revoked by a direct proceeding, or reversed on
protection of the testator’s expressed wishes, that appeal to a higher court. This is clear from Art.
are entitled to respect as an effect of his 838(4), a provision which is also found in Sec. 1 of
ownership and right of disposition. If the probate Rule 75 of the New Rules of Court.
of validly executed will is required by public
policy, as declared by the Supreme Court in the Since a proceeding for the probate of a will is
previous case, the state could not have intended essentially one in rem which determines the
the statute of limitations to defeat the policy. status of the decedent’s estate as testate or
intestate, the judgment rendered by a court
Issues to be resolved in probate having jurisdiction is conclusive on the whole
proceedings world, irrespective of who appeared as parties of
record in the proceeding.
GR: Probate proceedings generally delve only on
the extrinsic validity of the will sought to be Mercado v. Santos
probated. No fixed standard may be adopted or drawn
XPN: If on its face, the will is intrinsically void. therefrom, in view of the conflict no less than of
diversity of statutory provisions obtaining in
Intrinsic validity. The legality of the dispositions different jurisdictions. It behooves us, therefore,
of the will. as the court of last resort, to choose that rule most
consistent with our statutory law, having in view
Questions determinable by probate court: that needed stability of property rights and the
public interest in general. To be sure, we have
1. Whether or not the instrument which is seriously reflected upon the dangers of evasion
offered for probate is the last will and from punishment of culprits deserving of the
testament of the decedent; in other words, severity of the law in case where, as here, forgery
the question is one of identity. is discovered after the pro- bate of the will and the
2. Whether or not the will has been executed in prosecution is had before the prescription of the
accordance with the formalities prescribed offense. By and large, however, the balance seems
by law; in other words, the question is one of inclined in favor of the view that we have taken.
due execution. Not only does the law surround the execution of
3. Whether the testator had testamentary the will with the necessary formalities and
capacity at the time of the execution of the require probate to be made after an elaborate
will; in other words, the question is one of judicial proceeding, but it provides for an
capacity. adequate remedy to any party who might have
been adversely affected by the pro- bate of a
NOTE: The probate court cannot inquire into forged will, much in the same way as other parties
the intrinsic validity of testamentary against whom a judgment is rendered under the
dispositions. same or simi- lar circumstances. The aggrieved
party may file an application for relief with the
Who may Intervene in Probate Proceedings proper court within a reasonable time, but in no
case exceeding six months after said court has
A person who has an interest in the estate, or in rendered the judgment of probate, on the ground
the will, or in the property to be affected by it of mistake, inadvertence, surprise or excusable
either as executor or as a claimant of the estate or neglect. An appeal lies to review the action of a
as a creditor. court of first instance when that court refuses to
grant relief. After a judgment allowing a will to be
When probate commenced probated has become final and unappealable, and
after the period fixed by law has expired, the law
The probate of a will may be commenced either as an expression of the legislative wisdom goes no
during the lifetime of the testator or after his further and the case ends there. We hold,
death. In the first, it is the testator himself who therefore, that criminal action will not lie in this

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SUCCESSION

jurisdiction against the forger of a will which had the Court holds: (1) That the fact a will has been
been duly admitted to probate by a court of probated, the order allowing the same having
competent jurisdiction. become final and executory, is not a bar to the
presentation and probate of a codicil although its
When allowance may be set aside existence was known at the time of the probate
of the will; and (2) that the failure of the
Since a proceeding for the probate of a will is oppositor to the probate of a codicil to file
essentially one in rem, a judgment allowing a will opposition to the probate of the will having
shall be conclusive as to its due execution. knowledge of such proceeding, does not
constitute an abandonment of a right, nor does it
GR: No question of the validity or invalidity of the deprive her of the right to oppose the probate of
will could be thereafter raised. said codicil.
XPNs:
1. By means of an appeal, or Exclusive Grounds for Disallowance
2. By means of a petition for relief from the
judgment by reason of fraud, accident, Article 839. The will shall be disallowed in any
mistake, or excusable negligence, or of the following cases:
3. By means of a petition to set aside the (1) If the formalities required by law have not
judgment by reason of lack of jurisdiction or been complied with;
lack of procedural due process, or (2) If the testator was insane, or otherwise
4. By means of an action to annul and judgment mentally incapable of making a will, at the
by reason of extrinsic or collateral fraud. time of its execution;
(3) If it was executed through force or under
Gallanosa v. Arcangel duress, or the influence of fear, or threats;
It is evident from the allegations of the complaint (4) If it was procured by undue and improper
and from defendants’ motion to dismiss that pressure and influence, on the part of the
plaintiffs’ 1967 action is barred by res judicata, a beneficiary or of some other person;
double-barreled defense, and by pre- scription, (5) If the signature of the testator was procured
acquisitive and extinctive, or by what are known by fraud;
in the jus civile and the jus gentium as usucapio, (6) If the testator acted by mistake or did not
longi temporis possesio and praescription. Our intend that the instrument he signed should
procedural law does not sanction an action for be his will at the time of affixing his
the “annulment” of a will. In order that a will may signature thereto.
take effect, it has to be probated, legalized or
allowed in the proper testamentary proceeding. In addition to the above list, Section 9 of Rule 76
The probate of the will is mandatory. The of the Rules of Court also provides grounds for the
testamentary proceeding is a special proceeding disallowance of will, to wit:
for the settlement of the testator’s estate. A a. If not executed and attested as required by
special proceeding is distinct and different from law.
an ordinary action. b. If the testator was insane, or otherwise
mentally incapable to make a will, at the time
Effect upon probate of codicil of its execution;
c. If it was executed under duress, or the
Macam v. Gatmaitan influence of fear, or threats;
Question: Is the probate of a will by final d. If it was procured by undue and improper
judgment prior to that of a codicil thereof a bar to pressure and influence, on the part of the
the probate of the codicil? beneficiary, or of some other person for his
Answer: The fact that a will has been allowed benefit;
without opposition and the order allowing the e. If the signature of the testator was procured
same has become final and executory is not a bar by fraud or trick, and he did not intend that
to the presentation of a codicil, provided it the instrument should be his will at the time
complies with all the necessary formalities for of fixing his signature thereto.
executing a will. It is not necessary that the will
and the codicil be probated together as the Violence or intimidation
codicil may be concealed by an interested party
and it may not be discovered until after the will GR: There is violence when in order to compel the
has already been allowed; and they may be testator to execute the will, serious or irresistible
presented and probated one after the other, since force is employed, and there is intimidation when
the purpose of the probate proceeding is merely the testator is compelled by a reasonable and
to determine whether or not the will and the well-grounded fear of an imminent and grave evil
codicil meet all the statutory requirements for upon his person or property, or upon the person
their extrinsic validity, leaving the validity of or property of his spouse, descendants or
their provisions for further consideration. Thus, ascendants, to execute the will.

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To determine the degree of intimidation, the age, Fraud
sex and condition of the person upon whom it is
employed shall be borne in mind. Fraud is present to invalidate a will if by
misrepresentation and deception the testator is
NOTE: Whether the violence or intimidation is led into making a will different from what he
employed by a beneficiary or by a stranger is would have made but for the misrepresentation
immaterial. The will must be disallowed. and deception. Fraud invalidating a will is said to
be any trick, deception, or artifice by which the
XPN: However, if the threat or intimidation is testator is so circumvented, cheated, or deceived
merely to enforce one’s claim through competent as to fall into error respecting the disposition of
authority, if the claim is just and legal, the will his property. Moreover, to invalidate a will it must
cannot be disallowed. have affected the testator in the very act of
making his will and at the time the will was
Undue influence executed.

There is undue influence when a person takes NOTE: Intent to deceive the decedent is an
improper advantage of his power over the will of essential element of fraud avoiding a will in the
another, depriving the latter of a reasonable absence of any element of undue influence.
freedom of choice. Simply, undue influence
invalidating a will is that which substitutes the If the testator, under a belief of the truth of false
wishes of another for those of the testator. It is the and fraudulent statement made to him, is
influence which deprives the testator of his free influenced by them, and makes a will
agency. disinheriting one who, but for the testator’s belief
in the truth of such false statements, would have
No influence upon the testator is sufficient to been provided for in it, the will is the product of
invalidate a will unless it was directly connected fraud and subject to be declared invalid on that
with the execution of the instrument by the ground.
testator and was present and operating directly
upon the mind of the testator so as to control the FRAUD UNDUE INFLUENCE
disposition of his property under the will.
The free agency of the The free agency of the

testator need not be testator must be
To destroy the validity of a will, the undue
shown to have been shown to have been
influence must be specially directly on the
destroyed destroyed
testamentary act, so that its effect may be
registered there to the benefit of some persons Leads the testator to
and a corresponding detriment to others. To use his testamentary
establish undue influence, it must be shown that power not only
Compels the testator
the influence exerted upon the testator was such willingly, but often
to yield through fear
as to amount to force, coercion, or importunities with pleasure and
and make a will which
which he could not resist. satisfaction, to
he would instantly
disinherit persons
repudiate if free and
Every case wherein undue influence is an issue who have the
unconstrained
must be viewed in its own particular setting of strongest natural
fact. claims upon his
affections
Instances where there is no undue influence: Willfully deceives free Willfully overmasters
agency free agency
1. A general influence over the testator,
although strong and controlling, is not such Mistake (in the execution)
undue influence as invalidates a will unless, it
is brought to bear upon the testamentary act. Mistake occurs if the testator did not intend that
2. A testator acting out of a sense of obligation the instrument he signed should be his will at the
to family or friends, even though his feelings time of affixing his signature.
in this respect are quickened by acts of
kindness toward him, without having his will Mistake which will invalidate a will is a mistake as
invalidated on the ground of undue influence. to the identity or character of the instrument
3. The person alleged to have been duly which he signed, as well as a mistake as to the
influenced was suffering from mental contents of the will itself. Hence, a will should not
weakness or ignorance or in financial be denied probate merely because the testator
distress. was mistaken in his appreciation of the effect of
the language thereof.



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NOTE: Mistakes in the expression, as
distinguished from mistakes in the execution, Section 1. Allowance necessary. Conclusive as
do not invalidate a will. to execution. No will shall pass either real or
personal estate unless it is proved and allowed
Effect of disallowance in the proper court. Subject to the right of
appeal, such allowance of the will shall be
A decree in the solemn form rendered by a court conclusive as to its due execution.
having jurisdiction of a probate proceeding, is
conclusive on the parties equally when the decree Section 2. Custodian of will to deliver. The
rejects the will and when it grants probate. person who has custody of a will shall, within
twenty (20) days after he knows of the death of
Where an instrument purporting to be a will is the testator, deliver the will to the court having
propounded for probate by an authorized person, jurisdiction, or to the executor named in the will.
and there is a decree of the probate court, fairly
obtained and pronounced on the merits, Section 3. Executor to present will and accept
excluding the paper from probate, such decree is or refuse trust. A person named as executor in
conclusive of the rights of the parties represented a will shall, within twenty (20) days after he
in the proceeding to propound the will for knows of the death of the testate, or within
probate, either in the same or in another tribunal. twenty (20) days after he knows that he is
named executor if he obtained such knowledge
Such a decree stands upon a footing analogous to after the death of the testator, present such will
a judgment in rem. to the court having jurisdiction, unless the will
has reached the court in any other manner, and
Ratification shall, within such period, signify to the court in
writing his acceptance of the trust or his refusal
Question: Granting that the will should be to accept it.
disallowed under any of the grounds stated in Art.
839, would it be possible for the testator, before Section 4. Custodian and executor subject to
promulgation of the decree of disallowance, to fine for neglect. A person who neglects any of
ratify the will? the duties required in the two last preceding
Answer: This should be qualified. With respect to sections without excused satisfactory to the
a will which is void because of non-compliance court shall be fined not exceeding two thousand
with the formalities prescribed by law, pesos.
ratification is not possible. That which is void or
inexistent is not susceptible of ratification. The Section 5. Person retaining will may be
only way by which such will may be validated committed. A person having custody of a will
would be for the testator to republish the same in after the death of the testator who neglects
accordance with Art. 835 of the Code. However, without reasonable cause to deliver the same,
with respect to a will which was executed through when ordered so to do, to the court having
violence, intimidation, undue influence, fraud or jurisdiction, may be committed to prison and
mistake, since we cannot exactly say that the will there kept until he delivers the will.
is void or inexistent, ratification is possible.
Rule 76, Rules of Court. Allowance or
Ozaeta v. Cuartero Disallowance of Will.
The testator’s failure to revoke or otherwise alter
the questioned will as soon as he left the house of Section 1. Who may petition for the allowance
the person who is alleged to have unduly of will. Any executor, devisee, or legatee named
influenced him and moved to his own house in a will, or any other person interested in the
where he lived up to five years after execution of estate, may, at any time after the death of the
the will, constitutes a silent ratification of its testator, petition the court having jurisdiction to
contents and refutes the claim of undue influence have the will allowed, whether the same be in
and improper pressure, even supposing that his possession or not, or is lost or destroyed.
these circumstances were duly proved. The testator himself may, during his lifetime,
petition the court for the allowance of his will.
No Voidable Will
Section 2. Contents of petition. A petition for
Any of the vices of consent in contracts like force, the allowance of a will must show, so far as
intimidation, undue influence, or fraud which known to the petitioner:
renders a contract voidable would make the will a. The jurisdictional facts;
void and not merely voidable. b. The names, ages, and residences of the
heirs, legatees, and devisees of the testator
Rule 75, Rules of Court. Production of Will. or decedent;
Allowance of Will Necessary.

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c. The probable value and character of the the handwriting and signature of the testator
property of the estate; explicitly declare that the will and the signature
d. The name of the person for whom letters are in the handwriting of the testator. In the
are prayed; absence of any such competent witness, and if
e. If the will has not been delivered to the the court deem it necessary, expert testimony
court, the name of the person having may be resorted to.
custody of it.
But no defect in the petition shall render void Section 6. Proof of lost or destroyed will.
the allowance of the will, or the issuance of Certificate thereupon. No will shall be proved
letters testamentary or of administration with as a lost or destroyed will unless the execution
the will annexed. and validity of the same be established, and the
will is proved to have been in existence at the
Section 3. Court to appoint time for proving time of the death of the testator, or is shown to
will. Notice thereof to be published. When a have been fraudulently or accidentally
will is delivered to, or a petition for the destroyed in the lifetime of the testator without
allowance of a will is filed in, the court having his knowledge, nor unless its provisions are
jurisdiction, such court shall fix a time and place clearly and distinctly proved by at least two (2)
for proving the will when all concerned may credible witnesses. When a lost will is proved,
appear to contest the allowance thereof, and the provisions thereof must be distinctly stated
shall cause notice of such time and place to be and certified by the judge, under the seal of the
published three (3) weeks successively, court, and the certificate must be filed and
previous to the time appointed, in a newspaper recorded as other wills are filed and recorded.
of general circulation in the province.
But no newspaper publication shall be made Section 7. Proof when witnesses do not reside
where the petition for probate has been filed by in province. If it appears at the time fixed for the
the testator himself. hearing that none of the subscribing witnesses
resides in the province, but that the deposition
Section 4. Heirs, devisees, legatees, and of one or more of them can be taken elsewhere,
executors to be notified by mail or personally. the court may, on motion, direct it to be taken,
The court shall also cause copies of the notice of and may authorize a photographic copy of the
the time and place fixed for proving the will to will to be made and to be presented to the
be addressed to the designated or other known witness on his examination, who may be asked
heirs, legatees, and devisees of the testator the same questions with respect to it, and to the
resident in the Philippines at their places of handwriting of the testator and others, as would
residence, and deposited in the post office with be pertinent and competent if the original will
the postage thereon prepaid at least twenty (20) were present.
days before the hearing, if such places of
residence be known. A copy of the notice must Section 8. Proof when witnesses dead or
in like manner be mailed to the person named as insane or do not reside in the Philippines. If
executor, if he be not the petitioner; also, to any the appears at the time fixed for the hearing that
person named as coexecutor not petitioning, if the subscribing witnesses are dead or insane, or
their places of residence be known. Personal that none of them resides in the Philippines, the
service of copies of the notice at lest (10) days court may admit the testimony of other
before the day of hearing shall be equivalent to witnesses to prove the sanity of the testator, and
mailing. the due execution of the will; and as evidence of
If the testator asks for the allowance of his own the execution of the will, it may admit proof of
will, notice shall be sent only to his compulsory the handwriting of the testator and of the
heirs. subscribing witnesses, or of any of them.

Section 5. Proof at hearing. What sufficient in Section 9. Grounds for disallowing will. The
absence of contest. At the hearing compliance will shall be disallowed in any of the following
with the provisions of the last two preceding cases:
sections must be shown before the introduction a. If not executed and attested as required by
of testimony in support of the will. All such law.
testimony shall be taken under oath and b. If the testator was insane, or otherwise
reduced to writing. It no person appears to mentally incapable to make a will, at the
contest the allowance of the will, the court may time of its execution;
grant allowance thereof on the testimony of one c. If it was executed under duress, or the
of the subscribing witnesses only, if such influence of fear, or threats;
witness testify that the will was executed as is d. If it was procured by undue and improper
required by law. pressure and influence, on the part of the
In the case of a holographic will, it shall be beneficiary, or of some other person for his
necessary that at least one witness who knows benefit;

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e. If the signature of the testator was procured the court shall be attached to the will and the
by fraud or trick, and he did not intend that will and certificate filed and recorded by the
the instrument should be his will at the time clerk. Attested copies of the will devising real
of fixing his signature thereto. estate and of certificate of allowance thereof,
shall be recorded in the register of deeds of the
Section 10. Contestant to file grounds of province in which the lands lie.
contest. Anyone appearing to contest the will
must state in writing his grounds for opposing J. INSTITUTION OF HEIRS (ARTS. 840-853,
its allowance, and serve a copy thereof on the 855-856)
petitioner and other parties interested in the
estate.
Concept of institution of heirs
Section 11. Subscribing witnesses produced
or accounted for where will contested. If the Article 840. Institution of heir is an act by virtue
will is contested, all the subscribing witnesses, of which a testator designates in his will the
and the notary in the case of wills executed person or persons who are to succeed him in his
under the Civil Code of the Philippines, if property and transmissible rights and
present in the Philippines and not insane, must obligations.
be produced and examined, and the death,
absence, or insanity of any of them must be Basis and doctrine: The will of the testator,
satisfactorily shown to the court. If all or some freely expressed in his last will and testament, is,
of such witnesses are present in the Philippines as a general rule, the supreme law which governs
but outside the province where the will has been succession. In order that such will shall have any
filed, their deposition must be taken. If any or all effect, it is the duty of the testator to designate his
of them testify against the due execution of the heirs in such a manner as to leave no doubt with
will, or do not remember having attested to it, or regard his intent.
are otherwise of doubtful credibility, the will
may nevertheless, be allowed if the court is Institution of heir is the act by which the testator
satisfied from the testimony of other witnesses designates the person/s who are to succeed him
and from all the evidence presented that the will in his property and transmissible rights and
was executed and attested in the manner obligations.
required by law.
If a holographic will is contested, the same shall However, the validity of the will would not
be allowed if at least three (3) witnesses who depend on whether the testator had disposed of
know the handwriting of the testator explicitly his entire estate or on the fact that the instituted
declare that the will and the signature are in the heirs must have accepted the inheritance.
handwriting of the testator; in the absence of
any competent witnesses, and if the court deem Hence, if the testator had not disposed of his
it necessary, expert testimony may be resorted entire estate, the balance will be distributed in
to. accordance with the rules on intestacy,

Section 12. Proof where testator petitions for Likewise, if the heirs instituted have repudiated
allowance of holographic will. Where the the inheritance and no substitute (Art. 857) was
testator himself petitions for the probate of his appointed by the testator and the requisites for
holographic will and no contest is filed, the fact the right of accretion (Art. 1015) in favor of co-
that the affirms that the holographic will and the heirs are wanting, the portion which is rendered
signature are in his own handwriting, shall be vacant by such repudiation will be distributed to
sufficient evidence of the genuineness and due the legal heir.
execution thereof. If the holographic will is
contested, the burden of disproving the Effect of lack of institution
genuineness and due execution thereof shall be
on the contestant. The testator to rebut the Article 841. A will shall be valid even though it
evidence for the contestant. should not contain an institution of an heir, or
such institution should not comprise the entire
Section 13. Certificate of allowance attached estate, and even though the person so instituted
to prove will. To be recorded in the Office of should not accept the inheritance or should be
Register of Deeds. If the court is satisfied, upon incapacitated to succeed.
proof taken and filed, that the will was duly In such cases the testamentary dispositions
executed, and that the testator at the time of its made in accordance with law shall be complied
execution was of sound and disposing mind, and with and the remainder of the estate shall pass
not acting under duress, menace, and undue to the legal heirs.
influence, or fraud, a certificate of its allowance,
signed by the judge, and attested by the seal of

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Under Art. 841, the rule is that a will shall be valid compulsory heirs. The testator cannot deprive
although it may not contain an institution of heir. his compulsory heirs of their legitime, except in
The same is true in case of a partial institution or cases expressly specified by law. Neither can he
in case of vacancy in the inheritance due to impose upon the same any burden, encumbrance,
repudiation or incapacity. condition, or substitution of any kind whatsoever
(Art. 904).
Effect: The testamentary disposition which are
made in accordance with the law shall be Reason: Under the system of compulsory
complied, while the remainder shall pass to the succession, there is always a portion of the
legal heirs in accordance with the law of intestate testator’s estate known as the legitime which is
succession. Simply, there is what is known as reserved by operation of law for the benefit of
mixed succession. certain heirs who are called compulsory heirs,
and over which the testator as a general rule can
Freedom of disposition have no testamentary control.

Article 842. One who has no compulsory heirs XPN to XPN: The only case in which the testator
may dispose by will of all his estate or any part may, by his own act, deprive a compulsory heir of
of it in favor of any person having capacity to his legitime is by means of disinheritance for
succeed. causes expressly stated by law (Art. 915), while
One who has compulsory heirs may dispose of the only case in which the law recognizes a right
his estate provided he does not contravene the of the testator to impose a charge upon the
provisions of this Code with regard to the legitime is when it allows the said testator to
legitime of said heirs. prohibit the partition of the entire estate
including the said legitime for a period which
Art. 842 is a general provision which defines or shall not exceed 20 years (Art. 1083).
delineates the testator’s freedom of disposition
depending upon whether or not he has NOTE: If the decedent died without legitimate
compulsory heirs. descendants, his legitimates ascendants are
considered secondary compulsory heirs to his
GR: Under Art. 842(1), if the testator has no estate. As such, the decedent cannot bequeath
compulsory heirs, his freedom of disposition is his entire estate to others even if they may be
absolute. The whole estate is disposable. One can, his blood relatives without satisfying the
therefore, dispose of the whole estate or any part legitime of the legitimate ascendants legitime.
of it in favor of any person, provided that such If the legitimate ascendants are left out in the
person has the capacity to succeed. distribution of their deceased child’s estate, the
will is rendered void because of preterition. In
Pecson v. Coronel case the decedent dies without any of the
The liberty to dispose of one’s estate by will when compulsory heirs mentioned in the law, he is
there are no forced heirs is rendered sacred by free to dispose of his estate to anyone,
Art. 842. In the absence of any statutory provided, that heir instituted has capacity to
restriction, every person possesses absolute succeed the decedent (Art. 1025).
dominion over his property, and may bestow it
upon whomsoever he pleases without regard to Form of institution
natural or legal claim upon his bounty. If the
testator possesses the requisite capacity to make Article 843. The testator shall designate the
a will, and the disposition of his property is not heir by his name and surname, and when there
affected by fraud of undue influence, the will is are two persons having the same names, he shall
not rendered invalid by the fact that it is indicate some circumstance by which the
unnatural, unreasonable, or unjust. Nothing can instituted heir may be known.
prevent the testator from making a will as Even though the testator may have omitted the
eccentric, as injudicious, or as unjust as caprice, name of the heir, should he designate him in
frivolity, or revenge can dictate. However, the such manner that there can be no doubt as to
unreasonable or injustice of a will may be who has been instituted, the institution shall be
considered on the question of testamentary valid.
capacity.
Article 844. An error in the name, surname, or
Restrictions on freedom of disposition circumstances of the heir shall not vitiate the
institution when it is possible, in any other
XPN: Under Art. 842(2), if the testator has manner, to know with certainty the person
compulsory heirs (Art. 887), his freedom of instituted.
disposition shall extend only to the disposable If among persons having the same names and
free portion of his estate, but not to the legal surnames, there is a similarity of circumstances
portion or legitime which is reserved for in such a way that, even with the use of other

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proof, the person instituted cannot be identified, Dispositions in favor of unknown persons
none of them shall be an heir.
Article 845. Every disposition in favor of an
The testator must designate the heir by his unknown person shall be void, unless by some
complete name and surname to avoid confusion. event or circumstance his identity becomes
This is because dispositions in favor of an certain. However, a disposition in favor of a
unknown person shall be void, unless by some definite class or group of persons shall be valid.
event or circumstance his identity becomes
certain. To be valid, the designation should be made in the
form indicated in Art. 843(1), in which must be in
NOTE: The form of institution is not favor of an heir whose identity is certain or
mandatory. The designation may be made in ascertainable. Any disposition in favor of a person
any other form, so long as there will be no whose identity is unknown is void.
doubt as to the identity of the heir/s instituted.
GR: Disposition in favor of an unknown person
In the event that there are 2 or more heirs with shall be void.
the same names, it is imperative that the testator XPN: Unless by some event or circumstance his
must add some other description by which the identity becomes certain.
identity of the instituted heir may be ascertained.
An unknown person (persona incierta) refers to
If there are still several persons which fit the one who is not determined or individualized and,
description given by the testator, in such a way therefore, cannot be identified, such that it would
that the identity of the instituted heir cannot be be impossible to give effect to the wishes of the
ascertained, then the rule in the institution of an testator.
unknown person shall apply and it shall be
considered void. Examples:

Example: Alfonso executed a will instituting When the institution When the institution
his friend Pedro Penduko as heir to ¼ of the is void is valid
free portion of his estate. He described Pedro
as his friend who is residing in QC and is If the testator
currently a law student. If Alfonso happens to institutes as his heir
have 2 friends named Pedro Penduko, but one the person who saved
resides in Bataan, it is clear that he is not the his life during the last
If the testator
intended heir of Alfonso. But, if both of the battle at Corregidor,
institutes as his heirs
testator’s friends named Pedro Penduko are or if he devises a
“a group of veterans”
residents of QC, and both are also law students, certain house and lot
or “some members of
then it is not clear which of the 2 was the to the present chief or
the bar” or “lovers of
intended heir of the testator. In such a case, the head of a certain labor
art,” it is evident that
institution shall be inoperative as it will be movement in Manila,
the institution shall be
considered a disposition in or of an unknown or if he bequeaths his
void, since there
person. law library to the bar
would be no
candidate who will
possibility of
Validity of institution top the first bar
ascertaining the
examinations after his
identity of the
death, the institution,
The proper test to determine the validity of an instituted heirs. This
devise, or legacy shall
institution of heir is the possibility of finally is also true when you
be valid, since it is
ascertaining the identity of the instituted heir institute your relative,
possible to ascertain
either by intrinsic or extrinsic evidence. Juan Dela Cruz, an
the identity of the
heir to your lot but
designated heir,
The test applicable to the following cases: you have another heir
devise, or legatee
with the same name.
either by a past,
1. If the name and surname of the instituted heir
present, or future
has been omitted by the testator;
event or
2. If there has been an error with respect to the
circumstance.
name, surname, or circumstances of the
instituted heirs;
3. If the name, surname, and circumstances of XPN to XPN: It may happen that the institution or
the instituted heir are the same as those of disposition may not become effective even if the
other persons; person instituted may turn out to be a certain or
4. If an unknown or uncertain person has been determinate person. This arises when the testator
instituted. institutes as his heir any person designated by
another person. By this disposition, there is a

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delegation to another person of the power to Illustration: A testator who institutes his
designate the instituted heir, and since this is legitimate child, his wife and a friend as his
prohibited by Art. 785, it is null and void. heirs without designating their respective
shares. The child and the wife are compulsory
Thus, before the disposition can be considered heirs, while the friend is a voluntary heir. To
valid, it is indispensable that the identity of the hold that the inheritance shall be divided into
beneficiary can be ascertained either by a past, three equal parts in accordance with the literal
present or future event or circumstance. tenor of the provision of Art. 846 would result
in the impairment of the legitime of the child
NOTE: The requisite of an ascertained identity of which, according to the law, is 1/2 of the entire
the beneficiary is predicated on the fact that the inheritance. The only possible recourse is to
beneficiary must be in existence at the time of the satisfy the legitimes which correspond to the
testator’s death. Otherwise, even if it would be compulsory heirs and then apply the rule
possible to determine his identity b some event or stated in Art. 846 with respect to the
circumstance, the disposition would still be disposable free portion, which in the example
ineffective on the ground of absolute incapacity given is one-fourth of the entire inheritance.
(Art. 1025).
Example: If T instituted his 2 sons A and B,
Dispositions in favor of definite class together with his brothers X, Y, and Z to his
estate of P1M, the legitime (which is 1/2 of the
These are valid, although the particular persons estate) of the 2 sons who are compulsory heirs
comprising the specified class or group may be must first be deducted from the entire estate
unknown. and the balance shall be subject to the equal
sharing rule. Thus, the shares shall be as
Art. 845(2) which recognizes the validity of such follows:
dispositions is complemented by Art. 786 and
1030. A = P250,000 + 100,000 = P350,000
B = P250,000 + 100,000 = P350,000
Institutions without designation of shares X = P250,000 + 100,000 = P100,000
Y = P250,000 + 100,000 = P100,000
Article 846. Heirs instituted without Z = P250,000 + 100,000 = P100,000
designation of shares shall inherit in equal parts. __________________________________________
TOTAL P1,000,000
This is the presumption of equal shares in the
institution of heirs which will apply only to the Belen v. Bank of the Philippine Islands
free portion of the estate. Under Art. 846, heirs instituted without
designation of shares shall inherit in equal parts.
If several heirs are instituted without designation The meaning of the word descendants, when used
of shares, the law presumes that the intention or in a will or deed to designate a class to take
wish of the testator is that they shall all inherit in property passing by the will or deed, has been
equal shares. frequently considered and decided that it means
all persons descending lineally from another, to
NOTE: This rule is limited only to cases where the remotest degree and includes persons so
all the heirs are of the same class or juridical descended, even though their parents are living
condition, and where there are compulsory and that such descendants take per capita and not
heirs among the heirs instituted, it should be per stripes. In the absence of other indications of
applied only to the disposable free portion. contrary intent, the proper rule to apply in the
instant case is that the testator, by designating a
Simply, if the testator has no compulsory heirs, class or group of legatees, intended all members
apply the provision literally; however, if he has thereof to succeed per capita, in consonance with
compulsory heirs, first satisfy their legitime, then Art. 846. So that the original legacy to Filomena
apply the provision with respect to the disposable Diaz should be equally divided among her
free portion. surviving children and grandchildren.

If some of the heirs instituted are compulsory Individual and collective institutions
heirs (entitled to a legitimate) and the others are
merely voluntary heirs (instituted to the free Article 847. When the testator institutes some
portion) and the testator instituted all of them heirs individually and others collectively as
without designation of their shares, the equal when he says, "I designate as my heirs A and B,
sharing will be applied only to the free portion of and the children of C," those collectively
the estate. designated shall be considered as individually
instituted, unless it clearly appears that the
intention of the testator was otherwise.

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In the absence of a more specific designation, the must be interpreted to mean that they are called
law presumes that those who are collectively to the succession simultaneously and not
designated shall be considered as individually successively.
instituted in accordance with the presumed will
of the testator. Also, there is a presumption that Examples:
those collectively designated by the testator are • If Juan has 3 children Ana, Antonio, and
deemed to be individually instituted such that Alicia, all of them will be deemed instituted
they shall each be entitled to a share in the portion together with their father Juan.
given by the testator under the collective • If the testator institutes A and his 5
designation. children as his heirs with respect to the
disposable free portion of the inheritance,
Example: If testator T institutes to the free such disposable portion shall be divided
portion of his estate M, and the children of P, equally among A and the 5 children.
and P has 3 children Q, R, and S, the 3 will each
be entitled to a share in the free portion Institution based on false cause
because they are considered to have been
instituted individually. If the estate of T is P2M Article 850. The statement of a false cause for
and he left no compulsory heirs, the instituted the institution of an heir shall be considered as
heirs namely M, Q, R, and S will each get not written, unless it appears from the will that
P500,000 because Q, R, and S are deemed to the testator would not have made such
inherit per capita. Also, the fact that P himself institution if he had known the falsity of such
will not inherit because the institution pertains cause.
not to P but his children.
GR: If in the will there is a statement of a false
Institution of brothers and sisters cause for the institution of an heir, such statement
shall be considered as not written.
Article 848. If the testator should institute his XPN: Unless it appears from the will that the
brothers and sisters, and he has some of full testator would not have instituted such heir if he
blood and others of half-blood, the inheritance had known of the falsity of such cause.
shall be distributed equally unless a different
intention appears. If the validity of an institution of heir is attacked
on the ground that it is based on a false cause, the
ART. 848 ART. 1006 test which must be applied in order to resolve the
Testate question is to determine from the will itself
Intestate Succession whether or not the testator would not have made
Succession
the institution had he known of the falsity of such
In intestacy, should cause.
brothers and sisters of the
There is no
full blood survive together Requisites to annul institutions:
discrimination
with brothers and sisters of
between
the half-blood, the full- 1. The cause for the institution of heirs must be
brothers and
blood brothers and sisters stated in the will;
sisters of the full
of the decedent are entitled 2. The cause must be shown to be false;
blood and of the
to double the share of the 3. It must appear from the face of the will that
half-blood.
half-blood siblings of the the testator would not have made such
decedent. institution if he had known of the falsity of the
cause.
NOTE: Art. 848 will not apply if the testator has
expressly provided the shares which each Austria v. Reyes
instituted brother or sister will receive from Where the testator’s will does not state in a
his estate since the testator’s intention specific or unequivocal manner the cause for such
prevails. institution, the annulment of such institution
cannot be availed of.
Institution of a person and his children;
resumption of simultaneous institution Effect of false cause for institution

Article 849. When the testator calls to the The fact that the testator may have stated a cause
succession a person and his children they are all or reason for instituting an heir which cause later
deemed to have been instituted simultaneously turned out to be false, will not vitiate the
and not successively. institution of the heir.

Whenever the testator institutes as his heirs a GR: A testamentary disposition, like a donation, is
certain person and his children, such institution generally based on the liberality or generosity of

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SUCCESSION

the testator or donor such that even if the stated will still be a remainder of 1/5 which shall
reason for instituting an heir was proven to be pass to the legal heirs.
false, the cause shall be considered not written • If the testator institutes Lucio to ¼ of his
and the heir will be allowed to inherit. estate, and Lucita to 1/4 of the estate, the
XPN: When it is shown that the testator would not remainder shall pass to the legal heirs
have made the institution if he had known the unless the testator has disposed of it by
falsity of the cause. way of legacies and to devises. Relevantly,
Art. 841 provides that a will shall be valid
Austria v. Reyes even if the institution of heirs should not
To annul the institution of heirs based on a false comprise the entire estate and
cause, the cause must be stated in the will; the testamentary dispositions made in
cause must be shown to be false; and it must accordance with law shall be complied
appear from the face of the will that the testator with and the remainder of the estate shall
would not have made such institution had he pass to the legal heirs.
known the falsity of the cause. It can be inferred
from the will of Basilia that when she instituted NOTE: It has no application if it is clear that the
her heirs, she was possessed of testamentary testator intended that the instituted heirs
capacity and the will was free from falsification, would be the sole heirs to his estate. In such
fraud, trickery, or undue influence. Also, in her case, Art. 852 applies.
will, she did not specifically state the cause of her
institution. Therefore, in the absence of proof that Rule if entire inheritance not covered;
there exists false cause in the institution of heirs, proportional increase in the aliquot parts
testacy must be favored to intestacy, and the will
must be given full expression. Article 852. If it was the intention of the
Principle: Intestacy should be avoided and that testator that the instituted heirs should become
the wishes of the testator should prevail that sole heirs to the whole estate, or the whole free
sometimes the language of the will can be varied portion, as the case may be, and each of them
for the purposes of giving effect. has been instituted to an aliquot part of the
inheritance and their aliquot parts together do
Institutions in aliquot parts not cover the whole inheritance, or the whole
free portion, each part shall be increased
Article 851. If the testator has instituted only proportionally.
one heir, and the institution is limited to an
aliquot part of the inheritance, legal succession XPN: Under Art. 852, if it was the intention of the
takes place with respect to the remainder of the testator that the instituted heirs should become
estate. sole heirs of the entire estate, or the whole free
The same rule applies if the testator has portion, as the case may be, then each part shall
instituted several heirs, each being limited to an be increased proportionally.
aliquot part, and all the parts do not cover the
whole inheritance. Principle: Where there is a conflict between the
intention of the testator and his mathematical
Arts. 851 and 852 refer to those institutions computation, the former shall prevail.
where the testator has instituted one or more
persons as heirs to inherit in aliquot parts, but If the testator had intended that the instituted
such parts are not sufficient to cover the entire heirs shall be sole heirs to his whole estate, or to
inheritance, or the entire free portion. the entire free portion thereof, but he
miscalculated the distribution in that the parts
GR: Under Art. 851(1), if the testator has when combined together either do not cover or
instituted only one heir, and the institution is exceed the whole estate, or the whole free portion
limited to an aliquot part, legal succession takes as the case may be, the shares of the instituted
place with respect to the remainder of the estate. heirs shall either be increased or reduced
This is known as mixed succession. Same rule proportionately. This means that the increased or
applies if the testator has instituted several heirs reduced share of the instituted heirs shall be
each being limited to an aliquot part. based on the proportion in which they are
instituted in the original distribution of the estate.
Examples:
• If testator institutes A to 1/2 of the Illustration: T instituted his children X, Y, and Z
inheritance and there are no other heirs as sole heirs to his estate amounting to P2.4M.
instituted, A shall receive 1/2 of the estate X is to receive ¼; Y also ¼ and Z to receive 1/3
upon the death of the testator, while the of the estate. The amount they are to receive
other half shall pass to the legal heirs. based on their institution shall be as follows:
• If the testator institutes A to 2/5 of the
inheritance, B to 1/5, and C to 1/5, there

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SUCCESSION

X = P600,000 Effects of —
Y = P600,000 Preterition of a Preterition of a
Z = P800,000 compulsory heir in compulsory heir in
TOTAL = P2M the direct line in the the partition of the
testator’s will testator’s estate
As can be seen from the computation, the total
given based on the will is only P2M and there If the testamentary
is an excess of P400,000. Since the intent of T dispositions in the
as expressed in his will is to give the entire testator’s will consist
estate to X, Y, and Z, their shares shall be entirely of institutions If there are legacies
proportionately increased based on the of heirs, the effect of and devises, only those
following suggested formula: preterition as which are inofficious
contemplated in Art. will be reduced.
Aggregate amount of estate 854 of the Civil Code
x Share given to the heir would be total
Total amount given to all intestacy.
In either case, Art. 855 cannot be applied.
Thus:
Effect of predecease
2.4M x 600,000 / 2M = 720,000
2.4M x 800,000 / 2M = 960,000 Article 856. A voluntary heir who dies before
the testator transmits nothing to his heirs.
The increased share of X and Y who are both A compulsory heir who dies before the testator,
given 1/4 of the estate is P720,000 each while a person incapacitated to succeed, and one who
Y, who was instituted 1/3 of the estate shall renounces the inheritance, shall transmit no
receive an increased share of P960,000. This is right to his own heirs except in cases expressly
in accordance with the rule that each part shall provided for in this Code.
be increased proportionally which means in
accordance with their situation. GR: An heir who dies before the testator shall
transmit no right to his own heirs.
Rule if more than inheritance covered;
reduction in the aliquot parts NOTE: With regard voluntary heirs, this rule is
absolute. A voluntary heir is an heir who is
Article 853. If each of the instituted heirs has called to the whole or to an aliquot part of the
been given an aliquot part of the inheritance, free portion of the inheritance by virtue of a
and the parts together exceed the whole will.
inheritance, or the whole free portion, as the
case may be, each part shall be reduced Since the right of representation, by virtue of
proportionally. which the representative is raised to the place and
the degree of the person represented in case of
Art. 853 refers to those institutions where the either predecease or incapacity of the latter, is a
testator has instated several persons as heirs to right which pertains only to the legitime of
inherit in aliquot parts, but such parts taken compulsory heirs, it follows that when a person
together exceed the entire inheritance, or the who has been instituted as a voluntary heir dies
entire free portion, as the case may be. before the testator, he can transmit no right
whatsoever to his own heirs. The same is true in
If the aliquot parts are in excess of the entire case a person has been designated as a devisee or
inheritance, or the free portion, as the case may a legatee with respect to a determinate property.
be, each part shall be reduced proportionately. Since a devise or legacy is a charge upon the free
portion of the inheritance, it follows that when the
Article applied designated devisee or legatee dies before the
testator, no right whatsoever is transmitted to the
Article 855. The share of a child or descendant heirs of such devisee or legatee.
omitted in a will must first be taken from the
part of the estate not disposed of by the will, if XPN: The right of representation with regard
any; if that is not sufficient, so much as may be compulsory heirs (Art. 856).
necessary must be taken proportionally from
the shares of the other compulsory heirs. NOTE: What is transmitted to the
representatives of the compulsory heir is his
Art. 855 is misplaced and should be a right to the legitime and not to the free portion
continuation of Art. 1104. in case he has also been instituted by the
testator to the whole or to an aliquot part of
such free portion.

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Principle: In testamentary succession, the right Effect of Repudiation
of representation pertains only to the legitime
and not to the free portion. The effects of repudiation are different from those
of predecease or incapacity. Whether voluntary
A voluntary heir is one who is instituted to the or compulsory, the heir who repudiates his
portion of the estate for free disposal of the inheritance cannot transmit any right to his own
testator. If a compulsory heir is instituted to the heirs. This rule is absolute.
free portion in addition to what he would have
received as his legitime, he is deemed to be a Therefore, in case of predecease, incapacity or
voluntary heir with respect to his institution to repudiation, the result in a vacancy in the
the free portion of the estate. inheritance which may be total or partial
depending upon the circumstances of each
Example: If the child of the testator was particular case.
instituted to 1/2 of the free portion but he
predeceases the testator or is incapacitated to Art. 856 merely gives a general idea of the effects
succeed, from the latter, he transmits no rights of such vacancy. However, the existence of such a
to his own heirs with respect to his share in the vacancy is repugnant to the idea of succession.
free portion.
K. PRETERITION (ART. 854)
However, the children or descendants of the
predeceased compulsory heir shall acquire his
right to the legitime. In the event that the Article 854. The preterition or omission of one,
compulsory heir renounces the inheritance, his some, or all of the compulsory heirs in the direct
own heirs cannot represent him even with line, whether living at the time of the execution
respect to his legitime because Art. 977 provides of the will or born after the death of the testator,
that heirs who repudiate their share may not be shall annul the institution of heir; but the
represented. devises and legacies shall be valid insofar as
they are not inofficious.
Illustration: Tacio executed a will in 2009 If the omitted compulsory heirs should die
instituting his 3 sons Tim, Tong, and Temmy to before the testator, the institution shall be
equal shares in the free portion. Ime died and effectual, without prejudice to the right of
was survived by his legitime son Tony. The representation.
estate of Tacio at the time of his death is P3M.
P1.5M is reserved by law for the legitimes of Preterition defined
the legitimate children. In the absence of any
other compulsory heirs like the surviving Preterition or pretermission of heirs is the
spouse, or illegitimate child of Tacio, the other omission in the testator’s will of one, some or all
half of his estate is considered the free portion of the compulsory heirs in the direct line, whether
which pursuant to his will should be divided living at the time of the execution of the will or
equally among Tim, Tong, and Temmy. born after the death of the testator.
However, since Tim predeceased his father
Tacio, Tim’s son Tony only acquires Tim’s right It consists in the omission in the testator’s will of
to his legitime which is P500,000. Tim’s the compulsory heirs in the direct line, or of
institution to the free portion is subject to the anyone or some of them, either because they are
rule in Art. 856 that a voluntary heir who not mentioned therein, or though mentioned,
predeceases the testator transmits no right to they are neither instituted as heirs nor expressly
his own heirs. Thus, Tim’s share in the free disinherited.
portion will not be acquired by his son Tony
because Tim cannot transmit his rights to the Neri v. Akutin
free portion if he predeceases the testator. Omission may be voluntary or involuntary,
intentional or unintentional. Although, the SC
Effect of Incapacity once stated that preterition is due merely to
mistake of inadvertence.
Incapacity has the same effects as predecease.
Nuguid v. Nuguid
VOLUNTARY HEIR COMPULSORY HEIR Preterition consists in the omission in the
testator’s will of the forced heirs or anyone of
May be represented, them either because they are not mentioned
Shall transmit no right but only with respect therein, or, though mentioned, they are neither
whatsoever to his to his legitime. The instituted as heirs nor are expressly disinherited.
own heirs same is true in case of
disinheritance.



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Aznar v. Duncan true even when he leaves to such compulsory heir
It is the total omission in the testator’s will of one, a share which is less than his legitime. In such a
some, or all of the compulsory heirs in the direct case, Art. 906 applies, and he can ask for the
line from inheritance, whether living at the time completion of his legitime.
of the execution of the will or born after the death
of the testator. Aznar v. Duncan
FACTS: Appellant contends that this is not a case
Lajom v. Leuterio of preterition, but is governed by Article 906 of
Direct line means those who descend or ascend the Civil Code, which says: ‘Any compulsory heir
from each other. Illegitimate children are to whom the testator has left by any title less than
considered compulsory heirs, hence, their the legitime belonging to him may demand that
preterition shall result in the total annulment of the same be fully satisfied.’ In the will of the
the institution of heir. deceased Edward Chrisensen, Helen Garcia is not
mentioned as heir, indeed her status as such is
In the absence of legitimate descendants of the denied, but she is given a legacy of P3,600.00.
testator, his parents or ascendants are considered ISSUE: Should appellant be recognized or
compulsory heirs, and their omission in the will referred to in the will as heir?
shall likewise result to preterition. HELD: NO. Art. 906 applied, and the heir could not
ask that the institution of heirs be annulled
If the descendent is an illegitimate child, his entirely, but only that the legitime be completed.
illegitimate parents are only considered The testator refused to acknowledge Helen Garcia
compulsory heirs if he died without any as his natural daughter, and limited her share to a
descendants whether legitimate or illegitimate legacy of P3,600.00. The fact that she was
(Art. 903). subsequently declared judicially to possess such
status is no reason to assume that had the judicial
Donations inter vivos are considered by law as declaration come during his lifetime his
advances to the legitime of the compulsory heir. subjective attitude towards her would have
Accordingly, if the compulsory heir, though not undergone any change and that he would have
given any part of the estate in the will of the willed her estate equally to her and to Lucy
testator, had earlier received a donation inter Duncan, who alone was expressly recognized by
vivos from the latter, he will not be considered him. Wherefore, the case is remanded with
preterited. If the amount of the property he had instructions to partition the hereditary estate
received by way of donation is not equivalent to anew as indicated in this decision, that is, by
what he is supposed to receive as legitime, he will giving to oppositor-appellee Helen Garcia no
only be entitled to ask for its completion (Art. more than the portion corresponding to her as
906). her legitime, equivalent to 1/4 of the hereditary
estate.
Requisites of Preterition
2. Character of omitted heir
1. There must be a total omission of the
compulsory heir in the inheritance; Lajom v. Leuterio
2. The compulsory heir omitted must be in the Issue: Whether “compulsory heirs in the direct
direct line whether ascending or descending line” as contemplated in Art. 854 should include
line; members of the illegitimate family or not. Also,
3. The omitted compulsory heir must not shall the preterition of an acknowledged natural
predecease the testator; or in case the child, or a natural child by legal fiction, or an
compulsory heir predeceased the testator, acknowledged illegitimate child who is not
there is a right of representation; and natural also result in the total annulment of the
4. Nothing must have been received by the heir institution of heir as in the case of preterition of a
by gratuitous title. legitimate child?
Answer: Since Art. 854 does not make any
1. Character of omission qualification or distinction, it is immaterial
whether the heir omitted in the testator’s will is
Before there can be any preterition, it is also legitimate or illegitimate provided that he is a
essential that the omission of the compulsory heir compulsory heir in the direct line. The preterition
must be complete and total in character in such a of an acknowledged natural child shall result in
way that the omitted heir does not and has not the total annulment of the institution of the heir.
received anything at all from the testator by any
title whatsoever.

If the testator leaves any property to the heir who
is alleged to have been omitted by any title
whatsoever, there can be no preterition. This is

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Under Art. 887, compulsory heirs in the direct line descending direct line. So, an adopted child is
are: considered a member of the direct descending
line and, therefore, must be classified as a
1. Legitimate children and descendants, with compulsory heir in the direct line.
respect to their legitimate parents and Rationale: Since an adopted child is by law given
ascendants; all of the successional rights of a legitimate child,
2. Legitimate parents and ascendants, with it is logical that all of the protection given or
respect to their legitimate children and afforded by law in order to protect such rights
descendants; must also be applied to the case of an adopted
3. Acknowledged natural children, and natural child.
children by legal fiction;
4. Other illegitimate children referred to in Art. Acain v. IAC
287, FC. Insofar as the widow is concerned, Art. 854 may
5. The father or mother of illegitimate children not apply as she does not ascend or descend from
of the 3 classes abovementioned the testator, although she is a compulsory heir.
Simply, even if the surviving spouse is a
NOTE: Items 3 and 4 are all classified as compulsory heir, there is no preterition even if
illegitimate children under the Family Code. she is omitted from the inheritance, for she is not
in the direct line. However, the same thing cannot
Morales v. Olondriz be said of the other respondent Virginia
There was preterition of Francisco. The Fernandez, whose legal adoption by the testator
decedent’s will evidently omitted Francisco has not been questioned by petitioner. Under Art.
Olondriz as an heir, legatee, or devisee. As the 39, PD 603 (Child and Youth Welfare Code),
decedent’s illegitimate son, Francisco is a adoption gives to the adopted person the same
compulsory heir in the direct line. Unless Morales rights and duties as if he were a legitimate child of
could show otherwise, Francisco’s omission from the adopter and makes the adopted person a legal
the will leads to the conclusion of his preterition. heir of the adopter. She has totally omitted and
Under the law, the preterition of a compulsory preterited in the will of the testator and that both
heir in the direct line shall annul the institution of adopted child and the widow were deprived of at
heirs, but the devises and legacies shall remain least their legitime. Also, they were not expressly
valid insofar as the legitimes are not impaired. If disinherited. Hence, this is a clear case of
a will does not institute any devisees or legatees, preterition of the legally adopted child.
the preterition of a compulsory heir in the direct
line will result in total intestacy. Seangio v. Reyes
There was no preterition. The compulsory heirs
Surviving spouse omitted in the will in the direct line were not preterited in the will.
Segundo’s last expression was to bequeath his
A spouse cannot be preterited. While a spouse is estate to all his compulsory heirs, with the sole
a compulsory heir, s/he is not in the direct line exception of Alfredo. Also, Segundo did not
(ascending or descending). The effect of the institute an heir to the exclusion of his other
preterition of a widow or widower shall result in compulsory heirs. The mere mention of the name
the annulment of the institution of heir to the of one of the petitioners, Virginia, in the document
extent that his or her legitimate is prejudiced. did not operate to institute her as the universal
heir. Her name was included plainly as a witness
The only remedy of the omitted spouse is to ask to the altercation between Segundo and his son,
for the delivery of his or her legitime under the Alfredo.
provisions of Art. 906.
3. Survival of omitted heir
NOTE: The surviving spouse shall only be
entitled to recover his legitime but the It is also essential that the compulsory heir who is
institution of heirs shall not be annulled. omitted in the testator’s will should survive the
testator.
Adopted child omitted from will
Question: What will happen if the omitted
Question: Will the omission of an adopted child compulsory heir dies before the testator?
in the testator’s will have the effect of totally Answer: According to Art. 854(2), the institution
annulling the institution of heirs in accordance shall be effectual, but without prejudice to the
with Art. 854? right of representation when it properly takes
Answer: YES. An adopted child is by legal fiction place. Hence, when there is a surviving
considered a compulsory heir in the direct line. representative of the deceased compulsory heir
This is clear from Arts. 979 and 984 which speak who has been omitted in the testator’s will, such
of the share of the adopted child in legal or as a child, the effect is that such child shall succeed
intestate succession. These provisions refer to the

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to the legitime which would have gone to the heir omission in the testator’s will of the forced heirs
omitted. or anyone of them, either because they are not
mentioned therein, or, though mentioned, they
Effect of predecease of a compulsory heir are neither instituted as heirs no are expressly
omitted disinherited. The omission of the forced heirs or
anyone of them, whether voluntary or
In case the omitted compulsory heir predeceases involuntary, is a preterition if the purpose to
the testator, the institution shall be effectual disinherit is not expressly made or is not at least
which means that it is as if there had been no manifest. Except as to legacies and betterments
preterition. which shall be valid in so far as they are not
inofficious, preterition avoids the institution of
However, if the preterited heir has children or heirs and gives rise to intestate succession.
descendants entitled to represent him, and they
have also been left out in the will, the institution NOTE: The annulment of the institution of
shall be annulled just the same. heirs in cases of preterition does not always
carry with it the ineffectiveness of the whole
Simply, according to Art. 845, the preterition of a will. If, aside from the institution of heirs, there
compulsory heir in the direct line shall have the are in the will provisions leaving to the heirs so
effect of annulling the institution of heir, but the instituted or to other persons some specific
devises and legacies shall be valid insofar as they properties in the form of legacies, such
are not inofficious. testamentary provisions shall be effective and
the legacies and mejoras shall be respected
Preterition should always be determined in insofar as they are not inofficious or excessive,
relation to persons who are compulsory heirs at according to Art. 854.
the time of the testator’s death and no in relation
to those who never became such. Art. 854 refers to two different things which are
two different objects of its two different
Effects of preterition provisions. One of these objects cannot be made
to merge in the other without mutilating the
Nuguid v. Nuguid whole article with all its multifarious connections
It annuls the institution of an heir and annulment with a great number of provisions spread
throws open to intestate succession the entire throughout the Civil Code on the matter of
inheritance including the free portion of the succession. Although Art. 854 contains two
estate. different provisions, its special purpose is to
establish a specific rule concerning a specific
The only provisions which do not result in testamentary provision, namely, the institution of
intestacy are the legacies and devises made in the heirs in a case of preterition. Its other provisions
will for they should stand valid and respected, regarding the validity of legacies and betterment
except insofar as the legitimes are concerned. if not inofficious is a mere reiteration of the
general rule contained in other provision (Arts.
Acain v. IAC 815 and 817, now Arts. 906 and 907), and
The universal institution of the decedent’s signifies merely that it also applies in cases of
brothers and sisters to the entire inheritance preterition.
results in totally abrogating the will because the
nullification of such institution of universal heirs GR: As regards testamentary dispositions in
without any other testamentary disposition in the general, all testamentary dispositions which di-
will amounts to a declaration that nothing at all minish the legitime of the forced heirs shall be
was written. Art. 854 offers no leeway for reduced on petition of the same in so far as they
inferential interpretation. No legacies nor devises are inofficious or excessive (Art. 907).
having been provided in the will of the testator, XPN: This does not apply to the specific instance
the whole of his property has been left by of a testamentary disposition containing an
universal title to his brothers and sisters. institution of heirs in a case of preterition which
is made the main and specific subject of Art. 854.
Neri v. Akutin In such instances, according to now Art. 854, the
The effect of annulling the institution of heirs will testamentary disposition containing the
be the opening of a total intestacy except that institution of heirs should not only be reduced but
proper legacies and devises must be respected. annulled in its entirety and all the forced heirs,
The preterition of one or all of the forced heirs in including the omitted ones, are entitled to inherit
the direct line, whether living at the time of the in accordance with the law of intestate
execution of the will or born after the death of the succession.
testator, shall void the institution of heir; but the
legacies and betterments shall be valid, insofar as
they are not inofficious. Preterition consists in the

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Preterition vs. Disinheritance Substitution is the appointment of another heir so
that he may enter into the inheritance in default
PRETERITION DISINHERITANCE of or subsequent to the heir originally instituted.

The deprivation of a The deprivation of a
It is a subsidiary institution of a second or
compulsory heir of his compulsory heir of his
subsequent heirs, devisee, or legatee,
legitime is implied. legitime is express.
subordinated to the principal or original
Consists in the institution and dependent upon some event
omission in the which is more or less uncertain. It is a conditional
testator’s will of the institution.
forced heirs or
A testamentary
anyone of them, Here, the testator may —
disposition depriving
either because they 1. Designate the heirs, devisees, or legatees
any compulsory heirs
are not mentioned whom he desires to enter into the enjoyment
of his share in the
therein, or, though of the inheritance after his death.
legitime for a cause
mentioned, they are 2. Make a second or subsequent designation in
authorized by law.
neither instituted as case the heirs, devisees, or legatees originally
heirs nor are appointed —
expressly disinherited a. should die before him or
(Neri v. Akutin). b. should not want or cannot accept the
The nullity is partial, inheritance.
that is, in so far as the
The nullity of the Principle: Freedom of disposition which, with
institution affects the
institution of heirs is certain limitations, is the supreme law in
legitime of the
total (Art. 854). testamentary succession.
disinherited heirs (Art.
918).
NOTES:
The property The property • Substitution only applies to the free
bequeathed by bequeathed by portion of the estate.
universal title to the universal title to the • The institution of an heir is not necessary
instituted heirs instituted heirs should for the validity of a will.
should be opened be merely reduced
(Art. 854) (Art. 907) General limitation
Testator may or may Since testator ca only
not have a reason for disinherit a If the heir for whom a substitute is appointed is a
omitting a compulsory heir for compulsory heir, the rule is that the substitution
compulsory heir, and causes authorized by cannot affect the legitime of such heir.
it may be presumed to law, it is always
be involuntary. voluntary. Since the right to appoint a substitute for the heir
Ineffective instituted is based on the testator’s freedom of
disinheritance under disposition, the same limitation which is imposed
Preterition under Art. upon such freedom of disposition must also be
Art. 918 also annuls
854 annuls the imposed upon such right to appoint a substitute
the institution of heirs
institution of heir. (Arts. 842, 864, 872, and 904).
but only insofar as it
This annulment is in
may prejudice the
toto, unless in the will Kinds of Substitution
person disinherited.
there are
Simply, the nullity is
testamentary Article 858. Substitution of heirs may be:
limited to that portion
dispositions in the
of the estate of which (1) Simple or common;
form of devises or (2) Brief or compendious;
the disinherited heirs
legacies. (3) Reciprocal; or
have been illegally
deprived. (4) Fideicommissary.

There are 4 kinds of substitutions under the Civil
L. SUBSTITUTION OF HEIRS (ARTS. 857-870)
Code. However, strictly speaking, these are the
kinds of substitutions:
Concept of Substitution of Heirs 1. Simply or common (vulgar)
a. Brief (brevilocua) or compendious
Article 857. Substitution is the appointment of (compendiosa)
another heir so that he may enter into the b. Reciprocal (reciproca)
inheritance in default of the heir originally 2. Fideicommissary (fideicomisaria)
instituted.


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Simple or common (vulgar) substitution If there is no statement of the case or cases to
which the substitution refers, the presumption is
Article 859. The testator may designate one or that it shall comprise all of the 3 above-mentioned
more persons to substitute the heir or heirs cases.
instituted in case such heir or heirs should die
before him, or should not wish, or should be Number of substitutes
incapacitated to accept the inheritance.
A simple substitution, without a statement of There is no limitation upon the number of
the cases to which it refers, shall comprise the persons who may be designated as substitutes,
three mentioned in the preceding paragraph, just as there is no limitation upon the number of
unless the testator has otherwise provided. persons who may be instituted as heirs.

Simple or common (vulgar) substitution is that a. Brief (breuiloeua) – If there are 2 or more
which takes place when the testator designates persons who are designated as substitutes for
one or more persons to substitute the heir or only one heir.
heirs instituted in case such heir or heirs should b. Compendious (compendiosa) – If there is only
die before him, or should not wish, or should be one person who is designated as substitute
incapacitated to accept the inheritance. for two or more heirs.

It is the designation made by the testator of one In either case, the substitution may take place if
or more persons to substitute the heir or heirs the instituted heir or heirs should die before the
instituted in case such heir or heirs should die testator, or should not wish, or should be
before him, or should not wish, or should be incapacitated to accept the inheritance.
incapacitated to accept the inheritance.
Reciprocal
Basis/Principle: The testator should have the
freedom to reward those individuals, who, Article 861. If heirs instituted in unequal shares
although they may not legally occupy the first should be reciprocally substituted, the
place in his heart, yet they are more deserving of substitute shall acquire the share of the heir
his liberality than those to whom the inheritance who dies, renounces, or is incapacitated, unless
would pass if substitution is not allowed. it clearly appears that the intention of the
testator was otherwise. If there are more than
Purpose: To prevent the inheritance from one substitute, they shall have the same share in
passing by operation of law to those to whom the the substitution as in the institution.
same would pass either by right of
representation, or by right of accretion, or by When two or more persons are instituted by the
right of intestate succession, were it not for the testator as heirs and they are also designated
substitution. mutually or reciprocally as substitutes for each
other.
Brief or compendious
It may also take place in case anyone of the heirs
Article 860. Two or more persons may be dies before the testator, or repudiates his share of
substituted for one; and one person for two or the inheritance, or is incapacitated to succeed
more heirs. from the testator.

Brief. When there are two or more persons Shares of substitutes
designated by the testator to substitute for only
one heir. If there are only two instituted heirs and they are
designated mutually as substitutes for each other,
Compendious. When there is only one person the substitute shall acquire the entire share of the
designated to substitute for two or more heirs. heir who dies, renounces, or is incapacitated, even
if the shares of both are unequal.
Instances when substitution takes place
Example: If A is instituted to 2/3 of the entire
1. Predecease – In case the heir instituted inheritance and B is instituted to 1/3, and the
should die before the testator; former dies before the testator, or is
2. Incapacity – In case he should be incapacitated to inherit, or repudiates his
incapacitated to succeed from the testator; inheritance, the result is that the latter shall
and acquire the 2/3 portion which is rendered
3. Repudiation – In case he should not wish to vacant as a substitute and the remaining 1/3 as
accept the inheritance. an instituted heir.

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If there are three or more instituted heirs and 2. Heredero fiduciario or fiduciary – The first
they are designated mutually as substitutes for heir charged with the preservation and the
each other, the substitutes shall have the same transmission of the inheritance.
share in the substitution as in the institution. 3. Heredero fideicomisario or the
fideicommissary – The second heir to whom
Effect of substitution the inheritance is transmitted.

Article 862. The substitute shall be subject to Limitations; NCC vs. OCC
the same charges and conditions imposed upon
the instituted heir, unless and testator has NEW CIVIL CODE OLD CIVIL CODE
expressly provided the contrary, or the charges It is essential that the two
or conditions are personally applicable only to The presence of
limitations imposed upon
the heir instituted. one or the other is
the fideicommissary
sufficient.
substitution must concur.
GR: Once the substitution has taken place, the
substitute shall not only take over the share that The substitution must not
It must not go
would have passed to the instituted heir, but he go beyond one degree
beyond the
shall be subject to the same charges and from the heir originally
second degree.
conditions imposed upon such instituted heir. instituted.
XPNs:
1. When the testator has expressly provided the Fideicomisaria vs. Roman Fideicomiso
contrary.
2. When the charges or conditions are FIDEICOMISARIA FIDEICOMISO
personally applicable only to the heir The fiduciary is only
instituted. an agent of the
The fiduciary is a true
testator, charged with
Example: If the testator has imposed upon his heir and, as such,
turning over the
nephew, whom he had instituted as heir to the enjoys the inheritance.
properties to the true
entire free portion of his estate, the condition heir.
that he shall get married to a certain girl, and a
There is but one let of
niece of the testator is substituted for the There are two acts of
liberality and only one
nephew, it is evident that the condition is liberality.
instituted heir.
personally applicable only to such nephew.

Fideicommissary (indirect) substitution NOTES:
• Roman Fideicomiso is used to designate an
Article 863. A fideicommissary substitution by indirect method recognized in the Roman
virtue of which the fiduciary or first heir praetorian law by virtue of which the
instituted is entrusted with the obligation to person to whom the property was given in
preserve and to transmit to a second heir the accordance with the testator’s will, acting
whole or part of the inheritance, shall be valid as agent of the testator, disposes of its
and shall take effect, provided such substitution according to the wishes or instructions of
does not go beyond one degree from the heir the said testator.
originally instituted, and provided further, that • The duality of heirs is the characteristic
the fiduciary or first heir and the second heir are note which differentiates the
living at the time of the death of the testator. fideicommissary substitution from the
fideicomiso romano.
Fideicomisaria takes place when the fiduciary or
first heir instituted is entrusted with the Fideicomisaria vs. Trust
obligation to preserve and to transmit to a second
heir the whole or part of the inheritance, provided FIDEICOMISARIA TRUST
such substitution does not go beyond one degree Both the fiduciary and the
Cannot be said
from the heir originally instituted, and provided fideicommissary heirs are
of the trustee.
further, that the fiduciary or first heir and the true heirs of the testator.
second heir are living at the time of the death of The fiduciary heir in
the testator. fideicommissary
The trustee in
substitutions is entitled to
Fideicomisaria exists with the concurrence of 3 trusts is not.
the enjoyment of the
persons: property.


1. Fideicomitente – The testator who orders the
substitution.

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Requisites of a valid fideicommissary Example: If the testator institutes his own
substitution son as the first heir or fiduciary imposing
upon him the obligation to preserve and to
Perez v. Garchitorena transmit to the second heir or
1. There must be a first heir (fiduciary) fideicommissary the whole or part of the
primarily called to the enjoyment of the inheritance, the substitution shall be
estate. understood to refer only to the disposable
2. There must be a second heir free portion of such inheritance.
(fideicommissary).
3. There must be an obligation clearly imposed 4. The substitution must be made expressly.
upon the first heir to preserve the estate and
to transmit it to the second heir. Article 865. Every fideicommissary
4. *The second heir or fideicommissary should substitution must be expressly made in
be entitled to the estate from the time the order that it may be valid.
testator dies, since he is to inherit from the The fiduciary shall be obliged to deliver the
latter and not from the fiduciary. inheritance to the second heir, without
other deductions than those which arise
NOTE: The 4th is not a requisite but merely a from legitimate expenses, credits and
consequence of the substitution. improvements, save in the case where the
testator has provided otherwise.
Limitations on fideicommissary
substitutions 2 ways the substitution is expressly made (Art.
867):
1. The substitution must not go beyond one
degree from the heir originally instituted. 1. Giving it the name of a fideicommissary
substitution.
Palacios v. Ramirez 2. Imposing upon the fiduciary the absolute
Question: What is meant by “one degree” obligation to preserve and to deliver the
from the first heir? property to the second heir.
Answer: “One degree” means the
fideicommissary can only be either a child or Examples:
a parent of the first heir. These are the only
relatives who are one generation or degree Valid No
from the fiduciary. fideicommissary fideicommissary
substitution substitution
NOTE: The modern view is more sound
If the testator
because it is more in conformity with
public policy which is designed to increase merely designates
a second heir to
the circulation or socialization of wealth.
succeed in default
2. The fiduciary and the fideicommissary must be of the first heir, or
If the testator
merely provides
living at the time of the death of the testator. institutes two
that the second
heirs and he calls
This rule is in conformity with the heir shall succeed
one the fiduciary
in case of the
requirement that there must be a duality of heir and the other
heirs or a double institution of heirs in the death of the first
the
heir, there is only
substitution. fideicommissary
a simple or
substitute, or if he
Since both the fiduciary and the common
imposes upon the
substitution.
fideicommissary are true heirs of the testator, former the
it is essential that in order to be capacitated
absolute obligation
to inherit both of them must be living at the If the testator
to preserve the
moment the succession opens. institutes two
estate for a stated
heirs and it is
period and, after
provided that in
3. The substitution must not burden the legitime the expiration of
of compulsory heirs. case of the death
the period, to
of one or of both,
transmit it to the
the portion
Article 864. A fideicommissary latter.
rendered vacant
substitution can never burden the legitime.
shall be assigned

to the legal heirs
It is a reiteration of the principle that the
or to other
legitime of compulsory heirs cannot be
persons.
impaired.

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Transmission of inheritance
Rights of fiduciary
The Code is silent with regard to the time when
He cannot be a mere agent of the fideicomitente or the property or inheritance shall be transmitted
a mere administrator of the property. by the fiduciary to the fideicommissary.

He is the “first heir,” although charged with the It is the testator who determines when the
obligation “to preserve and to transmit” the transmission takes place. If not specified, then it
property to a second heir. As such, he acquires is understood that it shall take place upon the
upon the death of the fideicomitente all of the death upon the first heir.
rights of a usufructuary until the moment of
delivery to the fideicommissary. Reason: The fact that the same is subject to the
testator’s freedom of disposition. The testator can
Simply, pending the transmission or delivery, he make the substitution purely, with a term, or even
possesses the beneficial ownership of the conditionally.
property, although the naked ownership is vested
in the fideicommissary. NOTES:
• If he designates a day for the transmission
Obligations of fiduciary or delivery by limiting the period in which
the fiduciary heir may enjoy the property
1. To preserve the property or inheritance. or inheritance, such designation shall be
2. To transmit the said property or inheritance respected.
to the second heir or fideicommissary. • If he does not fix a period for the
transmission or delivery, it is presumed
Perez v. Garchitorena that he leaves the matter to the discretion
In order that the fideicommissary substitution of the fiduciary.
shall be valid, it is essential that such obligation • If there is doubt or litigation regarding the
must be clearly imposed. time for such transmission or delivery, it is
presumed that it will be made after the
Simply, it is required that there must be an order death of such fiduciary.
or charge upon the first heir to preserve and • When the substitution is conditional, the
transmit to a third person or entity the entire fideicommissary has only a mere hope or
inheritance or a part thereof. expectancy pending the fulfillment of the
condition, but once the condition is
Preservation of inheritance fulfilled, the obligation to transmit or
deliver the property arises.
Although the first heir or fiduciary is a true heir of
the testator, his rights as such over the property Right to deductions
which is transmitted to him upon the death of the
testator is necessarily limited by his obligation to Legitimate expenses. Refer to those which were
preserve the said property. made for the acquisition and preservation of the
property or inheritance (Art. 865[2]).
The obligation to preserve excludes the right to
dispose the property either by an act inter vivos or Improvements. Refer to necessary as well as to
an act mortis causa. As Scaevola says, the useful expenses.
fiduciary heir has all the qualities of a
usufructuary, but he also has those of an absolute Other expenses, such as those for pure luxury or
owner, without the power of alienation. However, mere pleasure, are excluded.
he may alienate his right of usufruct over the
property. NOTE: The amount of the deductions to which
the fiduciary is entitled, however, is not the
Corollary to the obligation, of the fiduciary heir to actual amount of the expenses, but the increase
preserve is the obligation to make an inventory. in value of the property or inheritance. The
Art. 865(2) impliedly recognizes this obligation, property is really preserved.
since it would be impossible for the fiduciary to
make the necessary deductions for legitimate Rights of fideicommissary
expenses, credits and improvements once the
property is delivered to the fideicommissary Article 866. The second heir shall acquire a
unless there had been a previous inventory. right to the succession from the time of the
testator's death, even though he should die
before the fiduciary. The right of the second heir
shall pass to his heirs.


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Question: Whether the fideicommissary is an (4) Those which leave to a person the whole or
heir of the fiduciary or of the fideicomitente. part of the hereditary property in order that he
Answer: The second heir or fideicommissary may apply or invest the same according to
inherits, not from the first heir or fiduciary, but secret instructions communicated to him by the
from the testator or fideicomitente. testator.

Perez v. Garchitorena 1. Fideicommissary substitutions which are not
The fact that the fideicommissary is entitled to the made in an express manner, either by giving
estate from the time the testator dies, since he is them this name, or imposing upon the fiduciary
to inherit from the latter and not from the the absolute obligation to deliver the property
fiduciary, is a natural consequence of a to a second heir.
fideicommissary substitution rather than a
requisite. Principle: In fideicommissary substitutions
there must always be an obligation clearly
Question: What is the nature a the right of the imposed upon the first heir or fiduciary to
fideicommissary heir pending the delivery or preserve and to transmit the property or
transmission of the property or inheritance? inheritance to the second heir or
Answer: He acquires a right to the inheritance fideicommissary.
from the moment of the death of the testator.
2. Provisions which contain a perpetual
NOTE: This right is subject or without prohibition to alienate, and even a temporary
prejudice to the corresponding right of the one, beyond the limit fixed in Art. 863.
fiduciary heir. If the fiduciary is entitled to all
of the rights of a usufructuary, the Purpose: To prevent the perpetual or
fideicommissary is also entitled to all of the temporary entailment by the testator of his
rights of a naked owner. property.

Example: If the testator designates A and B as Question: What is the limitation referred to?
the fiduciary and fideicommissary heirs, Answer: The fideicommissary shall not go
respectively, of his entire state, imposing the beyond 1 degree in accordance to Art. 863.
obligation upon A to preserve and to transmit Beyond that, it shall be void.
the entire estate to B after the expiration of ten
years, there is no question that the latter shall NOTE: Temporary prohibition – The
be entitled to the entire estate from the only limitation which can possibly be
moment of the death of the testator. If he dies violated is that provided for in Art. 870 of
before the expiration of the period and before the Code. The prohibition to alienate is
the death of the fiduciary, his right to the estate good only for 20 years. Beyond that, it is
shall be transmitted to his own heirs. void.

When the fideicommissary substitution is Example: If the testator had appointed A
conditional, however, the fideicommissary heir as the fiduciary heir and B as the
has only a mere hope or expectancy. If the fideicommissary substitute, and in the will,
fideicommissary dies before the condition has there is a provision prohibiting the
been fulfilled, he acquires no right to the object of alienation of the estate for a period of 40
the fideicomisum, and, as a consequence, he years, it is clear that there is no violation or
transmits no right whatsoever to his own heirs. infringement of any of the limitations
prescribed in Art. 863. It is, however,
Void Substitutions evident that there is a violation of the
limitation prescribed in Art. 870. If the
Article 867. The following shall not take effect: testator died in 1960 and A, the fiduciary
(1) Fideicommissary substitutions which are heir, died in 1965, the prohibition imposed
not made in an express manner, either by giving by the testator would still be good up to
them this name, or imposing upon the fiduciary 1980 in conformity with the rule stated in
the absolute obligation to deliver the property Art. 870. B, the fideicommissary substitute,
to a second heir; will still be bound by the prohibition to
(2) Provisions which contain a perpetual alienate up to 1980. It must be observed,
prohibition to alienate, and even a temporary however, that if the testator died in 1950,
one, beyond the limit fixed in article 863; although the prohibition to alienate ceased
(3) Those which impose upon the heir the to apply in 1970 in conformity with the
charge of paying to various persons rule stated in Art. 870, A, the fiduciary heir,
successively, beyond the limit prescribed in could not yet alienate the property. This is
article 863, a certain income or pension; so, because of another mandate of the
testator — that he must preserve and

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transmit the property to B, the but instead institutes an heir with a charge
fideicommissary heir. Once the property is upon his conscience regarding the
transmitted to B, it becomes free property. destination, application or investment of the
property, without saying precisely to what or
3. Those which impose upon the heir the charge in whose favor such property shall be given
of paying to various persons successively, or applied, the act does not fall within the
beyond the limit prescribed in article 863, a purview of Art. 786, but enters the sphere of
certain income or pension. Art. 867.

This rule seeks to implement the limitations The law considers that there is a substitution
prescribed in Art. 863 by declaring as in such case since the property shall pass
ineffective those dispositions which would from a first heir to a second heir, but
render such limitations illusory. inasmuch as the second heir is not known, it
declares the substitution to be without effect.
In this case, there is no substitution but an
institution of an heir with a charge; however, Effect of void fideicommissary substitutions
the Code applies by analogy to the
beneficiaries the same limitations which are Article 868. The nullity of the fideicommissary
applied to fideicommissary substitutions. substitution does not prejudice the validity of
the institution of the heirs first designated; the
4. Those which leave to a person the whole or fideicommissary clause shall simply be
part of the hereditary property in order that he considered as not written.
may apply or invest the same according to
secret instructions communicated to him by The nullity of the fideicommissary substitution
the testator. does not prejudice the validity of the institution of
the heirs first designated; the fideicommissary
Purpose: To prevent the transmission of clause shall simply be considered as not written.
property by secret instructions so that it may
not be applied for purposes which are illegal NOTE: The fideicommissary substitution is the
or illicit or in order that it may not pass to subsidiary institution, while the first
those who are incapacitated to inherit from institution of heirs is the principal institution.
the testator.
Disposition of usufruct to various persons
Here, there is no fideicommissary
substitution since there is no duality of heirs; Article 869. A provision whereby the testator
in reality, there is a simple institution of heirs, leaves to a person the whole or part of the
but the inheritance is not for the benefit of the inheritance, and to another the usufruct, shall be
instituted heir since it will be applied or valid. If he gives the usufruct to various persons,
invested according to the secret instructions not simultaneously, but successively, the
which had been communicated to such heir provisions of article 863 shall apply.
by the testator. In such case, the institution of
heir is valid, although the instructions are Principle: The owner of a thing has the power to
void. dispose of not only the whole but also any part of
his right of ownership over the thing.
NOTE: According to Art. 786, the testator
may entrust to a third person the With regard to Art. 869(2), although the rules
distribution of specific property or sums of regarding fideicommissary substitution are
money that he may leave in general to applicable, in reality, there is no fideicommissary
specified classes or causes, and also the substitution, but merely a simple institution of
designation of the persons, institutions or heir combined with a legacy.
establishments to which such property or
sums of money are to be given or applied. Disposition declaring estate inalienable

Question: Is there a conflict between this rule Article 870. The dispositions of the testator
and the rule stated in Art. 867(4)? declaring all or part of the estate inalienable for
Answer: NONE. When the testator has more than twenty years are void.
already determined the persons to whom the
property shall go, such as the poor, relatives, Purpose of provision: To give more impetus to
establishments, and so forth, and merely the socialization of the ownership of property,
empowers another person to make the and to prevent the perpetuation of large holdings
distribution among such poor, relatives or which give rise to agrarian troubles.
establishments, the provision of Art. 786 shall
apply. When the testator does not determine,

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Example: If the testator states in his will that attaching such order to the legacies and devises,
the property bequeathed or devised shall not or without stating that failure to comply with the
be alienated for a period of 50 years, under this order shall result in the nullity of the legacies and
provision, the prohibition shall be valid only devices, and subsequently, four months after her
for 20 years, but with respect to the excess it is death, the husband married again, it was held that
null and void. If the prohibition to alienate is such legacies and devises are not conditional,
perpetual, there is no reason why the entire since the condition does not fairly appear from
prohibition should be nullified. In order to the language used in the will.
effectuate the testatorial intent, it shall be valid
but only for 20 years. And if it so happens that The result, however, would be different if the
in addition to the prohibition to alienate there condition not to marry again is attached to the
is a fideicommissary substitution expressly testamentary disposition or if the testator
made, such prohibition shall not only be declared that failure to comply with the condition
limited to 20 years but it shall have to be will nullify the testamentary disposition.
complemented by another mandate of the
testator — the obligation of the first heir to Broce v. Marcallana
preserve the property for the benefit of the In this case, where the testatrix, in her will,
second heir. expressly directed her husband not to get married
again, after her death, or if he desires to get
There can be no conflict between Art. 869 and Art. married again, he must choose any of her relatives
867(2). within the sixth degree, otherwise, he shall lose
his right to the properties bequeathed or devised
M. TESTAMENTARY DISPOSITIONS WITH to him, and subsequently, after her death, the
CONDITION, TERM OR MODE (ARTS. 871- husband got married again, but not to any of her
885) relatives, it was held that the legacies and devises
are conditional, and as a consequence of the
violation of the condition, the husband loses his
Conditional Testamentary Dispositions right to the properties given to him without
prejudice to his legitime.
Article 871. The institution of an heir may be
made conditionally, or for a certain purpose or Conditions which impair legitime
cause.
Article 872. The testator cannot impose any
Freedom of disposition charge, condition, or substitution whatsoever
upon the legitimes prescribed in this Code.
Whether the testamentary disposition is an Should he do so, the same shall be considered as
institution of heir, or a devise or legacy, under this not imposed.
article, the testator is free to impose any
condition, or mode, or term. Principle: Untouchability of the legitime of
compulsory heirs (Art. 904).
Conditional testamentary disposition
The only instance where the testator is allowed to
It is conditional when its effectivity is impose a charge upon the legitime of compulsory
subordinated to the fulfillment or nonfulfillment heirs is when the testator declares that the
of a future and uncertain fact or event. This future hereditary estate shall not be partitioned for a
and uncertain fact or event upon the fulfillment of period which shall not exceed 20 years. According
which the testamentary disposition is made to to Art. 1083, this power of the testator to prohibit
depend is what is known as a condition. the division of the estate applies even to the
legitime of compulsory heirs.
Before it is considered to be conditional, it is
necessary that the condition must appear from A condition imposed upon the legitime of a
the language used in the will. compulsory heir is a condition which is contrary
to law. Even looking at it from the viewpoint of
If it does not appear in the will itself, or in a Art. 873, the same shall be considered as not
document executed with the same formalities as a imposed.
will, it is not binding. In such case the
testamentary disposition is pure, and not Impossible conditions
conditional.
Article 873. Impossible conditions and those
Morente v. De la Santa contrary to law or good customs shall be
In this case, where the testatrix merely orders her considered as not imposed and shall in no
husband, who is the principal beneficiary in her manner prejudice the heir, even if the testator
will, not to marry again after her death, without should otherwise provide.

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If the condition is impossible in the sense that it is proceedings, has not respected the will of the
not possible of realization because it is contrary testator, as expressed, is prevented from
to either, physical, juridical or moral laws, it shall receiving, his legacy. The fact, is, however, that the
be considered as not imposed. However, the said condition is void, being contrary to law, for
institution of heir or the devise or legacy is not Art. 873 provides the following: Impossible
affected. conditions, and those contrary to law or good
morals shall be considered as not imposed and
There is a presumption in this case that the shall not prejudice the heir or legatee in any
condition is due to a mistake or oversight, or manner whatsoever, even though the testator
merely a whim or caprice of the testator. It must otherwise provides. And said condition is
be disregarded as a matter of justice to the contrary to law because it expressly ignores the
instituted heirs, devisees or legatees. testator’s national law, when according to Art. 16,
such national law of the testator is the one to
Question: What time shall be considered in govern his testamentary dispositions. Said
determining whether the condition is impossible condition then, in the light of the legal provision
or not? above cited, is considered unwritten, and the
Answer: There is only one moment to consider institution of legatee in said will is unconditional
and that is the time when the condition is to be and valid and effective even as to the herein
fulfilled. oppositor.

NOTE: Impossible conditions, those contrary Question: Suppose that the testator in his will
to good customs or public policy and those bequeaths or devises a certain property to a
prohibited by law shall annul the obligation certain beneficiary but subject to the condition
which depends upon them (Art. 1183[1]). that if the designated legatee or devisee opposes
the probate of the will, he will then forfeit the
The effect of an impossible condition when legacy or devise, is much a condition valid or is it
It is attached to a contrary to public policy? More specifically,
It is attached to a suppose that the testator dies, and the designated
testamentary
civil obligation legatee or devisee interposes his opposition to the
disposition
probate of the, and subsequently, after hearing,
Under Art. 873, the the probate court issues an order allowing the
Under Art. 1183, the
condition is void but will, has the legatee or devisee forfeited his right
conditional obligation
the disposition is under the “no-contest and forfeiture” clause
itself is void.
valid. found in the will?
Reason Answer: Under the doctrine of the testator’s
The testamentary freedom of disposition, such a clause or condition
disposition, strictly The obligation is valid. Ultimately, however, everything will
speaking, does not depends for its depend upon whether the beneficiary had acted
depend upon the perfection upon the in good faith in opposing the probate of the will or
fulfillment of the condition which is not. If he had acted in good faith, he does not
condition for its impossible or which is forfeit the legacy or devise; if he had acted in bad
perfection but upon contrary to law or faith, he forfeits the legacy or devise.
the death of the good customs.
testator. Absolute conditions not to contract
marriage
Example: If the testator bequeaths to a certain
woman P10,000 if she will consent to be the Article 874. An absolute condition not to
mistress of a certain person, the condition is contract a first or subsequent marriage shall be
void, but the legacy is valid. However, if A considered as not written unless such condition
obligates himself to give P10,000 to B if the has been imposed on the widow or widower by
latter consents to be his mistress for six the deceased spouse, or by the latter's
months, the obligation is a complete nullity. ascendants or descendants.
Nevertheless, the right of usufruct, or an
Acciano v. Brimo allowance or some personal prestation may be
The institution of legatees in this will is devised or bequeathed to any person for the
conditional and the condition is that the instituted time during which he or she should remain
legatees must respect the testator’s will to unmarried or in widowhood.
distribute his property, not in accordance with
the laws of his nationality, but in accordance with A condition which is frequently imposed by a
the laws of the Philippines. If this condition as it is testator upon an instituted heir, or upon a devisee
expressed were legal and valid, any oppositor or legatee is the condition not to contract a first or
who fails to comply with it, as the herein a subsequent marriage.
oppositor who, by his attitude in these

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Undoubtedly, this condition is contrary to morals descendant is exclusively of the deceased spouse
and public policy because it would deprive a or begotten with the widow or widower is
person of one of his inherent or inalienable rights immaterial; the reason for upholding the
— the right to choose his own status. As a prohibition is the same in either case. It is clear,
consequence, the Code in Art. 874 considers it as however, that the ascendants or the descendants
not imposed. of the surviving spouse, had from a prior
marriage, cannot impose the prohibition, be-
Condition not to contract first marriage cause they are not ascendants or descendants of
the deceased spouse.
GR: Under Art. 874(1), an absolute condition not
to contract a first marriage shall be considered as Nature of condition when validly imposed
not written. This rule is absolute in character.
It is resolutory in character.
NOTE: This rule is subject to the general
exception provided for in Art. 874(2). Art. 874 is concerned with heirs, devisees or
legatees, who are entitled to the inheritance,
As in the case of impossible conditions, the devise or legacy upon the death of the testator,
validity of the institution of heirs or of the devise but lose their right thereto upon the fulfillment of
or legacy is not affected, although the condition is the condition if validly imposed.
void.
If the testator institutes his wife as heir subject to
Example: If a person institutes one of his the condition that she will never marry again, she
daughters as heir to the free portion of his immediately acquires a right to the inheritance
estate subject to the condition that she will upon the death of the testator, but if she violates
never get married, the institution is valid, but the condition by contracting a second marriage,
the condition is void. In other words, the she loses her right to the said inheritance. Her
institution shall be considered as pure and not legitime, however, is not affected.
conditional.
Villaflor-Villanueva v. Juico
Condition not to contract subsequent The plain intent of the testator was to invest his
marriage widow with only a usufruct or life tenure in the
properties, subject to the further condition that if
XPNs: she remarried, her rights would thereupon cease,
1. When it is imposed by the deceased spouse even during her lifetime. That the widow was
himself. meant to have no more than a life interest in the
2. When it is imposed by the ascendants of the properties, even if she did not remarry at all, is
deceased spouse. evident from the expression used in the will, “use
3. When it is imposed by the descendants of the and possession while she lives”. If the testator had
deceased spouse. intended to impose as sole condition the non-
remarriage of his widow, the words “use and
Basis: Love which transcends even death itself. possession while she lives” would have been
To allow the property of the deceased spouse or unnecessary, since the widow could only remarry
of his or her ascendants or descendants to be during her lifetime. It follows, therefore, that the
enjoyed by the person who has taken his or her testator’s grandniece, Leonor Villaflor, is entitled
place in the survivor’s heart would be an offense to these properties upon the widow’s death, even
against his or her memory. if the widow never remarried in her lifetime.

Example: If the testator institutes his wife, as Relative conditions regarding marriage
heir, or appoints her as a devisee or legatee, he
may validly impose upon her the absolute The general rule in Art. 874 is applicable only
condition not to contract a subsequent when the prohibition to contract a first or
marriage. The same is true if a person subsequent marriage is absolute in character.
institutes his daughter-in-law, who was
formerly married to a deceased son, or his The rule does not apply if the prohibition is
stepmother, who is the widow of his deceased relative with respect to persons, time or place.
father. Simply, the prohibition or condition is valid.

Question: What does “descendants” mean, the Example: If the testator institutes A as his heir
descendants of the deceased spouse had by a subject to the condition that she will not get
prior marriage, or the common descendants of married until she reaches the age of twenty-
the deceased and the surviving spouse? five, the condition not to marry is relative in
Answer: No distinction should be made because character; hence, it is valid. The same is true if
the law makes no such distinction. Whether the the testator bequeaths P10,000 to B subject to

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SUCCESSION

the condition that she will not get married to Casual Condition. One whose fulfillment
anybody belonging to a certain party or a depends exclusively upon chance and/or upon
certain sect. the will of a third person.

Instance when Art. 873 is appliable: When a Examples:
relative prohibition to marry becomes in effect • If a certain person is appointed as a
absolute in character rendering it practically devisee or legatee with respect to certain
impossible for the heir, devisee or legatee to get properties if the testator’s race horse shall
married at all. win the Senior Grand Derby, the condition
is casual because its fulfillment depends
NOTE: Art. 874 is not applicable to a condition upon chance.
to get married. Although such a condition will • If the testator bequeaths his law library to
also have the effect of preventing a person a certain friend, provided his son does not
from choosing his own status, nevertheless it become a lawyer within five years after his
must be considered valid since the law does death, the condition is also casual, because
not prohibit it. its fulfillment depends upon the will of a
third person.
Art. 874 authorizes the following conditions:
Mixed Condition. One whose fulfillment
1. A generic condition to contract marriage. depends jointly upon the will of the heir, devisee,
2. A specific condition to contract marriage with or legatee and upon chance and/or the will of a
a determinate person. third person.
3. A specific condition not to contract marriage
with a determinate person. Example: If the testator bequeaths P10,000 to
A subject to the condition that A shall get
Conditions captatoria married to B within five years after the
testator’s death, the condition is mixed
Article 875. Any disposition made upon the because its fulfillment depends partly upon the
condition that the heir shall make some will of the legatee, partly upon the will of a
provision in his will in favor of the testator or of third person, and partly upon chance.
any other person shall be void.
Time of fulfillment
Condition Captatoria. The condition that the
heir shall make some provision in his will in favor Article 876. Any purely potestative condition
of the testator or of any other person. imposed upon an heir must be fulfilled by him as
soon as he learns of the testator's death.
Disposicion Captatoria. If the testator makes a This rule shall not apply when the condition,
testamentary disposition in his will subject to already complied with, cannot be fulfilled again.
such a condition.
If condition is purely potestative:
Effect: To nullify the disposition itself.
Reason: Testamentary succession is an act of GR: The heir must fulfill it as soon as he learns of
liberality, not a contractual agreement. To permit the testator’s death.
it would impair the heir’s freedom of
testamentary disposition with respect to his own NOTE: This is not applicable when the
property as well as allow the testator to dispose condition already complied with, cannot be
of the property of another after the latter’s death. fulfilled again. This rule is applicable only
when the potestative conditions is of a positive,
Potestative, Casual, and Mixed Conditions not a negative, character.

Potestative Condition. One whose fulfillment Article 877. If the condition is casual or mixed,
depends exclusively upon the will of the heir, it shall be sufficient if it happen or be fulfilled at
devisee, or legatee. any time before or after the death of the testator,
unless he has provided otherwise.
Example: If A is instituted as heir if he shall Should it have existed or should it have been
study law in a certain college, or if B is fulfilled at the time the will was executed and
appointed as a devisee or legatee if she shall the testator was unaware thereof, it shall be
not get married before reaching the age of 25 deemed as complied with.
years, the condition in both cases is purely If he had knowledge thereof, the condition shall
potestative. be considered fulfilled only when it is of such a
nature that it can no longer exist or be complied
with again.


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If the condition is casual or mixed: Difference in time of fulfillment

GR: It shall be sufficient if it happens or be fulfilled POTESTATIVE CASUAL OR MIXED
at any time before or after the death of the Must be fulfilled by
testator. May be fulfilled before
him as soon as he
XPN: Unless he has provided otherwise. or after the testator’s
learns of the testator’s
death
death
2 secondary rules:
Reason for difference
1. If the condition had already been fulfilled at Since its fulfillment is
the time of the execution of the will and the independent of or only
testator was unaware thereof, it shall be partly dependent upon
Because until then the
deemed to have been complied with.31 Thus, the will of the heir,
if the condition imposed upon the instituted will on which it
devisee or legatee, it is
heir A is that he must get married to B, and at depends may be
sufficient that it
modified or even
the time of the execution of the will the two happens or be fulfilled
were already married without the testator’s revoked. Simply, until
at any time before or
knowledge, the condition shall be deemed to the testator dies,
after the death of the
have been complied with. there is really no
testator. It is,
condition with which
therefore, immaterial
the heir, devisee or
Example: If the condition imposed upon to the testator when
the instituted heir A is that he must get legatee could comply,
the condition is
married to B, and at the time of the or as Sanchez Roman
fulfilled, unless
puts it, the conditional
execution of the will the two were already knowing that said
married without the testator’s knowledge, testamentary
condition has already
disposition is merely
the condition shall be deemed to have been been complied with,
complied with. in potential.
he should again
demand the fulfillment
2. If the condition has already been fulfilled at thereof.
the time of the execution of the will and the
testator had knowledge thereof, the condition Article 878. A disposition with a suspensive
shall, as a rule, still have to be complied with, term does not prevent the instituted heir from
unless it is of such a nature that it can no acquiring his rights and transmitting them to his
longer exist or be complied with again. heirs even before the arrival of the term.


Example: An heir who is instituted subject
Rule in negative potestative conditions
to the condition that he must first get

married when, as a matter of fact, the
Article 879. If the potestative condition
testator is well aware at the time of the
imposed upon the heir is negative, or consists in
execution of the will that he was already
not doing or not giving something, he shall
married. It is evident in this case that the
comply by giving a security that he will not do or
condition is of such a nature that it cannot
give that which has been prohibited by the
be complied with; it is considered fulfilled.
testator, and that in case of contravention he
However, if the heir becomes a widower
will return whatever he may have received,
before the death of the testator, then the
together with its fruits and interests.
general rule will still have to apply; in

other words, in order to be entitled to the
Negative potestative conditions. Refers to
inheritance, he must get married again.
those potestative conditions which consist in not

doing or not giving something.



Here, there is neither reason nor motive for

delaying the delivery of the property to the heir,

devisee or legatee since the effectivity of the right

of such heir, devisee or legatee does not have to

depend upon any act of the latter nor upon the

fulfillment of any other requisite.



Simply, the right of the heir, devisee or legatee

does not have to be held in suspense as in the case

of the heir, devisee or legatee whose right is

subject to a positive condition; he acquires his

right as a matter of course without any limitation


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SUCCESSION

other than that of not doing or not giving legatee is only a mere hope or expectancy. It is,
something. however, a hope or expectancy that is protected
by the law.
The Code authorizes the immediate delivery of
the property to the heir, devisee or legatee. Example: If A is instituted as heir subject to the
However, in order that such heir, devisee or condition that he shall get married to B within
legatee shall not perform or give that which is a period of five years from the time of the death
prohibited, he is required to give a security or of the testator, the condition is suspensive in
bond (caucion muciana). character. Pending its fulfillment, the estate,
after the death of the testator, shall be placed
In case the mandate or order of the testator is under administration in accordance with the
violated, the heir, devisee or legatee shall return provision of Art. 880. Hence, an administrator
whatever he may have received, together with its who will take charge of the estate shall have to
fruits and interests. In case he cannot, the security be appointed. This appointment of the
shall have to answer for the deficiency. Until the administrator, as well as the manner of
condition is violated, he shall continue in the administration and the rights and obligations
possession and enjoyment of the property. of the said administrator shall be governed by
Rules 78 to 90 of the New Rules of Court. The
Question: Who can demand for the constitution administration shall last until the condition is
of the bond or security? fulfilled or it becomes certain that it cannot be
Answer: Even if the article does not say so, this fulfilled. If B gets married to some person other
bond or security is constituted in favor of those to than A, it is logical that the administration shall
whom the property would pass in the event that be terminated. The estate shall, therefore, pass
the testator’s mandate is not complied with. to those who are legally entitled to the same,
Hence, it is but logical that these same persons such as the legal heirs.
must have the right to demand for the
constitution of the bond or security. They can When the institution of HDL is subject to a
compel the heir, devisee or legatee to file the resolutory condition
required bond or security, and if such heir,
devisee or legatee fails to do so, then he shall be The rights of the heir, devisee or legatee are
placed in the same position as an heir, devisee or acquired immediately upon the death of the
legatee instituted or appointed under a testator. These rights, however, are subject to the
suspensive condition, in which case, according to threat of extinction.
the second paragraph of Art. 880, the estate shall
be placed under administration until the security If the event which constitutes the resolutory
is given or until it is certain that it will be condition happens or is fulfilled, such rights are
impossible to perform that which is prohibited by extinguished or lost. The inheritance or the devise
the testator. or legacy shall, therefore, pass to those who are
legally entitled to the same, as for instance, the
Suspensive and Resolutory Conditions legal heirs.

Article 880. If the heir be instituted under a SUSPENSIVE RESOLUTORY
suspensive condition or term, the estate shall be A condition upon the
placed under administration until the condition A condition upon the
fulfillment of which
is fulfilled, or until it becomes certain that it fulfillment of which
rights already
cannot be fulfilled, or until the arrival of the successional rights
acquired by virtue of
term. arising from an
an institution of heir
The same shall be done if the heir does not give institution of heir or
or of a devise or legacy
the security required in the preceding article. from a devise or
are extinguished or
legacy are acquired.
lost.
Article 881. The appointment of the Effect
administrator of the estate mentioned in the
The effectivity of the
preceding article, as well as the manner of the
institution of heir,
administration and the rights and obligations of
devise or legacy
the administrator shall be governed by the
depends upon the
Rules of Court. Diametrically opposed
fulfillment of the
to that of a suspensive
condition, while in the
When the institution of heirs, devisees, and condition
second the
legatees is subject to a suspensive condition testamentary
disposition is already
Such condition has the effect of suspending not effective but subject
only the demandability of the right, but the right
itself. What is acquired by the heir, devisee or

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SUCCESSION

to the threat of Mode vs. Condition
extinction.
MODE CONDITION
Examples Obligates Suspends
If A is instituted as Example
heir if he gets If a widow had been If A is instituted as
married, and B is designated as heir by heir if he passes the
appointed as legatee the deceased spouse bar examination in his
If B is given as legacy
with respect to subject to the first attempt, it is
P10,000 with a charge
certain properties if conditions that she evident that the
of applying one- half
he passes the bar will not get married institution in his first
of the amount for
examination in his again, the condition is attempt, it is evident
masses, prayers and
first attempt, the resolutory in that the institution is
other pious words,
condition in both character. Upon the conditional, since the
the legacy is not
cases is suspensive in death of the testator, right of the heir, as
conditional; it is
character. In order she acquires her rights well as its
merely subject to a
that A and B will be as heir immediately. demandability, is
mode or obligation.
entitled to claim their However, if the suspended until he
rights arising from the condition is fulfilled, passes the bar
institution of heir and i.e., if she contracts a examination.
from the legacy, it is second marriage, her
essential that the rights are NOTE: In case of doubt, the institution, devise,
condition shall be extinguished. or legacy must be considered as modal.
complied with.
Fulfillment or compliance
Modal Institution
The person or persons who are entitled to
Article 882. The statement of the object of the demand compliance with the mode or obligation
institution, or the application of the property are those who are directly interested in the
left by the testator, or the charge imposed by obligation.
him, shall not be considered as a condition
unless it appears that such was his intention. If no person is directly interested in its fulfillment,
That which has been left in this manner may be or the identity of the person interested cannot be
claimed at once provided that the instituted heir determined, the obligation is a mere advise or
or his heirs give security for compliance with recommendation of the testator without any
the wishes of the testator and for the return of coercive force. In other words, it becomes a mere
anything he or they may receive, together with imperfect obligation of the heir, devisee or
its fruits and interests, if he or they should legatee.
disregard this obligation.
Question: When may the inheritance or property
Mode. The statement of the object of the be claimed by the heir, devisee or legatee?
institution, or the application of the property left Answer: According to Art. 882, the delivery or
by the testator, or the charge imposed by him. payment of the inheritance, devise or legacy can
be claimed immediately. However, it is a
If the testator attaches to an institution of heir, or necessary condition before delivery or payment is
to a devise or legacy a statement of — to be made that the instituted heir, or the devisee
1. the object of the institution of heir or of the or legatee, or the heirs of such heir, devisee or
devise or legacy, or legatee shall file a bond as security for the
2. the application of the inheritance, devise or performance or fulfillment of the obligation. In
legacy, or case of failure to comply with the mode or
3. a charge upon the heir, devisee or legatee, obligation, the heir, devisee or legatee shall be
the institution or the devise or legacy is modal, compelled to return whatever he may have
not conditional, in character. received by virtue of the institution or of the
devise or legacy, together with its fruits or
interests. In case he cannot, the bond or security
can be made to answer for any deficiency.

Manner of fulfillment or compliance

Article 883. When without the fault of the heir,
an institution referred to in the preceding article
cannot take effect in the exact manner stated by

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the testator, it shall be complied with in a Suspensive Term vs. Resolutory Term
manner most analogous to and in conformity
with his wishes. SUSPENSIVE TERM RESOLUTORY TERM
If the person interested in the condition should When the rights of the
prevent its fulfillment, without the fault of the When such rights are
instituted heir,
heir, the condition shall be deemed to have been immediately
devisee or legatee to
complied with. demandable, although
the inheritance,
they are extinguished
devise or legacy are
ART. 883(1) ART. 883(2) upon the arrival of the
suspended until the
date or time
Applies only to arrival of the date or
Applies only to designated by the
conditional time designated by
instituciones sub testator.
testamentary the testator.
modo.
dispositions.
When both are applicable Rule if term is suspensive

Whether the institution of HDL is modal or
If the institution of the heirs, devisees, and
conditional in character.
legatees is subject to a suspensive term, the term
shall suspend the effects of the institution or of
Applicability of Doctrine of Constructive the devise or legacy.
Fulfillment
Potestative or Mixed Simply, the heirs, devisees, and legatees can
Casual Condition demand for the delivery of the inheritance, devise
Condition
or legacy only upon the expiration of the term or
The doctrine is period.
evidently not
applicable since the The right of the heir, devisee or legatee is
fulfillment of the acquired at the time of the death of the testator,
event which but the demandability of the right itself is
Doctrine is applicable.
constitutes the suspended until the arrival of the date or time
condition is designated by the testator.
independent of the
will of the heir, Example: If a parcel of land is devised to A, but
devisee or legatee. it is stated in the will that the said land shall be
delivered to him only after the expiration of a
Testamentary dispositions with a term term or period of five years to be counted from
the time of the death of the testator, there is no
Article 884. Conditions imposed by the testator question that A shall acquire a right to the land
upon the heirs shall be governed by the rules immediately upon the death of the testator;
established for conditional obligations in all however, he can demand for its delivery only
matters not provided for by this Section. upon the expiration of the designated term or
period.
Article 885. The designation of the day or time
when the effects of the institution of an heir shall Under Art. 885(2), pending the arrival of the date
commence or cease shall be valid. or time designated by the testator, the
In both cases, the legal heir shall be considered inheritance, devise or legacy shall be given to the
as called to the succession until the arrival of the legal or intestate heirs of the said testator.
period or its expiration. But in the first case he However, these legal heirs shall not enter into the
shall not enter into possession of the property possession of the property without giving
until after having given sufficient security, with sufficient security, with the intervention of the
the intervention of the instituted heir. instituted heir or of the devisee or legatee.

Testamentary dispositions with a term or period ART. 880 ART. 885(2)
are those demandability or extinguishment are
subject to the expiration of a term or period. If the heir be
The legal (i.e.,
instituted under a
intestate) heir is
Term or Period. An interval of time, which, suspensive condition
considered called until
exerting an influence upon a testamentary or term the estate is
the arrival of the
disposition as a consequence of a juridical act, placed under
period.
either suspends its demandability or produces its administration
extinguishment. It may either be suspensive (ex
die) or resolutory (in diem). Question: Who will it be, the administrator or the
legal heir?


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Answer: The legal heir. The phrase or term in line DEVISE DEVISEE
2, and or until the arrival of the term in lines 4 and
A testamentary
5, of Art. 880 must be eliminated. However, there
disposition by virtue
is one instance where it is possible to apply the A person to whom a
of which a person is
provision of Art. 880. If the legal heirs cannot file gift of real property is
called by the testator
the required bond or security, then the given by virtue of a
to inherit an
inheritance or property shall have to be placed will.
individual item of real
under administration.
property.

Transmissibility of rights
Persons charged with legacies and devises
If the instituted heir or the devisee or legatee
should die before the expiration of the suspensive Article 924. All things and rights which are
term or period, his right to the inheritance, devise within the commerce of man be bequeathed or
or legacy shall be transmitted to his own heirs devised.
(Art. 878).
The following may be expressly charged by the
NOTE: In order that this rule shall be testator with the payment or delivery of a legacy or
applicable, the HDL should have died after the devise:
death of the testator, but before the expiration
of the term or period. 1. Any compulsory heir
2. Any voluntary heir
Principle: If the institution of heir or the devise 3. Any legatee or devisee
or legacy is with a suspensive term, what is 4. The estate, represented by the executor or
suspended by the term or period is not the administrator
acquisition of the right to the inheritance, devise
or legacy, but merely the demandability of the Extent of liability
right itself.
Article 925. A testator may charge with legacies
Rule if term is resolutory and devises not only his compulsory heirs but
also the legatees and devisees.
If the institution of HDL is subject to a resolutory The latter shall be liable for the charge only to
term, the HDL can demand immediately for the the extent of the value of the legacy or the devise
delivery of the inheritance, devise or legacy. received by them. The compulsory heirs shall
not be liable for the charge beyond the amount
However, after the expiration of the designated of the free portion given them.
term or period, his rights thereto are terminated.
As a consequence, the inheritance, devise or If compulsory heir is If voluntary heir is
legacy shall pass to the legal heirs of the testator. charged with charged with
obligation obligation
Example: If a parcel of land is devised to X, but
He cannot be held
it is stated in the will that he shall enjoy the
liable beyond the
land only for a period of five years after the
amount of the
death of the testator, the devise is subject to a
disposable portion His liability shall
resolutory term. Upon the expiration of the
given him; since, by extend to the entire
term of five years after the death of the
its very nature, a share, or legacy, or
testator, the property shall pass to the legal
legacy or devise devise received by
heirs of the said testator in accordance with the
constitutes a charge him.
rules of intestate succession.
or burden upon the

disposable portion of
N. LEGACIES & DEVISES (ARTS. 924-959) the testator’s estate.
Although the law does
LEGACY LEGATEE not mention voluntary
This rule conforms heirs, they must be
A testamentary
with the rule placed in the same
disposition by virtue
A person to whom a regarding the class as legatees or
of which a person is
gift of personal untouchability of the devisees since their
called by the testator
property is given by legitime of shares are also
to inherit an
virtue of a will. compulsory heirs. chargeable against the
individual item of
disposable portion of
personal property.
the estate.

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Example: If A, who is one of the compulsory INDETERMINATE OR DETERMINATE OR
heirs, is entitled to P10,000 in his capacity as GENERIC LEGACY OR SPECIFIC LEGACY OR
compulsory heir and to P5,000 in his capacity DEVISE DEVISE
as voluntary heir, and he is charged with the The heir who is
obligation of paying P10,000 to X, a third charged with the The heir who is
person, he can be held liable only for P5,000. payment or delivery charged cannot be
of the legacy or devise held liable in case of
Liability when no one is charged shall be liable in case eviction
of eviction
Article 926. When the testator charges one of
the heirs with a legacy or devise, he alone shall The heir would not be
be bound. The acquisition or at fault if the thing
Should he not charge anyone in particular, all choice shall depend bequeathed or devised
shall be liable in the same proportion in which upon him. by the testator had a
they may inherit. defective title.

Should the testator not charge anyone in NOTE: If the legacy or devise is indeterminate
particular, all shall be liable in the same or generic, Art. 1548, which provides for
proportion in which they may inherit. warranty by the vendor of the thing sold in
case of eviction, shall apply.
NOTE: This rule is only applicable when there
is no administration proceeding for the Legacy of things belonging partly to
settlement of the decedent’s estate. strangers

If the will is silent with regard to the person who Article 929. If the testator, heir, or legatee owns
shall pay or deliver the legacy or devise only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be
The obligation constitutes a charge or burden understood limited to such part or interest,
upon the estate of the testator. unless the testator expressly declares that he
gives the thing in its entirety.
There is a presumption that such legacy or devise
constitutes a charge against the decedent’s estate. GR: The presumption is that the testator desires
Therefore, the obligation must be performed by to bequeath or devise only that which belongs to
the executor or administrator as decreed by the him.
court after the liquidation of all claims against the
estate Examples:
• If he bequeaths or devises a thing which
If there is an administration proceeding belongs partly to him and partly to a third
person, the legacy or devise shall be
The obligation will be performed by the executor understood limited only to the part or
or administrator; if there is none, it will be interest belonging to him.
performed by the heirs themselves. • The same rule is applied where the thing
belongs partly to the heir, legatee or
Liability for eviction devisee and partly to a third person. The
legacy or devise is limited only to the part
Article 927. If two or more heirs take or interest belonging to such heir, legatee
possession of the estate, they shall be solidarily or devisee.
liable for the loss or destruction of a thing
devised or bequeathed, even though only one of XPN: When the testator expressly declares that he
them should have been negligent. bequeaths or devises the thing in its entirety.

Article 928. The heir who is bound to deliver NOTE: Before this exception can be applied,
the legacy or devise shall be liable in case of there must be:
eviction, if the thing is indeterminate and is 1. An express declaration to that effect
indicated only by its kind. appearing in the will itself; and
2. Knowledge on the part of the testator that
the thing belongs partly to a third person.
Such knowledge may be proved either
from the context of the will itself or from
extrinsic evidence. Obviously, such
knowledge on the part of the testator of his
limited right is essential because,

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otherwise, the legacy or devise would be made the will, afterwards becomes his, by
void under Art. 930. whatever title, the disposition shall take effect.

Effect of partition Article 931. If the testator orders that a thing
belonging to another be acquired in order that it
It may happen that subsequently the thing which be given to a legatee or devisee, the heir upon
is bequeathed or devised is finally divided or whom the obligation is imposed or the estate
partitioned between the owners in common. must acquire it and give the same to the legatee
or devisee; but if the owner of the thing refuses
When the thing is adjudicated to the testator to alienate the same, or demands an excessive
price therefor, the heir or the estate shall only
If the thing is physically divisible or convenient of be obliged to give the just value of the thing.
division, the rules stated are still applicable.
The all-important factor in the determination of
a. If what is bequeathed or devised by the the validity of a legacy or devise of a thing
testator is that part which belonged to him belonging to another is the knowledge of the
before the partition, the legacy or devise still testator that the thing bequeathed or devised
subsists without any change. belonged to another at the time of the execution
b. If what is bequeathed or devised, however, is of the will.
the entire property in accordance with the
exception provided for in Art. 929, the whole If the testator erroneously believed that the thing
property shall pass in its entirety to the belonged to him and not to another
legatee or devisee, applying again the rule
stated in Arts. 929 and 930. GR: The legacy or devise is void.
XPN: When he subsequently acquires the thing by
When the thing is adjudicated to the other owner whatever title. In such case, the legacy or devise is
valid. Although he may have been ignorant of the
If the thing is physically indivisible or fact that the thing belonged to another at the time
inconvenient of division, the rules applicable shall of the execution of the will, yet it is presumed that
depend upon whether the thing is finally once he was appraised of his mistake, he
adjudicated to the testator or to the other owner subsequently acted in order to remove all
applying the provisions of Arts. 929 and 930. obstacles to his will.

The rules applicable shall depend upon whether If the testator knew that the thing belonged to
or not the testator has expressly declared that he another
bequeaths or devises the property in its entirety.
a. If he has not expressly declared that he The legacy or devise is valid because it is
bequeaths or devises the property in its presumed that his intention is that such thing
entirety, the legacy or devise shall be without which is bequeathed or devised must be acquired
effect, applying the provision of Art. 957(2), either by the executor or administrator of his
which declares that the alienation of the thing estate or by the heir expressly charged with such
bequeathed or devised shall result in the legal obligation for the benefit of the legatee or devisee.
revocation of the legacy or devise.
b. If he has expressly declared that he bequeaths 2 instances where testator may be considered to
or devises the property in its entirety and the have disposed of the thing with knowledge that it
property subsequently is adjudicated to the belongs to another:
other owner, the legacy or devise shall be
without effect only with respect to what had 1. Where he subsequently acquires the thing
formerly belonged to him, again applying the from the owner by whatever title.
rule stated in of Art. 957(2). However, the 2. Where he expressly orders in his will that the
legacy or devise is still effective with respect thing shall be acquired in order that it be
to the part belonging to the owner or third given to the legatee or devisee.
person to whom the entire property was In both instances, the disposition is valid.
adjudicated, again applying the provisions of
Arts. 929 and 23. With respect to the second case, it must be
observed that the law expressly provides that
Legacy of things belonging to strangers either the heir upon whom the obligation is
imposed or the estate, i.e., the executor or
Article 930. The legacy or devise of a thing administrator, must acquire it and give the same
belonging to another person is void, if the to the legatee or devisee. If the owner refuses to
testator erroneously believed that the thing alienate the same, or demands an excessive price
pertained to him. But if the thing bequeathed, therefor, the heir or the estate shall only be
though not belonging to the testator when he obliged to give the just value of the thing.

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Example: If the testator provides in his will: “I GR: If the thing bequeathed or devised belonged
charge the executor of my estate with the to the legatee or devisee at the moment of the
obligation of acquiring the Italian – made car of execution of the will, the legacy or devise is
my neighbor, X, to be delivered to my friend, A,” ineffective. If subsequently, the thing is alienated
the executor shall have to acquire the car from to a third person, the legacy or devise is still
X. If X refuses to sell or charges, let us say, ineffective. The heir or heirs or the estate
P100,000 for the car (the real value of the car represented by the executor or administrator in
is P20,000), then the executor shall give to A such case shall not be bound to acquire the thing
only the just value of the car. from the third person after the death of the
testator for the benefit of the legatee or devisee.
Legacy of things belonging to legatee XPN: When the testator himself before his death
acquires the thing by whatever title. In this case,
Article 932. The legacy or devise of a thing the legacy or devisee would be valid applying the
which at the time of the execution of the will provision of Art. 930.
already belonged to the legatee or devisee shall
be ineffective, even though another person may Effect of acquisition by legatee
have some interest therein.
If the testator expressly orders that the thing be Art. 933(1) provides that the legacy or devise of a
freed from such interest or encumbrance, the thing belonging to the legatee or devisee at the
legacy or devise shall be valid to that extent. time of the execution of the will shall be without
effect, even though it is subsequently alienated.
Article 933. If the thing bequeathed belonged to This same rule is also stated in Art. 932.
the legatee or devisee at the time of the
execution of the will, the legacy or devise shall Art. 933(2) provides that if the legatee or devisee
be without effect, even though it may have acquires it gratuitously after such time, the legacy
subsequently alienated by him. or devise is still ineffective; but if it has been
If the legatee or devisee acquires it gratuitously acquired by onerous title, he can demand
after such time, he can claim nothing by virtue reimbursement from the heir or the estate.
of the legacy or devise; but if it has been
acquired by onerous title he can demand Question: Does Art. 933(2) constitute an
reimbursement from the heir or the estate. exception to the rule stated in Art. 933(1) or not?
Answer: When the law speaks of the gratuitous
The legacy or devise referred to is a legacy or or onerous acquisition of the thing bequeathed or
devise in favor of the person to whom the thing devised “after such time,” the time referred to is
bequeathed or devised belongs. the moment of the execution of the will, not the
moment of alienation by the legatee or devisee
GR: It shall be ineffective whether or not the favored. Therefore, such acquisition by such
testator had knowledge of the fact. legatee or devisee must have been made between
the execution of the will and the death of the
Instances when this rule applies testator.

1. When another person may have some Examples:
interest therein. • If the thing belonged to a third person at the
2. When the legatee or devisee who is supposed time of the execution of the will: In this case,
to be favored may have subsequently the testator may or may not have any
alienated the thing. knowledge of the fact that the thing
belonged to a third person at the time
If he did not know that the thing or property when he executed his will. If he
belonged to the legatee or devisee favored at the erroneously believed that the thing
time of the execution of the will, the law presumes pertained to him, the legacy or devise is
that had he known of the fact, he would not have void. The subsequent, acquisition of the
bequeathed or devised the thing. thing by the legatee or devisee favored
cannot, therefore, have any effect upon
If another person has an interest in the thing such legacy or devise. However, if he had
which is the object of the legacy or devise and the knowledge that the thing belonged to a
testator expressly orders that the thing be freed third person, Art. 933(2) is applicable.
from such interest or encumbrance, the legacy or • If the thing belonged to the testator at the
devise shall be valid to that extent (Art. 932[2]). time of the execution of the will: In this case,
Reason: What is being bequeathed or devised is the thing may be alienated by the testator
no longer something which belongs to the legatee subsequently either to a third person or to
or devisee. the legatee or devisee favored. If the thing
is alienated in favor of a third person,
clearly the legacy or devise is revoked by

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express provision of Art. 957. Hence, the Legacy of a credit
subsequently acquisition by the legatee or
devisee cannot revive the legacy or devise. This takes place when the testator bequeaths to
If the thing is alienated in favor of the the legatee a credit which he has against third
legatee or devise. If the thing is alienated persons (Art. 935).
in favor of the legatee or devisee himself,
there is no revocation. As a matter of fact, 3 parties involved:
there is a clear intention to comply with
the legacy or devise if the alienation is 1. The testator-credit
gratuitous. If such alienation is onerous, 2. The legatee
Art. 933(2) applies. 3. The debtor
• If the thing belonged to the beneficiary at
the time of the execution of the will: In this Here, there is a novation of the credit by
case, Art. 933(2) cannot apply because this subrogating the legatee in the rights of the
case is precisely what is contemplated by original creditor.
the first paragraph of the same article.
Example: If X, a third person, is indebted to the
Legacy of a credit and of remission of debts testator for P5,000, and the latter, in his will,
bequeaths the right to collect the credit to A,
Article 934. If the testator should bequeath or the estate of the testator upon his death, can
devise something pledged or mortgaged to comply with the legacy by assigning to A all
secure a recoverable debt before the execution rights of action which it may have against X.
of the will, the estate is obliged to pay the debt,
unless the contrary intention appears. Legacy of remission of debts
The same rule applies when the thing is pledged
or mortgaged after the execution of the will. 3 kinds:
Any other charge, perpetual or temporary, with
which the thing bequeathed is burdened, passes 1. Art. 935 – Specific legacy for the remission of
with it to the legatee or devisee. a definite debt.

Article 935. The legacy of a credit against a 2 parties:
third person or of the remission or release of a
debt of the legatee shall be effective only as 1) The testator-creditor
regards that part of the credit or debt existing at 2) The legatee-debtor
the time of the death of the testator.
In the first case, the estate shall comply with the Example: If D is indebted to his uncle, C,
legacy by assigning to the legatee all rights of for P5,000, and in the will of the latter, he
action it may have against the debtor. In the expressly condones the obligation, the
second case, by giving the legatee an estate, upon his death, can comply with the
acquittance, should he request one. legacy by giving D an acquittance from the
In both cases, the legacy shall comprise all debt, should he request one.
interests on the credit or debt which may be due
the testator at the time of his death. 2. Art. 937 – Generic legacy for the remission of
all debts of the legatee existing at the time of
Article 936. The legacy referred to in the the execution of the will.
preceding article shall lapse if the testator, after
having made it, should bring an action against 3. Art. 936 – Legacy to the debtor of the thing
the debtor for the payment of his debt, even if pledged by him.
such payment should not have been effected at
the time of his death. Generic legacy of remission vs. Specific legacy
The legacy to the debtor of the thing pledged by of remission
him is understood to discharge only the right of
pledge. GENERIC LEGACY SPECIFIC LEGACY
Such release
Such release can only
Article 937. A generic legacy of release or comprises all debts
refer to the debt which
remission of debts comprises those existing at existing at the time of
is specifically
the time of the execution of the will, but not the execution of the
mentioned in the will
subsequent ones. will, but not
of the testator
subsequent ones

Whether the legacy is specific or generic, the rule
that the legacy shall comprise only what is due the
testator at the time of his death shall apply.

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Revocation of Legacy collect the excess, if any, of the credit or of the
legacy or devise.
Whether the legacy is of a credit against a third
person or of a release or remission of a debt of the Example: If the legacy is P10,000 and the debt
legatee, such legacy shall be considered revoked is only P4,000, and the testator declares in his
(Art. 936 says it shall lapse) if the testator, after will that the legacy shall be applied to the
having made it, shall bring an action against the payment of the debt there will still be an excess
debtor for the payment of his debt, even if such of P6,000 in the legacy which the creditor shall
payment should not have been effected at the still be able to collect. If the legacy is P5,000
time of his death. and the debt is P7,000, after applying the
legacy to the payment of the debt, there will
If the testator should bring an action against the still be a balance of P2,000 which the creditor
debtor, meaning a judicial action; hence, an can still collect from the estate of the testator
extrajudicial demand shall not be sufficient to like any ordinary creditor.
revoke the legacy.
Alternative legacies and devises
Legacy to creditors
Article 940. In alternative legacies or devises,
Article 938. A legacy or devise made to a the choice is presumed to be left to the heir upon
creditor shall not be applied to his credit, unless whom the obligation to give the legacy or devise
the testator so expressly declares. may be imposed, or the executor or
In the latter case, the creditor shall have the administrator of the estate if no particular heir
right to collect the excess, if any, of the credit or is so obliged.
of the legacy or devise. If the heir, legatee or devisee, who may have
been given the choice, dies before making it, this
Article 939. If the testator orders the payment right shall pass to the respective heirs.
of what he believes he owes but does not in fact Once made, the choice is irrevocable.
owe, the disposition shall be considered as not In the alternative legacies or devises, except as
written. If as regards a specified debt more than herein provided, the provisions of this Code
the amount thereof is ordered paid, the excess is regulating obligations of the same kind shall be
not due, unless a contrary intention appears. observed, save such modifications as may
The foregoing provisions are without prejudice appear from the intention expressed by the
to the fulfillment of natural obligations. testator.

GR: A legacy or devise made to a creditor shall not Alternative Legacies and Devises. Those where
be applied to his credit. the testator bequeaths or devises 2 or more things
but which can be complied with by the delivery of
Example: If the testator is indebted to X for only one of them to the beneficiary.
P5,000, and, in his will, he bequeaths P3,000 to
him, X shall have two claims against the estate A choice will have to be made upon the death of
of the testator after the latter’s death — one as the testator before it can be complied with. The
creditor for P5,000, and the other as legatee for testator may designate any one of the heirs,
P3,000. As creditor, he shall file his claim legatees or devisees, or even the beneficiary
during the testate proceedings just like any himself, to make the choice.
other creditor; as legatee, he shall wait until all
claims against the estate and expenses of If no particular person is designated, the right of
administration had been paid in accordance choice pertains to the executor or administrator
with the Rules of Court. of the estate.

XPN: When the testator expressly declares that If the heir, devisee, or legatee who may have been
the legacy or devise must be applied to the credit. designated to make the choice dies before he is
able to make it, the right shall pass to his heirs.
Example: If the testator is indebted to A for
P10,000 and, in his will, he states — “I give to Once the choice is made, it becomes irrevocable.
A P10,000 in payment of the P10,000 which I The legacy or devise will no longer be alternative,
borrowed from him in 1960,” it is clear that A but simple.
can collect only P10,000 as legatee if he is
willing to accept the legacy since he is a Example: Before his death, the testator
creditor for the same amount anyway. executed a will. One of the testamentary
dispositions found in the will is a legacy,
Art. 938(2) provides that if the testator expressly whereby the testator bequeaths to A either his
declares that the legacy or devise shall be applied automobile or his champion race horse. It is
to the credit, the creditor shall have the right to clear that this legacy is alternative since it can

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be complied with the delivery of either the If no person is designated to make the choice, the
automobile or the horse. Since no person is executor or administrator of the estate shall make
designated in the will to make the choice, the it.
executor or administrator of the estate will,
therefore, have to make the choice. If such Once made, the choice becomes irrevocable.
executor or administrator chooses the Simply, the legacy ceases to be generic; it becomes
automobile, he must notify the court which has determinate.
jurisdiction over the settlement proceedings.
From that very moment, the choice is Generic Devises
irrevocable. In other words, the legacy ceases
to be alternative; it has become a simple legacy Refers to a devise consisting of real property
to deliver the automobile to A. designated merely by its class or genus without
any particular designation or physical
Generic Legacies and Devises segregation from all others of the same class.

Article 941. A legacy of generic personal Example: If the testator devises five hectares
property shall be valid even if there be no things of “rice lands” or “sugar lands” to A, the devise
of the same kind in the estate. is generic. In such case, the same rules
A devise of indeterminate real property shall be specified in the preceding comments are
valid only if there be immovable property of its applicable.
kind in the estate.
The right of choice shall belong to the executor However, the law declares that a devise of
or administrator who shall comply with the indeterminate real property shall be valid only if
legacy by the delivery of a thing which is neither there be immovable property of its kind in the
of inferior nor of superior quality. estate of the testator.
Reason: Unlike personal property, there is no
Article 942. Whenever the testator expressly such thing as a predetermined species with
leaves the right of choice to the heir, or to the respect to real or immovable property, since its
legatee or devisee, the former may give or the individualization, depends exclusively upon the
latter may choose whichever he may prefer. will of man.

Article 943. If the heir, legatee or devisee Example: If the testator devises five hectares
cannot make the choice, in case it has been of rice lands to A, but after his death it is found
granted him, his right shall pass to his heirs; but out that his estate consists entirely of fish
a choice once made shall be irrevocable. ponds, it is clear that the devise is void.

Generic Legacies Legacy for education or support

Refers to a legacy consisting of personal property Article 944. A legacy for education lasts until
designed merely by its class or genus without any the legatee is of age, or beyond the age of
particular designation or physical segregation majority in order that the legatee may finish
from all others of the same class. some professional, vocational or general course,
provided he pursues his course diligently.
Example: If the testator, in his will, bequeaths A legacy for support lasts during the lifetime of
“ten horses” to A, the legacy is generic. Even the legatee, if the testator has not otherwise
granting that there are no horses in the estate provided.
of the testator after his death, the legacy is If the testator has not fixed the amount of such
valid.37 The obligation in such a case can be legacies, it shall be fixed in accordance with the
complied with by the delivery to A of ten social standing and the circumstances of the
horses which must be neither of superior nor legatee and the value of the estate.
inferior quality. If the testator or during his lifetime used to give
the legatee a certain sum of money or other
A choice will have to be made. The right of choice things by way of support, the same amount shall
shall pertain to the person designated by the be deemed bequeathed, unless it be markedly
testator. Anyone of the heirs, legatees, or devi- disproportionate to the value of the estate.
sees, or even the beneficiary himself may be
designated to make the choice. A legacy for education last until the legatee is of
age, or beyond the age of majority in order that
If the heir, legatee, or devisee cannot make the the legatee may finish some professional,
choice, his right shall pass to his own heirs. vocational or general course, provided he pursues
his course diligently.

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The amount of the legacy, whether for education condition, he cannot transmit his expectancy to
or for support, shall depend upon the testator. his own heirs.
The only limitation is that the legacy must not
impair the legitime of compulsory heirs. Transmission of right of ownership

If the amount is not fixed, it shall be fixed in Article 948. If the legacy or devise is of a
accordance with the circumstances and social specific and determinate thing pertaining to the
standing of the legatee and the value of the estate. testator, the legatee or devisee acquires the
ownership thereof upon the death of the
If the testator or during his lifetime used to give testator, as well as any growing fruits, or unborn
the legatee a certain sum of money or other things offspring of animals, or uncollected income; but
by way of support, the same amount shall be not the income which was due and unpaid
deemed bequeathed, unless it be markedly before the latter's death.
disproportionate to the value of the estate. From the moment of the testator's death, the
thing bequeathed shall be at the risk of the
When right to legacy or devise vests legatee or devisee, who shall, therefore, bear its
loss or deterioration, and shall be benefited by
Article 945. If a periodical pension, or a certain its increase or improvement, without prejudice
annual, monthly, or weekly amount is to the responsibility of the executor or
bequeathed, the legatee may petition the court administrator.
for the first installment upon the death of the
testator, and for the following ones which shall Article 949. If the bequest should not be of a
be due at the beginning of each period; such specific and determinate thing, but is generic or
payment shall not be returned, even though the of quantity, its fruits and interests from the time
legatee should die before the expiration of the of the death of the testator shall pertain to the
period which has commenced. legatee or devisee if the testator has expressly
so ordered.
Article 946. If the thing bequeathed should be
subject to a usufruct, the legatee or devisee shall Scope
respect such right until it is legally extinguished. ARTS. 948 and 949 ART. 947

Article 947. The legatee or devisee acquires a Refer to the moment when
right to the pure and simple legacies or devises the legatee or devisee Refers to the
from the death of the testator, and transmits it becomes the owner of the moment when
to his heirs. thing which is bequeathed the legatee or
or devised, depending upon devisee acquires
The rights to the succession are transmitted at the whether the legacy or a right to the
moment of the death of the decedent. devise is determinate or legacy or devise
generic.
NOTE: Although the article mentions only pure
and simple legacies and devises, even those In determinate legacies or devises
which are subject to a suspensive term or
period must be included within the purview of It is essential before the legatee or devisee can
the rule. acquire ownership of the thing bequeathed or
Reason: In such legacies or devises, what is devised upon the death of the testator that the
suspended by the term or period is not the thing is determinate and that the legacy or devise
acquisition of the right but merely the demand- is pure and simple.
ability of the right.
If the legacy or devise is subject to a suspensive
If the legatee or devisee, after the death of the term or period, the rule cannot be applied. The
testator, dies before the expiration of the term or legatee or devisee becomes the owner of the thing
period, he can transmit his rights to his own heirs. bequeathed or devised only upon the expiration
of the term or period; in the second, only upon the
In the case of conditional legacies or devises if the fulfillment of the condition.
condition is suspensive, what is acquired upon
the death of the testator by the legatee or devisee If the legacy or devise is subject to a suspensive
is only a mere hope or expectancy. Such hope or condition, the rule cannot be applied. The legatee
expectancy is converted into a perfected right or devisee becomes the owner of the thing
only from the moment of the fulfillment of the bequeathed or devised only upon the fulfillment
condition. of the condition.

If the legatee or devisee, after the death of the If the legacy or devise is pure and simple, from the
testator, dies before the fulfillment of the moment of the testator’s death, the thing

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bequeathed or devised shall be at the risk of the Application
legatee or devisee, who shall, therefore, bear its ART. 911 ART. 950
loss or deterioration, and shall be benefited by its
increase or improvement, without prejudice to When the reduction is
the responsibility of the executor or necessary to preserve the
administrator. legitime of compulsory
Principle: The thing perishes for its owner. heirs from impairment, All other cases
whether there are not included
If such loss or deterioration of the thing is through donations inter vivos or within the scope
the fault or negligence of the executor or not; and of Art. 911
administrator, the latter can be held liable for
damages. When, although the legitime This applies
has been preserved by the when the conflict
In generic legacies and devises testator himself by leaving is exclusively
the compulsory heirs among the
If the legacy or devise is generic, there is a right of sufficient property to cover legatees or
choice governed by the provisions of Arts. 941 to their legitime, there are devisees
943. donations inter vivos themselves.
concurring with the legacies
Once the choice or selection has been made in and devises within the free
accordance with these provisions, the legacy or portion.
devise ceases to be generic; it becomes a pure and
simple legacy or devise. Cases when there is conflict exclusively among the
legatees or devisees:
It will be only then that the legatee or devisee can
be considered as the owner of the thing which is 1. When there are no compulsory heirs and the
chosen or selected. entire estate is distributed by the testator as
legacies or devises; or
From that very moment, the legatee or devisee 2. When there are compulsory heirs, but their
shall be entitled to all of the fruits and interests of legitime has already been provided for by the
the thing, unless the testator has expressly testator and there are no donations inter
ordered in his will that such fruits and interests vivos.
shall pertain to the legatee or devisee from the
moment of his death. Effect of Ineffective Legacies or Devises

Order of payment of legacies and devises Article 951. The thing bequeathed shall be
delivered with all its accessories and
Article 950. If the estate should not be sufficient accessories and in the condition in which it may
to cover all the legacies or devises, their be upon the death of the testator.
payment shall be made in the following order:
(1) Remuneratory legacies or devises; Article 952. The heir, charged with a legacy or
(2) Legacies or devises declared by the testator devise, or the executor or administrator of the
to be preferential; estate, must deliver the very thing bequeathed if
(3) Legacies for support; he is able to do so and cannot discharge this
(4) Legacies for education; obligation by paying its value.
(5) Legacies or devises of a specific, Legacies of money must be paid in cash, even
determinate thing which forms a part of the though the heir or the estate may not have any.
estate; The expenses necessary for the delivery of the
(6) All others pro rata. thing bequeathed shall be for the account of the
heir or the estate, but without prejudice to the
legitime.

Article 953. The legatee or devisee cannot take
possession of the thing bequeathed upon his
own authority, but shall request its delivery and
possession of the heir charged with the legacy or
devise, or of the executor or administrator of the
estate should he be authorized by the court to
deliver it.

Article 954. The legatee or devisee cannot
accept a part of the legacy or devise and
repudiate the other, if the latter be onerous.

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Should he die before having accepted the legacy thereafter be valid, unless the
or devise, leaving several heirs, some of the reacquisition shall have been effected by
latter may accept and the others may repudiate virtue of the exercise of the right of
the share respectively belonging to them in the repurchase;
legacy or devise. (3) If the thing bequeathed is totally lost
during the lifetime of the testator, or after
Article 955. The legatee or devisee of two his death without the heir's fault.
legacies or devises, one of which is onerous, Nevertheless, the person obliged to pay
cannot renounce the onerous one and accept the the legacy or devise shall be liable for
other. If both are onerous or gratuitous, he shall eviction if the thing bequeathed should
be free to accept or renounce both, or to not have been determinate as to its kind,
renounce either. But if the testator intended that in accordance with the provisions of
the two legacies or devises should be article 928.
inseparable from each other, the legatee or
devisee must either accept or renounce both. Revocation by implication of law
Any compulsory heir who is at the same time a
legatee or devisee may waive the inheritance They take effective automatically and by
and accept the legacy or devise, or renounce the operation of law.
latter and accept the former, or waive or accept
both. NOTE: The enumeration is not complete. There
may be a 4th cause the act of the testator in
Article 956. If the legatee or devisee cannot or bringing an action against the debtor for
is unwilling to accept the legacy or devise, or if payment of the debt as applied to legacies of a
the legacy or devise for any reason should credit or of remission of a debt. Under Art. 936,
become ineffective, it shall be merged into the such an action will also have the effect of
mass of the estate, except in cases of revoking the legacy.
substitution and of the right of accretion.
Revocation by transformation
3 situations:
If the testator transforms the thing bequeathed in
1. The legatee or devisee may be incapacitated such a manner that it does not retain both the
to succeed the testator in accordance with the form and the denomination it had, there is an
rules laid down in Arts. 1024 to 1040 of the implied revocation of the legacy or devise.
Code.
2. He may repudiate the legacy or devise which It is essential that the transformation must be
is his perfect right in accordance with the both with respect to the form and denomination.
rules stated in Arts. 1041 to 1057. Transformation with respect to the form only but
3. The legacy or devise may become ineffective not with respect to the denomination is not
for some reason such as transformation, sufficient. Neither is transformation with respect
alienation or destruction of the object, or the to the denomination but not with respect to the
non-fulfillment of a suspensive, condition. form.

In all of these cases, the legacy or devise shall be Form. It is the external appearance of the thing
merged with the mass of the hereditary estate, bequeathed or devised.
except in cases of substitution or accretion.
Denomination. It is the name by which the thing
Revocation of legacies and devises is known.

Article 957. The legacy or devise shall be Examples:
without effect: • If the thing devised is a parcel of rice land,
(1) If the testator transforms the thing and subsequently, the testator transforms
bequeathed in such a manner that it does it into a fish pond, there is an implied
not retain either the form or the revocation of the devise.
denomination it had; • If the thing bequeathed is a diamond ring,
(2) If the testator by any title or for any cause and subsequently, the testator transforms
alienates the thing bequeathed or any part it into a bracelet, there is also an implied
thereof, it being understood that in the revocation of the legacy.
latter case the legacy or devise shall be
without effect only with respect to the When rule of accession applies and not
part thus alienated. If after the alienation revocation by transformation
the thing should again belong to the
testator, even if it be by reason of nullity of However, if there is a mere enlargement or a mere
the contract, the legacy or devise shall not incorporation of the thing to another — so that

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there is no change in either form or If he does not exercise The revocation
denomination, there can be no revocation. his right of redemption becomes absolute


NOTE: The transformation of the object must
Revocation by loss or destruction
have been made by the testator himself or by

some other person acting for him as agent.
Otherwise, if it was made by a third person If the thing
without any authority from the testator, there bequeathed is totally
The legacy or devise
would be no revocation. lost during the lifetime
can no longer take
of the testator or after
effect.
Revocation by alienation his death without the
heir’s fault
If the testator by any title, whether by sale or any There is no liability
other act of disposition inter vivos, alienates the for eviction on the
If the thing
thing bequeathed or any part thereof, there is also part of the person
bequeathed or devised
an implied revocation of the legacy or devise. obliged to pay or
is determinate
deliver the legacy or
If only a part of the thing is alienated, the legacy devise
or devise shall take effect with respect to the part The latter shall be
untouched. Hence, there would be only a partial If it is indeterminate liable in accordance
revocation. as to its kind with the provision of
Art. 928.
GR: There can be no revival of the legacy or devise
once revoked impliedly by alienation. Dispositions in favor of relatives

The rule is applicable even when the thing
Article 958. A mistake as to the name of the
alienated should again belong to the testator even
thing bequeathed or devised, is of no
if it be by reason of the nullity of the contract.
consequence, if it is possible to identify the thing

which the testator intended to bequeath or
When the law speaks of “nullity of the contract,” it
devise.
refers to causes of nullity predicated upon the fact

that the alienation is voluntary and absolute.
Article 959. A disposition made in general

terms in favor of the testator's relatives shall be
Example: A sale made by a minor who has
understood to be in favor of those nearest in
already made a will, or a donation made by the
degree.
testator subsequent to the execution of the will

but which is void as to form.
The rule is applicable to legacies and devises and
to institution of heirs.
What matters is that the presumed intention of
the testator to revoke has already been expressed
or manifested by a positive act. Example: If the testator states in his will that
he is leaving all of his properties to all of his

NOTE: The mere reacquisition of the thing relatives, or that all of his personal or real
properties shall be divided among his relatives,
does not mean that this intention has changed.
the testamentary disposition shall be

GR: If after the alienation the thing should again understood to be in favor of those nearest in
degree. Simply, there is only one rule that will
belong to the testator, the legacy or devise shall
not thereafter be valid. apply and that is the rule of proximity.

XPN: Unless the reacquisition shall have been
The other rules of intestate succession, such as
effected by virtue of the exercise of the right of
repurchase. the rule of preference between lines, the right of
representation and the rule of double share for

full-blood collaterals are not applicable.
If the testator sells the
thing which is the NOTE: The law speaks only of dispositions
subject matter of the made in general terms in favor of the testator’s
The revocation is
legacy or devise with relatives.
conditional.
right of repurchase
subsequent to the Vda. de Singson vs. De Lim
execution of the will FACTS: The testator stated in his will that all of
There is no his properties not disposed of in the will “shall be
If he exercises his right revocation; the legacy distributed in equal parts to all who are entitled
of redemption or devise will, thereto.”
therefore, take effect.

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HELD: The rule enunciated in what is now Art. 3. Acknowledged illegitimate children who are
959 of the Code cannot be applied. The testator, not natural;
who was a lawyer, by referring to “all who are 4. In default of all the foregoing, parents by
entitled thereto,” instead of his relatives, clearly nature; and
intends that the properties shall be given to those 5. The widow or widower.
entitled thereto in accordance with the rules of
intestate succession. Therefore, not only the rule Kinds of compulsory heirs
of proximity, but other rules of intestate
succession, such as the right of representation, 1. Primary Compulsory heirs
must be applied.
Those who are always entitled to their
III. COMPULSORY SUCCESSION legitime as provided by law regardless of the
class of compulsory heirs with which they
may concur.
A. COMPULSORY HEIRS (ART. 887, AS
AMENDED BY ART. 176, FAMILY CODE) GR: Includes all kinds of compulsory heirs.
XPN: Parents or ascendants.


Article 887. The following are compulsory
2. Secondary Compulsory Heirs
heirs:

(1) Legitimate children and descendants, with
Those who may be excluded by other
respect to their legitimate parents and
compulsory heirs. It embraces only parents
ascendants;
or ascendants.
(2) In default of the foregoing, legitimate

parents and ascendants, with respect to
Legitimate children or descendants
their legitimate children and descendants;

(3) The widow or widower;
1. Legitimate children or descendants proper
(4) Acknowledged natural children, and
(Art. 264)
natural children by legal fiction;
2. Legitimated children or descendants (Art.
(5) Other illegitimate children referred to in
272)
article 287.
3. Adopted children (Art. 39; PD 603)
Compulsory heirs mentioned in Nos. 3, 4, and 5

are not excluded by those in Nos. 1 and 2;
GR: Adopted children are entitled to the same
neither do they exclude one another.
successional rights as legitimate children.
In all cases of illegitimate children, their filiation
XPNs:
must be duly proved.
1. If the adopter is survived by his legitimate
The father or mother of illegitimate children of
parents or ascendants and by his adopted
the three classes mentioned, shall inherit from
child, the latter shall not have more
them in the manner and to the extent
successional rights than an acknowledged
established by this Code.
natural child.
2. If the adopter dies before his legitimate
Compulsory Heirs. Those heirs for whom the
parent or ascendant, or is incapacitated to
law has reserved that part of the testator’s estate inherit from such parent or ascendant, or is
known as the legitime. Testator cannot disregard
disinherited by such parent or ascendant,
them.
unlike a legitimate child, the adopted child
cannot inherit by right of representation from
When testator is a legitimate person
the parent or ascendant.


His compulsory heirs are the following: Basis of XPNs: Adoption merely creates a
1. Legitimate children and descendants;
relationship similar to that of legitimate paternity
2. In default of the foregoing, legitimate parents and filiation between adopter and adopted child.
and ascendants;
It does not create any relationship between the
3. The widow or widower;
adopted child and the legitimate relatives of the
4. Acknowledged natural children and natural adopter.
children by legal fiction; and

5. Acknowledged illegitimate children who are Widow or widower
not natural.

The widow is entitled to all of the rights of a
When the testator is an illegitimate person primary compulsory heir.


1. Legitimate children and descendants;
However, if there is a decree of legal separation,
2. Acknowledged natural children and natural the guilty spouse can no longer be considered as
children by legal fiction;
a compulsory heir of the innocent spouse, since

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one of the effects of the decree is to disqualify the Simply, they are those children born outside
former from inheriting from the latter (Art. 106, of wedlock of parents who, at the time the
892). conception of the former were disqualified by
some impediment to marry each other.
The surviving spouse cannot claim to be a
compulsory heir of his parent-in-law under Art. Under the law, this class of illegitimate
887(3). The aforesaid provision refers to the children shall be entitled to support and such
estate of the deceased spouse in which case the successional rights as are granted in the Civil
surviving spouse (widow or widower) is a Code. These rights, however, are predicated
compulsory heir. It does not apply to the estate of on the fact that there must be either
a parent-in-law. voluntary or compulsory recognition by the
putative parent.
Illegitimate children
NOTES:
3 kinds of illegitimate children • They are all classified as primary
compulsory heirs.
1. Acknowledged natural children • Contrary to the Civil Code, the Family
Code limits the classification of children
Includes all natural children who may have to only the legitimate and illegitimate.
been acknowledged either voluntarily (Art. Thus, all illegitimate children are simply
278) or by final judgment of a competent referred to as illegitimate children.
court (Art. 283, 284).
Under the Family Code, illegitimate children, like
A natural child who has not been legitimate children, are given their status as such
acknowledged is not a compulsory heir. from the moment of birth. Hence, there is no need
Simply, in relation to his presumed parent, he for illegitimate children to file the action for
has no successional right whatsoever. recognition if they have been recognized by their
parents by any of the evidences enumerated in
However, it is possible that even when the Art. 172 of the Family Code.
testator is already dead, a natural child not
acknowledged may still participate in the Where the illegitimate children are required to
inheritance by maintaining a complex action establish their illegitimate filiation, they can do so
to compel recognition and at the same time to in the same way and by the said evidences.
obtain relief in the character of heir. But such
an action would be possible only in those Edna Padilla Mangulabnan vs. IAC and Acerto;
exceptional cases provided by law (Art. 285). Baluyut, et al rep. by Urbano v. Baluyut and CA
Filiation may be proved by the voluntary or
2. Natural children by legal fiction compulsory recognition of the illegitimate child.
Recognition is voluntary when made by the
Includes all of those children born or putative parent in the record of birth, a will, a
conceived of void marriage as well as those statement before a court of record or in any
conceived of voidable marriages after the authentic writing (Art. 278). Filiation may be
decree of annulment. proved by compulsory recognition under Art. 283
or when by court action, the child brings out his
By express provision of law, such children recognition.
shall have the same status, rights and
obligations as acknowledged natural Under the Family Code, however, private
children. They are also primary compulsory instruments signed by the putative parent is
heirs. acceptable to establish the child’s filiation. Such
documents need not be limited to authentic public
Since their status is conferred upon them by document as required by Art. 265 of the Civil
operation of law, recognition by the testator Code.
is not necessary. However, according to Art.
887 of the Code, proof of filiation is still Illegitimate children under Art. 165, FC
required.
1. Children born of couples who are not legally
3. Acknowledged illegitimate children who married, or of common-law marriages;
are not natural 2. Children born of bigamous or polygamous
marriages;
Includes all illegitimate children other than 3. Children born of adulterous relations
natural children in accordance with Art. 269 between the parents;
and other than natural children by legal
fiction.

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4. Children born of couples below 18 years old, Example: If the testator, who is an illegitimate
whether they are married (but which child, is survived by his children and his
marriage is void) or not; illegitimate parents, the latter are excluded
5. Children born of other void marriages under altogether from the succession by the presence
Art. 35 of the Family Code. This excludes of the former regardless of their legitimacy or
marriages solemnized by any person not illegitimacy.
legally authorized to perform marriages but
such marriages were contracted with either Question: If the testator happens to be an
or both parties believing in good faith that the adopted person, may the adopter also be
solemnizing officer had the legal authority to classified as a secondary compulsory heir?
do so; Answer: YES. RA 11642 (Domestic
6. Children born of incestuous marriages under Administrative Adoption and Alternative
Art. 37 of the Family Code; Children Act) states that adoptive parents are the
7. Children born of marriages void for reasons legitimate parents of the adoptive child for
of public policy under Art. 38 of the Family purposes of succession.
Code.
Under Art. 190 of the Family Code, when parents
Legitimate children of marriages void under (legitimate or illegitimate), or the legitimate
provisions under the family code ascendants of the adopted concur with the
adopters, they shall divide the entire estate, that
1. Art. 36 of the Family Code (because either of is, 1/2 to be inherited by the parents or
the parties to the marriage was ascendants and the other half by the adopters.
psychologically incapacitated to comply with
the essential marital obligations of marriage); Question: What if the decedent is an illegitimate,
and would the order of succession change?
2. Art. 53 of the Family Code (because either of Answer: YES. It will thus be an irregular order of
the former spouses who marries again fails to compulsory heirs.
comply with such requirements as recording 1. Legitimate Children
in the appropriate civil registry and registry 2. Illegitimate Children
of property the judgment of annulment of 3. Illegitimate Parents
marriage, the partition and distribution of the 4. Surviving Spouse
properties of the spouses, and the delivery of Reason: The express provision of Art. 903 of the
the children’s presumptive legitime). Civil Code provides that that is the order.

Parents or ascendants B. LEGITIMES (ARTS. 886, 888-907)

Legitimate parents or ascendants are classified as
secondary compulsory heirs because of the fact Concept of legitime
that under our law, they cannot inherit from their
child or descendant if they concur with legitimate Article 886. Legitime is that part of the
children or descendants of the latter. testator's property which he cannot dispose of
because the law has reserved it for certain heirs
NOTE: While they can be excluded by the who are, therefore, called compulsory heirs.
presence of legitimate children or
descendants, they cannot be excluded by the Legitime. That part of the testator’s property
presence of adopted children. which he cannot dispose of because the law has
Reason: The provision of Art 39(4) of the Child reserved it for certain heirs who are called
and Youth Welfare Code (PD 603), which has compulsory heirs.
superseded Art. 343 of the New Civil Code, and
which states that if the adopter is survived by A part or a portion of the hereditary estate is to a
legitimate parents or ascendants and by the certain extent withdrawn from the patrimony of
adopted child, the latter shall not have more the testator so that he can no longer dispose of it
successional rights than an acknowledged by any gratuitous title, although he can still enjoy
natural child. it.

Illegitimate parents are also classified as This limited withdrawal from the testator’s
secondary, compulsory heirs because of the fact patrimony is due to the fact that the legitime is
that under our law, they cannot inherit from their already reserved by operation of law for certain
illegitimate child if they concur with children or heirs who are, therefore called compulsory heirs.
descendants of the latter, whether legitimate or
illegitimate. Purpose: To protect compulsory heirs (because it
is possible for someone to forget their parental,
filial, or conjugal obligations).

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Rocha v. Tuason Legitime of Legitimate Descendants
It is undeniable that a necessary or forced heir,
according to the system of legitimes, has, by Article 888. The legitime of legitimate children
provision of law, from the time of his birth, a and descendants consists of one-half of the
vested right to acquire the inheritance from his hereditary estate of the father and of the
ascendants after their death and such a vested mother.
right is inherent with his legitimate filiation to The latter may freely dispose of the remaining
which belong the obligations and rights of the half, subject to the rights of illegitimate children
author of his being. The son and the father are in and of the surviving spouse as hereinafter
some respects co-owners of the property of the provided.
latter.
The legitime of legitimate children and
Changes made in the NCC descendants consists of 1/2 of the hereditary
estate of their legitimate parents or ascendants,
1. The legitime of the surviving spouse has been while the other half is at the latter’s free disposal.
converted from usufruct into full ownership.
NOTE: The 1/2 free portion is not really free
2. Illegitimate children other than because it is subject to the rights of the
acknowledged natural have been given a surviving spouse and illegitimate children.
regular legitime.
FREE DISPOSABLE FREE
Children of void marriages are considered PORTION PORTION
natural children by legal fiction and receive This is the remains after
the same legitime as acknowledged natural satisfying the legitimes of the
children. And other illegitimate children are 1/2 of the
surviving spouse and the
each entitled to a share equal to 4/5 of that of hereditary
illegitimate children.
an acknowledged natural child. estate of their

legitimate
May be given by the testator
However, under the Family Code, all parents or
to his legitimate children or
illegitimate children are simply referred to as ascendants
descendants or to any other
illegitimate children. Furthermore, the belong to the
person not disqualified by
legitime of each illegitimate child is 1/2 the legitimate
law to inherit from him, and
legitime of a legitimate child. children and
subject to the rights of the
descendants.
surviving spouse and
3. The mejora or betterment has been illegitimate children.
abolished, but the free portion has been

increased to 1/2, so that the testator may give
Rules of division
part or all of it to his legitimate children or

descendants, or to his spouse, or to third
The rule of proximity enunciated in Art. 962 is the
persons.
rule that shall apply.


Kinds of legitime
In every inheritance, the relative nearest in

degree excludes the more distant ones, saving the
FIXED VARIABLE right of representation when it properly takes
It is fixed if the aliquot It is variable if the place.
part of the testator’s estate aliquot part
to which a certain class of changes Example: If the testator is survived by (1) his
compulsory heirs is depending upon children, A and B, and (2) his grandchildren, C
entitled by operation of whether they and D, children of B, it is evident that C and D
law is always the same survive alone or are excluded by the presence of their father, B,
whether they survive with other classes since they are more remote from the testator.
alone or with other classes of compulsory But if he is survived by (1) his children, A and
of compulsory heirs. heirs. B, (2) his grandchildren, D and E, children of B,
and (3) his grandchildren, F and G, children of
Thus, the legitime of legitimate children or C, who died before him, the result is different.
descendants and legitimate parents or Although, D and E are excluded by the presence
ascendants is always 1/2 of the testator’s estate, of their father. B, F and G are not excluded,
while that of the other classes of compulsory heirs because they shall represent their deceased
depends upon whether they survive as a class or father, C, with regard to the legitime to which C
they concur with other classes of compulsory would have been entitled had he been living at
heirs. the time of the death of the testator.

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SUCCESSION

Legitime of Legitimate Ascendants taken from the free portion thus leaving 1/2 of the
entire estate at the testator’s free disposal.
Article 889. The legitime of legitimate parents
or ascendants consists of one-half of the Rules of division
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.

Article 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 1. If the testator is survived by both parents, the
shall pertain entirely to the ones nearest in legitime shall be divided between them equally.
degree of either line.
Thus, if the testator is survived by his parents,
In default of legitimate children or descendants, F and M, and the net remainder of his estate
the legitime of legitimate parents or ascendants is P80,000, their legitime consists of 1/2 of
consists of 1/2 of the hereditary estate of their such net remainder, or P40,000, which shall
children or descendants, while the other half is for be divided between them equally.
free disposal.
2. If one of the parents should have died before
This half for free disposal may be given by the testator, the entire legitime shall pass to
testator to his legitimate parents or ascendants the survivor.
or, if he so desires, to any other person not
disqualified by law to inherit from him, but Thus, if F died before the testator, the entire
subject to the rights of the surviving spouse and legitime of P40,000 shall pass to M to the
illegitimate children. exclusion of all the other ascendants.

NOTE: legitimate parents or ascendants are 3. If both parents should have died before the
excluded from the succession if they concur testator and the survivors are ascendants of
with legitimate or legitimated children or the same degree, one-half of the legitime shall
descendants. This is, however, not true if they pass to the ascendants of the maternal line.
concur with an adopted child of the testator.
Thus, if F and M, died before the testator and
GR: An adopted child shall have the same the only survivors are the paternal
successional rights as a legitimate child. grandparents, PGF and PGM, and the
XPN: Legitimate parents or ascendants are maternal grandparents, MGF and MGM, the
included from the succession if they concur with legitime of P40,000 shall be divided in such a
legitimate or legitimated children or descendants way that 1/2, or P20,000, shall pass to PGF
because of the rule stated in Art. 343 of the Code and PGM which they shall divide equally,
to the effect that if the adopter is survived by while the other 1/2, or P20,000, shall pass to
legitimate parents or ascendants and by an MGF and MGM which they shall also divide
adopted child, the latter shall not have more equally. If the only survivors are PGM, MGF,
successional rights than an acknowledged natural and MGM, the legitime shall be divided in
child. such a way that 1/2, or P20,000, shall pass to
Reason: It would be unjust to exclude the PGM alone, while the other 1/2, or P20,000,
adopter’s parents or ascendants from the shall pass to MGF and MGM which they shall
inheritance in favor of the adopted child. divide equally.

Applying the rule stated in Art. 343, if the testator 4. If both of the parents should have died before
is survived by his legitimate parents and an the testator and the survivors are ascendants
adopted child, the legitime of the former shall of different degrees, the legitime shall pertain
consist of 1/2 of the hereditary estate, while the entirely to those nearest in degree of either
legitime of the latter shall consist of 1/4 to be line.

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SUCCESSION

Thus, if F and M died before the testator and 3. Surviving with ascendants — 1/4 of the
the only survivors are the maternal estate.
grandmother, MGM, and the paternal great
grandfather, PGGF, the former shall be 4. Surviving with illegitimate children — 1/3
entitled to the entire legitime to the exclusion of the estate.
of the latter.
5. Surviving with legitimate descendants
Legitime of surviving spouse and illegitimate children — 1/4 of the
estate, if there is only one legitimate child; the
Article 892. If only one legitimate child or same as that of each legitimate child, if there
descendant of the deceased survives, the widow are two more legitimate children.
or widower shall be entitled to one-fourth of the
hereditary estate. In case of a legal separation, 6. Surviving with legitimate ascendants and
the surviving spouse may inherit if it was the illegitimate children — 1/8 of the estate.
deceased who had given cause for the same.
If there are two or more legitimate children or Alone as a class
descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of each GR: If the only surviving compulsory heir of the
of the legitimate children or descendants. testator is the widow or widower, the legitime of
In both cases, the legitime of the surviving such widow or widower consists of 1/2 of the
spouse shall be taken from the portion that can hereditary estate.
be freely disposed of by the testator. XPN: If the marriage between the surviving
spouse and the testator was solemnized in
The law requires to give to the surviving spouse articulo mortis and the testator died within three
absolute dominion over a certain portion of the months from the time of such marriage, the
decedent’s estate rather than a mere interest in legitime of the surviving spouse as the sole heir
the form of a usufruct which is often difficult to shall be 1/3 of the hereditary estate, while the
satisfy and which prevents the property from remaining two-thirds shall be at the testator’s
being freely alienated to third persons. free disposal.

Thus, the surviving spouse is entitled to a legitime NOTE: The exception shall not apply if they
the amount of which is variable depending upon had been living together as husband and wife
whether he or she survives alone or concurrently for more than five years before the celebration
with other compulsory heirs. of the marriage (Art. 900).

NOTE: In case of legal separation, if the With legitimate descendants
survivor happens to be the guilty spouse, he or
she is incapacitated to inherit from the Under Art. 892(1), if the surviving spouse concurs
deceased spouse (Arts. 106, 892). with only one legitimate child or descendant, his
or her legitime consists of 1/4 of the hereditary
Successional rights of the surviving spouse estate which shall be taken from the free portion.
with respect to his or her legitime
Division of estate:
1. Surviving alone — 1/2 of the estate, unless
the marriage between the surviving spouse Legitimate of the child or descendant 1/2
and the testator was solemnized in articulo Legitime of the surviving spouse 1/2
mortis and the testator died within three For free disposal 1/4
months from the time of such marriage, in
which case the legitime of the surviving
spouse is 1/3 of the estate, except when they Under Art. 892(2), If he or she concurs with two
have been living as husband and wife for or more legitimate children or descendants, his or
more than five years, in which case the her legitime shall be equal to that of each
legitime of such surviving spouse is again 1/2 legitimate child or descendant which shall be
of the estate. taken from the free portion.

Articulo mortis. Under the Family Code, it is Example: If the testator is survived by his
marriage at the point of death. widow, W, two legitimate children, A and B,
and two grandchildren, D and E, children of a
2. Surviving with legitimate descendants — deceased legitimate child, C, and the net value
1/4 of the estate, if there is only one child; the of the estate is P60,000, the legitime of the
same as that of each child, if there are two or legitimate children and descendants shall
more children. consists of 1/2 of P60,000, or P30,000. The
legitime of the legitimate children and

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SUCCESSION

descendants of P30,000, however, shall be Legitime of illegitimate descendants
divided per stirpes and not per capita. This is
so, because D and E are entitled by right of With legitimate descendants
representation to the legitime which would
have pertained to their deceased father, C. Article 895. The legitime of each of the
Thus, the division of the estate shall be as acknowledged natural children and each of the
follows: natural children by legal fiction shall consist of
one-half of the legitime of each of the legitimate
Legitimate of A P10,000 children or descendants.
Legitime of B P10,000 The legitime of an illegitimate child who is
neither an acknowledged natural, nor a natural
Legitime of D by right of
P5,000 child by legal fiction, shall be equal in every case
representation
to 4/5 of the legitime of an acknowledged
Legitime of E by right of natural child.
P5,000
representation The legitime of the illegitimate children shall be
Legitime of W P10,000 taken from the portion of the estate at the free
disposal of the testator, provided that in no case
For free disposal P20,000 shall the total legitime of such illegitimate
TOTAL P60,000 children exceed that free portion, and that the
legitime of the surviving spouse must first be
With legitimate ascendant fully satisfied.

Article 893. If the testator leaves no legitimate If illegitimate children concur with legitimate
descendants, but leaves legitimate ascendants, children or descendants, the legitime of each of
the surviving spouse shall have a right to one- the acknowledged natural children and each of
fourth of the hereditary estate. the natural children by legal fiction shall consist
This fourth shall be taken from the free portion of one-half of the legitime of each of the legitimate
of the estate. children or descendants, while the legitime of
each of the acknowledged illegitimate children
If the surviving spouse concurs only with who are not natural shall be equal in every case to
legitimate parents or ascendants, the legitime of 4/5 of the legitime of each of the acknowledged
the former consists of 1/4 of the hereditary estate natural children.
to be taken from the free portion, while that of the
latter consists of 1/2. Simply, the legitimes of illegitimate children shall
be computed in such a way that the legitime of an
Example: If the testator is survived by his acknowledged natural child or a natural child by
widow, W, and his legitimate parents, F and M, legal fiction shall consist of 1/2, and that of an
and the net value of the estate is P40,000, the acknowledged illegitimate child who is not
division shall be as follows: natural, 2/5, of the legitime of a legitimate child or
descendant.
Legitimate of F P10,000
Legitime of M NOTE: This computation was repealed by the
P10,000
provisions of the Family Code as —
Legitime of W P5,000 i. the acknowledged natural child;
For free disposal P5,000 ii. the natural child by legal fiction; and
iii. the acknowledged illegitimate child are
With illegitimate children now all classified simply as illegitimate
children.
Article 894. If the testator leaves illegitimate
children, the surviving spouse shall be entitled Since the law has already reserved 1/2 of the
to 1/3 of the hereditary estate of the deceased hereditary estate for this legitime of legitimate
and the illegitimate children to another third. children or descendants (Art. 888), these
The remaining third shall be at the free disposal legitimes of illegitimate children shall be taken
of the testator. from the free portion of the estate, provided that
in no case shall the total exceed such free portion.
If the surviving spouse concurs only with
illegitimate children, he or she shall be entitled to With ascendants
a legitime of 1/3 of the hereditary estate, while
the latter shall also be entitled to 1/3. The Article 896. Illegitimate children who may
remaining 1/3 shall be at the free disposal of the survive with legitimate parents or ascendants of
testator. 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.

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If the testator is a legitimate person and he is case the legitime of such surviving spouse
survived by his legitimate parents or ascendants shall consist of 1/4 of the hereditary estate
and illegitimate children, the legitime of the (Art. 292[1]).
legitimate parents or ascendants shall consist of
1/2 of the hereditary estate (Art. 899), while that 3. The legitime of each illegitimate child shall
of the illegitimate children shall consist of 1/4 to consist of 1/2 of the legitime of a legitimate
be taken from the free portion. (Art. 896). child. It is to be recalled that all three types of
illegitimate children under the New Civil
However, if the testator is an illegitimate person Code are simply classified in the Family Code
and he is survived by his illegitimate parents and as illegitimate children. Hence, the rules that:
illegitimate children, the former are not entitled
to any legitime, because they are excluded by the a. The legitime of each of the acknowledged
presence of the latter (Art. 903). In such case, the natural children and natural children by
legitime of the illegitimate children shall consist legal fiction shall consist of one-half of
of 1/2 of the hereditary estate (Art. 901). the legitime of the legitimate children or
descendants (Art. 895[1], CC; repealed by
With spouse Art. 176[2], FC).
b. The legitime of each of the acknowledged
If illegitimate children concur with the widow or illegitimate children who are not natural
widower of the testator, the legitime of the shall consist of four-fifths of the legitime
illegitimate children shall consist of 1/3 of the of each of the legitimate of four-fifths of
hereditary estate and that of the surviving spouse the legitime of each of the legitimate
shall also consist of another 1/3, with the children or descendants (Art. 895[2], CC;
remaining 1/3 available for free disposal (Art. repealed by Art. 176[2], FC) are now both
894). repealed.

With legitimate descendants and spouse 4. The legitimes of the surviving spouse and the
illegitimate children shall be taken from the
Article 897. When the widow or widower free portion, provided that in no case shall the
survives with legitimate children or total legitime of such illegitimate children
descendants, and acknowledged natural exceed such free portion, and provided
children, or natural children by legal fiction, further that the legitime of the surviving
such surviving spouse shall be entitled to a spouse must first be fully satisfied (Art.
portion equal to the legitime of each of the 895[3], CC; repealed by the FC).
legitimate children which must be taken from
that part of the estate which the testator can With legitimate ascendants and spouse
freely dispose of.
Article 899. When the widow or widower
Article 898. If the widow or widower survives survives with legitimate parents or ascendants
with legitimate children or descendants, and and with illegitimate children, such surviving
with illegitimate children other than spouse shall be entitled to one-eighth of the
acknowledged natural, or natural children by hereditary estate of the deceased which must be
legal fiction, the share of the surviving spouse taken from the free portion, and the illegitimate
shall be the same as that provided in the children shall be entitled to one-fourth of the
preceding article. estate which shall be taken also from the
disposable portion. The testator may freely
If illegitimate children concur with legitimate dispose of the remaining one-eighth of the
children or descendants and the widow or estate.
widower of the testator, the rules prescribed by
Arts. 888, 892, 897, and 898 and by the Family If illegitimate children concur with legitimate
Code in Art. 176, second sentence which repealed parents or ascendants and the surviving spouse,
Art. 895. the hereditary estate shall be divided as follows:

Rules (restated) Legitime of the
legitimate parents or 1/2 of the estate
1. The legitime of legitimate children or ascendants
descendants shall consist of one-half of the 1/8 of the estate to be
Legitime of the
hereditary estate (Art. 888). taken from the free
surviving spouse
portion
2. The legitime of the surviving spouse shall be 1/4 of the estate to be
Legitime of the
equal to the legitime of the legitimate taken from the free
illegitimate children
children (Arts. 897, 898), unless there is only portion
one legitimate child or descendant, in which Disposable portion 1/8 of the estate

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SUCCESSION

Question: If an illegitimate child dies before the
Article 900. If the only survivor is the widow or testator, can his right to the legitime which had
widower, she or he shall be entitled to 1/2 of the been reserved for him by law be transmitted to
hereditary estate of the deceased spouse, and his own heirs?
the testator may freely dispose of the other half. Answer: Under Art. 902, the rights of illegitimate
If the marriage between the surviving spouse children set forth in the preceding articles are
and the testator was solemnized in articulo transmitted upon their death to their
mortis, and the testator died within three descendants, whether legitimate or illegitimate.
months from the time of the marriage, the In reality, this provision is merely a recognition of
legitime of the surviving spouse as the sole heir the principle of representation. The precept can
shall be 1/3 of the hereditary estate, except be extended to cases of disinheritance or
when they have been living as husband and wife incapacity.
for more than 5 years. In the latter case, the
legitime of the surviving spouse shall be that Legitime of illegitimate parents
specified in the preceding paragraph.
Article 903. The legitime of the parents who
Alone as a class have an illegitimate child, when such child
leaves neither legitimate descendants, nor a
Article 901. When the testator dies leaving surviving spouse, nor illegitimate children, is
illegitimate children and no other compulsory one-half of the hereditary estate of such
heirs, such illegitimate children shall have a illegitimate child. If only legitimate or
right to one-half of the hereditary estate of the illegitimate children are left, the parents are not
deceased. entitled to any legitime whatsoever. If only the
The other half shall be at the free disposal of the widow or widower survives with parents of the
testator. illegitimate child, the legitime of the parents is
one-fourth of the hereditary estate of the child,
When the only survivors are illegitimate children, and that of the surviving spouse also one-fourth
the legitime of such illegitimate children consists of the estate.
of ½ of the hereditary estate, while the other half
is at the testator’s free disposal. Illegitimate parents are classified as compulsory
heirs of their illegitimate children, but only in
This rule must be supplemented by Art. 895 default of children or descendants, whether
which states that if some of the survivors are legitimate or illegitimate.
acknowledged natural or natural children by legal
fiction, while others are acknowledged If the testator leaves neither legitimate
illegitimate children who are not natural. descendants, nor a surviving spouse, nor
illegitimate children, and the only survivors are
NOTE: This rule was repealed by Art. 176 of illegitimate parents, such parents shall be entitled
the Family Code which states that the legitime to a legitime of 1/2 of the hereditary estate.
of each illegitimate child shall consist of 1/2 of
the legitime of a legitimate child. Since the If the widow or widower of the testator, however
various classifications of illegitimate children concurs with illegitimate parents, the legitime of
was eliminated such that they are now all the parents shall consist of 1/4of the hereditary
simply classified as illegitimate children, their estate, while that of the surviving spouse shall
legitime shall be the same, that is, 1/2 of the also consist of 1/4 of the estate, leaving 1/2 for
legitime of a legitimate child. the testator’s free disposal.

Transmissibility of rights Preservation of legitime

Article 902. The rights of illegitimate children Article 904. The testator cannot deprive his
set forth in the preceding articles are compulsory heirs of their legitime, except in
transmitted upon their death to their cases expressly specified by law.
descendants, whether legitimate or illegitimate. Neither can he impose upon the same any
burden, encumbrance, condition, or
Under the law, all classes of illegitimate children substitution of any kind whatsoever.
are entitled to succeed as compulsory heirs.
Principle: The untouchability of the legitime of
NOTE: The amount of their legitime is variable compulsory heirs.
depending upon whether they inherit alone or
as a class or concurrently with other classes of NOTE: The same principle is also enunciated
compulsory heirs. either expressly or impliedly in Arts. 842, 864
and 872.


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SUCCESSION

GR: The testator cannot deprive his compulsory legacies and devises which are not inofficious
heirs of their legitime. shall be respected (Art. 854).
XPN: When the testator disinherits a compulsory
heir for a cause expressly stated by law (Art. 915). 4. By leaving to the compulsory heir by any
title any property or amount which is not
GR: He cannot impose upon the same any burden, sufficient to satisfy the legitime to which
encumbrance, condition, or substitution of any such heir is entitled by law
kind whatsoever.
XPN: When he expressly prohibits the partition of 5. In such a case, the heir can ask for the
the hereditary estate for a period which shall not completion of his legitime (Art. 906).
exceed 20 years (Art. 1083).
Effect of renunciation or compromise
NOTE: This power of the testator to prohibit
division applies even to the legitime of Article 905. Every renunciation or compromise
compulsory heirs. There are other instances as regards a future legitime between the person
when a charge or burden is imposed upon the owing it and his compulsory heirs is void, and
legitime of compulsory heirs, such as in the the latter may claim the same upon the death of
case of reserva troncal (Art. 891) or when the the former; but they must bring to collation
estate consists of a family home (Art. 238) but whatever they may have received by virtue of
in these cases, the charge is imposed by the law the renunciation or compromise.
and not by the testator.
Every renunciation or compromise as regards a
Effect of impairment future legitime between the testator and his
compulsory heirs is void.
If the testator deprives a compulsory heir of his
legitime in violation of the principle declared in Reasons:
Art. 904, the effect of such deprivation must be
distinguished or qualified. 1. The rights of the heirs with respect to their
legitime are merely inchoate or prospective,
4 ways by which the testator may attempt to because such rights are perfected only at the
deprive a compulsory heir of his legitime: moment of the death of the testator (Art. 777).

1. By valid disinheritance Hence, before the death of the latter, there
can be nothing to renounce or compromise.
In such a case, the disinheritance shall take
effect, provided that the requisite formalities 2. GR: No contract may be entered into with
prescribed by law are complied with. This is respect to future inheritance except in the
the only exceptional case under our Code cases expressly authorized by law (Art. 1347).
where the testator may, by his own act,
deprive a compulsory heir of the legitime to XPNS: Those contemplated in Arts. 130 and
which he is entitled by law (Art. 915). 1080.

2. By imperfect disinheritance Thus, all agreements between the testator
and a compulsory heir which partake of the
By imperfect disinheritance, we refer to the nature of a renunciation or compromise with
expressed attempt of the testator to deprive a regard to the future legitime of the heir would
compulsory heir of his legitime without the be void under this article.
requisite formalities prescribed by law. The
effect of such attempt would be the partial The rule also applies to any contract with
annulment of the institution of heirs to the regard to the future legitime entered into, not
extent that the legitime of the heir only between the testator and the heir, but
disinherited is prejudiced, but legacies and also among the heirs themselves, or between
devises which are not inofficious shall be the heirs and third persons (Art. 1347).
respected (Art. 918).
NOTE: The prohibition cannot be applied
3. By preterition of a compulsory heir in the to donations inter vivos made by the
direct line testator to a compulsory heir. Such
donations, which are presumed to be
In this case, the attempt of the testator to advances of the legitime, are allowed by
deprive the compulsory heir of his legitime is the law but subject to collation.
implied. The effect of such attempt would be
the annulment of the institution of heirs, but Question: Who can claim the nullity of the
renunciation or compromise?

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SUCCESSION

Answer: Such nullity may be claimed either by NOTE: If the heir cannot lose his legitime,
the compulsory heir who made it or by any other neither can he demand more than what it
compulsory heir who is prejudiced by such amounts to. At most, he can only ask for the
renunciation or compromise. balance of what he is legally entitled to.

NOTE: If the nullity is claimed after the death C. DISTRIBUTION OF THE ESTATE
of the testator, it is required that the heir who (LEGITIMES & FREE PORTION) (ARTS. 908-
is filing the claim must bring to collation 914)
whatever he might have received by virtue of
the renunciation or compromise. This
requirement is logical because it would be Steps in distribution of estate if there are
unjust if such heir is allowed to claim his donations
legitime and still retain what he had received.
Article 908. To determine the legitime, the
Effect of incomplete legitime value of the property left at the death of the
testator shall be considered, deducting all debts
Article 906. Any compulsory heir to whom the and charges, which shall not include those
testator has left by any title less than the imposed in the will.
legitime belonging to him may demand that the To the net value of the hereditary estate, shall be
same be fully satisfied. added the value of all donations by the testator
that are subject to collation, at the time he made
“By any title,” as used by the law in describing the them.
disposition of the property given by the testator
to the compulsory heir who is prejudiced, implies Article 909. Donations given to children shall
that the property which the testator had given to be charged to their legitime.
the compulsory heir, and which is not sufficient to Donations made to strangers shall be charged to
cover the legitime of such heir, might not have that part of the estate of which the testator could
been disposed of by the will itself, but by some have disposed by his last will.
other gratuitous title, such as by way of donation, Insofar as they may be inofficious or may exceed
during the lifetime of the testator. the disposable portion, they shall be reduced
according to the rules established by this Code.
Reason: In the computation of the legitime of
compulsory heirs during the proceedings for the Article 910. Donations which an illegitimate
settlement of the estate of the testator, the value child may have received during the lifetime of
of the property donated to the heir at the time his father or mother, shall be charged to his
when the donation was made shall be collated to legitime.
the net value of the estate and subsequently Should they exceed the portion that can be
imputed against his legitime. Whether the freely disposed of, they shall be reduced in the
property had been disposed of by will or by way manner prescribed by this Code.
of donation, the same rule applies; the remedy of
the heir who is prejudiced is to demand for the 5 steps in the determination of the legitime of
completion of his legitime. compulsory heirs:

1. Determination of the gross value of the estate
PRETERITION INCOMPLETE LEGITIME
at the time of the death of the testator.
(ART. 854) (ART. 906)
2. Determination of all debts and charges which
The testator has not are chargeable against the estate.
entirely forgotten the heir, 3. Determination of the net value of the estate
There is a total
but making a wrong by deducting all of the debts and charges from
omission of the
estimate of the portion the gross value of the estate.
compulsory heir
which he could freely 4. Collation or addition of the value of all
in the institution,
dispose of, he has left to donations inter vivos to the net value of the
and a total
such heir something less estate.
deprivation of
than the portion to which 5. Determination of the amount of the legitime
his legitime.
he is entitled by operation from the total thus found in accordance with
of law. the rules (Arts. 888-903) established in the
The only effect is to give a Civil Code.
The effect is the remedy or a right of action
total annulment to the compulsory heir who 2 added steps in order to distribute the hereditary
of the institution is prejudiced to demand for estate in accordance with the testator’s will:
of heirs the completion of his
legitime 1. Imputation of the value of all donations inter
vivos made to compulsory heirs against their


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legitime and of the value of all donations inter In case there is a judicial proceeding, the
vivos made to strangers against the procedure shall depend upon the nature of the
disposable free portion and restoration to the proceeding itself.
hereditary estate if the donation is
inofficious. In case of administration proceedings, the
2. Distribution of the residue of the estate in executor or administrator, within 3 months after
accordance with the will of the testator. his appointment, shall return to the court a true
inventory or appraisal of all the real and personal
Mateo v. Lagua estate of the deceased which have come to his
Issue: Whether not the CA acted correctly in possession or knowledge.
ordering the reduction of the donation for being
inofficious, and in ordering herein petitioners to If there is no administration proceeding, it is the
reconvey to respondent Gervacio Lagua an actual value of the estate which should be taken
unidentified 494.75 sqm portion of the donated into consideration, and not the sentimental value.
lots. The valuation or appraisal may even be made by
Held: We are in accord with the CA that the civil common agreement.
case is one exclusively for annulment or
revocation of merely that portion thereof Debts and charges
allegedly trenching on the legitime of respondent
Gervacio Lagua; and that a donation propter Deductible debts and charges. Pre-existing
nuptias may be reduced for being inofficious. obligations of the testator which he had incurred
Contrary to the views of appellants (petitioner’s), during his lifetime, and not to the charges or
donations propter nuptias (by reason of burdens which are created by testamentary
marriage) are without onerous consideration, the dispositions found in the will.
marriage being merely the occasion or motive for
the donation, not its causa. Being liberalities, they Charges or burdens arising from or based upon
remain subject to reduction for inofficiousness testamentary dispositions are chargeable or
upon the donor’s death, if they should infringe the imputable against the portion at the testator’s
legitime of a forced heir. Before any conclusion free disposal. Since it would be impossible to
about the legal share due to a compulsory heir determine such disposable portion without first
may be reached, it is necessary that certain steps determining the legitime of compulsory heirs, it is
be taken first. The net estate of the decedent must clear that such charges or burdens cannot be
be ascertained, by deducting all payable placed in the same category as pre-existing
obligations and charges from the value of the obligations of the testator.
property owned by the deceased at the time of his
death; then all donations subject to collation Collation of donations
would be added to it. With the partible estate thus
determined, the legitimes of the compulsory heir Upon the determination of the net value of the
or heirs can be established; and only thereafter estate by the settlement or liquidation of all
can it be ascertained whether or not a donation deductible debts and charges, the next step in the
had prejudiced the legitimes. Certainly, in order determination of the legitime of compulsory heirs
that a donation may be reduced from being is the collation or addition of the value of all
inofficous, there must be proof that the value of donations which the testator had made during his
the donated property exceeds that of the lifetime to the net value of the estate.
disposable free portion plus the donee’s share as
legitime in the properties of the donor. In the The value to be collated or added is the value of
present case, it can hardly be said that, with the the thing donated at the time when the donation
evidence then before the court, it was in any was made. Any loss, deterioration, or
position to rule on the inofficiousness of the improvement of the thing donated from the time
donation involved here, and to order its reduction when the donation was made up to the time of the
and reconveyance of the deducted portion to the settlement of the donor’s estate shall be for the
respondents. account or for the benefit of the donee.

Gross value of estate Meaning of collation

The procedure for the determination of the gross 1. A fictitious mathematical process of adding
value of the estate at the time of the death of the the value of the thing donated to the net value
testator shall depend upon whether there is a of the hereditary estate (Art. 908).
judicial proceeding for the settlement of the estate
or not. Purpose: To compute the legitime of
compulsory heirs.

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2. It includes not only the process of adding the where the beneficiary is a compulsory heir: As far
value of the thing donated to the net value of as the premiums are concerned, although they
the hereditary estate but also the subsequent partake of the nature of donations, commentators
act of charging or imputing such value against sustain the view that so long as they are paid from
the legitime of the compulsory heir to whom the income of the insured and are not excessive,
the thing was donated (Art. 1061). they are not subject to collation.

Inofficious. The value of the donation Imputation
exceeded the value of the free portion.
After the value of all donations inter vivos have
Purpose: To take the donations “in the already been added to the net value of the
account of the partition” in order to equalize hereditary estate, the next step is the
the shares of the compulsory heirs as much as determination of the legitime of compulsory heirs
possible. in accordance with the rules prescribed in Arts.
888 to 903 using as basis the total amount
3. It refers to the actual act of restoring to the obtained.
hereditary estate that part of the donation
which is inofficious in order not to impair the Donations given to compulsory heirs will then be
legitime of compulsory heirs. imputed against their legitime, while those given
to strangers will be imputed against the
Purpose: To protect the legitime of disposable portion.
compulsory heirs.
If such donations are inofficious in the sense that
Donations to be collated they cannot be contained in the disposable
portion, they must be reduced in accordance with
Whether the donation was made to a compulsory the rules prescribed in Arts. 911 and 912.
heir or to a stranger, the value thereof at the time
when it was made shall be added to the net value NOTES:
of the hereditary estate for the purpose of • The act of imputation is merely a
determining the legitime of compulsory heirs and mathematical process of determining
the portion at the testator’s free disposal. whether the value of the donation can be
contained in the legitime or disposable
That donations inter vivos made to compulsory portion, as the case may be, or not. Simply,
heirs shall be collated is evident from the the purpose is to determine whether it is
provision of Art. 1061. inofficious or not.
o If it is not inofficious, it will be
In case of donations inter vivos to strangers, the respected; the donee shall not be
basis of the rule is found in the prohibition of required to make any restoration to
inofficious donations, or those which impair the the hereditary estate.
legitime of compulsory heirs (Arts. 752, 771). o If it is inofficious, it will be reduced
with respect to the excess; the donee
Liguez v. CA shall be required to make an actual
Under the Art. 909(2), such donations are restoration to the hereditary estate in
imputable against the portion at the testator’s order not to impair the legitime of
free disposal in order to determine whether they compulsory heirs.
are inofficious or not. Thus, before they can be so • In the case of a donation to a compulsory
imputed and before they can be considered heir, just because the value of the thing
inofficious, it is essential that their value must be donated cannot be contained in his
added to the net remainder of the estate in order legitime does not necessarily mean that
to determine the legitime of compulsory heirs and the donation is inofficious. The only effect
the portion at the testator’s free disposal against in such case, would be to place the
which they are imputable. donation in the same category as a
donation to a stranger with respect to the
Del Val v. Del Val excess. Hence such excess will be
Question: How about the proceeds of a life imputed against the disposable portion.
insurance policy, where the beneficiary is a third If it can be contained in such disposable
person or even a compulsory heir, shall such portion, it is not inofficious; it will not be
proceeds be collated or not? reduced.
Answer: The proceeds of an insurance policy • These rules must be qualified by the
belong exclusively to the beneficiary and not to provision of Art. 1062, which declares
the estate of the insured; the provisions of the that collation shall not take place among
Civil Code with regard to collation cannot apply. It compulsory heirs if the donor should
is believed that the same principle can be applied have so expressly provided. Meaning, if

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the donor has expressly provided either reduced in order to preserve the legitime of
in the deed of donation or in his will that compulsory heirs.
the donation given to a compulsory heir
shall not be collated, the value of such Testamentary dispositions, on the other hand, are
donation shall be imputable against the unilateral in character. They produce juridical
disposable portion and not against the effects only after the death of the testator.
legitime of such heir.
Question: Why do you respect donations more
Reduction of testamentary dispositions and than the legacies and devices?
donations Answer: Because donations are already done and
given, while the legacies and devices are yet to be
Article 911. After the legitime has been given.
determined in accordance with the three
preceding articles, the reduction shall be made Procedure for reduction
as follows:
(1) Donations shall be respected as long as the The order of preference is as follows:
legitime can be covered, reducing or annulling,
if necessary, the devises or legacies made in the 1. Legitime of compulsory heirs;
will; 2. Donations inter vivos;
(2) The reduction of the devises or legacies shall 3. Preferential legacies or devices; and
be pro rata, without any distinction whatsoever. 4. All other legacies or devises.
If the testator has directed that a certain devise
or legacy be paid in preference to others, it shall If after satisfying the legitime of compulsory heirs,
not suffer any reduction until the latter have the disposable portion is sufficient to cover
been applied in full to the payment of the donations inter vivos, but not sufficient to cover
legitime. the legacies and devises, the rule is that such
(3) If the devise or legacy consists of a usufruct legacies and devises will be reduced pro rata,
or life annuity, whose value may be considered after first satisfying all of those which the testator
greater than that of the disposable portion, the has declared to be preferential.
compulsory heirs may choose between
complying with the testamentary provision and The formula for the pro rata reduction of legacies
delivering to the devisee or legatee the part of or devises which are not preferred is as follows:
the inheritance of which the testator could
freely dispose.

The order of preference contemplates a case in
which the legitime of compulsory heirs is
impaired by inofficious testamentary dispositions This is based on the fact that the proportion which
and inofficious donations inter vivos. In such case, the reduced amount of the legacy or devise bears
the rule is to reduce or suppress the testamentary to the amount actually at the testator’s free
disposition or even the donation if necessary. disposal is equal to the proportion which the
value of the legacy or devise before reduction
However, as between donations inter vivos and bears to the total value of all legacies or devises.
donations mortis causa, preference is always
given to donations inter vivos. Under Art. 773, if there being 2 or more donations
Reason: Donations inter vivos are irrevocable by and the disposable free portion is not sufficient to
their very nature. Acceptance by the donee is cover all of them, those of the most recent date
essential, so much so that they are perfected only shall be reduced. Simply, you satisfy the older
from the moment the donor knows of the ones and you reduce the more recent ones.
acceptance by the donee. Once perfected, they
produce juridical effects; they become Rules of reductions of devises
irrevocable.
Article 912. If the devise subject to reduction
Therefore, in case of concurrence between the should consist of real property, which cannot be
two and the disposable portion is not sufficient to conveniently divided, it shall go to the devisee if
cover both of them, the testamentary the reduction does not absorb one-half of its
dispositions, such as legacies or devises, are the value; and in a contrary case, to the compulsory
first to be reduced or even suppressed if heirs; but the former and the latter shall
necessary. reimburse each other in cash for what
respectively belongs to them.
If after such suppression, the value of the The devisee who is entitled to a legitime may
donations inter vivos cannot still be covered by retain the entire property, provided its value
the disposable portion, then such value shall be

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does not exceed that of the disposable portion order that it may be computed in the
and of the share pertaining to him as legitime. determination of the legitime of each heir, and
in the account of the partition.
Article 913. If the heirs or devisees do not
choose to avail themselves of the right granted Collation. The act of returning or restoring to the
by the preceding article, any heir or devisee who common mass of the hereditary estate, either
did not have such right may exercise it; should actually or fictitiously, any property which a
the latter not make use of it, the property shall person may have received from the decedent
be sold at public auction at the instance of any during the latter’s lifetime, but which is
one of the interested parties. understood for legal purposes as an advance from
the inheritance.
Under Art. 912, there are 2 sets of rules which
must be complied with depending upon whether 3 different but interrelated acceptations:
the devisee is one who is not entitled to a legitime
or one who is entitled to a legitime because he is 1. A fictitious mathematical process of adding
also a compulsory heir: the value of the thing donated to the net value
of the hereditary estate (Art. 908).
1. If the reduction of the devise does not absorb
1/2 of the value of the property, said property Purpose: To compute the legitime of
shall go to the devisee, but with the obligation compulsory heirs.
of the latter to reimburse the compulsory
heirs in cash for what pertains to them by 2. It includes not only the process of adding the
virtue of the reduction. value of the thing donated to the net value of
the hereditary estate but also the subsequent
2. If the reduction absorbs more than 1/2 of the act of charging or imputing such value against
property, said property shall go to the the legitime of the compulsory heir to whom
compulsory heirs. The latter, however, shall the thing was donated (Art. 1061).
reimburse the devisee in cash in order to
cover up the reduced amount of the devise. Purpose: To take the donations “in the
account of the partition” in order to equalize
According to Manresa: If the reduction the shares of the compulsory heirs as much as
absorbs exactly 1/2 of the property, the possible.
property shall go to the legatee.
3. It refers to the actual act of restoring to the
According to Sanchez Roman: If the reduction hereditary estate that part of the donation
absorbs exactly 1/2 of the property, it shall go which is inofficious in order not to impair the
to the compulsory heirs. legitime of compulsory heirs.

NOTE: It is submitted that the latter opinion Purpose: To protect the legitime of
is more in conformity with the letter of the compulsory heirs.
law.
Basis of collation: What a compulsory heir
Article 914. The testator may devise and receives from the decedent by gratuitous title
bequeath the free portion as he may deem fit. during the lifetime of the latter is in the nature of
an advance on his inheritance.
If the testator is an illegitimate person, his natural Hence, in order to equalize the legal portion to
parents are also excluded by presence of which compulsory heirs are entitled and which
illegitimate children. such heirs shall ultimately or eventually receive,
it is necessary that such advance must be
*Refer to separate document on Table of Legitime returned or brought back, fictitiously, to the
Under the New Civil Code and the Family Code hereditary estate.

However, such advance must have been made
D. RULES ON COLLATION (ARTS. 1061-1077)
during the lifetime of the decedent by way of
donation or any other gratuitous title. Hence, it
Concept of collation may be in the nature of a donation inter vivos, or
a donation propter nuptias, or a remission of a
Article 1061. Every compulsory heir, who debt, or any other title, lucrative or gratuitous in
succeeds with other compulsory heirs, must character.
bring into the mass of the estate any property or
right which he may have received from the The same can be said of donations inter vivos to
decedent, during the lifetime of the latter, by strangers. What the decedent during his lifetime
way of donation, or any other gratuitous title, in had donated to any person who is not a

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compulsory heir must also be returned or should repudiate the inheritance, unless the
restored to the mass of the hereditary estate donation should be reduced as inofficious.
fictitiously, so that a proper division can be made
of the estate. Instance when collation shall not take place:

A person cannot give by way of donation more 1. When the donor should have expressly
than what he can give by will. If he gives more provided; and
than what he can dispose of by will, the donation 2. When the donee should have repudiated his
is said to be inofficious with regard to the excess. inheritance.

However, at the time the donation is made, there Question: What is meant by “collation shall not
is no way by which one can tell whether the take place”?
donation is inofficious or not. It is only when the Answer: The value of the thing donated shall not
decedent donor dies that it will be possible to be imputed against the legitime of the beneficiary;
determine what portion of his property is at this instead, it shall be imputed against the disposable
free disposal. In order to do this, there must be a portion. Hence, there will still be a collation in the
collation, fictitious in character, of the value of all sense in which the term is used in Art. 908. The
donations inter vivos to the net value of the estate, value of the thing donated shall still be added to
and from the aggregate sum thus found, the the net value of the estate. The only difference is
legitime of compulsory heirs and the portion at that it is imputable against the disposable portion
the decedent’s free disposal can be determined. and not against the legitime of the beneficiary.

GR: All donations, whether to compulsory heirs or Example: When the donor expressly provides
to strangers, must be collated. As a rule, donations that the donee who is a compulsory heir shall
to compulsory heirs are imputable against their not collate the donation, the latter in relation to
legitime. Donations to strangers are, of course, the donation ceases to be a compulsory heir.
imputable against the disposable portion. Simply, the donation is no longer considered
an advance from his legitime. Hence, the value
NOTE: However, at this stage, the collation is thereof shall not be imputable against such
merely fictitious in character; it is simply a legitime. Since he is considered a stranger, at
mathematical process of adding to the net least with respect to the donation, the value
value of the estate the value of the things thereof shall not be imputable against the
donated. disposable portion in accordance with Art. 909.
Similarly, when the donee repudiates his
After the legitime and the disposable portion have inheritance, he ceases to be a compulsory heir.
been determined, the value of the donations He becomes a stranger, and the value of the
which had been added to the net value of the donation given to him is also imputable against
estate are charged or imputed against either the the disposable portion and not against the
legitime or the disposable portion. legitime.

If the donations are inofficious in the sense that Property left by will
they cannot be contained within the portion at the
decedent’s free disposal, there must be a proper Article 1063. Property left by will is not
reduction of such donations in order not to impair deemed subject to collation, if the testator has
the legitime of compulsory heirs. This reduction not otherwise provided, but the legitime shall in
will have the effect of an actual restoration. It is at any case remain unimpaired.
this stage that the process becomes actual in
character but only when the donation is Question: What is meant by “not deemed subject
inofficious. to collation”?
Answer: It is the imputation alluded to in the
3 acts which must always be considered before comments under the preceding article. Simply,
there can be a partition of the estate: such property left by will is not subject to
collation in the sense that it cannot be imputed
1. Collation against the legitime of the compulsory heirs; it
2. Imputation can only be imputed against the disposable
3. Reduction portion. What is, therefore, contemplated in Art.
1063 are devises or legacies. Such dispositions
When collation shall not take place are, as a general rule, imputable only against the
disposable portion, not against the legal portion.
Article 1062. Collation shall not take place
among compulsory heirs if the donor should A compulsory heir may also be a voluntary heir or
have so expressly provided, or if the donee a legatee or devisee. In such case, there is no
longer any equality of the compulsory heirs in the

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succession. Nevertheless, the will of the testator children. In such case, the beneficiaries are not
must be respected. The devisees or legacies shall the parents, but the children.
not, however, impair the legitime of a compulsory
heir. If they do, then they shall be reduced in Hence, with respect to the inheritance coming
accordance with Art. 911. from an ascendant, the parents are compulsory
heirs, while the children of such parents are mere
GR: Devises or legacies are imputable against the strangers.
disposable portion and not against the legitime of
compulsory heirs. Therefore, such donation shall be imputed against
XPN: If the devise or legacy is in favor of a the disposable portion as in the case of donations
compulsory heir, and the testator has provided inter vivos to strangers.
that the devise or legacy shall be imputed against
the legitime of such heir, the general rule, shall no Donations to spouse of child
longer apply.
Article 1066. Neither shall donations to the
NOTE: Nevertheless, whether it is the general spouse of the child be brought to collation; but if
rule or the exception that is followed, the they have been given by the parent to the
legitime of compulsory heirs must never be spouses jointly, the child shall be obliged to
impaired. bring to collation one-half of the thing donated.

Collation of representation The spouse of the child or compulsory heir is a
mere stranger to the succession. If the donation is
Article 1064. When the grandchildren, who given by the parents to such spouse, it shall not be
survive with their uncles, aunts, or cousins, collated; but if it is given to the spouse jointly, the
inherit from their grandparents in presumption is that 1/2 of the donation belongs
representation of their father or mother, they to the child or compulsory heir, while the other
shall bring to collation all that their parents, if half belongs to the spouse or stranger.
alive, would have been obliged to bring, even
though such grandchildren have not inherited Hence, the former shall be obliged to collate his
the property. 1/2 undivided share. It shall, therefore, be
They shall also bring to collation all that they imputed against his legitime. On the other hand,
may have received from the decedent during his the other undivided half which belongs to the
lifetime, unless the testator has provided spouse shall be imputed against the disposable
otherwise, in which case his wishes must be portion.
respected, if the legitime of the co-heirs is not
prejudiced. Expenses for support

When a grandchild, who survives with uncles, Article 1067. Expenses for support, education,
aunts, or first cousins, inherits by right of medical attendance, even in extraordinary
representation, he is obliged to bring to collation illness, apprenticeship, ordinary equipment, or
not only what may have been directly donated to customary gifts are not subject to collation.
him by the decedent, but also what may have been
donated to his father or mother. If the rule were The expenses referred to in this article are not
otherwise there would be no equalization of the donations.
heirs.
The person giving them does so because it is his
NOTE: What the law means when it says that moral obligation to give them. They do not
the grandchild shall bring to collation all that constitute an advance which must be imputed or
his father or mother, if alive, would have been charged later on against the legitime of the
obliged to bring, is that the value of the beneficiary. They are not, therefore, subject to
donation shall be imputed against his lifetime collation.
as a representative and not against the
disposable portion. Hence, there is no collation, even in the sense of
charging what had been given to the free portion.
Donations to children of compulsory heirs As a matter of fact, the parents or ascendant
cannot even provide that such expenses shall be
Article 1065. Parents are not obliged to bring collated. Therefore, the precept contained in the
to collation in the inheritance of their article is in the nature of a prohibition.
ascendants any property which may have been
donated by the latter to their children. Expenses for a career

Parents are not obliged to collate any property Article 1068. Expenses incurred by the parents
which their ascendants may have donated to their in giving their children a professional,

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vocational or other career shall not be brought Example: If the child is sick and the parents
to collation unless the parents so provide, or are obliged to call a physician, the expenses in
unless they impair the legitime; but when their such case shall not be placed in the same
collation is required, the sum which the child category as donations inter vivos either to a
would have spent if he had lived in the house compulsory heir or to a stranger. It would
and company of his parents shall be deducted indeed be absurd to charge such expenses
therefrom. either against the legitime or against the
disposable portion. Or, take the case of a
GR: Expenses incurred by parents in giving their birthday present or any customary gift. It
children a professional, vocational or other career would also be absurd to impute such gifts later
are, in general, not to be collated. on, even if such imputation is directed against
XPNS: the disposable portion. In the case of expenses
1. If the parents so provided for a professional or vocational career, the rule
2. If the expenses impair the legitime of is different and rightly so. The amount involved
compulsory heirs. is not so insignificant or trivial. Hence,
generally, such expenses should be imputed or
NOTE: In both cases the sum which the child charged against the disposable free portion.
would have spent if he had lived in the house
and company of his parents shall be deducted NOTE: Art. 1068 refers only to expenses incurred
from that which shall be collated. by the parents in giving their children a
professional, vocational or other career. It does
The expenses referred to in this article are not refer to expenses incurred after the
different from those referred to in Art. 1067. The completion of such professional, vocational or
expenses incurred by parents in giving their other career. Hence, expenses for a law library,
children a professional or artistic education are medical instruments, a drug store, a vessel for a
not as necessary as those used for books, tuition mariner, or a commercial establishment for a
and matriculation fees, examination fees, businessman are not within the purview of the
traveling expenses, pensions, diplomas, school article. Such expenses shall be collated and,
equipment, tools, etc. As a result of the difference therefore, are imputable against the legitime of
between the two articles, different rules are the recipient or beneficiary.
applied.
Payments for debts of children
NOTE: Whether the expenses fall under Art.
1067 or under Art. 1068, all of them are Article 1069. Any sums paid by a parent in
classified as support. satisfaction of the debts of his children, election
expenses, fines, and similar expenses shall be
As in the case of the other properties not subject brought to collation.
to collation, expenses for the professional or
vocational studies of a compulsory heir are not to This refers to cases in which the parents spend for
be collated in the sense that they cannot be their children with the obligation on the part of
imputed against the legitime of such heir. They the latter to bring such expenses to collation after
can be imputed only against the disposable the death of the parents in order to equalize the
portion. portion which shall pass to each of the
compulsory heirs.
NOTE: This rule cannot apply to the expenses
for support, education, medical attendance, Examples: Spending for the election of a
apprenticeship or customary gifts referred to favorite child to a public office, or in saving a
in Art. 1067. Such expenses and gifts are so child from disgrace by paying a fine imposed
necessary and yet so trivial in character that it by a court of law, or any similar act involving
would be absurd to collate them to the mass of similar expenses.
the hereditary estate and, afterwards, impute
them either against the legitime or against the Qualification: The act of the parents in paying a
disposable portion. debt of a child must be an act of liberality, not an
act resulting in the creation of a relationship or
Question: What does “shall not be brough to creditor and debtor
collation” mean?
Answer: Under Art. 1068 and other articles, it The child becomes a debtor and if the amount is
must be interpreted to mean that such expenses not paid before the death of the decedent, he can
or donations shall be considered as advances of always be held liable for the payment of the debt.
the heir’s legitime, and, therefore, shall not be Even if he repudiates his inheritance, he shall still
imputable against such legitime but only against be held liable for the full amount of his debt.
the disposable portion.


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If the payment is gratuitous in character, the though it’s just value may not then have been
obligation of the beneficiary or donee would only assessed.
be to collate the amount. And if he chooses to
repudiate his inheritance, his position, will be Determination of value:
similar to that of a stranger. The amount
expended would then be imputable against the a. In the case of real property, the value may be
disposable portion. As a consequence, the stated in the public instrument itself which
provision of Art. 1062 would be applicable. conveys the property.

Weddings gifts If the value is not stated therein or if is not
agreed upon by the interested parties,
Article 1070. Wedding gifts by parents and recourse may be made to those appearing in
ascendants consisting of jewelry, clothing, and tax assessments or cadastral surveys.
outfit, shall not be reduced as inofficious except
insofar as they may exceed one-tenth of the sum b. In the case of personal property, in the absence
which is disposable by will. of assessments or agreements between the
parties, recourse may be made to expert
GR: Wedding gifts coming from parents and appraisal.
ascendants consisting of jewelry, clothing, and
outfit are not subject to collation. Hence, they However, whether the property is real or
shall not be reduced as inofficious. personal, there is no question that even if the
XPN: Unless they exceed 1/10 of the sum which is value has been expressed or agreed upon, the
disposable by will. The excess, therefore, shall be same is not absolutely binding or obligatory
collated in the sense that it shall be imputed upon the parties.
against the legitime of the beneficiary.
The rule in Art. 1071(2) is in conformity with the
Rationale: To prevent any abuse that may result rule that once the donation is made or perfected,
because of vanity or love, thus prejudicing other there is a transfer of ownership. The donee
compulsory heirs. becomes the owner of the thing donated. Risks of
loss or deterioration, must, therefore, fall upon
Article applied him (res perit domino). The same is true with
respect to any subsequent increase. By the
What is meant is that the wedding gift shall not be principle of accession, any increase in value
considered as an advance of the legitime of the would be for the benefit of the donee.
recipient so long as it does not exceed 1/10 of the
disposable free portion. As such, it will be Rule for donations made by both parents
considered as a donation inter vivos chargeable
against the disposable free portion. Article 1072. In the collation of a donation
made by both parents, one-half shall be brought
However, once it exceeds 1/10 of the disposable to the inheritance of the father, and the other
free portion, the excess will then be considered as half, to that of the mother. That given by one
an advance of the legitime of the recipient. alone shall be brought to collation in his or her
inheritance.
What must be collated
Since, ordinarily, the parents act in concert
Article 1071. The same things donated are not whenever an advance is given to a favorite child
to be brought to collation and partition, but only or to a child in need, the donation generally forms
their value at the time of the donation, even a part of the conjugal property.
though their just value may not then have been
assessed. Hence, when the value of the thing donated is
Their subsequent increase or deterioration and brought to collation, 1/2 of the amount is brought
even their total loss or destruction, be it to the inheritance of the father, and the other half
accidental or culpable, shall be for the benefit or to that of the mother.
account and risk of the donee.
However, that given by one alone shall be brought
Their subsequent increase or deterioration and to collation in his or her inheritance only.
even their total loss or destruction, be it
accidental or culpable, shall be for the benefit or Rules for equalization of shares of heirs
account and risk of the donee.
Article 1073. The donee's share of the estate
Only the value of the thing donated shall be shall be reduced by an amount equal to that
brought to collation. This value must be the value already received by him; and his co-heirs shall
of the thing at the time of the donation, even

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receive an equivalent, as much as possible, in donated shall also vest in the donee from that
property of the same nature, class and quality. time.

Article 1074. Should the provisions of the However, once the rights to the succession are
preceding article be impracticable, if the opened by the death of the decedent-donor, the
property donated was immovable, the co-heirs obligation to collate the value of the thing or
shall be entitled to receive its equivalent in cash property donated also arises.
or securities, at the rate of quotation; and should
there be neither cash or marketable securities in All of the heirs called to the succession acquire
the estate, so much of the other property as may some right with respect to what is collated.
be necessary shall be sold at public auction. Simply, what is supposed to be collated, by legal
If the property donated was movable, the co- fiction, becomes a part of the mass of the
heirs shall only have a right to select an hereditary estate. The heirs all become co-owners
equivalent of other personal property of the of such estate from the very moment of the death
inheritance at its just price. of the decedent. Hence, it follows that the fruits
and interest from that moment shall pertain to the
Art. 1073 is directed or aimed at equalizing the hereditary estate.
shares of all the heirs. Hence, after the
determination of the legitime and the free Collation in kind
portion, or, in case of intestate succession after
determining the shares of each of the legal heirs, Article 1076. The co-heirs are bound to
the donee’s legitime or legal share as the case reimburse to the donee the necessary expenses
maybe, shall be reduced by an amount equal to which he has incurred for the preservation of
that already received by him. His co-heirs shall, in the property donated to him, though they may
turn, receive an equivalent, as much as possible, not have augmented its value.
in property of the same nature, class and quality. The donee who collates in kind an immovable
This equivalent is, of course, taken from the which has been given to him must be
estate. reimbursed by his co-heirs for the
improvements which have increased the value
DONATION IS DONATION IS of the property, and which exist at the time the
IMMOVABLE MOVABLE partition if effected.
As to works made on the estate for the mere
Under Art. 1074(1), the pleasure of the donee, no reimbursement is due
rule is to give the co-heirs The co-heirs shall him for them; he has, however, the right to
its equivalent in cash or only have a right remove them, if he can do so without injuring
securities at the rate of to select an the estate.
quotation. If this is also equivalent of
impracticable or other personal Article 1076 could be applied only to the case of a
impossible by reason of property of the donation that becomes revoked as inofficious in
lack of cash or marketable inheritance at its its totality under the rules of Article 912; it is only
securities in the estate, the just price. then that the very same thing donated must be
only recourse would be to Absolute returned. But that is not collation.
sell at public auction as equalization of all
much of the other the heirs is Art. 1076 in its present form should be placed
property as may be impossible. with the other articles treating of the reduction of
necessary. donations in the chapter on legitime.

Rules regarding fruits and interest Article 1077. Should any question arise among
the co-heirs upon the obligation to bring to
Article 1075. The fruits and interest of the collation or as to the things which are subject to
property subject to collation shall not pertain to collation, the distribution of the estate shall not
the estate except from the day on which the be interrupted for this reason, provided
succession is opened. adequate security is given.
For the purpose of ascertaining their amount,
the fruits and interest of the property of the E. IN CASE OF INOFFICIOUS TESTAMENTARY
estate of the same kind and quality as that PROVISIONS OR DONATIONS
subject to collation shall be made the standard
of assessment.
Effect of inofficious testamentary
When the property donated to one of the dispositions
compulsory heirs, title is vested in such donee
once the donation is perfected. It is but natural Article 907. Testamentary dispositions that
that the fruits and interest of the property impair or diminish the legitime of the

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compulsory heirs shall be reduced on petition of
IV. DISINHERITANCE (ARTS. 915-923)
the same, insofar as they may be inofficious or
excessive.
CONCEPT OF DISINHERITANCE
The testamentary dispositions alluded to in the

above article refer to those dispositions in favor
Article 915. A compulsory heir may, in
of voluntary heirs, and also to all legacies, devises,
consequence of disinheritance, be deprived of
and other charges which are chargeable against
his legitime, for causes expressly stated by law.
the disposable free portion of the hereditary

estate.
Disinheritance. It is the act of the testator in

Such testamentary dispositions are considered depriving a compulsory heir of his legitime for
causes expressly stated by law.
inofficious if they are in excess of the disposable

free portion of the hereditary estate thus
resulting in the impairment of the legitime of It is the only instance recognized in the Civil Code
by which a compulsory heir may be deprived of
compulsory heirs.
his legitime by the testator.

Question: What is the effect of inofficious
Reason: There are certain instances when a
testamentary dispositions?
Answer: They shall be reduced on petition of the person may not want his property or fortune for
which he had slaved for so long to pass after his
compulsory heirs who are prejudiced. The
procedure for such reduction is regulated by Arts. death to a compulsory heir because of some
911 and 912 of the Code. present or antecedent act of the latter. The law,
therefore, allows him to punish such heir, but only

Inofficious testamentary disposition vs. in the cases expressly stated by law.

Inofficious donations inter vivios
Philosophy: Contemplates a right by which the

testator is permitted to punish the offender by
INOFFICIOUS
INOFFICIOUS depriving the latter of the legitime to which he
TESTAMENTARY
DONATIONS INTER would otherwise be entitled by operation of law.
DISPOSITION
VIVOS (ART. 907)
(ART. 771)
REQUISITES OF DISINHERITANCE
The testator’s freedom
Inofficious donations of disposition is limited
inter vivos, bearing by the fact that he 1. The disinheritance must be for a cause
in mind the cannot make any expressly stated by law;
estimated net value gratuitous disposition 2. The disinheritance must be effected only
of the donor’s estate of his property, through a valid will;
at the time of his whether by an act inter 3. The legal cause for the disinheritance must be
death, shall be vivos or by an act specified in the will itself;
reduced with regard mortis causa, which 4. The cause for disinheritance must be certain
to the excess. The would impair the and true;
reduction shall be legitime of his 5. The disinheritance must be total; and
made on petition of compulsory heirs. This 6. The disinheritance must be unconditional.
the compulsory heirs principle, crystallized in
who are prejudiced. Art. 904 of the Code, is First requisite
The procedure for complemented by Art.
such reduction shall 752, which declares The most indispensable requisite is that it must
be regulated by Arts. that no person can give be for a cause expressly stated by law.
911 and 912 of the by way of donation
Code. more than he can NOTE: The cause may actually be a just one, or
dispose of by will. the testator may actually believe that he has a
very strong ground for depriving a compulsory
Violation of the Violation of the heir of any participation in the inheritance.
principle in cases of principle in cases of
donations inter vivos donations mortis causa If such cause is not one of those expressly
shall pave the way or testamentary recognized by law, he cannot disinherit such heir
for the remedy dispositions shall pave and the disinheritance is null and void.
provided for in Art. the way for the remedy
771 provided for in Art. 907. Second requisite

Article 916. Disinheritance can be effected only
through a will wherein the legal cause therefor
shall be specified.

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Because the act of disinheritance involves the IMPERFECT DISINHERITANCE
exercise of an exceptional power by virtue of
which a compulsory heir is deprived of his
legitime, the same requisites and formalities Article 918. Disinheritance without a
necessary for the disposition of properties mortis specification of the cause, or for a cause the
causa are also necessary for such act. truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code,
If the will is invalid because it has not been shall annul the institution of heirs insofar as it
executed in accordance with the formalities may prejudice the person disinherited; but the
prescribed by law, the disinheritance is also devises and legacies and other testamentary
invalid; if the will is valid, but subsequently it is dispositions shall be valid to such extent as will
revoked in accordance with law, the not impair the legitime.
disinheritance is also revoked.
Imperfect disinheritance. It is the expressed
Third requisite attempt of the testator in depriving a compulsory
heir of his legitime without the requisite
There can be no implied or tacit disinheritance. formalities prescribed by law.

NOTES: 4 causes or instances where the disinheritance is
• The last will of the testator may be considered or defective:
embodied in several documents. Taken
together, they constitute his last will and 1. When it does not specify the cause
testament. Therefore, if a compulsory heir 2. When it specifies a cause the truth of which, if
is disinherited in one will without a contradicted, is not proved
specification of the cause, the defect may 3. When it specifies a cause which is not one of
be cured if the cause thereof is specified in those set forth in the Code
another will. 4. Where the other requisites for a valid act of
disinheritance are lacking, such as when it is
• While the law requires that the cause must
not total or it is conditional
be express, there is no legal precept which

requires that the specification must be
couched in the exact language of the law or Distinguished from preterition
that details and other circumstances
surrounding it must be given. IMPERFECT
PRETERITION
DISINHERITANCE
Fourth requisite The person The person omitted
disinheritance may be must be a compulsory
Article 917. The burden of proving the truth of any compulsory heir heir in the direct line
the cause for disinheritance shall rest upon the
The attempt to
other heirs of the testator, if the disinherited
deprive the heir of his The attempt is always
heir should deny it.
legitime is always implied

express
This requisite can be implied from the provision
of Art. 917. The attempt to
The attempt may be
deprive the heir of his
intentional or
The cause must not be a mere figment of the mind legitime is always
unintentional
or an insane delusion. Neither must it be based on intentional
mere suspicion or on the biased opinion of others.
The effect is a partial The effect is a total

annulment of the annulment of the
The testator must not only have a knowledge of
institution of heirs institution of the heir
the cause, but it must also be in the process of
being committed, or at least, it has already been
committed at the time of the disinheritance.

Example: The testator cannot state in his will:
“If my wife should ever commit adultery, she
shall not be entitled to any of my properties.
Such an act of disinheritance will violate two
requisites which are clearly deducible from the
law — that the cause must be certain and true
and that it must be unconditional.

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Effect of imperfect disinheritance Requisites:

IMPERFECT 1. The child or descendant must have
PRETERITION committed either attempted or frustrated
DISINHERITANCE
parricide.
The preterition or
Disinheritance without a 2. The child or descendant must have been
omission one,
specification of the cause, convicted for the criminal offense of
some, or all of the
or for a cause the truth of attempted or frustrated parricide.
compulsory heirs in
which, if contradicted, is
the direct line,
not proved, or which is NOTE: It is possible that even if there is no
whether living at
not one of those set forth previous criminal conviction, the attempt, if it
the time of the
in this Code, shall annul is made against the life of the testator, will
execution of the
the institution of heirs constitute a valid ground for disinheritance,
will or born after
insofar as it may provided that it falls within the scope or
the death of the
prejudice the person purview of “maltreatment of the testator by
testator, shall annul
disinherited; but the word or deed” within the meaning of Art.
the institution of
devices and legacies and 919(6).
heir; but the
other testamentary
devises and
dispositions shall be Second Ground
legacies shall be
valid to such extent as
valid insofar as
will not impair the Requisites:
they are not
legitime.
inofficious.
1. The heir must have accused the testator of a
crime
GROUNDS FOR DISINHERITANCE OF 2. The penalty prescribed by law for such crime
DESCENDANTS must be 6 years imprisonment or more
3. The accusation must have been found to be
Article 919. The following shall be sufficient groundless
causes for the disinheritance of children and
descendants, legitimate as well as illegitimate: NOTE: Since the law does not make any
(1) When a child or descendant has been found qualification whatsoever, it is clear that
guilty of an attempt against the life of the accusation includes —
testator, his or her spouse, descendants, or a. the act of the disinherited heir of
ascendants; instituting the criminal action in the
(2) When a child or descendant has accused the capacity of a complainant
testator of a crime for which the law b. any act of intervention such as being
prescribes imprisonment for six years or a witness for the prosecution, by
more, if the accusation has been found which he accuses the testator of
groundless; having committed the crime charged.
(3) When a child or descendant has been It will not make any material difference
convicted of adultery or concubinage with whether the accusation was found
the spouse of the testator; groundless during the preliminary
(4) When a child or descendant by fraud, investigation, or during the trial, or on
violence, intimidation, or undue influence appeal.
causes the testator to make a will or to
change one already made; Third Ground
(5) A refusal without justifiable cause to
support the parent or ascendant who As in the case of the first ground, a final judgment
disinherits such child or descendant; of conviction is an essential requisite. Mere
(6) Maltreatment of the testator by word or adultery or concubinage with the spouse of the
deed, by the child or descendant; testator is not, therefore, a ground for the
(7) When a child or descendant leads a disinheritance of a child or descendant.
dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it NOTE: It is possible that even without a
the penalty of civil interdiction. previous criminal conviction, adultery or
concubinage with the spouse of the testator
First Ground may be a ground for disinheriting the child or
descendant, provided that it falls within the
This refers to either attempted or frustrated scope or purview of “living a disgraceful or
parricide as defined and punished in the RPC. dishonorable life” within the meaning of Art.
Furthermore, the law requires that there must 919(7).
have been a previous criminal conviction.


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Fourth Ground GROUNDS FOR DISINHERITANCE OF
ASCENDANTS
The fraud, violence, intimidation, or undue
influence may have been employed either for the
purpose of causing the testator to execute a will Article 920. The following shall be sufficient
or for the purpose of causing the testator to causes for the disinheritance of parents or
change or will which has already been made. ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their
What had been stated in Art. 919(3) with regard children or induced their daughters to live
to fraud, violence, intimidation, and undue a corrupt or immoral life, or attempted
influence may also be applied here. against their virtue;
(2) When the parent or ascendant has been
Fifth Ground convicted of an attempt against the life of
the testator, his or her spouse, descendants,

or ascendants
The refusal of the heir to give support must be
(3) When the parent or ascendant has accused
without justifiable cause. Hence, if there was a
the testator of a crime for which the law
justifiable cause for such refusal, the
prescribes imprisonment for six years or
disinheritance would be ineffectual or imperfect.
more, if the accusation has been found to be

false;
Examples:
(4) When the parent or ascendant has been
• Where the resources of the child or
convicted of adultery or concubinage with
descendant have been reduced to the point
the spouse of the testator;
where he cannot give the support without
(5) When the parent or ascendant by fraud,
neglecting his own needs and those of his
violence, intimidation, or undue influence
family
causes the testator to make a will or to
• When the testator has improved his
change one already made;
fortune in such a way that he no longer
(6) The loss of parental authority for causes
needs the allowance for his subsistence.
specified in this Code;

(7) The refusal to support the children or
Sixth Ground descendants without justifiable cause;
(8) An attempt by one of the parents against the
Includes: life of the other, unless there has been a
reconciliation between them.
a. All acts of violence against the person of the
testator
First Ground
b. Any maltreatment of the testator by words,

whether such words are defamatory or not
3 factors:


A final judgment of conviction is not required. It
1. When the parents have abandoned their
is, however, necessary that the maltreatment
children
must have been intentional or voluntary.
2. When the parents have induced their
Otherwise, if it was due to insanity, lack of
daughters to live a corrupt or immoral life
discernment or tender years of the child or
3. When the parents have attempted against the
descendant, the maltreatment cannot be
virtue of their daughters
considered as a sufficient cause for

disinheritance.
Abandonment. It is the failure of the parents to

give to their children due care, instruction, and
Example: Where the testator’s granddaughter
support.
was only 14 years old at the time when she

insulted and slapped him, and prior to that
In relation to Art. 316, the father and mother have,
occasion, she had been suffering from fits of
with respect to their unemancipated children, the
insanity, it was held that there is no sufficient
duty to support them, to have them in their
ground for the testator in disinheriting her,
company, educate and instruct them in keeping
since it is clear that she had acted without
with their means, and to represent them in all
discernment.
actions which may redound to their benefit.

Hence, failure to comply with these duties shall
Seventh Ground
justify a child in disinheriting a parent.

Any dishonorable or disgraceful conduct, such as “Inducing their daughters to live a corrupt and
engaging in a life of crime or immorality, provided immoral life” refers to the act of the parents in
that it characterizes the mode of living of the child inducing their daughters or granddaughters, by
or descendant disinherited, is a sufficient cause
for disinheritance.

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advice, force, intimidation, or any other positive orders, counsels or examples, or of making
act, to live a life of corruption and immorality. them beg, or of abandonment.

NOTE: When the law speaks of “daughters,” it There can be no question with regard to the right
means any daughter or granddaughter of the of the child or descendant to disinherit his parent
erring parent/s. or ascendant on the ground of actual loss of
parental authority effected by final judgment,
“Attempting against their virtue” includes any act such as those specified in Arts. 330 and 332.
of the parents either as principals, co-principals,
or accomplices, which can properly be classified Question: But suppose that the loss of the
as an attempt against the virtue of their daughters parental authority is effected by operation law,
or granddaughters. This includes all criminal acts such as in emancipation, or in adoption, or when
against the chastity of the latter. a general guardian is appointed, or when the
widowed mother remarries — would there be a
Second Ground right of the child or descendant to disinherit the
parent or ascendant?
This ground is a common ground for the Answer: Under the new Code, there is no
disinheritance of any compulsory heir. What had qualification whatsoever.
been stated under Art. 919 with regard to this
ground are also applicable here. Question: Does that mean that even if the parent
or ascendant is not guilty of any offense which
Third Ground constitutes a ground for deprivation of parental
authority by final judgment, the child or
This is the second common ground for the descendant can still disinherit such parent or
disinheritance of any compulsory heir. What had ascendant, provided that there is an actual loss of
been stated under Art. 919 with regard to this parental authority effected by emancipation, or
ground are also applicable here. adoption, or appointment of a general guardian,
or remarriage of a widowed mother?
Fourth Ground Answer: If yes on the ground that since the law
does not impose any qualification, we would be
What had been stated under Art. 919 with regard forced to witness the absurd spectacle of a child
to this ground are also applicable here. or descendant being allowed to disinherit a
parent or ascendant just because he has already
Fifth Ground attained the age of 21, or because, for his
protection, his parent had given his consent to his
This is the third common ground for the adoption, or because a general guardian had been
disinheritance of any compulsory heir. What had appointed to take care of his person and property
been stated under Art. 919 with regard to this by reason of the insanity of the parent, or because
ground are also applicable here. the widowed mother remarried in order to
protect her family. These causes were never
Sixth Ground contemplated by the law. When the law speaks of
the right of a child or descendant to disinherit a
There must be an actual loss of parental authority; parent or ascendant if there is loss of parental
otherwise, the testator cannot disinherit the authority “for causes specified in this Code,” the
parent or ascendant. This is so, even granting that cause referred to are those specified in Arts. 330
such parent or ascendant has committed an act or and 332 and not those specified in Arts. 327 and
offense which constitutes a ground for loss of 329.
parental authority by judicial decree.
Some of the causes of loss of parental authority
“For causes specified in this Code” which can be are temporary in character. Thus, in case of legal
used as grounds for disinheritance: separation, there is always the possibility of
reconciliation. Similarly, in case of criminal
1. Emancipation; conviction, there is always the possibility of
2. Adoption; absolute pardon. In such cases, there is a
3. Appointment of a general guardian; restoration of parental authority.
4. Subsequent marriage of the widowed
mother; Question: What will be the effect of such
5. Deprivation by final judgment in a criminal restoration to the right to disinherit or to the
case; disinheritance if it has already been made?
6. Deprivation by final judgment in legal Answer: There are 2 views:
separation proceedings; and 1. There is no effect upon the right to disinherit
7. Deprivation by final judgment on the ground or upon the disinheritance if it has already
of excessive harshness, or of corrupting been made, because the ground or basis for

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the disinheritance is not the loss of parental (4) When the spouse has given cause for legal
authority, but the offense committed by the separation;
offender. (5) When the spouse has given grounds for the
2. The restoration of parental authority would loss of parental authority;
have the effect of depriving the child or (6) Unjustifiable refusal to support the children
descendant of his right to disinherit the or the other spouse.
parent or ascendant or of rendering the
disinheritance ineffectual if it has already Arts. 921(1, 2, 3, and 6) are common grounds for
been made, because the legal basis for the disinheritance of any compulsory heir.
disinheritance would no longer exist, since, it
is admitted, that the disinheritance can take What had been stated under Art. 919 with regard
effect only upon the death of the testator. to these grounds are also applicable here.

NOTE: The first view is more in Second Ground
consonance with the law since the law
does not make any qualification similar to Javier v. Lucero
what is provided in Art. 922. FACTS: The wife brought an action against her
husband for bigamy. The latter was acquitted of
What the law allows the testator to punish is the the crime for lack of criminal intent, inasmuch as
offense itself. Hence, even if there is a restoration he believed that the divorce which he had
of parental authority brought about by absolute obtained in the United States had already
pardon or by reconciliation of the spouses, dissolved the first marriage.
although that will have the effect of erasing the ISSUE: Would there be a ground for
existence of the offense as far as the State or the disinheritance or for refusal to give support in
spouses are concerned, it cannot erase the such a case?
existence of the offense against the testator. The HELD: There would be no ground either for
ground for disinheritance still exists. disinheritance or for refusal to give support,
because the accusation was not “found to be
NOTE: This conclusion is predicated upon the false.” After all, the accused got married, not only
fact that there is no reconciliation between the twice, but three times. Therefore, it is not enough
offended and the offender, because, otherwise, that there must be an acquittal based on
the provisions of Art. 922 shall apply. reasonable doubt. The law requires more than
that. It is essential that the acquittal must be
Seventh Ground based on the fact that the offense charged has not
been committed.
This is the fourth common ground for the
disinheritance of any compulsory heir. What had Fourth Ground
been stated under Art. 919 with regard to this
ground are also applicable here. By virtue of this provision, if the wife has
committed adultery, or if the husband has
Eighth Ground committed concubinage, or if either of the
spouses has made an attempt against the life of
It will be observed that unlike the grounds stated the other, the innocent spouse would be justified
in Art. 920(2 and 4), under this ground, a final in disinheriting the offending spouse.
judgment of conviction is not an essential
requisite. Hilario v. De Leon
Criminal conviction is not a condition sine qua
GROUNDS FOR DISINHERITANCE OF SPOUSE non in order that the wife can disinherit an
unfaithful husband.

Article 921. The following shall be sufficient The same principle can also be applied to an
causes for disinheriting a spouse: attempt made by one spouse against the life of the
(1) When the spouse has been convicted of an other.
attempt against the life of the testator, his
or her descendants, or ascendants;
ART. 921(4) ART. 921(1)
(2) When the spouse has accused the testator
of a crime for which the law prescribes The mere attempt by one of
A previous final
imprisonment of six years or more, and the the spouses against the life of
judgment of
accusation has been found to be false; the other without a previous
conviction is an
(3) When the spouse by fraud, violence, final judgment of conviction
essential
intimidation, or undue influence cause the is a sufficient cause for
requisite
testator to make a will or to change one disinheritance
already made;

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The effect of this conflict is that, unwittingly, Art. However, if the compulsory heir has children or
921(1) with regard to the conviction of the spouse descendants of his own, such children or
of an attempt against the life of the testator has descendants, according to Art. 923, shall take his
become practically useless. However, if the or her place and shall preserve his or her right
attempt is made against a descendant or an with respect to the legitime, although the
ascendant of the testator, conviction would still disinherited parents shall not have the usufruct or
be essential. administration of the property which constitutes
the legitime.
Fifth Ground
Since disinheritance is a penalty which the
Under this ground, the mere fact that there is a testator may impose upon a compulsory heir who
ground for the loss of parental authority is a is guilty of any of the causes prescribed by law, its
sufficient cause for disinheritance, whereas under imposition upon the latter is undoubtedly in
Art. 920(6), in order that a child or descendant conformity with the requirements of strict justice.
can disinherit a parent or ascendant, it is essential But to impose it in the same manner upon the in-
that there must be an actual loss of parental nocent children or descendants of the offender
authority. would be unjust. Hence, under the law, after the
death of the testator, the children and
EFFECT OF SUBSEQUENT RECONCILLATION descendants of the disinherited heir shall
represent the latter with respect to the legitime.

Article 922. A subsequent reconciliation NOTE: Art. 923 cannot be applied to all cases
between the offender and the offended person in which the compulsory heir who is
deprives the latter of the right to disinherit, and disinherited has children or descendants of his
renders ineffectual any disinheritance that may own. Although it appears to be of general
have been made. application, yet it is undeniable that it is
applicable only if the compulsory heir who is
During that period between the execution of the disinherited happens also to be a child or
will and the death of the testator, it is always descendant of the testator. This is so, because
possible that the testator may pardon the this article establishes or recognizes a right on
offender. Such pardon, however, cannot have any the part of the children or descendants of the
possible effect either upon the testator’s right to disinherited heir to represent the latter with
disinherit or upon the disinheritance if it has regard to the legitime to which he would have
already been made. been entitled had he not been disinherited, and
it is a well-known principle of testamentary
Under the law, before it can have any effect, it is succession that the right of representation can
essential that it must have been accepted by the take place only in the direct descending line,
offender thus resulting in a reconciliation but never in the ascending.
between the two. Therefore, what the law
requires is a bilateral act and not a mere
unilateral act. V. RESERVA TRONCAL (ART 891)

Once there is a reconciliation between the Article 891. The ascendant who inherits from
offender and the offended person, such his descendant any property which the latter
reconciliation shall have the effect of depriving may have acquired by gratuitous title from
the latter of the right to disinherit the former or of another ascendant, or a brother or sister, is
rendering ineffectual any disinheritance that may obliged to reserve such property as he may have
have been made. acquired by operation of law for the benefit of
relatives who are within the third degree and
EFFECT OF DISINHERITANCE who belong to the line from which said property
came.


Article 923. The children and descendants of
the person disinherited shall take his or her CONCEPT
place and shall preserve the rights of
compulsory heirs with respect to the legitime; Reserva troncal (lineal). The reservation by
but the disinherited parent shall not have the virtue of which an ascendant who inherits from
usufruct or administration of the property his descendant any property which the latter may
which constitutes the legitime. have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
The most important effect of disinheritance is the reserve such property as he may have acquired by
deprivation of the compulsory heir who is operation of law for the benefit of relatives who
disinherited of any participation in the
inheritance including this legitime.

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are within the third degree and who belong to the 3. The descendant should have died without any
line from which said property came. legitimate issue in the direct descending line
who could inherit from him.
By its very nature, this reserva constitutes an 4. *There must be relatives of the descendant
exception to the system of legitime as well as to who are within the third degree and who
the order of intestate succession as recognized belong to the line from which the property
and regulated in our Code. Hence, commentators came (Chua vs. CFI of Negros).
have aptly described it as a reserva extraordinaria.
NOTE: No. 4 is not a requisite, but merely a
HISTORICAL BACKGROUND resolutory condition to which the reserva is
subject.

Reserva troncal is the only reserva which is The ascendant acquires the property with a
recognized in the New Civil Code. condition subsequent: whether or not there exist
at the time of his death relatives within the third
However, in the original project of the Code as degree of the descendant in the line from whence
drafted by the Code Commission the provision of the property proceeds. If such relatives exist, they
what is now Art. 891 was not included. acquire ownership of the property at the death of
the ascendant. If they do not exist the ascendant
As a matter of fact, under the original plan all of can freely dispose thereof.
the different kinds of reservas, such as the reserva
troncal under Art. 811 of the Spanish Code, the Illustration of requisites:
reversion legal under Art. 812 and the reserva
viudal under Art. 986, had been eliminated
altogether in conformity with one of the
underlying objectives of the law on succession,
which is to prevent property from being entailed.

Nevertheless, during the discussion of the project
the provision of what is now Art. 891 was inserted
by congressional action. What is unfortunate,
however, is the fact that the supplementary

provisions of Arts. 977 and 978 of the Spanish
Civil Code which regulate the rights and Question: Before his death in 1950, GF donated a
obligations of the reservista and reservatario were parcel of land to his grandson, P, the only child of
not also inserted. his deceased son, F. P died intestate in 1960
without any heir in the direct descending line, as
PURPOSE a consequence of which the land passed to his
mother, M, in accordance with the laws of
It is to prevent persons who are strangers to the intestate succession. Is the property reservable?
family from acquiring, by some chance or Answer: YES, because all of the requisites for
accident, property which otherwise would have reservation are present.
remained with the said family. 1. M, who is the ascendant reservista, had
acquired the property by operation of law
This explains why the law requires that the from her descendant, P;
ascendant who is obliged to make the reservation 2. P, who is the descendant-propositus, had
should reserve the property for the benefit of previously acquired the property by
relatives who are within the third degree gratuitous title from another ascendant, his
and who belong to the line from which the said grandfather, GF, who is the origin of the said
property came. property; and
3. The descendant had died without any
legitimate issue in the direct descending line
REQUISITES who could inherit from him.
From the time of the death of the descendant-
1. The property should have been acquired by propositus, P, in 1960, the ascendant, M, who
operation of law by an ascendant from his acquired the property, is obliged to reserve it for
descendant upon the death of the latter; the benefit of relatives of the propositus who are
2. The property should have been previously within the third degree and who belong to the line
acquired by gratuitous title by the from which the said property came. This
descendant from another ascendant or from reservable character of the property will, as a
a brother or sister; and rule, terminate upon the death of the ascendant-
reservista. Thus, if we extend the example by
presupposing that M died in 1977, A and B, uncles

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of the propositus, P, in the paternal line, can claim whom the descendant-propositus had
the property as their own in accordance with the acquired the property by gratuitous title;
provision of Art. 891 of the Code. 2. The descendant-propositus from whom the
ascendant-reservista in turn had acquired the
NATURE property by operation of law;
3. The ascendant-reservista who is obliged to
reserve the property; and
The ascendant-reservista acquires the ownership 4. The relatives of the propositus, otherwise
of the property subject to the resolutory condition known as the reservatarios, who are within
that there must exist relatives of the descendant- the third degree and who belong to the line
propositus who are within the third degree and from which the property came and for whose
who belong to the line from which the said benefit the reservation is constituted.
property came.
NOTE: It is an indispensable requirement
If the condition is fulfilled, that is, if such relatives that all of these personal elements must be
exist after his death, the property passes, in joined by the bonds of legitimate
accordance with this special order of succession, relationship. Simply, reserva troncal is
to such relatives. But if the condition is not possible only in the legitimate family.
fulfilled, the property is released and will be
adjudicated in accordance with the regular order Transmissions
of succession.
1. From ORIGIN to PROPOSITUS – by gratuitous
On the other hand, during the whole period title
between the constitution of the reserva and the
2. From PROPOSITUS to RESERVISTA – by
extinction thereof, the reservatarios or relatives of operation of law
the descendant-propositus within the third 3. From RESERVISTA to RESERVATARIOS – by
degree have only an expectation to the property,
operation of law
an expectation which cannot be transmitted to
their own heirs, unless these heirs are also within
Origin of property
the third degree.


The law requires that the person from whom the
However, upon the fulfillment of the condition to
descendant-propositus acquired the property
which the reserva is subject this expectation is
should be an ascendant, brother or sister.
converted automatically and by operation of law

into an absolute right of ownership so that the
Solivio v. CA
property ceases altogether to be a part of the
The property of the deceased, Esteban Javellana,
estate of the ascendant-reservista. It cannot be
Jr., is not reservable property, for Esteban, Jr. was
held liable for the payment of debts of the
not an ascendant, but the descendant of his
ascendant which are chargeable against his
mother, Salustia Solivio, from whom he inherited
estate.
the properties in question. Therefore, he did not

hold his inheritance subject to a reservation in
Edroso v. Sablan
favor of his aunt, Celedonia Solivio, who is his
The person required by Art. 891 to reserve the
relative within the third degree on his mother’s
right has, beyond any doubt at all, the rights of use
side.
and usufruct. He has, moreover, for the reasons

set forth, the legal title and dominion, although
NOTE: The reserva troncal applies to
under a condition subsequent. Clearly, he has,
properties inherited by an ascendant from a
under an express provision of the law, the right to
descendant who inherited it from another
dispose of the property reserved, and to dispose
ascendant or a brother or a sister. It does not
of is to alienate, although under a condition. He
apply to property inherited by a descendant
has the right to recover it, because he is the one
from his ascendant, the reverse of the situation
who possesses or should possess it and have title
covered by Art. 891.
to it, although a limited and revocable one. In a

word, the legal title and dominion, even though
What is material is that the propositus should
under a condition, reside in him while he lives.
have acquired it from anyone of them by
After the right required by law to be reserved has
gratuitous title. It is not necessary to investigate
been assured, he can do anything that a genuine
the ultimate source or origin of the property
owner can do.
beyond such ascendant brother or sister in order

to determine its lineal character. It does not,
PERSONAL ELEMENT therefore, matter if such ascendant, brother or
sister may have acquired it from a stranger or
1. The ascendant, brother or sister, otherwise from some other relative.
known as the origin of the property, from

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Principle: At the time of its acquisition by the Ascendant-reservista
propositus, the property should have belonged to
the ascendant, brother or sister as the case may The third person involved in the reserva is the
be. ascendant-reservista who is obliged to reserve the
property for the benefit of relatives of the
Examples: descendant-propositus who are within the third
• A father insured his life with a certain degree and who belong to the line from which the
insurance company with his daughter as said property came.
beneficiary. After his death, the value of
the insurance policy was collected by the NOTE: It is an indispensable requisite before
daughter, who died shortly afterwards. the property is considered reservable that such
The amount collected passed to her ascendant should have acquired it by
mother by operation of law. Is this amount operation of law from the descendant-
reservable? This question should be propositus.
resolved in the negative, since the amount
collected did not belong to an ascendant, Question: When can the property be considered
brother or sister, but to the insurance as having been acquired by operation of law?
company. Answer:
• A father bought a whole unit of 1. In intestate succession, the whole estate of the
sweepstakes ticket which he gave to one of descendant, in default of legitimate children
his children. The ticket won one of the top or descendants, passes to the ascendant by
prizes. Subsequently, the child died and operation of law. If there are properties in the
the amount collected passed by operation estate which the descendant had previously
of law to his mother. Is the amount acquired by gratuitous title from another
reservable? Again, this question must be ascendant or from a brother or sister, then
resolved in the negative, since the amount under Art. 891 of the Code such properties
collected was not acquired from an are reservable.
ascendant, brother or sister, but from the 2. In testamentary succession, the expression
society or office in charge of the “operation of law” can be applied only to the
sweepstakes. transmission of the legitime, but not to the
transmission of the entirety or of a part of the
Descendant-propositus free portion, since it is an undisputed fact that
when an ascendant inherits by will from a
The second person involved in the reserva is the descendant, in default of legitimate children
descendant-propositus from whom the property or descendants of the latter, the legitime
is directly acquired by the ascendant-reservista. passes to him by force of law, while the free
portion, if he is instituted to it, passes to him
In order that the property shall be reservable, it is by force of the testator’s will.
essential that —
1. The propositus should have acquired it by Example: If the ascendant is instituted as
gratuitous title from an ascendant or from a sole heir by the descendant in his will and
brother or sister. the hereditary state consists of properties
2. The propositus should have died without any which the latter had previously acquired
legitimate issue in the direct descending line by gratuitous title from another ascendant
who could inherit from him. or from a brother or sister, the legitime of
Reason: If there are legitimate descendants the ascendant, which is one-half of the
of the propositus who can inherit from him, it estate, shall pass to him by operation of
would not be possible for the property to pass law, while the free portion, which is also
by operation of law to an ascendant who shall 1/2 of the estate, shall pass to him by force
be obliged to make the reservation in of the descendant’s will. Only 1/2 of the
accordance with the provision of Art. 891. entire estate is reservable, while the other
half is free property.
Acquisition by gratuitous title merely means that
the recipient should not have given anything in However, the problem regarding the extent of
return for the property; simply, the transmission the reservation in testamentary succession
by the ascendant, brother or sister should have becomes complicated if some of the
been an act of pure liberality, without imposing properties in the hereditary estate of the
any obligation whatsoever upon the beneficiary. descendant had been acquired by gratuitous
title from an ascendant or from a brother or
NOTE: This is possible only in donations and in sister, while others had been acquired by
testate and intestate succession. some other title from the same source or by
any title from some other source.


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Question: The descendant-propositus died First condition
with a will wherein his mother is instituted as
universal heir. The net value of his hereditary Florentino vs. Florentino, Cobardo vs.
estate is P40,000. 1/2 of this estate had been Villanueva, and Lunsod vs. Ortega
acquired gratuitously from his deceased The degree of relationship must be counted from
father, while the other half had been acquired the descendant-propositus, because it is only
through his own efforts or industry. From an upon his death that the property becomes
examination of the facts of this case it is clear reservable.
that a reservation is established in
accordance with the provision of Art. 891 of Persons who can qualify as reservatarios:
the Civil Code, but what shall be the extent of
such reservation? Simply, to what portion of 1. First degree relatives. Refers to the
the hereditary estate shall the reservation legitimate father or mother of the
attach? descendant-propositus, since it is evident
Answer: that when an ascendant inherits from a
1. According to reserva maxima, all of the descendant either as a compulsory heir or as
properties which the descendant had an intestate heir, it is because the descendant
previously acquired by gratuitous title has no legitimate descendants of his own, or,
from another ascendant or from a if he has, they cannot inherit from him
brother or sister must be included in the because of disinheritance, incapacity or
ascendant’s legitime insofar as such repudiation.
legitime can contain them. Thus, since
1/2 of the hereditary estate of the 2. Second degree relatives. Refers to the
descendant had been previously grandparents as well as to the brothers and
acquired by gratuitous title from his sisters of the full or half-blood of the
father, all of the properties so acquired descendant-propositus belonging to the line
are reservable because they can be from which the reservable property came.
contained within the ascendant’s
legitime. 3. Third degree relatives. Refers to the great-
2. According to reserva minima or grandparents, uncles or aunts (brothers and
proportional reserva, all of the properties sisters of the full or half-blood of the
which the descendant had previously propositus’ father or mother), and nephews
acquired by gratuitous title from another or nieces (children of the propositus’
ascendant or from a brother or sister brothers or sisters of the full or half-blood)
must be considered as passing to the belonging to the line from which the
ascendant-reservista partly by operation reservable property came.
of law and partly by force of the
descendant’s will. Thus, since 1/2 of the Second condition
hereditary estate of the descendant had
been previously acquired by gratuitous The expression “line from which the property
title from his father, 1/2 of the properties came” refers to the paternal line as opposed to the
so acquired shall be included in the maternal line, or vice versa and not to that which
legitime of the mother, while the other is constituted by a series of degrees which may be
half shall be included in the free portion. either direct or collateral.
Only the half which is included in the
legitime is reservable, while the other This in view of the fact that reserva troncal or
half is free property. lineal aims at maintaining as much as possible
absolute separation between the paternal and
Reservatarios maternal lines in order to prevent property which
belongs to one line from passing to a stranger
The fourth person/s involved in the reserva are through the agency or instrumentality of the
the reservatarios or relatives of the descendant- other line.
propositus for whose benefit the reservation is
established. Question: Whether the paternal line or maternal
line as contemplated by the Code should be
Conditions: broadly construed to refer to the paternal or
maternal line of the descendant-propositus from
1. Such relatives must be legitimate relatives of which the reservable property came without any
the descendant-propositus within the third qualification whatsoever so that anyone who
degree; belongs to such line is qualified to be a
2. They must belong to the line from which the reservatario or should be strictly construed to
reservable property came; refer specifically to the sub-line or branch within
3. They must survive the ascendant-reservista. such paternal or maternal line so that only one

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who belongs to such branch is qualified to be a Third condition
reservatario. If the descendant-propositus had
acquired the property by gratuitous title from his The title of the ascendant-reservista is by its very
deceased paternal grandfather, and upon his nature subject to the resolutory condition that if
death the property passed to his mother by upon his or her death there are relatives of the
operation of law, for whose benefit should the descendant-propositus who are within the third
property be reserved? Is it reserved for every degree and who belong to the line from, which the
relative of the descendant-propositus within the property came, then such property shall pass by
third degree in the paternal line, although the operation of law to such relatives.
relative may not be related by consanguinity to
the source or origin of the property, or is it In order that the purpose for which the
necessary that we shall also have to consider the reservation is established may be attained, it is,
branch from which the property came so that the therefore, indispensable that the ascendant-
relative must not only be related by consanguinity reservista must be survived by such relatives of
to the descendant-propositus, but also to the the descendant-propositus.
source or origin of the property? Suppose that
when the ascendant-reservista dies, the only Florentino v. Florentino
survivor among the relatives of the descendant- Question: If the ascendant-reservista is survived
propositus who are within the third degree and by several relatives of the descendant-propositus
who belong to the paternal line is the paternal and all of them are within the third degree
grandmother, shall she be entitled to the belonging to the line from which the reservable
reservable property? property came, who shall be entitled to such
Answer: property?
1. Since the law merely states that the Answer: In such case the rules of legal or
reservatario should belong to the line from intestate succession shall apply. If some of the
which the reservable property came without survivors are in the direct ascending line, while
any qualification whatsoever, it is clear that others are in the collateral line, the rule of
she would be entitled to the property. preference between line, by virtue of which those
2. Since she is not related by consanguinity to in the direct ascending line shall exclude those in
the origin of the property, but only by affinity, the collateral line, is applicable. Within each line,
she cannot be considered as belonging to the however, the rule which is applicable is that of
line from which the said property came. proximity by virtue of which the nearest in degree
Otherwise, if she had remarried and, shall exclude the more remote ones.
subsequently, she had children out of such
marriage, such children would also be
qualified as reservatario thus frustrating
altogether the very purpose of the
reservation.
The applicable rule may be stated as follows: The
reservatario or person for whose benefit the
property is reserved must not only be a relative
by consanguinity of the descendant-propositus
within the third degree, but he must also be a
relative by consanguinity of the source or origin
of the property. Florentino v. Florentino
Declaring that the property is reservable, and that
If the origin of the property is a brother or sister the right of representation is applicable so long as
of the full-blood, the question of line is the representatives are relatives of the
unimportant. This is so because in such case there descendant-propositus within the third degree,
is no way by which we would be able to determine the SC held that following the order prescribed by
the “line from which the property came.” law in legitimate succession, when there are
relatives of the descendant within the third
However, if the origin is a brother or sister of the degree, the right of the nearest relative over the
half-blood, the common parent or ascendant must property which the reservista should return to
always be considered. If the common ascendant is him, excludes that of the ones more remote. The
the father, the property is reserved only for the right of representation cannot be alleged when
relatives on the father’s side; if the common the one claiming the same as a reservatario of the
ascendant is the mother, the property is reserved reservable property is not among the relatives
only for the relatives on the mother’s side. within the third degree belonging to the line from
which such property came, inasmuch as the right
granted by the Civil Code in Art. 891 is in the
highest degree personal and for the exclusive
benefit of designated persons who are the

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relatives within the third degree of the person in turn, had acquired by gratuitous title during his
from whom the reservable property came. lifetime from another ascendant or from a brother
Therefore, relatives of the fourth and the or sister.
succeeding degrees can never be considered as
reservatarios, since the law does not recognize The ascendant-reservista cannot substitute
them as such. Nevertheless, there is right of another property for that which he is obliged by
representation on the part of reservatarios who law to reserve. This consequence is deducible not
are within the third degree, as the case of only from the object and purpose of the reserva,
nephews of the deceased person from whom the but also from the obligations imposed upon the
reservable property came. These reservatarios reservista, such as the obligation to make an
have the right to represent their ascendants who inventory of all reservable property and the
are the brothers of the said deceased person and obligation to annotate in the Registry of Property
relatives within the third degree in accordance the reservable character of all reservable
with Art. 891. immovable property.

Padura v. Baldovino Cases where there would have to be substitution of
The reserva troncal is a special rule designed the reservable property through unavoidable
primarily to assure the return of the reservable necessity:
property to the third degree relatives belonging
to the line from which the property originally 1. When the property is consumable,
came, and avoid its being dissipated by the 2. When it is lost or destroyed through the fault
relatives of the inheriting ascendant (reservista). of the reservista
The stated purpose of the reserva is accomplished 3. When it has deteriorated through the same
once the property has devolved to the specified cause, or when it has been alienated
relatives of the line of origin. But from this time
on, there is no further occasion for its application. In such cases, the remedy of the reservatarios or
In the relations between one reservatario and persons entitled to the reservable property would
another of the same degree, there is no call for be to recover the value of the property or to seek
applying Art. 891 any longer; wherefore, the the ownership and return thereof depending
respective shares of each in the reversionary upon the circumstances of each particular case.
property should be governed by the ordinary These remedies are available regardless of
rules of intestate succession. upon the death of whether or not the required inventory has been
the ascendant reservista, the reservable property made and the mortgage has been constituted,
should pass, not to all the reservatarios as a class, although undoubtedly, restitution or recovery
but only to those nearest in degree to the would be rendered much more difficult or even
descendant (propositus), excluding those impossible if these requirements are not
reservatarios of more remote degree. And within complied with.
the third degree of relationship from the
descendant (propositus), the right of Question: If the reservable property consists of a
representation operates in favor of nephews. the sum of money and there is no ready cash in the
reserva troncal merely determines the group of estate of the reservista when he dies, what is the
relatives (reservatarios) to whom the property remedy available to the reservatarios?
should be returned; but within that group, the Answer: In this particular case the ordinary rules
individual right to the property should be decided for the collection of a judgment credit in
by the applicable rules of ordinary intestate accordance with our laws of procedure shall have
succession, since Art. 891 does not specify to be applied. The reservatarios entitled to the
otherwise. This conclusion is strengthened by the sum of money can ask for the sale of property
circumstances that the reserva being an belonging to the estate of the reservista in order
exceptional case, its application should be limited to raise the necessary amount.
to what is strictly needed to accomplish the
purpose of the law. The restrictive interpretation RIGHTS OF RESERVISTA
is the more imperative in view of the new Civil
Code’s hostility to successional reservas and
reversions. Since the ascendant-reservista actually acquires
the ownership of the reservable property upon
the death of the descendant-propositus subject to
PROPERTY SUBJECT TO RESERVATION
the resolutory condition that there must exist at
the time of his death relatives of the descendant
The property which is subject to the reservation who are within the third degree and who belong
established in Art. 891 must be the same property to the line from which the property came, it is
which the ascendant-reservista had acquired by clear that all of the attributes of the right of
operation of law from the descendant-propositus ownership, such as enjoyment, disposal and
upon the death of the latter and which the latter,

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recovery, belong to him exclusively, although RIGHTS OF RESERVATARIOS
conditional and revocable.

He can, therefore, alienate or encumber the 1. To ask for the inventory of all reservable
property if he so desires, but he will only alienate property
or encumber what he had and nothing more 2. The appraisal of all reservable movable
because no one can give what does not belong to property
him. As a consequence, the acquirer will only 3. The annotation in the Registry of Property of
receive a limited and revocable title. Therefore, the reservable character of all reservable
after the death of the ascendant, the reservatarios immovable property, and
may then rescind the alienation or encumbrance, 4. The constitution of the necessary mortgage.
because the condition to which it is subject has
already been fulfilled. During the whole period between the constitution
in legal form of the reserva and the extinction
Edroso v. Sablan, Cano v. Director of Lands thereof, an expectation that cannot be
Question: If you’re a reservista, can you reserve transmitted to their own heirs, unless these heirs
the property in your name? are also within the third degree.
Answer: Yes. As reservista, you have all the
attributes of ownership over the property. In spite of this, it is undeniable that they are
Question: Does this mean that you could dispose entitled to certain rights which are necessary, not
the property as reservista? only for the recognition of the existence of their
Answer: Yes, the person required by Art. 891 to expectation or eventual right to the property, but
reserve the right has, beyond any doubt at all, the also for the preservation of such expectation.
rights of use and usufruct. He has, moreover, for
the reasons set forth, the legal title and dominion, Sienes vs. Esparcia (1961)
although under a condition subsequent. Clearly, Question: Can a reservatorio alienate his
he has, under an express provision of the law, the expectation to the property during the pendency
right to dispose of the property reserved, and to or lifetime of the reserva?
dispose of is to alienate, although under a Answer: A reservatario may dispose of his
condition. He has the right to recover it, because expectancy to the reservable property during the
he is the one who possesses or should possess it pendency of the reserva in its uncertain and
and have title to it, although a limited and conditional form. If he dies before the reservista,
revocable one. In a word, the legal title and he has not transmitted anything, but if he survives
dominion, even though under a condition, reside such reservista, the transmission shall become
in him while he lives. After the right required by effective.
law to be reserved has been assured, he can do
anything that a genuine owner can do. It is a When reservatario acquires right; effect
revocable reconveyance of property.
Assuming that the reservatario has all of the
necessary qualifications, his hope or expectancy
OBLIGATIONS OF RESERVISTA over the reservable property is finally converted
into a perfected right upon the concurrence of
1. To make an inventory of all reservable two requisites — death of the reservista and
property; survival. Upon the death of the reservista, the
2. To appraise the value of all reservable reservatario nearest the descendant-propositus
movable property; becomes, automatically and by operation of law,
3. To annotate in the Registry of Property the the absolute owner of the reservable property.
reservable character of all reservable
immovable property; and The property is withdrawn automatically from
4. To secure by mortgage — the estate of the reservista. Hence, even the
a. the restitution of movable property not creditors of such reservista cannot touch it.
alienated,
b. the payment of damages caused or which Furthermore, if in the decree of registration there
may be caused by his fault or negligence, is an express recognition of the rights of the
c. the return of the price which he has reservatario, the acquisition of the property by
received for movable property alienated, such reservatario upon the death of the reservista
or the payment of its value at the time of may be entered immediately in the property
its alienation, if such alienation was made records without the necessity of opening any
by gratuitous title, and state proceedings.
d. the payment of the value of immovable
property validly alienated.

128 Succession Reviewer by S. V. Makayan

SUCCESSION

EXTINCTION OF RESERVA We do not believe so. It must be remembered
that the petitioners herein are claiming as
reservees of the property in question and
Causes for the extinguishment of the reserva: their cause of action as reservees did not arise
until the time the reservor, Consolacion de la
1. Death of the ascendant-reservista. Torre, died in March, 1966. When, the
2. Death of all relatives of the descendant- petitioners therefore filed their complaint to
propositus within the third degree who recover the 1/2 portion of Lot 399, they were
belong to the line from which the property very much in time to do so.
came. In such case, the active subject of the
reserva disappears, as a consequence of 6. Registration by the reservista of the property
which the resolutory condition which limits as free property under the Land Registration
the title of the reservista also disappears. Act (Act No. 496).
3. Loss of the reservable property for causes not
due to the fault or negligence of the De los Reyes v. Paterno
reservista. It is true that in the case of Edroso vs. Sablan,
4. Waiver or renunciation by the reservatarios. we held that the owners of ‘el derecho
The renunciation may be before or after the reservable’ were entitled to have their right
death of the reservista. If the renunciation is noted in the certificate of registration as a
made before the death of the reservista, such valid lien against the property. In that case,
renunciation cannot affect other third degree the persons holding the reservable rights
relatives who may be born subsequently and presented their opposition to the registration
who survive the reservista; if it is made after of the land in question during the pendency of
the death of the reservista, the reservation is the action in the Court of Land Registration.
extinguished but only insofar as the share of In the present case, the land in question was
the renouncer is concerned. In either case, the registered in the month of September, 1909.
renunciation may be either express or No objection was presented to the
implied. registration of the property. No question is
5. Prescription of the right of the reservatarios, now raised that the proceedings for the
when the ascendant-reservista holds the registration of the land in question were not
property adversely against them in the regular and in accordance with the provisions
concept of an absolute owner. The possibility of the Land Registration Act. Moreover, the
of the reservatarios losing their right in the plaintiff presented no claim whatever for a
reservable property by extraordinary period of six years. In the case of Edroso vs.
prescription has been explicitly recognized Sablan, the parties interested went to the
by the SC in Maghirang v. Balcita. Court of Land Registration during the
pendency of the action there and fully
Maghirang v. Balcita protected their rights. In the present case, the
What has been said makes it unnecessary to plaintiff did not, thereby losing his right given
express any opinion upon the more recondite him under the law to the land in question.
question whether Sergia Gutierrez really has Whether he has any other remedy for the
a prescriptible interest in the parcel B, but we purpose of recovering damages to cover his
may observe that the position of the reservee loss is a question which we do not now
under the Spanish law is very much like that discuss or decide. The appellee apparently
of the ordinary remainderman at common had the idea that the decision in the present
law, who is entitled to take after the case destroys ‘el derecho reservable.’ That
termination of a particular life estate; and it is was not the purpose of the decision. The
generally accepted doctrine in common-law effect of the decision simply is that unless
jurisdictions that if the life tenant loses his life such right is protected during the pendency
estate by adverse possession the interest of of the action for the registration of the land
the remainderman is not thereby destroyed. within a period of one year, thereafter, such
The reason for the rule is said to be that, right is lost forever. We are of the opinion that
during the existence of the life estate, the there is no conflict between the decision in
remainderman has no right to possession and the present case and in the case of Edroso vs.
cannot bring an action to recover it. As was Sablan.
said by the Supreme Court of Ohio in Webster
vs. Pittsburg, etc., Railroad Co., “No possession
can be deemed adverse to a party who has not
at the time the right of entry and possession.

Chua v. CFI of Negros Occidental
It is claimed that the complaint had already
prescribed when it was filed on May 11, 1966.

129 Succession Reviewer by S. V. Makayan

SUCCESSION

Includes:
VI. LEGAL OR INTESTATE SUCCESSION

• Legitimate children or descendants proper
A. LEGAL HEIRS AND ORDER OF INTESTATE • Legitimated children or descendants and
SUCCESSION (ARTS. 978-991, 993-1014) adopted children


What had been stated under Art. 887 of the Code
When legal/intestate succession takes place:
regarding legitimate children or descendants as

compulsory heirs are also applicable here.
1. Person dies without a will, with a void will, or

a will that has lost its validity
NOTES:
2. The will does not dispose of all the property
of the testator • Although Art. 978 declares that succession
3. Non-fulfillment of suspensive condition pertains to those in the descending direct
attached to an institution of heir (+ fulfillment line, this rule must be understood to be
of resolutory condition and resolutory term) without prejudice to the concurrent rights
4. Instituted heir dies before the testator, is of illegitimate children or descendants and
incapacitated to succeed, or repudiates the the surviving spouse.
inheritance, and there is not substitution and • In the case of adopted children, Art. 979(2)
right of accretion is not absolute. According to Art. 39[4], PD
5. Repudiation by compulsory heir 603, if the adopter is survived by
6. Preterition legitimate parents or ascendants and by an
7. Testamentary disposition is impossible of adopted person, the latter shall not have
compliance or is ineffective more successional rights than an
acknowledged natural child. Furthermore,
Order of intestate succession an adopted child cannot inherit from the
legitimate parents or ascendants of the
1. Legitimate children and descendants adopter either by right of representation
2. Legitimate parents and ascendants or in his own right. Neither can his
3. Illegitimate children and descendants legitimate children or descendants inherit
4. Surviving spouse by right of representation or in their own
5. Brothers and sisters, nephews and nieces right from the adopter.
6. Other collateral relatives up to the 5th degree Reason: Although adoption creates a
7. The State relationship between the adopter and the
adopted child which is similar to that
Irregular order of intestate succession which results from legitimate paternity
and filiation, it does not create any
1. Legitimate children of descendants relationship between the adopted child
2. Illegitimate children and descendants and the legitimate relatives of the adopted
3. Illegitimate parents child.
4. Surviving spouse
5. Illegitimate brothers and sisters, nephews Rules of division
and nieces
6. The State Article 980. The children of the deceased shall
always inherit from him in their own right,
SUBSECTION 1. DESCENDING DIRECT LINE dividing the inheritance in equal shares.

Legitimate Children or Descendants Article 981. Should children of the deceased
and descendants of other children who are dead,
Article 978. Succession pertains, in the first survive, the former shall inherit in their own
place, to the descending direct line. right, and the latter by right of representation.

Article 979. Legitimate children and their Article 982. The grandchildren and other
descendants succeed the parents and other descendants shall inherit by right of
ascendants, without distinction as to sex or age, representation, and if any one of them should
and even if they should come from different have died, leaving several heirs, the portion
marriages. pertaining to him shall be divided among the
An adopted child succeeds to the property of the latter in equal portions.
adopting parents in the same manner as a
legitimate child. Rules in division of inheritance if the decedent is
survived by legitimate children/descendants:

1. If all of the survivors are legitimate children,
such children shall inherit in their own right.

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The inheritance shall be divided among them Legitimate and illegitimate children
per capita or in equal shares.
Article 983. If illegitimate children survive with
2. If some of the survivors are legitimate legitimate children, the shares of the former
children and the others are legitimate shall be in the proportions prescribed by article
descendants of other legitimate children who 895.
died before (or who are incapable of
succeeding) the decedent, the former shall If illegitimate children should survive with
inherit in their own right and the latter shall legitimate children, the inheritance shall be
inherit by right of representation. The divided among them in accordance with the
inheritance shall be divided among them per proportion prescribed in Art. 895 of the CC, as
stirpes. repealed by Art. 176(2) of the FC.

Example: If the decedent is survived by Question: What is the portion referred to?
two legitimate children, A and B, and by Answer: The proportion referred to is 10:5 or
two legitimate grandchildren, D and E, 2:1. Simply, the share of an acknowledged natural
children of C, another legitimate child who child by legal fiction or an acknowledged
is already dead or who is incapable of illegitimate child who is not natural is 1/2 of that
succeeding, the inheritance shall be of a legitimate child.
divided in such a way that A and B shall be
entitled to 1/3 each in their own right, NOTE: In distributing the estate in accordance
while D and E shall be entitled to the with the above proportions, the legitime of
remaining 1/3 by right of representation compulsory heir must be preserved and must
which they shall divide in equal shares. never be impaired by the will of the decedent
whether expressed or presumed.
3. If all of the survivors are legitimate
grandchildren, such grandchildren shall If the decedent dies intestate, survived only by
inherit by right of representation. Similarly, if legitimate and illegitimate children, the
some of the survivors are legitimate distribution of the inheritance in accordance with
grandchildren and the others are legitimate the proportions prescribed in Art. 895 of the CC
children or descendants of other legitimate as repealed by Art. 176(2) of the FC must be made
grandchildren who died before or who are in such a way that the legitime of the survivors
incapable of succeeding the decedent, such will not be impaired.
grandchildren and descendants shall inherit
by right of representation. In both cases, the If the decedent is survived by only one or two
inheritance shall be divided among them per legitimate children and by many illegitimate
stirpes. children, and if the distribution of the inheritance
is made directly in accordance with the
Example: If the only survivors, for proportion of 10:5 or 2:1 as prescribed in Art. 176
instance, are A and B, children of a of the FC, there would be an impairment of the
deceased son, C and D, children of another legitime of the legitimate child or children.
deceased son, and E, child of a deceased
daughter, since all of them are Example: If the decedent is survived by only
grandchildren of the decedent, and, as a one legitimate child and 8 acknowledged
consequence, shall inherit by right of natural children the proportion of distribution,
representation, the inheritance must be if made directly, would be 2:1:1:1:1:1:1:1:1.
divided among them in such a way that 1/3 That means that the legitimate child whose
shall be given to A and B, another 1/3, to B legitime is supposed to be 1/2 of the entire
and C, and the remaining 1/3, to E. estate would be entitled to only 2/10 or 1/5 of
the entire estate, while each of the
GR: Grandchildren do not always inherit by right acknowledged natural children would be
of representation. entitled to 1/10. Certainly, such situation
XPN: When they are called to inherit in their own cannot be acceptable by our law. Therefore, in
right. the distribution of the inheritance in
accordance with the proportions referred to, it
If all of the children should repudiate their is absolutely necessary that the legitime of the
inheritance, according to Art. 969, those of the survivors must first be satisfied.
following degree shall inherit in their own right.
Hence, if there are grandchildren surviving, they Rules of legal/intestate succession to the
shall be called to the inheritance because they are estate of the adopted (Art. 190, FC)
next in degree and not because of representation.
Principle: Heirs who repudiate their inheritance Article 984. In case of the death of an adopted
cannot be represented. child, leaving no children or descendants, his

131 Succession Reviewer by S. V. Makayan

SUCCESSION

parents and relatives by consanguinity and not spouse shall receive 1/ 4 of the
by adoption, shall be his legal heirs. property; and
b. If he is survived not only by the
1. Legitimate and illegitimate children and adopter but also by illegitimate
descendants and the surviving spouse of the children and his or her spouse, then
adopted shall inherit from the adopted in the illegitimate children collectively
accordance with the ordinary rules of legal or shall receive 1/4 of the property,
intestate succession; while the spouse shall also receive
2. When parents, legitimate or illegitimate, or 1/4.
the legitimate ascendants of the adopted In both cases, the balance of the property
concur with the adopters, they shall divide shall revert to the adopter. In the case of
the entire estate, one-half to be inherited by illegitimate children, the proportion
the parents or ascendants and the other half provided for in Art. 895 was always then
by the adopters; observed.
3. When the surviving spouse or the illegitimate
children of the adopted concur with the NOTE: Under the FC, however, the
adopters, they shall divide the entire estate in legal reversion recognized in PD 603
equal shares, one-half to be inherited by the was eliminated. Thus, Art. 190 of the
spouse or the illegitimate children of the FC is now applicable.
adopted and the other half by the adopters;
4. When the adopters concur with the 2. Where the parents by nature of the adopted
illegitimate children and the surviving spouse are both dead.
of the adopted, they shall divide the entire • In such a case, the adopter shall take the
estate in equal shares, one-third to be place of the natural parents in the line of
inherited by the illegitimate children, one- succession, whether testate or intestate.
third by the surviving spouse, and one-third • This is a very exceptional example of
by the adopters; succession by legal substitution which
5. When only the adopters survive, they shall makes the position of the adopter very
inherit the entire estate; and attractive.
6. When only collateral blood relatives of the
adopted survive, then the ordinary rules of SUBSECTION 2. ASCENDING DIRECT LINE
legal or intestate succession shall apply.
Legitimate Parents or Ascendants
GR: The rules in Art. 190, FC repealed the rule
stated in Art. 984, CC. Article 985. In default of legitimate children
Purpose: To prevent adoption with an ulterior and descendants of the deceased, his parents
motive because if the parents by adoption were and ascendants shall inherit from him, to the
the ones to inherit from the adopted child, many exclusion of collateral relatives.
would adopt rich children in order to inherit from
them, and not for sentimental purposes or The second in the order of intestate succession
reasons. are legitimate parents or ascendants.

XPNS: The only exceptions then to the repealed NOTES:
rule where the adopter may inherit by operation • They are called to the succession only in
of law from the adopted should the latter die default of legitimate children or
intestate as found in Art. 39(4), PD 603 (Child and descendants. They cannot, however, be
Youth Welfare Code) are the following: excluded by an adopted child.
1. Where the adopted had received during his • Although they can exclude collaterals, they
lifetime any property from the adopter by cannot exclude illegitimate children and
gratuitous title. the surviving spouse.
• Such property shall revert to the adopter
should the adopted predecease the Rules of division
former without legitimate issue unless
the adopted had, during his lifetime, Article 986. The father and mother, if living,
alienated such property. shall inherit in equal shares.
• Limitations (should the adopted leave no Should one only of them survive, he or she shall
property other than that received from succeed to the entire estate of the child.
the adopter):
a. If the adopted is survived not only by Article 987. In default of the father and mother,
the adopter but also by illegitimate the ascendants nearest in degree shall inherit.
children or his or her spouse, such Should there be more than one of equal degree
illegitimate children collectively or belonging to the same line they shall divide the
inheritance per capita; should they be of

132 Succession Reviewer by S. V. Makayan

SUCCESSION

different lines but of equal degree, one-half shall In default of legitimate children or descendants,
go to the paternal and the other half to the legitimate parents or ascendants, and the
maternal ascendants. In each line the division surviving spouse, the entire inheritance shall pass
shall be made per capita. to the illegitimate children.

In default of the father and mother, the rule of Question: But suppose that some of the survivors
proximity shall be applied; simply, the ascendants are acknowledged natural children or natural
nearest in degree shall inherit. Should there be children by legal fiction and the others are
more than one equal degree belonging to the acknowledged illegitimate children who are not
same line they shall divide the inheritance per natural, how shall the inheritance be divided
capita; should they be of different lines but of among them?
equal degree, 1/2 shall pass to the paternal and Answer: The law is silent with respect to this
the other half to the maternal lines. In each line point. Under Art. 983, however, the proportions
the division had been per capita. prescribed in Art. 985 must still be preserved.
Simply, the share of an acknowledged illegitimate
Example: If the decedent is survived only by A, child who is not natural must still be 4/5 of the
paternal grandfather, and B and C, maternal share of an acknowledged natural child.
grandparents, 1/2 of the entire inheritance
shall be given to A, while the other half shall be Example: Hence, if the decedent, for instance,
given to B and C, which they shall divide per is survived by two acknowledged natural
capita. children, A and B, and by two acknowledged
illegitimate children who are not natural, C and
SUBSECTION 3. ILLEGITIMATE CHILDREN D, and the estate is P36,000, the division must
be made in the proportion of 5:5:4:4. A and B
Illegitimate Children shall each be entitled to 5/18 of P36,000, or
P10,000 each, while C and D shall each be
Article 988. In the absence of legitimate entitled to 4/18 of P36,000, or P8,000 each.
descendants or ascendants, the illegitimate The 5:5:4:4 proportion is no longer applicable
children shall succeed to the entire estate of the under the Family Code. Thus, the entire estate
deceased. shall be divided among all the four children
equally, that is, A, B, C and D shall be entitled to
The third in the order of intestate succession are P9,000.00 each.
illegitimate children.
Right of representation
NOTE: Even in the presence of legitimate
children or descendants or legitimate parents The descendants of illegitimate children can
or ascendants or the surviving spouse, such inherit by right of representation. As a matter of
children, under the principle of concurrence, fact, the word “descendant” refers to any kind of
always participate in the division of the descendant, whether legitimate or illegitimate.
inheritance. Simply, it is immaterial whether the
representative is legitimate or illegitimate; what
Like legitimate children or descendants and is material is that the person to be represented is
legitimate parents or ascendants, they exclude illegitimate.
collaterals. In this sense, they are superior to the
surviving spouse since the latter cannot exclude Right of representation of a —
brothers and sisters or nephews and nieces. ILLEGITIMATE
LEGITIMATE PERSON
PERSON
Rules of division
It is indispensable that
It is immaterial
Article 989. If, together with illegitimate the representative must
whether the
children, there should survive descendants of also be legitimate;
representative is
another illegitimate child who is dead, the otherwise, there would
legitimate or
former shall succeed in their own right and the be a violation of the
illegitimate
latter by right of representation. prohibition in Art. 992

Article 990. The hereditary rights granted by Illegitimate children and legitimate
the two preceding articles to illegitimate ascendants
children shall be transmitted upon their death
to their descendants, who shall inherit by right Article 991. If legitimate ascendants are left, the
of representation from their deceased illegitimate children shall divide the inheritance
grandparent. with them, taking one-half of the estate,
whatever be the number of the ascendants or of
the illegitimate children.

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If legitimate parents or ascendants concur with however, must not be confused with the rule
illegitimate children, the share of the former shall stated in Art. 991. Art. 991 refers to a decedent
be 1/2, while the share of the latter shall also be who is legitimate, while Art. 993 refers to one who
1/2. The number of legitimate ascendants or is illegitimate.
illegitimate children is immaterial.
Illegitimate parents
Order of intestacy in illegitimate filiation
In default of children or descendants, whether
Article 993. If an illegitimate child should die legitimate or illegitimate, the illegitimate parents
without issue, either legitimate or illegitimate, or parents by nature shall succeed to the entire
his father or mother shall succeed to his entire estate of the illegitimate child, without prejudice
estate; and if the child's filiation is duly proved to the concurrent rights of the surviving spouse.
as to both parents, who are both living, they
shall inherit from him share and share alike. NOTES:
• The right is subject to proof of filiation. If
Article 994. In default of the father or mother, the decedent’s filiation is duly proved as to
an illegitimate child shall be succeeded by his or both parents, who are living, such parents
her surviving spouse who shall be entitled to the shall inherit from him share and share
entire estate. alike. The provisions of the Civil Code with
If the widow or widower should survive with respect to proof of paternity and filiation
brothers and sisters, nephews and nieces, she or must also be considered.
he shall inherit one-half of the estate, and the • In order that such parents will be able to
latter the other half. inherit from their illegitimate child, it is
essential that the latter should have
If the decedent is an illegitimate person, the order recognized them either voluntarily or by
of intestate succession as far as his hereditary means of a final judgment of a competent
estate is concerned is as follows: court (if this is possible).
• If such a requirement is imposed upon the
1. Legitimate children or descendants; illegitimate child in order that he will be
2. Illegitimate children; able to inherit from the presumed or
3. Illegitimate parents; putative parent, there is no reason why it
4. The surviving spouse subject to the should not be imposed also upon the
concurrent rights of brothers and sisters, parent in order that he will be able to
nephews and nieces; inherit from the child.
5. Illegitimate brothers and sisters, nephews • The succession to the estate of the
and nieces; and illegitimate child does not go beyond the
6. The State. parents by nature. Simply, other
ascendants are not considered as legal or
NOTE: This irregular order of intestate intestate heirs of the illegitimate child.
succession is not expressly stated in the Code. Otherwise, there would be a violation of
However, it can be inferred from the the principle of absolute separation
provisions of the above articles as well as from between the legitimate family and the
other provisions. illegitimate family as enunciated in Art.
992.
Children or descendants
Surviving spouse
Legitimate children or descendants are the first in
the order of succession to the estate of the In default of children or descendants, whether
illegitimate child. legitimate or illegitimate, the illegitimate parents,
the surviving spouse shall succeed to the entire
Since the same rules stated in Arts. 979 to 984 are estate, without prejudice to the concurrent rights
also applicable here, it is, therefore, unnecessary of brothers and sisters, nephews and nieces.
to repeat them.
Question: Art. 993 specifically provides that “if
Illegitimate children occupy the second position an illegitimate child should die without issue,
in the order of intestate succession. This is clear either legitimate or illegitimate, his father or
from the provision of Art. 993. If the decedent is mother shall succeed to his entire estate.” Does
survived by his illegitimate children and his this provision mean that if the decedent who is
illegitimate parents or parents by nature, the illegitimate is survived only by his parents by
latter are excluded by the former. nature and his spouse, the former shall exclude
the latter?
The same rule is also followed in testamentary Answer: This interpretation could never have
succession with respect to the legitime. This rule, been intended by the law. First, the surviving

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SUCCESSION

spouse is a primary compulsory heir, and it is an respect to the estate of an illegitimate child is
incontestable fact that a legal heir who is a not even specified in the law itself.
primary compulsory heir at the same time can • Third, if the new provisions of the Code
never be excluded in intestate succession. Second, regarding successional rights of illegitimates
it would indeed be absurd if the surviving spouse are designed to improve the condition of such
can be excluded by illegitimate parents and yet he illegitimates, certainly, if those who are
or she cannot be excluded by legitimate parents responsible for the illegitimacy of the
or ascendants. And third, Art. 993 of the Code decedent are given 3/4 of the inheritance and
refers only to a case where the decedent is the one who decided to cast his or her lot with
survived by his illegitimate parents; its scope such decedent is given only 1/4, exactly the
must not be extended in such a way as to include opposite effect would be attained. If the
the surviving spouse, especially where such decedent is survived by his adulterous father
extension will result in an interpretation that is and his widow, undoubtedly, it would be
evidently absurd. unjust to give 3/4 of the inheritance to the
former and only 1/4 to the latter.
Question: However, the failure of the law to If the surviving spouse, however, concurs with
provide for a situation where there is a brothers and sisters, nephews and nieces, the law
concurrence between the illegitimate parents and is definite with regard to the division of the estate.
the surviving spouse in the succession has created 1/2 shall be given to the brothers and sisters,
a void in our law which is difficult to solve. We nephews and nieces.
cannot directly apply the provision of Art. 997
because this provision refers to a case where Brothers and sisters, nephews and nieces
there is a concurrence in the succession of
legitimate parents or ascendants and the In default of children or descendants, whether
surviving spouse. If the decedent is survived by legitimate or illegitimate, parents, and the
his illegitimate parents and his spouse, how shall surviving spouse, the brothers and sisters,
the inheritance be divided? nephews and nieces, of the decedent shall succeed
Answer: Two theories have been advanced in to the entire estate.
order to solve this problem. As in the case of the
concurrence of legitimate and illegitimate Although this is not specifically provided by the
children under Art. 983, one theory is based upon law, it can be inferred from Art. 994(2).
the principle of exclusion, while the other is based
upon the principle of concurrence. Question: What is meant by the law when it
1. According to the first theory, the illegitimate speaks of brothers and sisters, nephews and
parents are entitled not only to their legitime nieces, as legal or intestate heirs of an illegitimate
of 1/4, but also to the entire disposable child?
portion of 1/2, while the surviving spouse is Answer: Under Art. 992, there is a barrier
entitled only to his or her legitime of 1/4. The dividing members of the illegitimate family from
basis of this solution is the principle of members of the legitimate family. By virtue of this
exclusion. Since the law is silent, the general barrier, the legitimate brothers and sisters as well
order of intestate succession must be applied. as the children, whether legitimate or illegitimate,
2. According to the second theory, the of such brothers and sisters, cannot inherit from
illegitimate parents are entitled to 1/2 of the the illegitimate child. When the law speaks of
entire estate, while the surviving spouse is “brothers and sisters, nephews and nieces,” as
entitled to the other 1/2. The basis of this legal heirs of an illegitimate child, it refers to
solution is the principle of concurrence. illegitimate brothers and sisters as well as to the
children, whether legitimate or illegitimate, of such
The 2nd theory is more acceptable than the 1st. brothers and sisters. As far as the distribution of
• First, in a case where there is a concurrence the estate among such brothers and sisters, or
of parents and the surviving spouse in the nephews and nieces, is concerned, the rules
succession, it would indeed be absurd if the specified in Arts. 1003 to 1008 must be applied. In
law would give 3/4 of the entire inheritance default of brothers and sisters, nephews and
if the parents are illegitimate and only 1/2 if nieces, the law does not go any farther. Other
they are legitimate. collaterals are not allowed to inherit by intestate
• Second, where there is an omission in the law succession from the illegitimate child. The entire
(and the omission in this case is evidently estate shall pass to the State.
unintentional) it would be more in
conformity with the rules of statutory SUBSECTION 4. SURVIVING SPOUSE
construction to apply by analogy the
provisions of Arts. 997 and 903 rather than Surviving spouse
the general order of succession especially
since the general order of succession with Article 995. In the absence of legitimate
descendants and ascendants, and illegitimate

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SUCCESSION

children and their descendants, whether The estate is P60,000. How shall the
legitimate or illegitimate, the surviving spouse distribution be made? Four different solutions
shall inherit the entire estate, without prejudice have been advanced to solve this problem.
to the rights of brothers and sisters, nephews They are as follows:
and nieces, should there be any, under article 1. C shall be entitled to 1/2 of P60,000, while
1001. B shall be entitled to the other 1/2. The
share of C shall be P30,000, while the share
The surviving spouse is now raised to the fourth of B shall be the same. The basis of this
position in the order of intestate succession. solution is, of course, the provision of Art.
Furthermore, he or she is now entitled, not only 996 itself.
to the usufruct, but also to the ownership of his or 2. C shall be entitled to 3/4 of P60,000, while
her share in the inheritance. In the words of the B shall be entitled to only 1/4. The share of
Code Commission, this measure seems to be more C shall be P45,000, while the share of B
acceptable and more in conformity with Filipino shall be P15,000. This solution is based
family life. upon the principle of exclusion. Since Art.
996 speaks only of the widow or widower
The surviving spouse shall always inherit. Under surviving with legitimate children or
our system of compulsory succession, whether in descendants, therefore, according to the
testamentary or in intestate succession, the exponents of this theory, the rule stated in
universal rule is that a legal heir who is also a the article cannot be applied to a case
primary compulsory heir at the same time is where the widow or widower survives
always entitled to the legitime which the law has with only one legitimate child. Hence, the
reserved for him. general order of intestate succession shall
apply. This is effected by satisfying the
Such legitime to which he or she is entitled in legitime of the two and then giving the
testamentary succession is the “irreducible disposable portion to the one who is
minimum” to which he or she is entitled in preferred in the order of succession.
intestate succession. He or she might be given 3. C shall be entitled to 2/3 of P60,000, while
more, but, certainly, he or she cannot be given B shall be entitled to 1/3. The share of C
less. shall be P40,000, while the share of B shall
be P20,000. This principle is based upon
Surviving spouse and legitimate the principle of concurrence. Like the
descendants second solution, it proceeds on the
proposition that the rule stated in Art. 996
Article 996. If a widow or widower and cannot be applied to a case where the
legitimate children or descendants are left, the widow or widower survives with only one
surviving spouse has in the succession the same legitimate child. Therefore, according to
share as that of each of the children. the exponents of this theory, we must now
apply by analogy the proportion
If the decedent is survived by the widow or prescribed by the first paragraph of Art.
widower and legitimate children or descendants, 892. This is effected by satisfying the
the share of the widow or widower shall be the legitime of the two and then dividing the
same as the share of each of the children. disposable portion of 1/4 in the
proportion of 2:1.
It is here where the principle of concurrence is 4. C shall be entitled to P37,500, while B shall
applied in full force. The surviving spouse is be entitled to P22,500. This division is
placed in the same category as each of the obtained by satisfying the legitime of the
legitimate children. two and then dividing the disposable
portion of 1/4, or P15,000, equally
Example: If the decedent, for instance, is between the two in accordance with the
survived by his widow and four legitimate provision of Art. 996.
children, and the inheritance is P60,000, the
method of distribution would be merely to The first solution is more in conformity with the
divide the P60,000 by five. The result would be rules of statutory construction. Art. 996 expressly
P12,000 for each, of the survivors. declares that the share of the widow or widower
shall be the same as that of each of the children.
But if the decedent is survived by the widow or
widower and only one legitimate child, we come The plural must be understood to include the
across, probably, the most controversial question singular. The provision can be applied even to a
of succession. case where the surviving spouse concurs with
only one legitimate child.
Example: A died without a will. He is survived
by his widow, B, and by one legitimate son, C.

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SUCCESSION

It must, however, be admitted that the third TESTAMENTARY INTESTATE
solution is the most equitable. Unfortunately, it SUCCESSION SUCCESSION
lacks statutory basis. The legitime of the The law has allotted
surviving spouse is the disposable portion
Santillan v. Miranda only 1/ 4, while the to the surviving
Art. 892 falls under the chapter on Testamentary legitime of legitimate spouse, thus
Succession; whereas Art. 996 comes under the parents or ascendants equalizing the shares
chapter on Legal or Intestate Succession. Such is 1/ 2 of the estate of the two.
being the case, it is obvious that Claro cannot rely

on Art. 892 to support his claim to 3/4 of his
Surviving spouse and illegitimate children
father’s estate. Art. 892 merely fixes the legitime

of the surviving spouse and Art. 888 thereof, the
legitime of children in testate succession. While it Article 998. If a widow or widower survives
may indicate the intent of the law with respect to with illegitimate children, such widow or
the ideal shares that a child and a spouse should widower shall be entitled to one-half of the
get when they concur with each other, it does not inheritance, and the illegitimate children or
fix the amount of shares that such child and their descendants, whether legitimate or
spouse are entitled to when intestacy occurs. illegitimate, to the other half.
Because if the latter happens, the pertinent
provision on intestate succession shall apply, i.e., Should the surviving spouse survive with
Art. 996. So, Art. 996 could or should be read (and illegitimate children or their descendants, the
so applied): ‘If the widow or widower and a estate shall also be divided in such a way that 1/2
legitimate child are left, the surviving spouse has shall be given to the former, while the other 1/2
the same share as that of the child.’ On the point shall be given to the latter.
of unfairness of Art. 996, it is not correct to
assume that in testate succession the widow or Example: If A dies intestate, survived by his
widower ‘gets only one-fourth.’ She or he may get widow, B, an acknowledged natural child, C,
1/2 — if the testator so wishes. So, the law and an acknowledged illegitimate child who is
virtually leaves it to each of the spouses to decide not natural, D, and the estate is P36,000, B shall
(by testament), whether his or her only child shall be entitled to 1/2 of P36,000, or P18,000, while
get more than his or her survivor. Art. 996 C and D shall also be entitled to the other 1/2
contains 2 paragraphs governing two of P36,000, or P18,000.
contingencies, the first, where the widow or Question: How shall this amount of P18,000
widower survives with legitimate children be divided between the two illegitimate
(general rule), and the second, where the widow children?
or widower survives with only one child Answer: The law is silent. However, since
(exception), Art. 996 omitted to provide for the according to Art. 983, should legitimate
second situation, thereby indicating the children or descendants survive with
legislator’s desire to promulgate just one general illegitimate children, the estate shall be divided
rule to both situations. among them in accordance with the
proportions prescribed in Art. 895, the same
Surviving spouse and legitimate ascendants proportions must still be applied here in order
to maintain a uniformity of division where
Article 997. When the widow or widower different classes of illegitimate children should
survives with legitimate parents or ascendants, concur in the succession. The amount of
the surviving spouse shall be entitled to one-half P18,000 shall be divided between C and D in
of the estate, and the legitimate parents or the proportion of 5:4. Therefore, C shall be
ascendants to the other half. entitled to 5/9 of P18,000, or P10,000, while D
shall be entitled to 4/9 of P18,000, or P8,000.


Should the surviving spouse survive with
NOTE: This is no longer true under the
legitimate parents or ascendants, the estate shall
provisions of the Family Code. Considering
be divided in such a way that 1/2 shall be given to
that C and D are both classified as
the former, while the other 1/2 shall be given to
illegitimate children, C and D shall be
the latter.
entitled to P9,000 each.



Surviving spouse and legitimate and

illegitimate descendants



Article 999. When the widow or widower
survives with legitimate children or their
descendants and illegitimate children or their
descendants, whether legitimate or illegitimate,

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SUCCESSION

such widow or widower shall be entitled to the 1. According to the exclusion theory, the
same share as that of a legitimate child. balance must be given to the legitimate
children in conformity with the general order
If the decedent is survived by the widow or of succession
widower, legitimate children or their 2. According to the concurrence theory, we
descendants, and illegitimate children or their must still apply the proportions prescribed in
descendants, whether legitimate or illegitimate, Art. 895.
three related provisions must be applied.
Example: X died intestate, survived by the
According to Art. 999, the share of the widow or following: (1) his widow, Y; (2) his legitimate
widower is equal to the share of a legitimate child; children, A and B; and (3) his acknowledged
according to Art. 983, the estate shall be divided natural child, C. The estate is P140,000. How
in accordance with the proportions prescribed in shall the distribution be made? According to
Art. 895 but which was repealed by Art. 176(2) of both concurrence and exclusion theory, the
the Family Code, and according to Art. 895, this legitime of all the survivors must first be
new proportion is 10:5. Since the widow or satisfied. The legitime of A is P35,000, B,
widower has the same share as that of a legitimate P35,000, Y, P35,000, and C, P17,500. There is,
child, the proportions are, therefore, 10 for the therefore, a balance of P17,500. How shall this
legitimate child, 10 for the widow or widower, 5 balance be divided or to whom shall it be
for the acknowledged natural child, for the adjudicated? According to the exclusion
natural child by legal fiction, or the acknowledged theory, it must be adjudicated to A and B. The
illegitimate child who is not natural, now all distribution shall be as follows:
simply classified as illegitimate children. Simply,
the distribution of the estate must be made, using A P43,750
the share of the legitimate child as the basis of B P43,750
computation, in such a way that the share of the
Y P35,000
widow or widower shall be the same as that of the
legitimate child, that of the acknowledged natural C P17,500
child or natural child by legal fiction or the TOTAL P140,000
acknowledged illegitimate child who is not
natural (now all classified as illegitimate On the other hand, according to the
children), 1/2 the share of the legitimate child. concurrence theory, it must be divided among
A, B, Y and C in the proportion of 2:2:2:1. A, B
However, under Art. 983, this method of and Y shall, therefore, be entitled to 2/7 each of
proportionate division is subject to the principle P17,500, or P5,000 each, while C shall be
of compulsory succession by virtue of which the entitled to 1/7 of P17,500, or P2,500. Adding
legitime of compulsory heirs must never be these amounts to their respective legitimes,
impaired. the distribution shall be as follows:

The distribution cannot be made directly; A P40,000
otherwise, there would be an impairment of the
B P40,000
legitime of the legitimate children, especially
where there is only one or two surviving. Y P40,000
Therefore, in distributing the estate, we must first C P40,000
satisfy the legitime of the survivors. If after TOTAL P140,000
satisfying the legitime of the legitimate children,

the balance of 1/2 should not be sufficient to
The concurrence theory is correct. In the first
cover the legitime of the surviving spouse and the place, it is conformity with Art. 983 which
illegitimate children, we shall then apply the rule
declares that “if illegitimate children survive
stated in Art. 895. The legitime of the surviving
with legitimate children, the shares of the
spouse must first be fully satisfied and what is left
former shall be in the proportions prescribed
shall be divided equally among the illegitimate
by Article 895.” Under this theory, the
children. proportions prescribed by Art. 895 are

observed; under the exclusion theory, they are
However, in those cases where there is still a
disregarded. In the second place, it is in
balance remaining out of the free portion, such as
conformity with Art. 999 which declares that
when there is only one acknowledged illegitimate
the “widow or widower shall be entitled to the
child concurring in the succession, the division of same share as that of a legitimate child.” Under
such balance is controversial.
this theory, this mandate of the law is

observed; under the exclusion theory, it is
In the discussion under Art. 983, there are 2 views violated.
advanced by commentators on the New Civil

Code:

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SUCCESSION

Art. 999 does not support the position that a The proportion of 5:4 is no longer applicable in
widow (surviving spouse) is an intestate heir view of the new provisions of the Family Code.
of his or her parent-in-law. The estate Please note that the acknowledged natural
contemplated therein is the estate of the child and the acknowledged illegitimate child
deceased spouse and not the estate of the who is not natural are both classified as
widow’s (or widower’s) parent-in-law. Thus, in illegitimate children. Thus, distribution shall
a case where the widow insisted in getting a be as follows:
share of the estate in her capacity as the
surviving spouse of the son of her mother-in- Legitimate father P18,000
law, the Court held that a surviving spouse is Legitimate mother P18,000
not an intestate heir of his or her parent-in-
law. The widow is considered a third person as Widow P18,000
regards the estate of the parent-in-law. The Acknowledged
P9,000
contingent or inchoate right of the deceased natural child
spouse to the properties of the parent as the Acknowledged
latter’s compulsory heir was extinguished by illegitimate child who P9,000
his death. That is why it is the son of the is not natural
deceased spouse (grandson of the parent-in- TOTAL P72,000
law) and the surviving spouse who succeed
from the parent-in-law by right of Del Rosario vs. Cunanan
representation. The grandson did not succeed Question: Suppose, however, that the decedent is
from his deceased father. survived by a legitimate parent, the surviving
spouse and an adopted child shall the legitimate
Surviving spouse, legitimate ascendants, parent be excluded by the adopted child or shall
and illegitimate children we apply the rule stated in the above article
considering the provision of Art. 39(4) (formerly,
Article 1000. If legitimate ascendants, the Art. 343 of the Civil Code) of the Child and Youth
surviving spouse, and illegitimate children are Welfare Code (PD 603), which states “that if the
left, the ascendants shall be entitled to one-half adopter is survived by legitimate parents or
of the inheritance, and the other half shall be ascendants and by an adopted person, the latter
divided between the surviving spouse and the shall not have more successional rights than an
illegitimate children so that such widow or acknowledged natural child?’’
widower shall have one-fourth of the estate, and Answer: The governing provision is Art. 343 of
the illegitimate children the other fourth. the New Civil Code (Art. 39[4], PD 603), in
relation to Arts. 893 and 1000 of said law, which
The surviving spouse is placed in the same level directs that if the adopter is survived by
or category as the illegitimate children. legitimate parents or ascendants, the latter shall
not have more successional rights than an
Example: If the decedent is survived by his acknowledged natural child. There are three
legitimate father and mother, the widow, one reasons for this:
acknowledged natural child, and one 1. In the first place it would be most unfair to
acknowledged illegitimate child who is not accord more successional rights to the
natural, and the estate is P72,000, 1/2 of adopted, who is only related artificially by
P72,000 or P36,000, shall be given to the fiction of law to the deceased, than those who
parents or ascendants, 1/4 of P72,000, or are naturally related to him by blood in the
P18,000, shall be given the widow, while the direct ascending line.
remaining 1/4 of P72,000, or P18,000, shall be 2. In the second place, in intestate succession,
given to the two illegitimate children which where legitimate parents or ascendants
they shall divide in the proportion of 5:4. The concur with the surviving spouse of the
distribution shall be as follows: deceased, the latter does not necessarily
exclude the former from the inheritance. This
Legitimate father P18,000 is affirmed by Art. 893 of the New Civil Code.
Legitimate mother P18,000 3. In the third place, Art. 343 (Art. 39[4] of the
Child and Youth Welfare Code) does not
Widow P18,000 require that the concurring heirs should be
Acknowledged the adopted child and legitimate parents or
P10,000
natural child ascendants only. The language of the law is
Acknowledged clear, and a contrary view cannot be
illegitimate child who P18,000 presumed. Thus, Art. 343 should be made to
is not natural apply, consonant with the cardinal rule in
TOTAL P72,000 statutory construction that all of the
provisions of the New Civil Code must be
reconciled and given effect. The respective

139 Succession Reviewer by S. V. Makayan

SUCCESSION

shares of the surviving spouse, ascendant and applied only to brothers and sisters or
adopted child should be determined by Art. nephews and nieces and not to other
1000 of the New Civil Code. collaterals.

Surviving spouse and brothers and sisters, Brothers and sisters
nephews and nieces
Article 1004. Should the only survivors be
Article 1001. Should brothers and sisters or brothers and sisters of the full blood, they shall
their children survive with the widow or inherit in equal shares.
widower, the latter shall be entitled to one-half
of the inheritance and the brothers and sisters Should the only survivors be brothers and sisters
or their children to the other half. of the full blood, they shall inherit in equal shares
or per capita.
Article 1002. In case of a legal separation, if the
surviving spouse gave cause for the separation, Brothers and sisters, nephews and nieces
he or she shall not have any of the rights granted
in the preceding articles. Article 1005. Should brothers and sisters
survive together with nephews and nieces, who
SUBSECTION 5. COLLATERAL RELATIVES are the children of the descendant's brothers
and sisters of the full blood, the former shall
Collateral relatives inherit per capita, and the latter per stirpes.

Article 1003. If there are no descendants, Should brothers and sisters survive together with
ascendants, illegitimate children, or a surviving nephews and nieces, who are the children of the
spouse, the collateral relatives shall succeed to decedent’s brothers and sisters of the full blood,
the entire estate of the deceased in accordance the former shall inherit per capita, and the latter
with the following articles. per stirpes.

Collateral relatives shall succeed to the entire Simply, the former shall inherit in their own right,
estate in the absence of legitimate descendants, while the latter shall inherit by right of
legitimate ascendants, illegitimate children, and representation (Art. 972, 975).
the surviving spouse.
Example: If the decedent is survived by A and
GR: When there are legitimate descendants, B, brothers of the full blood, and D and E,
legitimate ascendants, or illegitimate children, children of C, another brother of the full blood
such collateral relatives do not participate in the who had predeceased him, the inheritance
inheritance; they are excluded altogether from shall be divided into three equal parts — one
the succession. When they concur with the part to be given to A, another to B, and the rest
surviving spouse only, they are also excluded as a to D and E in representation of their deceased
general rule. father, C. If all of the brothers A, B and C had
XPN: When brothers and sisters or nephews and predeceased the decedent, the inheritance
nieces concur in the succession. In such case, shall be given to D and E, which they shall
according to Art. 1001, 1/2 of the estate shall be divide per capita, but they would be inheriting
given to the surviving spouse and the other 1/2 in their own right and no longer by right of
shall be given to the surviving spouse and the representation. It must be remembered that
other 1/2 shall be given to the brothers and the only case where the right of representation
sisters or nephews and nieces. may take place in the collateral line is when
nephews and nieces of the decedent concur
Principles: with the decedent’s brothers and sisters.

1. When the law speaks of collateral relatives, it GSIS v. Custodio
can only refer to those within the fifth degree. FACTS: Simeon Custodio, a government retiree,
2. (GR) Where two or more collateral relatives died intestate, survived by his sister Susana
concur in the succession, the rule of proximity Custodio and several nephews and nieces. These
by virtue of which the nearest in degree shall nephews and nieces are children of his brothers
exclude the more remotes ones is applicable. Vicente, Crispin and Jacinto who had predeceased
3. (XPN) The right of representation is also him. Susana and her nephews and nieces, with the
recognized, but it is a right which is extended exception of Macario, only child of Crispin, and
only to nephews and nieces. Luisa and David, two of the six children of Jacinto,
4. Where the survivors are of the same degree, entered into an extrajudicial agreement
the rule of preference by reason of recognizing Susana as sole beneficiary of the
relationship by the whole blood is also retirement benefits of Simeon.
recognized, but it is a rule which can be

140 Succession Reviewer by S. V. Makayan

SUCCESSION

ISSUE: How shall such retirement benefits be Answer: According to Art. 975, when children of
divided? one or more brothers and sisters of the deceased
HELD: The intestate heirs who did not sign the survived, they shall inherit from the latter by right
deed of extrajudicial settlement cannot be of representation, if they survive with their uncles
considered as having recognized Susana Custodio and aunts. According to Art. 1005, should
as the only beneficiary of Simeon’s retirement brothers and sisters survive together with
money. There is no evidence, the case having been nephews and nieces, who are children of the
submitted for decision below solely on a decedent’s brothers and sisters of the full blood,
stipulation of facts, that these non-signatory heirs the former shall inherit per capita, and the latter
had accepted other benefits under the deed of per stirpes. According to Art. 1006, should
partition, as appellee now claims. These three brothers and sisters of the full blood survive
heirs should inherit per stirpes in accordance together with brothers and sisters of the half
with Article 1005 of the Civil Code. As Macario C. blood, the former shall be entitled to a share
Custodio is the only child of Crispin, he inherits by double that of the latter. In the light of these three
representation the 1/4 share pertaining to his provisions, the P25,000 shall be divided into
father, while Luisa Custodio and David Custodio, three shares in the proportion of 2:2:1. A shall be
being two of six children of Jacinto, are each entitled to 2/5 of P25,000, or P10,000; D and E
entitled to a sixth of one- fourth (1/6 x 1/4) shall also be entitled to 2/5 of P25,000 or
equivalent to 1/24 of the hereditary mass. P10,000, by right of representation; while F and G
shall be entitled to only 1/5, or P5,000, by right of
Article 1006. Should brother and sisters of the representation. The distribution shall be as
full blood survive together with brothers and follows:
sisters of the half blood, the former shall be
entitled to a share double that of the latter. A P10,000 in her own right
D P5,000 by right of representation
However, if some of the survivors are brothers
and sisters of the full blood and the others are E P5,000 by right of representation
brothers and sisters of the half blood, the rules F P2,500 by right of representation
that shall be applied would then be different. In G P2,500 by right of representation
such case, the former shall be entitled to a share TOTAL P25,000
double that of the latter.


Article 1007. In case brothers and sisters of the
Example: If the decedent is survived by A and
half blood, some on the father's and some on the
B, brothers of the full blood, and by C and D,
mother's side, are the only survivors, all shall
brothers of the half blood, and the estate is
inherit in equal shares without distinction as to
P30,000, the distribution shall be made in the
the origin of the property.
proportion of 2:2:1:1. A shall be entitled to 2/6

of P30,000, or P10,000; B, 2/6 of P30,000, or
The same rules shall also be applied should
P10,000; C, 1/6 of P30,000, or P5,000; and D,
brothers and sisters of the half-blood survive
1/6 of P30,000, or P5,000. Should the brothers
together with nephews and nieces, who are the
and sisters survive together with nephews and
children of the decedent’s brothers and sisters of
nieces, who are the children of the decedent’s
the half blood.
brothers and sisters who predeceased him,

such nephews and nieces shall also inherit but
Nephews and nieces
by right of representation.


Article 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 brothers and sisters of the full blood.

If the only survivors are nephews and nieces of
the full or of the half blood, such nephews and
nieces shall succeed to the entire inheritance in

their own right. The division of the estate shall be
Question: Here, let us suppose that the decedent,
per capita.
X, is survived by (1) A, a brother of the full blood;

(2) D and E, nephews of the full blood, children of
Should the only survivors be brothers and sisters
B, another brother of the full blood who had
of the half-blood, they shall inherit in equal shares
predeceased X; and (3) F and G, nephews of the
or per capita.
half blood, children of C, a brother of half-blood,

who also had predeceased X. The decedent’s

estate is P25,000. How shall it be distributed?

141 Succession Reviewer by S. V. Makayan

SUCCESSION

Padura v. Baldovino the underlying philosophy of socialization of
However, if some of them are of the full blood and ownership of property.
the others are of the half blood, the rule of Reason: Beyond the fifth degree of relationship,
preference by reason of whole blood relationship the relationship is already so remote that it would
shall be applied. Simply, those of the full blood be stretching human nature too much to presume
shall be entitled to a share double that of those of that the decedent can still be bound by the bonds
the half blood. of affection to such relatives.

NOTE: Although this rule is not expressly Hence, in default of collateral relatives within the
stated by the Code, it can be inferred from Art. fifth degree, the whole estate shall pass to the
1009(2), which declares that in the absence of State.
brothers and sisters or children of brothers
and sisters, the other collateral relatives shall SUBSECTION 6. THE STATE
succeed to the estate without distinction of
lines or preference among them by reason of The State
relationship by the whole blood. Thus, if there
are nephews and nieces surviving the Article 1011. In default of persons entitled to
decedent, relationship by the whole or half- succeed in accordance with the provisions of the
blood becomes material in the distribution of preceding Sections, the State shall inherit the
the estate. whole estate.

Article 1009. Should there be neither brothers In default of legitimate children or descendants,
nor sisters nor children of brothers or sisters, legitimate parents or ascendants, illegitimate
the other collateral relatives shall succeed to the children or descendants, the surviving spouse,
estate. and collateral relatives within the fifth degree, the
The latter shall succeed without distinction of State shall inherit the whole estate.
lines or preference among them by reason of
relationship by the whole blood. Hence, according to our theory of intestate
succession, the State is a legal heir called to the
Solivio vs. CA, et al. succession by operation of law as in the case of
Since the deceased, Esteban Javellana, Jr. died other legal heirs.
without descendants, ascendants, illegitimate
children, surviving spouse, brothers, sisters, Therefore, the American theory of escheat by the
nephews or nieces, what shall apply in the State by which the property of the decedent
distribution of his estate are Arts. 1003 and 1009 reverts to its original owner (the State) has been
of the Civil Code. Therefore, the CA correctly held discarded.
that: “Both plaintiff-appellee and defendant-
appellant being relatives of the decedent within Procedure for escheat
the third degree in the collateral line, each,
therefore, shall succeed to the subject estate Article 1012. In order that the State may take
‘without distinction of line or preference among possession of the property mentioned in the
them by reason of relationship by the whole preceding article, the pertinent provisions of the
blood’, and is entitled to 1/2 share and share alike Rules of Court must be observed.
of the estate.
Rule 91, Rules of Court.
Other collateral relatives
SECTION 1. When and by whom petition
Article 1010. The right to inherit ab intestato filed. When a person dies intestate, seized of
shall not extend beyond the fifth degree of real or personal property in the Philippines,
relationship in the collateral line. leaving no heir or person by law entitled to the
same, the Solicitor General or his representative
In the absence of brothers and sisters or nephews in behalf of the Republic of the Philippines, may
and nieces of the decedent, whether they be of the file a petition in the Court of First Instance of the
full or half blood, other collateral relatives shall province where the deceased last resided or in
succeed to the entire estate, subject to the rule of which he had estate, if he resided out of the
proximity19 and the rule that the right to inherit Philippines, set- ting forth the facts, and praying
ab intestato shall not extend beyond the fifth that the estate of the deceased be declared
degree of relationship in the collateral line. escheated.

Limiting the right of succession to the collateral SECTION 2. Order for hearing. If the petition is
relatives within the fifth degree of relationship sufficient in form and substance, the court, by an
from the decedent is in accordance with national order reciting the purpose of the petition, shall
economy and social welfare and in keeping with fix a date and place for the hearing thereof,

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SUCCESSION

which date shall be not more than six (6) Article 1013. After the payment of debts and
months after the entry of the order, and shall charges, the personal property shall be assigned
direct that a copy of the order be published to the municipality or city where the deceased
before the hearing at least once a week for six last resided in the Philippines, and the real
(6) successive weeks in some newspaper of estate to the municipalities or cities,
general circulation published in the province, as respectively, in which the same is situated.
the court shall deem best. If the deceased never resided in the Philippines,
the whole estate shall be assigned to the
SECTION. 3. Hearing and judgment. Upon respective municipalities or cities where the
satisfactory proof in open court on the date fixed same is located.
in the order that such order has been published Such estate shall be for the benefit of public
as directed and that the person died intestate, schools, and public charitable institutions and
seized of real or personal property in the centers, in such municipalities or cities. The
Philippines, leaving no heir or person entitled to court shall distribute the estate as the respective
the same, and no sufficient cause being shown to needs of each beneficiary may warrant.
the contrary, the court shall adjudge that the The court, at the instance of an interested party,
estate of the deceased in the Philippines, after or on its own motion, may order the
the payment of just debts and charges, shall establishment of a permanent trust, so that only
escheat; and shall pursuant to law, assign the the income from the property shall be used.
personal estate to the municipality or city where
he last resided in the Philippines, and the real Article 1014. If a person legally entitled to the
estate to the municipalities or cities, estate of the deceased appears and files a claim
respectively, in which the same is situated. If the thereto with the court within five years from the
deceased never resided in the Philippines, the date the property was delivered to the State,
whole estate may be assigned to the respective such person shall be entitled to the possession
municipalities or cities where the same is of the same, or if sold, the municipality or city
located. Such estate shall be for the benefit of the shall be accountable to him for such part of the
public schools, and public charitable institutions proceeds as may not have been lawfully spent.
and centers in said municipalities or cities.
The court, at the instance of an interested party, *Refer to Table of Intestate Succession and Table of
or on its own motion, may order the Intestate Succession under the Family Code
establishment of a permanent trust, so that only reviewers
the income from the property shall be used.
B. BASIC RULES AND PRINIPLES (ARTS. 960-
SECTION 4.When and by whom claim to 969)
estate filed. If a devisee, legatee, heir, widow,
widower, or other person entitled to such estate
appears and files a claim thereto with the court Concept of legal or intestate succession
within five (5) years from the date of such
judgment, such person shall have possession of Legal or intestate succession. That which is
and title to the same, or if sold, the municipality effected by operation of law in default of a will. It
or city shall be accountable to him for the is legal because it takes place by operation of law;
proceeds, after deducting reasonable charges it is intestate because it takes place in the absence
for the care of the estate; but a claim not made or in default of a last will of the decedent.
within said time shall be forever barred.
It’s essential feature is that it is the law which
SECTION 5. Other actions for escheat. Until operates, not the will of the decedent, but even
otherwise provided by law, actions for when it is the law which designates the persons
reversion or escheat of properties alienated in who are to succeed, the basis of the designation is
violation of the Constitution or of any statute the presumed will of the decedent.
shall be governed by this rule, except that the
action shall be instituted in the province where If the decedent had made a will he would have
the land lies in whole or in part. provided for his children or descendants, for his
parents or ascendants, or for his collaterals.
Requisites for escheat
Love or affection descends, then ascends, and
1. That the decedent dies intestate; finally spreads. In the absence of the persons for
2. That he dies seized of real and/or personal whom the decedent would have provided, it is
property located in the Philippines; presumed that he would have desired his
3. That he leaves no heir or person entitled to property to pass to the State.
such real and personal property.

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SUCCESSION

Rationale and purpose of the law Example: When there is a revocation in
accordance with the requisite formalities
Because of man’s tendency to make a will only prescribed by law, in which case, in default of
when death approaches and because death any other legal or intestate succession shall
sometimes strikes without any warning, even take place.
when a person intends to make a will, yet he dies
without one. 2. If the testator executes a will but disposes
of only a part of his properties
Even when a will exists, it may be void or
defective; the instituted heirs may die before the Here, mixed succession shall take place, because
testator, or be incapacitated to inherit from such the rules of intestate succession shall be applied
testator, or even repudiate their inheritance; the with respect to those properties not disposed of.
condition attached may or may not be fulfilled
resulting either in the prevention of the birth of a This includes those cases where the institution of
right or in its extinguishment depending upon the heirs is void with respect to the disposition of
nature of the condition. certain properties but valid with respect to the
disposition of other properties.
In order to cope with any of these possibilities, the
Code has provided for what is known as legal or 3. If a testamentary disposition becomes
intestate succession by designating the person or ineffective or inoperative
persons who shall succeed the decedent.
a. When the condition which is attached is
Causes of intestacy fulfilled or not fulfilled

Article 960. Legal or intestate succession takes i. If a testamentary disposition is made to
place: depend upon the fulfillment of a
(1) If a person dies without a will, or with a void suspensive condition and such condition
will, or one which has subsequently lost its does not happen or is not fulfilled —
validity; a. The result is that the testamentary
(2) When the will does not institute an heir to, disposition becomes ineffective.
or dispose of all the property belonging to b. The heir, legatee or devisee acquires
the testator. In such case, legal succession nothing.
shall take place only with respect to the c. Hence, legal or intestate succession
property of which the testator has not shall take place.
disposed;
(3) If the suspensive condition attached to the ii. If the testamentary disposition is subject
institution of heir does not happen or is not to a resolutory condition and such
fulfilled, or if the heir dies before the condition is fulfilled —
testator, or repudiates the inheritance, a. The result is that the right of the heir,
there being no substitution, and no right of legatee or devisee which he had
accretion takes place; already acquired at the time of the
(4) When the heir instituted is incapable of death of the testator is extinguished.
succeeding, except in cases provided in this b. Although this is not included among
Code. the causes of intestacy as enumerated
in Art. 960, legal or intestate
1. If the decedent dies without a will, or one succession shall also take place in such
which has subsequently lost its validity a case.

Here, the law comes into operation and disposes b. When the instituted heir, legatee, or devisee
his property in accordance with his presumed dies before the testator, or is incapacitated to
will. inherit from such testator, or repudiates his
inheritance, legacy, or devise
Even where he has made a will, there is always the
possibility that it is void because of the existence i. If the instituted heir, legatee or devisee
of any of the grounds for the disallowance of will dies before the testator, or is incapacitated
in Art. 839. Here, it cannot be admitted to probate. to inherit from the testator, or repudiates
the inheritance, legacy or devise, the result
Even when the will was not defective at the time is a vacancy in the inheritance.
of its execution, there is also the possibility that it ii. The rules of intestate succession shall be
might subsequently lose its validity before the applied to the portion or property which is
testator’s death. rendered vacant.
iii. This is, however, without prejudice to the
following rights:

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SUCCESSION

a. The right of the substitute if one has Rules of proximity; general rule
been designated by the testator;
b. The right of representation when it Article 962. In every inheritance, the relative
properly takes place; and nearest in degree excludes the more distant
c. The right of accretion when it properly ones, saving the right of representation when it
takes place. properly takes place.
Relatives in the same degree shall inherit in
Other causes of intestacy equal shares, subject to the provisions of article
1006 with respect to relatives of the full and half
1. When there is a preterition in the testator’s blood, and of article 987, paragraph 2,
will of one, or some, or all of the compulsory concerning division between the paternal and
heirs in the direct line, or maternal lines.
2. When a testamentary disposition is subject to
a resolutory condition and such condition is In every inheritance, whether testamentary or
fulfilled, or intestate, the relatives nearest in degree to the
3. When a testamentary disposition is subject to decendent shall exclude the more distant ones.
a term or period and such term or period
expires, or Hence, a son excludes the grandson, a father
4. When a testamentary disposition is excludes the grandfather, a brother excludes the
impossible of compliance or is ineffective. nephew.

Order of intestate succession NOTE: This rule presupposes that all of the
relatives belong to the same line. Simply, the rule
Article 961. In default of testamentary heirs, of proximity is subordinated to the rule of
the law vests the inheritance, in accordance preference between lines by virtue of which those
with the rules hereinafter set forth, in the in the direct descending line shall exclude those in
legitimate and illegitimate relatives of the the direct ascending and collateral lines, while
deceased, in the surviving spouse, and in the those in the direct ascending line shall exclude
State. those in the collateral line.

Art. 961 states the order of intestate succession Hence, although the son and the father of the
which is based on the presumed will of the decedent are both one degree removed from the
decedent. latter, the son shall exclude the father. The
grandson is two degrees removed from the
In default of testamentary heirs, it is presumed decedent; so is the latter’s brother; but the
that he would have provided: grandson shall exclude the decedent’s brother in
1. For legitimate relatives; the succession.
2. For illegitimate relatives;
3. For the surviving spouse; and Exception
4. For the State.
The rule of proximity is modified by the right of
NOTE: The order of intestate succession is representation as defined in Art. 970 of the Code.
prescribed by law. Hence, any agreement or
partnership contract entered into by the parties GR (Rule of Proximity): A grandson is excluded
cannot affect the hereditary rights which belong by a son, and nephews and nieces are excluded by
to the relatives of the deceased predecessor-in- a brother.
interest nor alter the order prescribed by law for XPN (Rule of Representation): Representation,
intestate succession. however, prevents such exclusion.

Rule of preference between lines Examples:
• If the decedent is survived by his son, A,
According to this principle, those in the direct and by his grandchildren, C and D, children
descending line shall exclude in the succession of a deceased, or incapacitated, or
those in the direct ascending and collateral lines, disinherited child, B under the law, C and
and those in the direct ascending line shall, in D are not excluded by A in the succession
turn, exclude those in the collateral line. in spite of the rule of proximity, because,
by right of representation, they are raised
It is expressly recognized in the provisions of Arts. to the place and degree of their deceased
978, 985, 988, 995, 1003, and 1011 regulating the or incapacitated, or disinherited father.
order of intestate succession. • If the decedent is survived by his brother,
X, and his nephews, A and B, children of a
deceased brother, Y, such nephews shall

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SUCCESSION

still participate in the succession by right Illustration:
of representation.

Rule of equal division

GR: Under Art. 962(2), relatives of the same
degree shall inherit in equal shares.

Like the rule of proximity, this rule presupposes
that all of the relatives belong to the same line. In
other words, it is subordinated to the rule of
preference between lines.

Hence, although a grandson of the decedent is a X is survived by his son, A, and his grandchildren,
relative of the latter in the second degree, while D, E and F. D is the child of a deceased son of X (B);
the father of such decedent is a relative in the first E and F are the children of another deceased son
degree, yet the former, who is in the direct of (C). It is clear that A shall inherit in his own
descending line, shall exclude the latter, who is in right, while the grandchildren shall inherit by
the direct ascending line. right of representation. D shall receive the share
that would have gone to his father if the latter
Exceptions were alive; E and F shall also receive the share
that would have gone to their father if the latter
1. When the inheritance is divided between were also alive. Hence, although they are all two
paternal and maternal grandparents degrees removed from the decedent, D shall
receive twice as much as either E or F.
When the decedent is survived by two
grandparents in the paternal line and by one SUBSECTION 1. RELATIONSHIP
grandparent in the maternal line, the
inheritance shall be divided in such a way that Computation of degrees
1/2 shall pass to the grandparents in the
paternal line, while the other 1/2 shall pass to Article 963. Proximity of relationship is
the surviving grandparent in the maternal determined by the number of generations. Each
line. generation forms a degree.

2. When the inheritance is divided among Article 964. A series of degrees forms a line,
brothers and sisters, some of whom are of the which may be either direct or collateral.
full blood and others of the half-blood A direct line is that constituted by the series of
degrees among ascendants and descendants.
Those of the full blood shall be entitled to A collateral line is that constituted by the series
double the share of those of the half-blood. of degrees among persons who are not
ascendants and descendants, but who come
3. When in certain cases when the right of from a common ancestor.
representation takes place


Article 965. The direct line is either descending
Whenever there is succession by
or ascending.
representation, the division of the estate shall
The former unites the head of the family with
be made per stirpes, in such manner that the
those who descend from him.
representatives, although of the same degree,
The latter binds a person with those from whom
shall not inherit more than what the person
he descends.
they represent would inherit, if he were living

or could inherit.
Article 966. In the line, as many degrees are

counted as there are generations or persons,

excluding the progenitor.

In the direct line, ascent is made to the common

ancestor. Thus, the child is one degree removed

from the parent, two from the grandfather, and

three from the 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


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SUCCESSION

the brother of his father, four from his first to H — minus one. Therefore, E is four degrees
cousin, and so forth. removed from his first cousin H.

Illustration: Effect of incapacity or repudiation

Article 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.

Article 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.


Article 969. If the inheritance should be
A is the common ancestor; B, C and D are the
repudiated by the nearest relative, should there
children of A; E and F are the children of B G and be one only, or by all the nearest relatives called
H are the children of D; I and J are the children of
by law to succeed, should there be several, those
E; K is the child of F; L is the child of H; and M and
of the following degree shall inherit in their own
N are the children of I. Let us assume that E is the
right and cannot represent the person or
propositus or person with whom the computation
persons repudiating the inheritance.
is made.


Arts. 968 and 969 give the general effects of
Question: In terms of degrees, how is E related to
incapacity or repudiation upon the order of
his grandson, M?
intestate succession.
Answer: In this case, descent is made from E to M,

counting the number of persons from E to M —
minus one. Therefore, E is two degrees removed ART. 968 ART. 969
from his grandson, M. Refers to a case where one or Refers to a case
some of the surviving where all of
Question: How is E related to his grandfather, A? relatives of the decedent of such relatives
Answer: The same procedure is followed. Ascent the same class and degree have
is made from E to A, counting the number of are incapacitated to inherit repudiated
persons from E to A — minus one. Therefore, E is from him or have repudiated their
two degrees removed from his grandfather, A. their inheritance inheritance.

Question: How is E related to his brother, F? GR: Under Art. 968, in case of incapacity, the share
Answer: In this case, ascent is made from E to or shares which are rendered vac ant shall pass to
their common ancestor, B, and then descent is the co-heirs of the incapacitated heir or heirs by
made to F counting the number of persons from E right of accretion.
up to B down to F — minus one. Therefore, E is XPN: If the incapacitated heir happens to be a
two degrees removed from his brother, F. child or descendant of the decedent and he has
children or descendants of his own, then the share
Question: How is E related to his uncle, C? which is rendered vacant by reason of incapacity
Answer: The same procedure is followed. Ascent shall pass to such children or descendants by
is made to E to their common ancestor, A, and right of representation. Therefore, the right of
then descent is made to C, counting the number of representation is superior to the right of
persons from E up to B to A down to C — minus accretion.
one. Therefore, E is three degrees removed from
his uncle, C. GR: In case of repudiation by one or some of the
relatives, the share or shares which are rendered
Question: How is E related to his first cousin, H? vacant shall pass to the co-heirs of the renouncer
Answer: The same procedure is again followed. or renouncers by right of accretion.
Ascent is made from E to their common ancestor,
A, and then descent is made to H, counting the NOTE: This rule is absolute, even assuming
number of persons from E up to B to A down to D that the renouncer is a child or descendant of
the decedent and he has children or

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SUCCESSION

descendants of his own. This is so because of 2. Illegitimate children or descendants;
the principle that an heir who repudiates his 3. Illegitimate parents;
inheritance may not be represented. 4. Surviving spouse;
5. Brothers and sisters, nephews and nieces;
GR: Under Art. 969, all of the relatives of the 6. The State
decedent of the same class and degree called by
the law to succeed have repudiated their The provisions of the Civil Code which relate to
inheritance. the order of intestate succession (Arts. 978 to
1014) enumerate with meticulous exactitude the
Question: What is the effect of this total vacancy? intestate heirs of a decedent, with the State as the
Answer: According to the law, those of the final intestate heir. The conspicuous absence of a
following degree shall inherit in their own right. provision which makes a daughter-in-law an
They cannot inherit by right of representation intestate heir of the deceased all the more
because of the principle that an heir who confirms this observation. If the legislature
repudiates his inheritance may not be intended to make the surviving spouse an
represented. If the decedent is survived by, let us intestate heir of the parent-in-law, it would have
say, four legitimate children, and all of them so provided in the code.
repudiate their inheritance, the effect of such
repudiation is that those of the following degree If the decedent is an adopted person, the above
shall be called to the succession. But such orders of intestate succession are still followed,
relatives shall inherit in their own right and not but with a difference in connection with parents
by right of representation, even if they are the or ascendants. According to the Child and Youth
grandchildren of the decedent. Hence, the Welfare Code, “the adopter shall not be a legal
inheritance shall be distributed among them per heir of the adopted person, whose parents by
capita. nature shall inherit from him, except that if the
latter are both dead, the adopting parent or
NOTE: It would be different if instead of parents take the place of the natural parents in
repudiation by all of the heirs, all of them died the line of succession, whether testate or
before the decedent or all of them are intestate” (Art. 39, No. 4, P.D. No. 603). Thus, if the
incapacitated to inherit. In such case, the adopted person is legitimate and his natural
grandchildren shall inherit by right of parents are both dead, the adopter shall then
representation and not in their own right.10 occupy the second position in the line or order of
Hence, the inheritance shall be distributed succession by substitution; if he is illegitimate and
among them per stirpes and not per capita. his natural parents are both dead, the adopter
shall then occupy the third position in the line or
SECTION 2. ORDER OF INTESTATE order of succession by substitution.
SUCCESSION
NOTE: The foregoing was repealed by Art. 190 of
Order of intestate succession in general the Family Code where the new rule is that when
parents, legitimate or illegitimate, or the
REGULAR ORDER IRREGULAR ORDER legitimate ascendants of the adopted concur with
the adopters, they shall divide the entire estate,
Refers to the order of Refers to the order of one-half to be inherited by the parents or
succession if the succession if the ascendants and the other half by the adopters.
decedent is a decedent is an
legitimate person illegitimate person Question: Can the widow whose husband
predeceased his mother inherit from the latter
The regular order of intestate succession is as (her mother-in-law)?
follows: Answer: There is no provision in the Civil Code
which states that a widow (surviving spouse) is
1. Legitimate children or descendants; an intestate heir of her mother-in-law. The entire
2. Legitimate parents of ascendants; Code is devoid of any provision which entitles her
3. Illegitimate children or descendants; to inherit from her mother-in-law either by her
4. Surviving spouse; own right or by the right of representation.
5. Brothers and sisters, nephews and nieces;
6. Other collateral relatives within the fifth Nature and basis
degree; and
7. The State. Under our Code, although the order of intestate
succession found in the Spanish Code is
The irregular order of intestate succession is as preserved, the philosophy underlying such order
follows: has been modified to a certain extent.

1. Legitimate children or descendants;

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SUCCESSION

It would be more accurate to say that it is based As a matter of fact, in legal or intestate succession,
both on the principle of exclusion and the it is one of the bases of the order of succession.
principle of concurrence. This can be inferred or
deduced from an examination of the provisions of XPN: The right of representation. By virtue of this
Art. 978 to 1014. right, the relative nearest in degree does not
always exclude the more remote ones, because, by
Evidently, the principle of exclusion is still applied fiction of law, more distant relatives belonging to
literally to the case of parents or ascendants, the same class as the person represented, are
collateral relatives, and the State. Such heirs are raised to the place and degree of such person, and
totally excluded by those who precede them in the acquire the rights which the latter would have
order of intestate succession. acquired if he were living or if he could have
inherited.
But in the case of the others, the principle of
concurrence is applied. We have, therefore, Characteristics
preserved the system of compulsory succession
found in the Spanish Code, but with certain 1. It is a right of subrogation
changes on modifications. 2. It constitutes an exception to the rule of
proximity and the rule of equal division
The position of illegitimate children and the among relatives of the same class and degree
surviving spouse, who are not only legal or 3. The representative is called to the succession
intestate heir but are also primary compulsory by the law and not by the person represented
heirs, has been improved. 4. The representative succeeds the decedent
and not the person represented
Under the principle of concurrence as applied in 5. It can only take place when there is a vacancy
the new Code, even where they concur with in the inheritance brought about by either
legitimate children or descendants or with predecease, or incapacity, or disinheritance
legitimate parents or ascendants, they are not of an heir
only entitled to their legitime, but they are also 6. As a general rule, the right can be exercised
given a share in the disposable free portion. only by grandchildren or descendants of the
decedent
C. RIGHT OF REPRESENTATION (ARTS. 970-
977) NOTE: The most significant among these
characteristics are the third and the fourth
which are now expressly stated in Art. 971. The
SUBSECTION 2. RIGHT OF REPRESENTATION representative does not succeed the person
represented but the one whom the person
Concept of representation represented would have succeeded. Thus, a
grandson is called to succession by law
Article 970. Representation is a right created because of his blood relationship. He does not
by fiction of law, by virtue of which the succeed his father (the person represented)
representative is raised to the place and the who predeceased his grandparent. The
degree of the person represented, and acquires grandson succeeds his grandparent whom his
the rights which the latter would have if he father would have succeeded.
were living or if he could have inherited.
Consequences of the principle that the
Article 971. The representative is called to the representative inherits from the decedent and not
succession by the law and not by the person from the person represented:
represented. The representative does not
succeed the person represented but the one 1. The representative must be capable of
whom the person represented would have succeeding the decedent
succeeded. 2. Even if the representative is incapable of
succeeding the person represented, he can
GR: In every inheritance, the relative nearest in still inherit by right of representation so long
degree excludes the more remote ones. This is as he is capable of succeeding the decedent
known as the rule of proximity which is one of the 3. Even if the representative had repudiated his
guiding principles of our system of compulsory inheritance coming from the person
succession in both testamentary and intestate represented, he can still inherit from the
succession. It is primarily a rule of exclusion. decedent by right of representation.

Thus, the son excludes the grandson, the father
excludes the grandfather, the brother excludes
the uncle or nephew.

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SUCCESSION

When representation takes place As a penalty, the law or the paternal will,
therefore, deprives such child of his inheritance.
In testamentary succession This penalty, however, must not be vested upon
the grandchildren. On the contrary, the decedent
1. When the person represented dies before the must be drawn to them more for the misfortune
testator of having such an unworthy father or mother.
2. When the person represented is incapable of
succeeding the testator Representation in direct descending line
3. When the person represented is disinherited
by the testator. Article 972. The right of representation takes
place in the direct descending line, but never in
In all of these cases, since there is a vacancy in the the ascending.
inheritance, the law calls the children or In the collateral line, it takes place only in favor
descendants of the person represented to succeed of the children of brothers or sisters, whether
by right of representation. they be of the full or half blood.

NOTE: In testamentary succession, the person GR: The right of representation takes place in the
represented must be a compulsory heir of the direct descending line, but never in the ascending
testator in the direct descending line. It will be line. This law is crystallized in the concept of
recalled that under Art. 856 of the Code, a representation.
voluntary heir cannot transmit any right to his
own heirs in case he dies before the testator. When the right of representation in the direct line
The same rule can also be applied if he is takes place:
incapable of succeeding the testator. This is
absolute. 1. When children concur with grandchildren,
the latter being the children of other children
A compulsory heir in the direct descending line on who died before the decedent or who are
the other hand, can transmit his rights, but only incapable of succeeding the decedent
with respect to the legitime. Simply, if a 2. When all the children are dead or are
compulsory heir in the direct line dies before the incapable of succeeding the decedent and
testator, his own children or descendants shall grandchildren concur with great-
still participate in the succession, not in their own grandchildren, the latter being the children of
right, but by right of representation. The same other grandchildren who died before the
rule can also be applied if such heir is incapable of decedent or are incapable of succeeding the
succeeding the testator or is disinherited. decedent
3. When all children are dead or are incapable of
In legal or intestate succession succeeding the decedent leaving children or
descendants of the same degree.
1. When the person represented dies before the
decedent Representation in collateral line
2. When the person represented is incapable of
succeeding the decedent. GR: The right of representation takes place only
in the direct descending line.
In both of these cases, since there is a vacancy in XPN: Where the right does not take place in the
the inheritance, the law calls the children or direct descending line but in the collateral line in
descendants of the person represented to favor of children of brothers and sisters of the
succeed by right of representation to the entire decedent, whether they be of the full blood or
portion which is rendered vacant. half-blood.

Clearly, the principle of representation is Limitations:
applicable whenever there is a vacancy in the
inheritance brought about by their predecease, or 1. The right can be exercised only by nephews and
incapacity, or disinheritance. nieces of the decedent.

In all of these cases, the basis like that of other This is clear from the provisions of Arts. 972
rights of succession which take effect by and 975 of the Code. It cannot be exercised by
operation of law, is the presumed will of the grandnephews and grandnieces.
decedent.
2. The right can be exercised by the nephews or
As far as the decedent is concerned, the son or nieces of the decedent if they will concur with
daughter who is unworthy or who has been at least one brother or sister of the decedent.
disinherited is dead.


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SUCCESSION

This limitation is expressly provided for in Effect upon division of estate
Art. 975. Otherwise, if they are the only
survivors, they shall inherit in their own right Article 974. Whenever there is succession by
and not by right of representation. representation, the division of the estate shall
be made per stirpes, in such manner that the
3. The right of representation in the collateral representative or representatives shall not
line is possible only in intestate succession; inherit more than what the person they
simply, it cannot possibly take place in represent would inherit, if he were living or
testamentary succession. could inherit.

Although the law does not include this The most fundamental effect of succession by
limitation in this subsection of the Civil Code, representation is that the representative is, by
yet it can easily be inferred from the legal fiction, raised to the place and degree of the
provisions of Art. 856. According to this person represented.
article, a voluntary heir cannot transmit any
right to his own heirs in case he dies before As a consequence, such representative is
the testator; simply, (and this can also be subrogated to all of the rights to which the person
applied to incapacity), if a voluntary heir dies represented would have been entitled by
before the testator, survived by children or operation of law if he were living or if he could
descendants of his own, he cannot be have inherited.
represented in the succession by such
children or descendants. Thus, in testamentary succession, the
representative acquires all of the rights which the
From these principles which are enunciated person represented had with respect to his
in Art. 856, two conclusions can be inferred: legitime, while in legal or intestate succession he
a. The right of representation in acquires all of the rights which the person
testamentary succession is possible only represented had with respect to his entire legal
when the person represented is a portion. In both cases, according to Art. 974, the
compulsory heir in the direct descending division of the estate shall be made per stirpes, in
line such manner that the representative or
b. The right of representation in representatives shall not inherit more than what
testamentary succession pertains only to the person they represent would inherit, if he
the legitime, which is rendered vacant by were living or could inherit.
either predecease, incapacity or
disinheritance, and never to the free REPRESENTATION REPRESENTATION IN
portion. Since brothers and sisters of the IN TESTAMENTARY INTESTATE
testator are voluntary heirs and not SUCCESSION SUCCESSION
compulsory heirs, if some or all of them
are instituted as heirs in the testator’s The right which is The right which is
will, and one of them dies before the acquired by the acquired is the right to
testator or is incapable of succeeding the representatives is the the legal portion
testator, such brother or sister cannot right to the legitime of which is rendered
transmit any right at all to his own heirs. the compulsory heir vacant by reason of
The portion of the inheritance which is who dies before the the fact that the legal
rendered vacant shall, therefore, pass to testator, or who is heir dies before the
his co-heirs by right of accretion. unworthy to succeed, decedent or is
or who is disinherited unworthy to succeed
Capacity of representative The right refers to the
The right of whole share with
Article 973. In order that representation may representation refers would have been
take place, it is necessary that the to the legitime, acquired by the person
representative himself be capable of succeeding represented.
the decedent.


Repudiation by representative
The above rule is a consequence of the principle

enunciated in Art. 971 to the effect that the
representative succeeds the decedent and not the Article 975. When children of one or more
brothers or sisters of the deceased survive, they
person represented.
shall inherit from the latter by representation, if
Even if the representative is incapable of they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal
succeeding the person represented, he can still
inherit by right of representation, provided that portions.
he is capable of succeeding the decedent.

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SUCCESSION

Article 976. A person may represent him whose According to the law, he cannot be represented.
inheritance he has renounced. Hence, in conformity with the presumed will of
the decedent, the share which is rendered vacant
Thus, under the above article, if a child renounces as a consequence of such repudiation shall pass to
or repudiates his inheritance when his father the other heirs by right of intestate succession or
died, he may still represent the latter, when by right of accretion depending upon the
subsequently, his grandfather dies. circumstances of each case.

Question: In 1960, B died, survived by his son, X, D. RIGHT OF ACCRETION (ARTS. 1015-1023)
X repudiated his inheritance. Subsequently in

1970, A, father of B, died, survived by his son, C,
and his grandson, X. May X represent his father, B, Concept of accretion
with respect to the inheritance coming from A?
Answer: Under Art. 976, he may. The provision of Article 1015. Accretion is a right by virtue of
Art. 976 is a necessary consequence of the rule which, when two or more persons are called to
stated in Art. 971. the same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
NOTE: The representative does not inherit receive his share, or who died before the
from the person represented; he inherits from testator, is added or incorporated to that of his
the decedent or the person from whom the co-heirs, co-devisees, or co-legatees.
person represented would have inherited if he
were living or had the capacity to succeed. The right of accretion occurs when two or more
Hence, his capacity or incapacity to inherit persons are called to the same inheritance, legacy
from the person represented is immaterial; the or devise, but, by reason of (1) predecease, or (2)
same is true with regard to his acceptance or incapacity, or (3) repudiation, a vacancy is
repudiation of the inheritance coming from the created in the inheritance.
person he is supposed to represent. What is
material, therefore, is his capacity to inherit The effect is that the vacant portion which had
from the decedent and his acceptance of the been previously assigned to the one who died
inheritance coming from such decedent. before the decedent, or who is incapacitated to
succeed, or who repudiated his inheritance,
The situation is different if it is the person is legacy or devise, is added or incorporated to that
supposed to be represented who repudiates the of his co-heirs, co-legatees, or co-devisees.
inheritance. In such case, Art. 977 applied. There
can be no right of representation. The right takes place both in testamentary and in
intestate succession. It is based on the presumed
Effect of repudiation by heir will of the decedent.

Article 977. Heirs who repudiate their share When a portion of the inheritance, legacy or
may not be represented. devise is rendered vacant as a result of
predecease, incapacity, or repudiation, in the

When an heir called either by will or by law to absence of any expressed will of the decedent, the
law presumes that had he been able to express his
succeed repudiates his inheritance, the
circumstances are different from that of will, he would have given such vacant portion to
predecease, incapacity or disinheritance. He the co-heirs, co-legatees, or co-devisees.

deprives, by his own positive act, his children or
descendants of the right of representation. This is Conflict of rights
logical because a person cannot transmit a right
which he does not have. When the portion or share reserved for a certain
heir either by will of the testator or by operation
of law becomes vacant by reason of predecease,
The basis of the exercise of the right of
representation by the children or descendants of incapacity, or repudiation, a problem arises
the person who dies before the decedent, or is because of the possible conflict of several rights.

unworthy to succeed, or is disinherited is the fact
that the person represented is dead or, at least, In testamentary succession
presumed to be dead as far as the decedent is
concerned. Question: Shall the vacant share pass to the
substitute by right of substitution which is based
on the testator’s will, or shall it pass to the
This is not possible in case of renunciation or
repudiation, because, in this case, by renouncing children or descendants of the original heir by
the right which the law has accorded to him, he right of representation, or shall the share accrue
to the co-heirs by right of accretion?
gives a positive proof of his existence.


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Answer: If the heir who dies before the testator 2. That there must be a vacancy in the
or who cannot accept his share because of inheritance, legacy or devise as a result of
incapacity is a compulsory heir, the only conflict predeceased, incapacity or repudiation.
that can possibly arise is one between the
substitute and the co-heirs with regard to the free Plurality of subjects, unity of object
portion, because of the fact that the legitime shall
pass to the children or descendants of the As a consequence of the first requisite, the following
compulsory heir by right of representation. This circumstances are necessary:
conflict is resolved in favor of the substitute
because substitution is based on the expressed 1. Plurality of subjects – Two or more persons
will of the testator, while accretion is not. must be instituted as heirs, legatees or
However, if no substitute has been designated by devisees.
the testator, the free portion shall accrue to the
co- heirs, provided that the conditions prescribed 2. Unity of object – Such person must be called
in Art. 1016 are present. If on the other hand, the to the same inheritance, legacy or devise, or
heir happens to be a voluntary heir, it is clear that to the same portion thereof, pro indiviso.
he cannot transmit any right whatsoever to his Simply, such persons must be instituted
own children or descendants. Hence, if no jointly in the testator’s will in such a manner
substitute has been designated by the testator, that a state of indivision or co-ownership is
the whole vacant share shall pass to the co-heirs created among them with respect to the same
by right of accretion. inheritance, legacy or devise, or with respect
to the same portion thereof.
In intestate succession
It is immaterial whether the testator designates
If a conflict arises between the descendants of the the aliquot or fractional parts or portions which
heir who dies before the decedent or who cannot will be given to each of them or not so long as a
accept his share and the co-heirs, it is always state of indivision or co-ownership exists among
resolved in favor of the former. The right of them with respect to the same inheritance, legacy
representation in such case is always superior to or devise or with respect to the same portion
the right of accretion. thereof.

In case of repudiation, however, the vacant share So long as the designation made by the testator
shall pass to the co-heirs by right of accretion. does not identify the shares of each by such
description as shall make each heir the exclusive
Accretion in testamentary succession owner of determinate property, the right of
accretion shall still take place.
Article 1016. In order that the right of accretion
may take place in a testamentary succession, it The words “1/2 for each” or “in equal shares” or
shall be necessary: any others shall not exclude the right of accretion.
(1) That two or more persons be called to the
same inheritance, or to the same portion Even where the heirs, legatees or devisees are
thereof, pro indiviso; and instituted to unequal aliquot or fractional parts or
(2) That one of the persons thus called die portions of the same inheritance, legacy or devise
before the testator, or renounce the inheritance, or of the same portion thereof, since such
or be incapacitated to receive it. inequality of distribution does not make each
heir, legatee or devisee “the exclusive owner of
Article 1017. The words "one-half for each" or determine property,” the right of accretion shall
"in equal shares" or any others which, though still take place.
designating an aliquot part, do not identify it by
such description as shall make each heir the Example: If the testator states in his will that
exclusive owner of determinate property, shall he is leaving his entire estate to A, B, and C, in
not exclude the right of accretion. such a way that “they shall inherit in equal
In case of money or fungible goods, if the share shares,” or “that A shall inherit 1/2, B, 1/4, and
of each heir is not earmarked, there shall be a C, the remainder,” it is clear that if the testator
right of accretion. dies, a state of indivision or co-ownership shall
exist among the instituted heirs with respect to
Requisites: the same inheritance. Simply, the designation
of the shares of each heir will not result in
1. That two or more persons must have been making each of them the exclusive owner of
called in the testator’s will to the same determinate property.
inheritance, legacy or devise, or to the same
portion thereof, pro indiviso If a vacancy is created in the inheritance by reason
of predecease, or incapacity, or repudiation, the

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portion or share which is rendered vacant shall From the phrase “any others”, even if the
accrue to the co-heirs. parts or shares are unequal, accretion may
still take place.
However, if the property bequeathed consists of
money or fungible goods, according to of Art. 3. Besides, according to Art. 1019 of the Code,
1017(2), there shall be a right of accretion only if which is a new provision, the heirs to whom
the share of each heir or legatee is not the portion goes by right of accretion take it
“earmarked.” This provision resolves some of the in the same proportion that they inherit.
doubts which existed under the old Code. From this provision it can be inferred that
even if the parts or shares of each heir are
Earmarked. There must be a particular unequal, accretion may still take place.
designation or a physical segregation from all
others of the same class. 4. Finally, to apply the rules of accretion is more
in accordance with the presumed will of the
If the shares of the legatees in the money or testator.
fungible goods are not particularly designated or
physically segregated from each other, the right of Vacancy in inheritance
accretion shall take place; conversely, if the
shares of the legatees are particularly designated In addition to plurality of subjects and unity of
or physically segregated from each other the right object, it is also essential in order that accretion
of accretion shall not take place. shall take place in testamentary succession that
there is a vacancy in the inheritance, legacy or
Example: If the testator bequeaths the balance devise.
of his current account at a certain bank to A, B,
and C, in such a way that A shall be entitled to Causes of vacancy:
1/2, B, 1/4, and C, 1/4, it is clear that if a
vacancy is created by reason of predecease, 1. Predecease of one of the instituted heirs,
incapacity or repudiation in any of the legatees or devisees
designated shares, such vacant share shall 2. Incapacity of one of the instituted heirs,
accrue to the co-legatees. legatees or devisees
3. Repudiation by one of the instituted heirs,
Reason: The reason is that the shares given to legatees or devisees
each of the legatees are not earmarked. It 4. Nonfulfillment of the suspensive condition
would be different, however, if the testator attached to the institution of an heir or the
states in his will that he is giving to A the designation of a legatee or devisee
P20,000 which he had deposited at a certain 5. Void or ineffective testamentary dispositions
bank, to B, the P10,00 which is kept in his safe
at his office, and to C, the P10,000 which he had Accretion in intestate succession
buried under his house. Since the shares given
to each of the legatees are earmarked, Article 1018. In legal succession the share of
accretion shall not take place in case any of the person who repudiates the inheritance shall
them is rendered vacant by predecease, always accrue to his co-heirs.
incapacity or repudiation.
In legal or intestate succession, since by the very
Even if the aliquot parts or fractional shares of the nature of the succession the legal heirs are called
co-heirs are unequal, accretion may still take place by the law to the same inheritance, pro indiviso,
for the following reasons: only one requisite is essential in order that the
right of accretion shall take place: There must be a
1. Applying the test stated in Art. 1017, the vacancy in the inheritance.
designation of the aliquot parts or fractional
shares to which the co-heirs are called, This vacancy may be cause by either predecease,
although unequal, do not identify such parts incapacity or repudiation.
or shares by such description as shall make
each co-heir the exclusive owner of GR: In legal or intestate succession, accretion can
determinate property. Simply, the only take place in case of repudiation; it cannot
designation will still result in a state of co- take place, as a rule, in case of either predecease
ownership or indivision. or incapacity.
NOTE: Art. 1018 speaks only of repudiation and
2. Even the very text of Art. 1017 gives rise to not of predecease and incapacity.
the inference that the aliquot parts or Reason: In legal or intestate succession, a
fractional shares may be unequal. The words vacancy in the inheritance exists only in case of
“1/2 for each” or “in equal shares” or any repudiation. It cannot exist in case of predecease
others shall not exclude the right of accretion. or incapacity.

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SUCCESSION

That’s why under Art. 1018 the Civil Code of the In legal or intestate succession
Philippines, the law speaks only of repudiation as
the basis for accretion in legal or intestate The entire share which is rendered vacant shall
succession, but not of predecease or incapacity. pass to the co-heirs by right of accretion.

Question: Whether or not there is accretion in Division in case of accretion
case of predecease or incapacity, the result will
still be the same? Whether the succession is testamentary or
Answer: No, the result will not be the same. The intestate; if the right of accretion takes place, the
subject of accretion would become material or heirs to whom the vacant share or portion is
important only in testamentary succession. assigned shall divide it in the same proportion
that they inherit.
Effect of accretion
Division in case of conflict of rights
Article 1019. The heirs to whom the portion
goes by the right of accretion take it in the same Probably, the most complicated aspect of the law
proportion that they inherit. on succession is when there is a conflict in the
succession among three rights – first, the right of
Article 1020. The heirs to whom the representation, second, the right of accretion, and
inheritance accrues shall succeed to all the third, the right of legal or intestate succession.
rights and obligations which the heir who This conflict exists when there is a vacancy in the
renounced or could not receive it would have inheritance as a result of either predecease,
had. incapacity, or disinheritance of, or repudiation by,
a co-heir, co-legatee or co- devisee. The law,
The most important effect of accretion is that the however, becomes simple if we are going to look
share or portion which is rendered vacant by at it from the point of view of the effects of
predecease, incapacity or repudiation is added or predecease, incapacity, disinheritance, or
incorporated to the share of the co-heirs, co- repudiation in both testamentary and intestate
legatees or co-devisees. succession.

In testamentary succession

Here, a certain qualification must be made. Where
the share which is rendered vacant happens to be
the share of a compulsory heir, only that part of
the share which is taken from the disposable free
portion shall pass to the co-heirs by right of
accretion. The legitime is not included. This is
clear from the provision of Art. 1021.
Summary
In case of predecease or incapacity
A. In testamentary succession
Here, the legitime shall pass to the children or
descendants of the compulsory heir by right of 1. Legitime
representation.
a. In case of predecease of an heir, there is
If there are no children or descendants, the other representation if there are children or
co-heirs shall succeed to it in their own right. descendants; if none, the others inherit
in their own right.
In case of repudiation b. In case of incapacity of an heir, the
results are the same as in predecease.
Here, even if there are children or descendants of c. In case of disinheritance of an heir, the
the compulsory heir who had repudiated his results are the same as in predecease.
inheritance, the right of representation cannot d. In case of repudiation by an heir, the
take place because of the principle that an heir other heirs inherit in their own right.
who repudiates his inheritance cannot be
represented. 2. Disposable free portion

Whether there are children or descendants or not, Accretion takes place when requisites
the other co-heirs shall succeed to it in their own stated in Art. 1016, Civil Code, are present;
right and not be right of accretion. but if such requisites are not present, the
other heirs inherit in their own right.


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B. In intestate succession We believe that the second view is the most
logical.
1. In case of predecease, there is
representation if there are children or Effect of compulsory succession
descendants; if none, the other heirs
inherit in their own right. Article 1021. Among the compulsory heirs the
2. In case of incapacity, the results are the right of accretion shall take place only when the
same as in predecease. free portion is left to two or more of them, or to
3. In case of repudiation, there is always any one of them and to a stranger.
accretion. Should the part repudiated be the legitime, the
other co-heirs shall succeed to it in their own
Transmission of rights and obligations right, and not by the right of accretion.

Another effect of accretion is that the heirs to In testamentary succession, when the heir who
whom the vacant inheritance or portion accrues dies before the testator, or who is incapable of
shall succeed to all the rights and obligations succeeding, or who repudiates his inheritance, is
which would have pertained to the heir who died a compulsory heir, the right of accretion shall
before the decedent, or who is incapacitated to pertain only to the free portion given to such heir
succeed, or who has repudiated his inheritance. but not to the legitime.

Question: Can the co-heirs to whom the vacant Question: What will, therefore, happen to such
share will accrue repudiate their shares in the legitime?
accretion? Simply, is the right of accretion Answer: The answer depends upon the cause for
voluntary or compulsory? the vacancy.
Answer: a. If the vacancy was due to predecease or
1. According to one view, since each heir has a incapacity, and the heir who died before the
potential right not only to be the sole owner testator or who cannot receive his share has
of that share to which he is called to inherit, children or descendants of his own, such
but also of the entire inheritance, it is but children or descendants shall be entitled to
logical that when the share of an heir the legitime by right of representation. If
becomes vacant, the co-heirs, in order to there are no children or descendants, it shall
comply with the expressed or presumed will be given to the legal heirs of the testator in
of the decedent, must necessarily accept their accordance with the rules of intestate
share in the portion which is vacant. succession.
2. According to a second view, since the acts of b. On the other hand, if the vacancy was due to
acceptance and repudiation are free and repudiation, the legitime shall be given to the
voluntary, and since the right of accretion is a legal heirs of the testator in accordance with
right and not an obligation, it is but just that the rules of intestate succession regardless of
the co-heirs should be granted the option of whether the compulsory heir who had
accepting or repudiating their shares in the repudiated his share in the inheritance has
accretion. children or descendants of his own or not.
3. According to a third view, a distinction must This rule, which is enunciated in Art. 1021(2),
be made between testamentary and intestate is in conformity with the principle that an heir
succession. who repudiates his inheritance cannot be
represented.
TESTAMENTARY INTESTATE
Since the share which Effect if accretion does not take place
passes to a co-heir by Because of the
right of accretion is principle that Article 1022. In testamentary succession, when
separate and distinct there can be no the right of accretion does not take place, the
from the share which partial vacant portion of the instituted heirs, if no
passes to him by force acceptance or substitute has bee
of the testator’s will, it repudiation, once
is but proper that when a co-heir accepts In testamentary succession, when there is a
he accepts his his share in the vacancy in the inheritance, but the right of
inheritance as an inheritance, he accretion does not take place because the first
instituted heir, he is must also accept requisite stated in Art. 1016 for accretion is not
free to accept or his share in the present, the share or portion which is rendered
repudiate his share in accretion vacant shall pass to the legal heirs of the testator in
the accretion accordance with the rules of intestate succession,
who shall receive it with the same charges and

obligations.


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SUCCESSION

However, if a substitute has been designated in the law ignores it; hence, such illegitimate child
the testator’s will, it shall pass to such substitute, cannot inherit by intestate succession from the
who shall receive it with the same charges and legitimate children or relatives of his father or
obligations. mother; neither can such legitimate children or
relatives inherit in the same manner from the
Article 1023. Accretion shall also take place illegitimate child.
among devisees, legatees and usufructuaries
under the same conditions established for heirs. Llorente v. Rodriguez, Grey v. Fabe, Anuran v.
Aquino, Dir. Of Lands v. Aguas, Rodriguez v.
E. DISTRIBUTION OF INTESTATE ESTATE Reyes
Applying this principle, natural children cannot
represent their natural father or mother with
Arellano v. Pascual regard to the inheritance coming from the
The records do not show that the decedent left legitimate ascendants of the latter. Neither can
any primary, secondary, or concurring such natural children inherit in their own right
compulsory heirs. He was only survived by his from their first cousins or from the other
siblings, who are his collateral relatives and, legitimate relatives of their natural parents.
therefore, are not entitled to any legitime—that
part of the testator’s property which he cannot Cuartico v. Cuartico
dispose of because the law has reserved it for Reason for barrier: Intervening antagonism and
compulsory heirs. The compulsory heirs may be incompatibility between members of the
classified into (1) primary, (2) secondary, and (3) legitimate family and those of the illegitimate
concurring. The primary compulsory heirs are family.
those who have precedence over and exclude
other compulsory heirs; legitimate children and Although an illegitimate child is related by blood
descendants are primary compulsory heirs. The to the legitimate children or relatives of his father
secondary compulsory heirs are those who or mother, in legal contemplation it does not exist.
succeed only in the absence of the primary heirs; This is based on the fact that the members of the
the legitimate parents and ascendants are legitimate family always look down at the
secondary compulsory heirs. The concurring illegitimate child as the product of sin, a palpable
compulsory heirs are those who succeed together evidence of a blemish upon the honor of the
with the primary or the secondary compulsory family; the illegitimate child, in turn, always look
heirs; the illegitimate children, and the surviving up with envy at the privileged position of the
spouse are concurring compulsory heirs. The members of the legitimate family.
decedent not having left any compulsory heir who
is entitled to any legitime, he was at liberty to The Civil Code allows the hereditary portion of
donate all his properties, even if nothing was left the illegitimate child to pass to his own
for his siblings-collateral relatives to inherit. His descendants, whether legitimate or illegitimate.
donation to petitioner, assuming that it was valid, So that while Art. 992 prevents the illegitimate
is deemed as donation made to a “stranger,” issue of a legitimate child from representing him
chargeable against the free portion of the estate. in the intestate succession of the grandparent, the
There being no compulsory heir, however, the illegitimate issue of an illegitimate child can now
donated property is not subject to collation. do so.

VII. SEPARATION BETWEEN LEGITIMATE & VIII. CAPACITY TO SUCCEED, ACCEPTANCE,
ILLEGITIMATE FAMILY (ART. 992) & REPUDIATION OF INHERITANCE (ARTS.
1024-1057)
Article 992. An illegitimate child has no right to
inherit ab intestato from the legitimate children
and relatives of his father or mother; nor shall CAPACITY TO SUCCEED
such children or relatives inherit in the same
manner from the illegitimate child. Article 1024. Persons not incapacitated by law
may succeed by will or ab intestato.
Principle of absolute separation between the The provisions relating to incapacity by will are
legitimate family and the illegitimate family equally applicable to intestate succession.

An impassable barrier exists separating or Article 1025. In order to be capacitated to
dividing the members of the legitimate family inherit, the heir, devisee or legatee must be
from those of the illegitimate family. living at the moment the succession opens,
except in case of representation, when it is
Although in reality an illegitimate child is related proper.
by blood to the members of the legitimate family,

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A child already conceived at the time of the Absolute Incapacity
death of the decedent is capable of succeeding
provided it be born later under the conditions The following are absolutely incapacitated to
prescribed in article 41. succeed:

Under Art. 1024, there is a presumption that 1. Those who are not living or in existence at the
every person, whether natural or juridical, can time of the death of the decedent, subject to
succeed either ex testamento or ab intestato. In the exceptions provided for in Arts. 1026,
order to show that a person does not have the 1029 and 1030;
necessary capacity to succeed, it must be proved 2. Those who cannot be identified, such as
that he falls under an incapacity expressly uncertain persons under Art. 845; and
provided for in the Code. 3. Individuals, associations and corporations
not permitted by law to inherit
GR: Capacity to succeed
XPN: Incapacity to succeed Relative incapacity

Requisites Classification:

GR: In order that a person can inherit either by 1. Incapacity based on the possibility of undue
will or by intestacy, the following requisites must influence or on interest, such as those
concur: specified in Art. 1027(1-5);
2. Incapacity based on morality or public
1. That the heir, legatee or devisee must be policy, such as those referred to in Art. 1028;
living or in existence at the moment the 3. Incapacity based on acts of unworthiness,
succession opens; and such as those specified in Art. 1032; and
2. That such heir, legatee or devisee must not be 4. Incapacity by operation of law, such as the
incapacitated by law to succeed. incapacity of the guilty spouse to inherit
from the innocent spouse if there is a decree
NOTE: The first requisite is not absolute in of legal separation, or the incapacity of the
character. adopter to inherit from his adopted child,1
or the incapacity of illegitimate children and
XPNs: Arts. 1026, 1029, and 1030. legitimate relatives of the decedent to
inherit from each other.
NOTE: The right given to the representative to
inherit by right of representation does not Capacity of entities or associations
really constitute an exception because, even in
such a case, it is essential that the Article 1026. A testamentary disposition may
representative must be living at the moment be made to the State, provinces, municipal
the succession opens. corporations, private corporations,
organizations, or associations for religious,
Example: The right of a child already scientific, cultural, educational, or charitable
conceived at the time of the death of the purposes.
decedent. Under our law, a conceived child All other corporations or entities may succeed
shall be considered born for all purposes that under a will, unless there is a provision to the
are favorable to it, provided that it be born contrary in their charter or the laws of their
later with the conditions specified in Art. 41 of creation, and always subject to the same.
the Codes.
Article 1026 expressly recognizes the capacity to
INCAPACITY TO SUCCEED succeed of juridical persons and also of
associations for religious, scientific, cultural,
educational, or charitable purposes.
Incapacity to succeed may be either absolute or
relative. Such associations are not juridical persons; hence,
they do not have any juridical existence. It is,
1. Absolute incapacity is the incapacity of a therefore, apparent that the right of such
person, whether natural or juridical, to associations to succeed ex testamento constitutes
succeed any person in any form with regard an exception to the rule stated in Art. 1025(1).
to any property.
2. Relative incapacity is the incapacity of a Incapacity based on undue influence or
person, whether natural or juridical, to interest
succeed by reason of a special relation which
he has to the decedent, or to other persons, or
Article 1027. The following are incapable of
to the property disposed of.
succeeding:

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1. The priest who heard the confession of the Question: What is meant by “last illness”?
testator during his last illness, or the Answer: It must be the illness of which the
minister of the gospel who extended testator died. However, the fact that the latter
spiritual aid to him during the same period; died from some other cause does not necessarily
2. The relatives of such priest or minister of exclude the application of the disqualification.
the gospel within the fourth degree, the What is really essential is that there must be an
church, order, chapter, community, imminent or impending danger of the illness
organization, or institution to which such being the last as far as the testator is concerned at
priest or minister may belong; the time he executed the will.
3. A guardian with respect to testamentary
dispositions given by a ward in his favor Example: The case of a testator who has
before the final accounts of the already been pronounced by his physicians as
guardianship have been approved, even if dying from cancer. He dies not from the cancer,
the testator should die after the approval but from some other cause, such as an accident.
thereof; nevertheless, any provision made The disqualification in such a case shall still
by the ward in favor of the guardian when apply.
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be valid; Question: Suppose that the testator, after he has
4. Any attesting witness to the execution of a been pronounced hopeless by his physicians,
will, the spouse, parents, or children, or any executes a will disposing of all of his disposable
one claiming under such witness, spouse, properties in favor of the minister who is
parents, or children; extending spiritual aid to him. After a few months,
5. Any physician, surgeon, nurse, health he is still very much alive and feeling much
officer or druggist who took care of the stronger. He makes no effort to change the
testator during his last illness; testamentary disposition. Can the disqualification
6. Individuals, associations and corporations be applied if he dies ten months afterwards as a
not permitted by law to inherit. result of a sudden relapse from the same illness?
Answer:
3 fundamental characteristics Nos. 1 to No. 5: 1. According to one view, there is a presumption
. juris et de jure that the testamentary
1. These incapacities or disqualifications are disposition is void; there can be no ratification
based either on the possibility of undue or confirmation of the same.
influence or on interest. 2. According to a second view, the failure of the
2. They are possible only in testamentary testator to rectify the testamentary
succession. This is clear from the article itself. disposition is deemed to be a ratification or
3. They are not only relative in character, but confirmation of the same.
they are also partial in the sense that if the We believe that the second view is more logical.
heir who is incapacitated or disqualified is a So long as there is sufficient time for the testator
compulsory heir, only the free portion given to meditate on the consequences of his act, his
to him is affected, but not his legitime. failure to rectify the disposition which he had
made clearly indicates that there is a tacit
NOTE: No. 6 is excluded because the confirmation.
individuals, associations and corporations
referred to are absolutely and not relatively After all, the basis of disqualification is the
incapacitated to succeed. presumption that at the threshold of death the
testator becomes an easy prey to the scheming
Disqualification of priest or minister priest or minister. Once such basis is removed he
becomes again a free agent. His failure to revoke
Requisites: or rectify the disposition is deemed to be a
confirmation of the same.
1. That the priest must have heard the
confession of the testator during the latter’s Art. 1027(2), the disqualification of priests and
last illness, or that the minister must have ministers of the gospel is extended to their
extended spiritual aid to him during the same relatives within the 4th degree as well as to the
period; church, order, chapter, community, organization,
2. That the testator must have executed the will or institution to which they may belong.
during such last illness and not before.
The reason for extending the disqualification is of
NOTE: The 2nd requisite is, of course, essential course the possibility of undue influence.
because if the will had been executed before
the testator’s last illness, the reason behind the NOTE: The law does not include among the
disqualification would no longer exist. persons disqualified the spouse of the priest or
minister.

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Example: If the beneficiary is the wife of the The disqualification, however, is not extended to
minister of the gospel who extended spiritual the relatives of the physician or nurse, or to the
aid to the testator during the latter’s last organization or institution to which such
illness, she would not be disqualified. physician or nurse may belong.
Otherwise, we would be reading into the law
what is not found there. The rules on incapacity Furthermore, unlike the disqualification of
must be strictly construed. guardians in Art. 1027(3), here there are no
exceptions.
Disqualification of guardians
Question: Does this mean that if the physician or
In order that a guardian shall be disqualified to nurse who took care of the testator during the
succeed from his ward, it is essential that the will latter’s last illness happens to be his spouse,
of the ward must have been executed before the ascendants, descendant, brother, or sister, the
approval of the final accounts of guardianship. disqualification shall be applied?
Answer: In this case it would be difficult to invoke
The disqualification applies even if the ward the technicalities of statutory construction by
should die after the approval thereof. saying that we cannot read into the law what is
not found there. Human nature dictates that such
However, it does not apply if the guardian is an relatives should take care of the testator during
ascendant, descendant, brother, sister, or spouse his illness. To disqualify them because of the
of the testator. possibility of undue influence would be unjust
and illogical. Besides, when a husband, wife,
Disqualification of witnesses parents or child rushes to the bedside of the
testator who is about to die, he or she does so
The basis of the disqualification of an because he or she is the spouse, parent, or child
instrumental witness, or of his spouse, parents, or and not because he or she is a physician or nurse.
children, or of anyone claiming under such Thus, if the physician or nurse who took care of
witness, spouse, parents or children is not the the testator during his last illness is his spouse,
possibility of undue influence but interest. ascendant, or descendant, the disqualification
specified in Art. 1027(5) cannot be applied.
Simply, the fact that the beneficiary is an attesting
witness or that he is the spouse, parent, or child of Incapacity based on morality or public
one of the attesting witnesses or that he is policy
claiming under such witness, spouse, parent, or
child will be sufficient to disqualify him. Article 1028. The prohibitions mentioned in
article 739, concerning donations inter vivos
NOTE: The disqualification is not absolute. shall apply to testamentary provisions.
Under Art. 823 of the Code, such
disqualification does not apply “if there are By virtue of Art. 1028, which incorporates by
three other competent witnesses” to the reference the prohibitions mentioned in Art. 739
execution of the will. of the Code, the following are also disqualified to
succeed:
Disqualification of physicians or nurses
1. Any person with whom the testator was
Any physician, surgeon, nurse, health officer or guilty of adultery or concubinage at the time
druggist who took care of the testator during his of the making of the will;
last illness is also disqualified to succeed by will. 2. Any person found guilty of the same criminal
offense as the testator, where the disposition
The position of the physician or nurse who took is the consideration thereof; and
care of the testator during his last illness is very 3. Any public officer or his spouse, descendant,
similar to that of the priest or minister of the or ascendant, where the disposition is given
gospel in Art. 1026(1). by reason of the office of such public officer.

Question: What is meant by “last illness”? NOTE: In the first, previous criminal
Answer: It must be the illness of which the conviction is not necessary, while in the
testator died. However, the fact that the latter second, it is indispensable.
died from some other cause does not necessarily
exclude the application of the disqualification. These disqualifications are based on good morals
What is really essential is that there must be an and public policy. Like the disqualifications
imminent or impending danger of the illness provided for in the preceding article, they are
being the last as far as the testator is concerned at applicable only in testamentary succession.
the time he executed the will.


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Furthermore, they are not only relative in general terms without specifying the application
character, but they are also partial in the sense of the property disposed of.
that if the heir who is disqualified is a compulsory
heir, the incapacity shall apply only to the free Hence, it differs from the institution of a persona
portion given to him, but not to his legitime. incieta under Art. 845 where the only uncertainty
is with regard to the identity of the person
Dispositions for benefit of testator’s soul instituted but not with regard to his existence; it
differs from dispositions made in favor of a
Article 1029. Should the testator dispose of the specified class or cause (Arts. 786 and 1030)
whole or part of his property for prayers and where, although the instituted heir is a universal
pious works for the benefit of his soul, in general or abstract concept (unum in multis), yet there are
terms and without specifying its application, the persons, natural or artificial, comprised within
executor, with the court's approval shall deliver such concept.
one-half thereof or its proceeds to the church or
denomination to which the testator may belong, Incapacity due to unworthiness
to be used for such prayers and pious works,
and the other half to the State, for the purposes Article 1030. Testamentary provisions in favor
mentioned in article 1013. of the poor in general, without designation of
particular persons or of any community, shall be
Requisites: deemed limited to the poor living in the domicile
of the testator at the time of his death, unless it
1. That the testator must have disposed of the should clearly appear that his intention was
whole or part of his estate for prayers and otherwise.
pious works for the benefit of his soul; The designation of the persons who are to be
2. That the disposition must be in general terms considered as poor and the distribution of the
without specifying its application. property shall be made by the person appointed
by the testator for the purpose; in default of such
Once both of these requisites will concur, the person, by the executor, and should there be no
executor or administrator of the estate, with the executor, by the justice of the peace, the mayor,
court’s approval, shall deliver 1/2 thereof to the and the municipal treasurer, who shall decide
church or denomination to which the testator by a majority of votes all questions that may
may belong, to be used for prayers and pious arise. In all these cases, the approval of the Court
works, and the other half to the State, for the of First Instance shall be necessary.
purposes mentioned in Art. 1013. The preceding paragraph shall apply when the
testator has disposed of his property in favor of
Example: If the testator states in his will that the poor of a definite locality.
he is disposing of his entire estate to be used
for the benefit of his soul, or that he is leaving Article 1031. A testamentary provision in favor
1/2 of his estate to be used for prayers and of a disqualified person, even though made
pious works for the benefit of his soul, Art. under the guise of an onerous contract, or made
1029 is applicable. But if he imposes a charge through an intermediary, shall be void.
upon one of the heirs, or legatees, or devisees
to use a certain property or a certain amount Article 1032. The following are incapable of
for prayers and pious works for the benefit of succeeding by reason of unworthiness:
his soul, or if he specifies the application of the 1. Parents who have abandoned their children
property, such as when he state that one-half or induced their daughters to lead a corrupt
or one-fourth of his estate shall be used for or immoral life, or attempted against their
prayers and masses dedicated to our Lady of virtue;
Perpetual Help every Wednesday for a period 2. Any person who has been convicted of an
of ten years from the time of his death, Art. attempt against the life of the testator, his
1029 is no longer applicable. The will of the or her spouse, descendants, or ascendants;
testator must be complied with literally. 3. Any person who has accused the testator of
a crime for which the law prescribes
Art. 1029 constitutes an exception to the rules of imprisonment for six years or more, if the
identity and existence with respect to the capacity accusation has been found groundless;
to succeed. 4. Any heir of full age who, having knowledge
Reason: Once the testator has appointed an heir, of the violent death of the testator, should
devisee or legatee charged with the obligation or fail to report it to an officer of the law within
burden of applying even the whole estate for a month, unless the authorities have
prayers for the testator’s soul, Art. 1029 can no already taken action; this prohibition shall
longer be applied. This is so because the law not apply to cases wherein, according to
requires that the disposition must be made in law, there is no obligation to make an
accusation;

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5. Any person convicted of adultery or However, this incapacity shall not apply to cases
concubinage with the spouse of the wherein, according to law, there is no obligation
testator; to make an accusation.
6. Any person who by fraud, violence,
intimidation, or undue influence should Requisites:
cause the testator to make a will or to
change one already made; 1. That the heir must be of full age;
7. Any person who by the same means 2. That he must have knowledge of the violent
prevents another from making a will, or death of the decedent;
from revoking one already made, or who 3. That he must have failed to report the matter
supplants, conceals, or alters the latter's to the proper authorities; and
will; 4. That there must be a legal obligation to make
8. Any person who falsifies or forges a an accusation.
supposed will of the decedent.
NOTE: The last requisite has rendered the
3 fundamental characteristics which can be incapacity useless for all practical purposes. In
applied to the different incapacities: this jurisdiction there is no obligation imposed by
the law to make an accusation in such cases.
1. They are based on offenses committed by the
disqualified person against the decedent Art. 1032(5)
which render him unworthy to succeed.
2. They are applicable not only in testamentary NOTE: The heir who is incapable of succeeding
succession, but also in legal or intestate by reason of unworthiness is the person who is
succession. convicted of adultery or concubinage with the
3. Although they are relative in character, they spouse of the decedent. The spouse is not
are also total in the sense that if the heir who included. Hence, as far as the law is concerned,
is disqualified is a compulsory heir, the the husband or wife who is convicted of either
incapacity shall apply not only to the free adultery or concubinage is not unworthy to
portion given to him but even to his legitime. inherit from the decedent.

ARTS. 1027 & 1028 ART. 1032 The only time when such husband or wife cannot
inherit is when the offended spouse will act
Applicable in
positively either by securing a decree of legal
testamentary
separation or by disinheriting him or her.
Inapplicable succession and also in

legal or intestate
So strong is the presumption in favor of the
succession
solidarity of marriage that even where one of the
The reason for spouses has been convicted of the most grievous
disqualification can The reason can exist in offense against the sanctity of the marriage vows,
exist only in either testamentary or the law refuses to pronounce judgment.
testamentary intestate succession
succession Whether such spouse can inherit or not is a
question which only the offended spouse can
Art. 1032(1, 2, 3, 5, 6) decide.

The acts of unworthiness are also grounds for Art. 1032(6, 7, 8)
disinheritance. What had been stated under Arts.
919, 920, and 921 with regard to these offenses as 6 kinds of offenses connected with the execution or
grounds for disinheritance are also applicable revocation of wills (acts of unworthiness):
here. Hence, only those which are not grounds of
disinheritance will be discussed. 1. Causing the testator to make a will;
2. Causing the testator to change one already
Art. 1032(4) made;
3. Preventing the testator to make a will;
Here, any heir of full age who, having knowledge 4. Preventing the testator from revoking one
of the violent death of the decedent, should fail to already made;
report it to an officer of the law within a month 5. Supplanting, concealing, or altering the
shall be incapable of succeeding by reason of testator’s will; and
unworthiness, unless the authorities have already 6. Falsifying a supposed will of the decedent.
taken action.
NOTE: It is only the 1st, 2nd, 3rd, and 4th
where it is necessary that fraud, violence,
intimidation, or undue influence must be

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SUCCESSION

proved in order that the heir responsible is of unworthiness are erased. But if the
incapacitated to succeed by reason of decedent, before his death, had condoned the
unworthiness. In the 5th and 6th, such proof is offense of his son in writing, or if he had
no longer necessary because the very act itself executed a will instituting his son as an heir,
signifies fraud on the part of the heir with knowledge of the offense committed
responsible. against him, the result would be different.
There would then be a pardon within the
Pardon of acts of unworthiness meaning of Art. 1033. The effects of the act of
unworthiness are erased altogether.
Article 1033. The cause of unworthiness shall
be without effect if the testator had knowledge Question: The testator’s wife is convicted of an
thereof at the time he made the will, or if, having attempt against his life. Subsequently, he executes
known of them subsequently, he should a will expressly disinheriting his wife. Later, there
condone them in writing. is a reconciliation between the two, but the
testator dies without changing or revoking the
Since acts of unworthiness are offenses directed will. Can the wife inherit from her husband?
against the decedent, only the decedent himself Answer:
and no other can erase the effects of such acts of 1. According to one view, the wife cannot inherit
unworthiness by pardoning the offense either from her husband because, although the
expressly or impliedly. subsequent reconciliation between her and
the decedent has the effect of rendering the
EXPRESS PARDON IMPLIED PARDON disinheritance ineffectual in accordance with
Art. 922 of the Code, it cannot have the effect
When the testator, of erasing the act of unworthiness. Under Art.
with knowledge of the 1033 of the Code, the effects of acts of
When the decedent
act of unworthiness, unworthiness can be erased only by either
condones the act of
executes a will express or implied pardon, and certainly,
unworthiness in
instituting the person under the facts stated in the problem, there is
writing
who has committed no pardon, whether express or implied.
the offense as an heir 2. According to a second view, the wife can
Can take place in inherit from her husband because from the
Can only take place in moment that the testator executed a will
either testamentary
testamentary disinheriting his wife, the law on
or intestate
succession disinheritance governs and not the law on
succession
incapacity. The provision of Art. 922 of the
Code regarding the effect of reconciliation is
ACT OF PARDONING RECONCILIATION
applicable and not the provision of Art. 1033
A bilateral act regarding the effect of pardon.
requiring the We believe that the first view is more logical.
A unilateral act
concurrence of the
offender
TIME TO DETERMINE CAPACITY

The fact that there is a reconciliation between the
decedent and the unworthy heir does not mean Article 1034. In order to judge the capacity of
that the effects of the act of unworthiness are the heir, devisee or legatee, his qualification at
erased. the time of the death of the decedent shall be the
criterion.
Under our Code, a subsequent reconciliation In cases falling under Nos. 2, 3, or 5 of article
between the offender and the offended person 1032, it shall be necessary to wait until final
deprives the latter of the right to disinherit, and judgment is rendered, and in the case falling
renders ineffectual any disinheritance that may under No. 4, the expiration of the month allowed
have been made. for the report.
If the institution, devise or legacy should be
However, it cannot erase the effects of an act of conditional, the time of the compliance with the
unworthiness. In order to do so, there must be a condition shall also be considered.
pardon, which may be either express or tacit, in
conformity with the form prescribe by Art. 1033. GR: Capacity is determined at the moment of the
death of the decedent.
Example: If a son of the decedent has Reason: It is only then that the property and
committed an act of unworthiness, the mere transmissible rights and obligations of the
fact that before the death of the decedent there decedent are actually transmitted to those who
was a reconciliation between him and his son are called to succeed either by will or by
does not mean that the effects of the latter’s act operation of law.

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Therefore, such persons must have the necessary heard his confession, and it so happens
capacity to succeed at such time. that such priest is his own son, certainly,
the right of such son to the legitime which
XPNs: the law has reserved for him is not
1. In the case of those who may be disqualified affected. While it is true that under Art.
under Art. 1032(2, 3, 5), or Art. 739(2), it will 1027(1), he is incapacitated to succeed
be necessary to wait until final judgment is because there is always the possibility of
rendered. undue influence, yet such reason cannot
2. In the case of those who may be disqualified possibly be applied to the legitime which is
under Art. 1032(4), it will be necessary to reserved for him, not by force of the
wait for the expiration of the month allowed testator’s will, but by operation of law.
for the report. If the institution of heirs, or the
legacy or devise is conditional, the time of the 2. If the incapacity is due to any of the causes
compliance with the condition shall also be specified in Art. 1032, even the legitime of the
considered. compulsory heir who has committed the act
3. This refers to an institution of heir, or a legacy of unworthiness is affected.
or devise which is subject to a suspensive
condition. In such case, the law requires that Reason: Incapacity due to unworthiness has
the heir, legatee or devisee must have the the effect of depriving the heir of any share or
necessary capacity to succeed not only at the participation in the inheritance. This applies
time of the death of the decedent, but also at to the share to which he is entitled by force of
the time of the fulfillment of the condition. the testator’s will, and also to the share to
Reason: When the institution, legacy or which he is entitled by law.
devise is subject to a suspensive condition,
the heir, legatee or devisee actually acquires NOTES:
a hope or expectancy which is protected by • The incapacity is personal; it cannot,
the law from the very moment of the death of therefore attach to his own children or
the decedent — a hope or expectancy which descendants.
is finally converted into a perfected right • In testamentary succession, if the heir
from the moment the condition is fulfilled. who has committed the act of
unworthiness is a compulsory heir in
EFFECTS the direct descending line and he
should have children or descendants

of his own, the latter shall acquire his
Effect of incapacity upon compulsory heirs right to the legitime. If there are no
children or descendants who can
Article 1035. If the person excluded from the represent him, then the legitime shall
inheritance by reason of incapacity should be a be given to those who are entitled
child or descendant of the decedent and should thereto in accordance with the rules of
have children or descendants, the latter shall intestate succession.
acquire his right to the legitime. • In legal or intestate succession, if the
The person so excluded shall not enjoy the legal heir who has committed the act
usufruct and administration of the property of unworthiness should have children
thus inherited by his children. or descendants of his own, the latter
shall be entitled to the entire share
If the heir who is incapable of succeeding is a which is rendered vacant, provided, of
compulsory heir, whether or not his right to his course, that the right of representation
legitime is affected, shall depend upon the cause can properly take place. If there are no
of his incapacity. children or descendants who can
represent him, then the vacant share
Causes of incapacity: shall be given to those who are entitled
thereto by right of accretion.
1. If the incapacity is due to any of the causes
specified in either Art. 1027 or Art. 739, only Effect of acts of disqualified heir
the free portion given to the heir is affected,
but not his legitime. Simply, he is
Article 1036. Alienations of hereditary
incapacitated to succeed only as a voluntary
property, and acts of administration performed
heir or as a legatee or devisee, but not as a
by the excluded heir, before the judicial order of
compulsory heir.
exclusion, are valid as to the third persons who

acted in good faith; but the co-heirs shall have a
Example: If the testator had executed a
right to recover damages from the disqualified
will during his last illness, and in the will,
heir.
he bequeaths P10,000 to the priest who


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Alienations of hereditary property by the status, condition and legal capacity if they are
disqualified heir before he is excluded from the living in the Philippines, and not Philippine law.
succession by a judicial order of exclusion are
valid as to third persons who acted in good faith. Thus, according to Art. 15, “family rights and
duties or the status, condition and legal capacity
Simply, a purchaser in good faith and for value is of Filipino citizens who are living abroad are
protected, but the co-heirs who are ultimately governed by Philippine law.”
adjudged the real heirs of the decedent shall have
to recover the damages from the disqualified heir. 4 aspects of succession which are governed by the
national law of the decedent if he is a foreigner:
Hence, after the decedent’s death, if one of the
alleged heirs and known to be such, sells his 1. The order of succession;
undivided share in the inheritance to a third 2. The amount of successional rights;
person who is unaware of any defect or flaw in the 3. The intrinsic validity of testamentary
vendor’s title, such sale shall be valid, if, provisions; and
subsequently, the vendor shall be judicially 4. The capacity to succeed.
excluded from the inheritance by reason of any
incapacity. Although the alienation is valid, the co- NOTE: The first 3 are enumerated in of Art.
heirs who are prejudiced shall have a right to 16(2), while the last is stated in Art. 1039.
recover damages from the disqualified heir.
REMEDY AGAINST DISQUALIFIED HEIR
The same rules are applicable with respect to acts
of administration performed by the disqualified
heir before the judicial order of exclusion, Article 1040. The action for a declaration of
especially when the heir is in possession of the incapacity and for the recovery of the
property or estate. inheritance, devise or legacy shall be brought
within five years from the time the disqualified
Third persons who are affected by such acts, person took possession thereof. It may be
relying upon the apparent authority of the brought by anyone who may have an interest in
possessor, not only as possessor of the property, the succession.
but also as alleged heir of the decedent, shall be
protected. But, again, in such case, the co-heirs 2-fold purpose:
shall have a right to recover damages from the
disqualified heir. 1. A declaration of incapacity, and
2. Recovery of the inheritance, devise or legacy.

GOVERNING LAW IF DECEDENT IS A Hence, what is contemplated is a case in which the
FOREIGNER disqualified heir, devisee or legatee has already
taken possession of the property.
Article 1037. The unworthy heir who is
excluded from the succession has a right to Main purpose: The restoration of the property.
demand indemnity or any expenses incurred in
the preservation of the hereditary property, and This action for declaration of incapacity and for
to enforce such credits as he may have against recovery of the property may or may not be a part
the estate. of the administration proceedings. If it is not a
part of the administration proceedings, it
Article 1038. Any person incapable of becomes an ordinary action by anyone who may
succession, who, disregarding the prohibition have an interest in the succession.
stated in the preceding articles, entered into the
possession of the hereditary property, shall be Period of prescription
obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he The Code gives the executor or administrator or
may have received, or could have received anyone who may have an interest in the
through the exercise of due diligence. succession 5 years from the time the disqualified
person took possession of the inheritance, devise
Article 1039. Capacity to succeed is governed or legacy within which to file the action.
by the law of the nation of the decedent.
Beyond that, the action shall prescribed.
In case of conflict of laws, generally, we adhere to
the nationality principle. This implies that in the
case of foreigners, it is their national law that shall
govern their family rights and duties or their

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SECTION 3. ACCEPTANCE AND REPUDIATION 1. If the heir, legatee or devisee accepts the
OF THE INHERITANCE inheritance, legacy or devise, his right thereto
is perfected or confirmed.
CONCEPT OF ACCEPTANCE AND
REPUDIATION 2. If he repudiates such inheritance, legacy, or
devise, he throws away a right which the law
has conferred upon him. As a result, the
Article 1041. The acceptance or repudiation of inheritance, legacy or devise which is
the inheritance is an act which is purely rendered vacant shall pass to those who are
voluntary and free. entitled thereto either by right of accretion or
in their own right.
Acceptance. The act by virtue of which an heir,
legatee or devisee manifests his desire in Requisites for acceptance or repudiation
accordance with the formalities prescribed by law
to succeed to the inheritance, legacy or devise. Article 1043. No person may accept or
repudiate an inheritance unless he is certain of
Repudiation. The act by virtue of which an heir, the death of the person from whom he is to
legatee or devisee manifests his desire in inherit, and of his right to the inheritance.
accordance with the formalities prescribed by law

not to succeed to the inheritance, legacy or devise. 1. He is certain of the death of the person from
whom he is to inherit; and
Characteristics 2. He is certain of his right to the inheritance.

1. It is voluntary and free The 2nd requisite is necessary because there is
2. It is retroactive always the possibility that he might not be
3. Once made, it is irrevocable allowed to inherit.

While it is true that successional rights are In testamentary succession, the will by virtue of
transmitted at the very moment of the death of which he is called to inherit may not be admitted
the decedent, before such transmission can take to probate by reason of some fatal defect or the
place, it is absolutely necessary that those who institution of heirs may be invalid for some reason
are called to the succession either by will or by or other.
operation of law must accept their inheritance,
legacy or devise. In intestacy, there might be some heirs who are
preferred in the order of intestate succession. In
So long as there is no manifestation of such all of these cases, any acceptance or repudiation
acceptance, there can be no transmission of becomes superfluous.
successional rights.
Who may accept or repudiate
However, the heirs, legatees or devisees cannot
be compelled to accept their inheritance, legacy
Article 1044. Any person having the free
or devise.
disposal of his property may accept or repudiate
Reason: Acceptance and repudiation are by their
an inheritance.
very nature voluntary and free.
Any inheritance left to minors or incapacitated

persons may be accepted by their parents or
Hence, during that interval between the death of
guardians. Parents or guardians may repudiate
the decedent and the acceptance or repudiation,
the inheritance left to their wards only by
the inheritance, legacy or devise remains in a
judicial authorization.
state of suspension.
The right to accept an inheritance left to the

poor shall belong to the persons designated by
But once the heir, legatee or devise manifests his
the testator to determine the beneficiaries and
acceptance or repudiation in accordance with the
distribute the property, or in their default, to
formalities prescribed by law, the effect thereof
those mentioned in article 1030.
shall retroact to the very moment of the death of

the decedent. It has become irrevocable.
Article 1045. The lawful representatives of

corporations, associations, institutions and
Effects in general
entities qualified to acquire property may

accept any inheritance left to the latter, but in
Article 1042. The effects of the acceptance or order to repudiate it, the approval of the court
repudiation shall always retroact to the moment
shall be necessary.
of the death of the decedent.

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Article 1046. Public official establishments can GR: Her right to repudiate is absolute
neither accept nor repudiate an inheritance XPN: Unless the marriage is governed by the
without the approval of the government. system of absolute community, in which case,
according to Art. 200, neither spouse may
Article 1047. A married woman of age may renounce or repudiate any inheritance without
repudiate an inheritance without the consent of the consent of the other.
her husband.
Manner of acceptance
Article 1048. Deaf-mutes who can read and
write may accept or repudiate the inheritance Article 1049. Acceptance may be express or
personally or through an agent. Should they not tacit.
be able to read and write, the inheritance shall An express acceptance must be made in a public
be accepted by their guardians. These guardians or private document.
may repudiate the same with judicial approval. A tacit acceptance is one resulting from acts by
which the intention to accept is necessarily
In order that the heir, legatee or devisee may implied, or which one would have no right to do
accept or repudiate, the law requires that he must except in the capacity of an heir.
have the free disposal of his property. Acts of mere preservation or provisional
administration do not imply an acceptance of
If heir, legatee, or devisee is incapacitated the inheritance if, through such acts, the title or
capacity of an heir has not been assumed.
1. Minor
2. Deaf-mute who cannot read and write Article 1050. An inheritance is deemed
3. Insolvent judicially declared accepted:
4. Under civil interdiction c. If the heirs sells, donates, or assigns his
right to a stranger, or to his co-heirs, or to
His guardian or legal representative shall be the any of them;
one who will accept or repudiate. d. If the heir renounces the same, even though
gratuitously, for the benefit of one or more
NOTE: If such guardian or legal representative of his co-heirs;
declares to repudiate, judicial authorization is e. If he renounces it for a price in favor of all
necessary. his co-heirs indiscriminately; but if this
renunciation should be gratuitous, and the
If beneficiary is poor co-heirs in whose favor it is made are those
upon whom the portion renounced should
The right to accept shall belong to the person devolve by virtue of accretion, the
designated by the testator to determine the inheritance shall not be deemed as
beneficiaries and distribute the property. accepted.

In default of such person, it shall belong to the The acceptance may be either express or tacit.
executor.
EXPRESS IMPLIED
As far as the right to repudiate is concerned,
When it results from acts by
however, such right may be exercised only by the When it is
which the intention to accept
beneficiaries themselves once they are finally made in a
is necessarily implied, or
determined. public or
which one would have no
private
right to do except in the
If beneficiary is a corporation, association, document
capacity of an heir
institution, or entity

The right to accept or repudiate belongs to the 3 examples of implied or tacit acceptance are
legal representative, but in case of repudiation, given in Art. 1050. All of these acts are acts which
judicial authorization is necessary. only one who had already accepted the
inheritance may perform. Simply, they are acts of
If beneficiary is a married woman of age disposition; they are acts which only the owner is
empowered to perform.
GR: Her right to accept is subject to the limitation
prescribed by Art. 114 of the Code which declares Other instances of implied acceptance:
that she cannot, without her husband’s consent,
acquire any property by gratuitous title, 1. Failure to accept or repudiate within the
XPN: Except from her ascendants, descendants, prescribed period of 30 days after the
parents-in-law, and collateral relatives within the issuance of the order of distribution of the
fourth degree. estate

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SUCCESSION

2. Acts of preservation or administration if, authorize them to accept it in the name of the
through such acts, the title or capacity of heir heir.
has been assumed, The acceptance shall benefit the creditors only
3. Filing of a complaint for the partition of the to an extent sufficient to cover the amount of
inheritance, their credits. The excess, should there be any,
4. Alienations of determinate objects of the shall in no case pertain to the renouncer, but
inheritance, shall be adjudicated to the persons to whom, in
5. Compromises regarding objects and rights accordance with the rules established in this
included in the inheritance Code, it may belong.
6. Exercise of any action which pertained to the
decedent during his lifetime and which Requisites for creditors to avail of the right:
survives,
7. Enjoyment of the inheritance itself. 1. The heir who repudiated his inheritance must
have been indebted at the time when the
Manner of repudiation repudiation is made;
2. The heir-debtor must have repudiated his
Article 1051. The repudiation of an inheritance inheritance in accordance with the
shall be made in a public or authentic formalities prescribed by law;
instrument, or by petition presented to the 3. Such act of repudiation must be prejudicial to
court having jurisdiction over the testamentary the creditor or creditors; and
or intestate proceedings. 4. There must be judicial authorization. Once all
of these requisites are present, the creditor or
The act of repudiation is more solemn and formal creditors can then accept the inheritance in
than the act of acceptance. Hence, the manner by the name of the renouncer.
which it is made must be clear, expressed, and
formal. NOTE: Such acceptance shall benefit the
former only to the extent sufficient to cover the
3 ways repudiation may be made under Art. 1051: amount of their credits. The excess, should
there be any, shall not pertain to the
1. By means of a public instrument; renouncing heir, but shall be adjudicated to
2. By means of an authentic instrument; and those to whom, in accordance with the rules
3. By means of a petition presented to the court established by the Civil Code, it may belong. It
having jurisdiction over the testamentary or may pass to the co-heirs in their own right or
intestate proceedings. by right of accretion depending upon the
circumstances and conditions of each
A public instrument is an instrument, which is particular case.
acknowledged before a notary public, which an
authentic instrument would be the equivalent of Repudiation as testamentary or as legal heir
an indubitable writing or a writing whose
authenticity or genuine character is admitted or Article 1053. If the heir should die without
proved. having accepted or repudiated the inheritance
his right shall be transmitted to his heirs.
Acceptance vs. Repudiation
Article 1054. Should there be several heirs
ACCEPTANCE REPUDIATION called to the inheritance, some of them may
Renders such accept and the others may repudiate it.
transmission ineffective.
Involves merely Article 1055. If a person, who is called to the
By its very nature, it is same inheritance as an heir by will and ab
the confirmation equivalent to an act of
of the intestato, repudiates the inheritance in his
disposition and alienation capacity as a testamentary heir, he is
transmission of
successional Publicity required is understood to have repudiated it in both
rights necessary for the capacities.
protection of other heirs Should he repudiate it as an intestate heir,
and also of creditors without knowledge of his being a testamentary
heir, he may still accept it in the latter capacity.


Effect of repudiation upon creditors
GR: If the person called to succeed is a

testamentary heir and a legal heir at the same
Article 1052. If the heir repudiates the time and he repudiates his inheritance in his
inheritance to the prejudice of his own capacity as a testamentary heir, he is considered
creditors, the latter may petition the court to to have repudiated the inheritance in both
capacities.

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There is a presumption that his act of repudiation court having jurisdiction whether they accept or
when called by the testator himself is tantamount repudiate the inheritance.
to an act of repudiation when called by the law in If they do not do so within that time, they are
accordance with the presumed will of the deemed to have accepted the inheritance.
decedent.

IX. EXECUTORS & ADMINISTRATORS (ARTS.
Question: If such heir refuses to heed the
1058-1060)
expressed will of such testator, how can he heed
the presumed will of the decedent?
Answer: Once such heir has repudiated his share Article 1058. All matters relating to the
in the inheritance in his capacity as testamentary appointment, powers and duties of executors
heir, the act becomes final or irrevocable. He can and administrators and concerning the
no longer accept as a legal heir. administration of estates of deceased persons
shall be governed by the Rules of Court.
If such heir repudiates his share in the inheritance
as a legal or intestate heir without knowledge of Article 1059. If the assets of the estate of a
his being a testamentary heir, he may still accept decedent which can be applied to the payment
his share in his capacity as a testamentary heir out of debts are not sufficient for that purpose, the
of respect for the wishes of the decedent. provisions of articles 2239 to 2251 on
Preference of Credits shall be observed,
Irrevocability of acceptance or repudiation provided that the expenses referred to in article
2244, No. 8, shall be those involved in the
Article 1056. The acceptance or repudiation of administration of the decedent's estate.
an inheritance, once made, is irrevocable, and
cannot be impugned, except when it was made Article 1060. A corporation or association
through any of the causes that vitiate consent, or authorized to conduct the business of a trust
when an unknown will appears. company in the Philippines may be appointed as
an executor, administrator, guardian of an
GR: Irrevocability of acceptance or repudiation of estate, or trustee, in like manner as an
inheritance. Once made, it becomes irrevocable individual; but it shall not be appointed
and cannot be impugned. guardian of the person of a ward.
XPNs:
1. When the acceptance or repudiation was REQUIREMENTS FOR THE ISSUANCE OF
made through any of the causes that vitiate LETTERS TESTAMENTARY AND OF LETTERS
consent. OF ADMINISTRATION
2. When an unknown will appears.

NOTE: The first refers only to those different Probate proceedings may be opened by a petition
vices which vitiate consent, such as mistake, for the allowance of a will and the issuance of
violence, intimidation, undue influence, or letters testamentary, as previously discussed or
fraud. letters of administration.

Reason for GR: To permit the heir who The petition may be opposed and a petition may
renounced to change his mind with respect to the at the same time be filed for letters of
acceptance or repudiation of his inheritance administration with the will annexed.
would result in violent disturbance of rights
which are already vested or perfected. The Contents of a petition for letters of administration:
moment the decedent dies, the rights to the
succession are opened. Acceptance of the 1. The jurisdictional facts;
inheritance results in the transmission of rights 2. The names, ages, and residences of the heirs,
and obligations to the accepting heir. To allow and the names and residences of the
him to change his mind would destroy the creditors, of the decedent;
stability of property rights. The same thing can be 3. The probable value and character of the
said with respect to repudiation. If the heir property of the estate; and
repudiates his inheritance, the vacant portion 4. The name of the person for whom letters of
passes to other heirs either by right of accretion administration are prayed;
or in their own right. To allow such heir to change
his mind would result in chaos and confusion. NOTE: No defect in the petition shall render
void the issuance of letters of administration.
Article 1057. Within thirty days after the court
has issued an order for the distribution of the No person is competent to serve as executor or
estate in accordance with the Rules of Court, the administrator who is (a) a minor; (b) not a
heirs, devisees and legatees shall signify to the resident of the Philippines; and (c) in the opinion

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of the court, unfit to execute the duties of the trust should be within the sound discretion of the court
by reason of drunkenness, improvidence, or want and such discretion should not be a whimsical
of understanding or integrity, or by reason of one. There is no reason why the same
conviction of an offense involving moral fundamental and legal principles governing the
turpitude. choice of a regular administrator should not be
taken into account in the appointment of a special
APPOINTMENT OF EXECUTORS administrator. However, the court is not bound to
follow the order of preference set up for the
appointment of a general administrator.
After a will is proved and allowed, the court shall
issue letters testamentary thereon to the person NOTE: Only one special administrator at a time
named as executor therein, if he is competent, may be appointed, since the appointment is
accepts the trust, and gives bond as required by merely temporary.
the rules. It is clear that an executor is one who is
named in a will. Powers and duties


There may be several executors named in the will. The special administrator shall take possession
Letters testamentary may issue to such of them as and preserve the goods, chattels, rights, credits,
are competent, accept and give bond. If no
and estate of the deceased and for that purpose
executor named qualifies, then an administrator may commence and maintain suits as
is appointed. administrator. He may sell only such perishable
and other property as the court orders sold. He is
APPOINTMENT OF ADMINISTRATORS; not liable to pay any debts of the deceased unless
PRIORITIES so ordered by the court.

Administration may be granted: The court has no power to order a special
administrator to sell real property of the estate
1. To the surviving spouse, or next of kin, or pending resolution of the issue of the
both, or to such person as such surviving appointment of the regular administrator.
spouse or next of kin, requests to be
appointed, if competent and willing to serve. A special administrator does not have the power
2. To one or more of the principal creditors, if to close the estate because he normally does not
competent and willing to serve, in default of pay the debts of the deceased. However, he can be
the foregoing or if the surviving spouse or sued. There is no express prohibition; otherwise,
next of kin neglects for thirty (30) days after prescription may set in if the appointment of the
the death of the deceased to file a petition for regular administrator is delayed.
administration or the request that
administration be granted to some other Termination
person.
3. To such other person as the court may select, The special administrator may be removed on
in default of the foregoing. grounds other than those mentioned in Rule 82.
When an executor or administrator is appointed,
NOTE: The court may disregard the preference the powers of the special administrator cease. He
above enumerated in its sound discretion and shall immediately deliver the estate to the
its decision will not be interfered with on executor or administrator who may prosecute to
appeal unless it appears that it is in error. final judgment suits commenced by the special
administrator.

APPOINTMENT OF SPECIAL
ADMINISTRATORS BOND OF ADMINISTRATOR OR EXECUTOR

A special administrator may be appointed when Before an executor or administrator enters upon
there is delay in granting letters testamentary or the execution of his trust, he shall give a bond, in
of administration by any cause including an such sum as the court directs, conditioned as
appeal from the allowance or disallowance of a follows:
will. The special administrator shall take
possession and charge of the estate of the 1. To make and return within three (3) months,
deceased until questions causing the delay are a true and complete inventory;
decided and executors or administrators 2. To administer the estate and pay and
appointed. discharge all debts, legacies, and charges on
the same, or dividends thereon;
While the qualifications of a special administrator
are not spelled out in the rules, the appointment

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SUCCESSION

3. To render a true and just account within one should not be included in the inventory or list of
(1) year, and at any other time when required properties to be administered by the
by the court; and administrator. If there is no dispute, well and
4. To perform all orders of the court. good, but if there is, then the parties, the
administrator and the opposing parties have to
Further bond resort to an ordinary action for a final
determination of the conflicting claims of title
The executor may serve without bond if the because the probate court cannot do so.
testator so directs, or with only his individual
bond, conditioned only to pay the debts of the SALES AND MORTGAGES
testator; but the court may require a further bond
in case of a change in his circumstances, or for
other sufficient cause. The need for approval by the probate court exists
only where specific properties of the estate are

sold and not when only ideal and indivisible
GENERAL POWERS AND DUTIES OF shares of an heir are disposed of.
EXECUTORS AND ADMINISTRATORS
Circumstances when the court may approve
1. To maintain the estate in 'tenantable repair' the sale or mortgage of specific estate
and deliver the same in such repair to the property
heirs or devisees when directed by the court;
2. To possess and manage the estate of the For the payment of debts
deceased for the payment of the debts and
expenses of administration; The sale or encumbrance of real property to pay
3. To have access to partnership books and the obligations of the estate, if beneficial, may be
property where the deceased was a partner, approved when personal property is not enough
under pain of contempt by the probate court; to pay for the obligations of the estate, or where
4. With the approval of the court, to compound its sale or mortgage may be injurious to those
or compromise with a debtor of the deceased. interested and where the testator has not
otherwise provided.
INVENTORY AND APPRAISAL
NOTE: If a part of the real property cannot be
sold, or otherwise encumbered without injury
Within 3 months after his appointment, an to those interested in the remainder, the
executor or administrator shall file a true disposition may be of the whole of the
inventory and appraisal of all the real and property, or so much as is necessary or
personal estate of the deceased, with the beneficial under the circumstances.
assistance of one or more inheritance tax
appraisers, as may be ordered by the court. If beneficial

Exclusions from the inventory The court may authorize the sale of the whole or
a part of said estate, although it is not necessary
The articles that should not be inventoried are: to pay the obligations of the estate so long as it is
1. The wearing apparel of the surviving spouse beneficial but such authority should not be
and minor children inconsistent with the provisions of a will. The
2. The marriage bed and bedding proceeds shall be given to the persons entitled to
3. Such provisions and other articles as will the estate in the proper proportions.
necessarily be consumed in the subsistence of
the family of the deceased. They shall not be Bond to prevent sale, etc.
considered as assets, nor administered as
such. Persons interested may prevent a sale, mortgage
or encumbrance by giving a bond in a sum to be
Allowance to widow and family fixed by the court, conditioned to pay the
obligations of the estate. Such bond shall be for
The widow and minor or incapacitated children of the security of the creditors, as well as the
the deceased, during the settlement of the estate, executor or administrator.
shall receive such allowance as are provided by
law. Regulations for granting authority to sell,
mortgage, or otherwise encumber estate.
Questions of title
The executor or administrator shall file a written
A probate court can resolve questions of title only petition, setting forth —
provisionally. All that the court can do is to 1. The debts due from the deceased
determine whether the properties should or

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2. The expenses of administration Mortgages due estate may be foreclosed
3. The legacies
4. The value of the personal estate If the deceased was a mortgagee or assignee of the
5. The situation of the estate to be sold, right of a mortgagee, the mortgage may be
mortgaged, or otherwise encumbered foreclosed by the executor or administrator.
6. Such other facts as will show that the sale,
mortgage, or other encumbrance is necessary Proceedings when property concealed,
or beneficial embezzled, or fraudulently conveyed

The court shall then cause notice to the persons When a person is suspected of having concealed,
interested, stating the nature of the petition, the embezzled, or conveyed away any of the money or
reason for the same, and the time and place of chattels of the deceased, or such person possesses
hearing. The court may cause further notice by or knows of a document which contains evidence
publication or otherwise. of or tends to disclose the right of the deceased to
real or personal estate, or his last will and
The court may direct the executor or testament, the court may cite such suspected
administrator to give an additional bond to person to appear or to answer, and may examine
account for the proceeds of the sale, mortgage, or him on oath.
other encumbrance.
If the person so cited refuses to appear and give
The court may then grant the petitions in proper rogatories, the court may punish him for
cases, such part of the estate as is deemed contempt and may commit him to prison until he
necessary. The court may authorize the sale to be submits to the order of the court. The
public or private, as would be most beneficial to interrogatories, if any, and his answers thereto,
all parties concerned. shall be in writing and shall be filed in court.

If the property is to be sold at auction, the mode Rendition of account
of giving notice of the time and place of the sale
shall be governed by the provisions concerning A person entrusted by the executor or
notice of execution sale. administrator with property of the deceased, may
be compelled to render a full account on oath
The transaction and the court order shall be before the court.
recorded in the registry of deeds.
Embezzlement before letters issued
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS A person who embezzles or alienates property of
the deceased before issuance of letters
In general, executors and administrators may testamentary or of administration, is liable for
bring or defend actions that survive. Claims that double the value of the property embezzled.
do not survive are money claims that have to be
filed in the estate proceedings. Remedy for fraudulent conveyance by the
deceased during his lifetime
Actions that survive are those actions to recover
real or personal property, or an interest therein, The remedy may be by action of the executor or
from the estate, or to enforce a lien thereon, and administrator or by a creditor under the following
actions to recover damages for an injury to person circumstances.
or property, real or personal.
Action by executor or administrator
Actions that do not survive are the money claims
or When there is a deficiency of assets to pay its
(a) all claims for money arising from contract, debts, but the deceased during his lifetime
express or implied, due, not due or conveyed property with intent to defraud his
contingent; creditors, the conveyance would by law be void as
(b) all claims for funeral expenses; against his creditors, and the subject of the
(c) expenses for the last sickness of the decedent; attempted conveyance would be subject to
and attachment in his lifetime. The executor or
(d) judgment for money against the decedent, administrator may file an action to recover such
which should be presented in the form of property but is not be bound to do so, unless the
claims against the estate. creditors pay for the costs and expenses thereof
or give security as the court deems equitable.

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Action by the creditor Filling of claims

On the other hand, a creditor may file such an The claims which must be filed under the notice
action in the name of the executor or are:
administrator upon the filing by the creditor of a
bond approved by the court to indemnify the 1. All claims for money against the decedent,
executor or administrator. The creditor shall have arising from contract, express or implied,
a lien on the judgment recovered for costs and whether the same be due, not due, or
expenses as the court deems equitable. contingent
2. All claims for funeral expenses and expenses
NOTE: Where the conveyance or attempted for the last sickness of the decedent; and
conveyance was made by the deceased in his 3. Judgment for money against the decedent.
lifetime in favor of the executor or administrator,
the action of the creditor shall be filed in the name NOTE: Under the 1997 Rules of Civil Procedure,
of all the creditors without need of court an action for a contractual money claim against a
permission or the court and the filing of a bond. defendant who dies before entry of final
judgment, must proceed until entry of final
MONEY CLAIMS AGAINST THE ESTATE; judgment. A favorable judgment obtained by the
NOTICE TO CREDITORS plaintiff shall be enforced as a money claim
against the estate of the defendant which shall be
filed in the estate proceeding.
Immediately after granting letters testamentary
or of administration, the court shall issue a notice
Time bar
requiring all persons having money claims

against the decedent to file them in the office of
Claims that are not filed within the time limited in
the clerk of court.
the notice, are barred forever, except that they

may be set forth as counterclaims in any action
Time within which claims shall be filed
that the executor or administrator may bring
against the claimants.
In said notice, the court shall state the time for the

filing of claims against the estate, which shall not
Set off
be more than 12 nor less than 6 months after the

date of the first publication of the notice.
Where an executor or administrator commences

an action, or prosecutes an action already
However, before an order of distribution is
commenced by the deceased in his lifetime.- A
issued, the court may, for cause shown and on
debtor may set forth in an action by the executor
such terms as are equitable, allow a claim to be
or administrator against him, by answer the
filed within a time not exceeding 1 month.
claims he has against the decedent, instead of

presenting them independently as a claim against
Publication of notice to creditors
the estate, and mutual claims may be set off

against each other in such action. Claims not yet
The executor or administrator shall immediately due, or contingent, may be approved at their
cause the notice to be published 3 weeks
present value.
successively in a newspaper of general circulation
in the province, and to be posted for the same
How to file a claim
period in 4 public places in the province and in 2

public places in the municipality where the
A claim may be filed with the clerk of court with
decedent last resided.
the necessary vouchers and supporting affidavits,

serving a copy thereof on the executor or
Filing copy of printed notice
administrator.

Within 10 days after the publication and the If the claim is not due, or is contingent, it must also
posting, the executor or administrator shall file in be supported by affidavit stating the particulars
court a printed copy of the notice, accompanied
thereof. When the affidavit is made by a person
with an affidavit of publication setting forth the other than the claimant, he must set forth therein
dates of the first and last publication thereof and the reason why it is not made by the claimant.
the name of the newspaper in which the same was

printed. The court, in its discretion, and as a matter of
convenience, may order all the claims to be
collected in a separate folder.

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SUCCESSION

Disposition of admitted claim the Civil Code on concurrence and preference of
credits.
Any claim admitted by the executor or
administrator shall immediately be submitted by When and how claim proved outside the
the clerk to the court who may approve the same Philippines against insolvent resident's
without hearing; but the court may order that estate paid
known heirs, legatees, or devisees be notified and
heard. If claims have been duly proven in another
country against the estate of an insolvent who
Trial of contested claim was at the time of his death an inhabitant of the
Philippines, and that the local executor or
If an heir, legatee, or devisee opposes the claim, administrator knew of such claims and an
the court may allow him 15 days to answer the opportunity to contest their allowance, the court
claim. Upon the filing of an answer or upon the shall add a certified list of such claims to the list of
expiration of the time for such filing, the clerk of claims proved in the Philippines so that a just
court shall set the claim for trial with notice to distribution of the whole estate may be made, but
both parties. The court may refer the claim to a the benefit of this and the preceding sections shall
commissioner. not be extended to the creditors in another
country if the property of the deceased there
Judgment appealable found is not equally apportioned to the creditors
residing in the Philippines and the other
The judgment of the court approving or creditors, according to their respective claims.
disapproving a claim, is appealable. A judgment
against the executor or administrator that he pay Time for paying debts and legacies
shall not create any lien upon the property of the
estate, or give to the judgment creditor any The executor or administrator shall pay the debts
priority of payment. and legacies of the deceased within a period of
time fixed by the court, which shall not exceed 1
PAYMENT OF DEBTS year, but the court may, on motion of the executor
or administrator and after hearing, extend the
time as the circumstances of the estate require
If there are sufficient assets to pay the debts, the not exceeding 6 months for a single extension, but
executor or administrator shall pay the same the whole period allowed to the original executor
within the time limited for that purpose. or administrator shall not exceed 2 years.

Source of payment as designated by the
testator ACCOUNTABILITY AND COMPENSATION OF
EXECUTORS AND ADMINISTRATORS

The debts of the testator, expenses or
administration, or family expenses, shall be paid Except as otherwise expressly provided in the
according to the provisions of the will; but if the following sections, every executor or
provisions are not sufficient, such part of the administrator is chargeable —
estate not disposed of by will, if any, shall be (a) with the whole of the estate of the deceased
appropriated for that purpose. which has come into his possession, at the
value of the appraisement contained in the
Personality first chargeable for debts, then inventory;
realty (b) with all the interest, profit, and income of
such estate; and
The personal property of the deceased shall first (c) with the proceeds of so much of the estate as
be chargeable with the payment of debts and is sold by him, at the price at which it was
expenses; but if it is not sufficient, or its sale sold.
would be detrimental to the participants of the
estate, the whole of the real estate not disposed of Increase or decrease in value
by will, or so much thereof as is necessary, may be
sold, mortgaged, or otherwise encumbered by the No executor or administrator shall profit by the
executor or administrator, after obtaining the increase, or suffer loss by the decrease or
authority of the court therefor. destruction, without his fault, of any part of the
estate.
Preference of payment if estate insolvent
He must account for the excess when he sells any
If the assets are not sufficient for the payment of part of the estate for more than the appraised
debts, they shall be paid in accordance with the value, and if any is sold for less than the
provisions of Articles 1059 and 2239 to 2251 of

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SUCCESSION

appraisement, he is not responsible for the loss, if Two or more executors or administrators
the sale has been justly made.
If there are two or more executors or
If he settles any claim against the estate for less administrators, the compensation shall be
than its nominal value, he is entitled to charge in apportioned among them by the court according
his account only the amount he actually paid on to the services actually rendered by them
the settlement. respectively.

Accountable for income from realty used by Attorney’s fees prohibited
him
When the executor or administrator is an
If the executor or administrator uses or occupies attorney, he shall not charge against the estate
any part of the real estate himself, he shall any professional fees for legal services rendered
account for it as may be agreed upon between him by him, but he may employ counsel.
and the parties interested, or adjusted by the
court with their assent. If the parties do not agree, Compensation provided in the will
the amount may be ascertained by the court,
whose determination shall be final. When the deceased by will makes some other
provision for the compensation of his executor, it
Accountable for delay shall be a full satisfaction for his services unless
by a written instrument filed in the court he
When an executor or administrator unreasonably renounces all claim to the compensation provided
delays to collect the debts, sell estate of the by the will.
deceased, or neglects to pay over the money he
has in his hands, and the value of the estate is When executor or administrator to render
thereby lessened or unnecessary cost or interest account
accrues, or the persons interested suffer loss, the
damage sustained may be charged against him, Every executor or administrator shall render an
and he shall be liable therefor on his bond. account of his administration within 1 year from
the time of receiving letters testamentary or of
Expenses and fees allowed executor or administration, unless the court otherwise directs
administrator because of extensions of time for presenting
claims against, or paying the debts of, the estate,
An executor or administrator shall be allowed the or for disposing of the estate. He shall render such
necessary expenses in the care, management, and further accounts as the court may require until
settlement of the estate, and for his services, four the estate is wholly settled.
pesos per day for the time actually and
necessarily employed, or a commission upon the Examinations on oath with respect to
value of so much of the estate as comes into his account
possession and is finally disposed of by him in the
payment of debts, expenses, legacies, or The heirs, legatees, distributees, and creditors of
distributive shares, or by delivery to heirs or the estate and the executor or administrator may
devisees, of: be examined on oath on any matter relating to an
administration account.
1. 2% of the first Php5,000;
2. 1% of more than Php5,000 but less than Notice to examine the account of the
Php30,000; executor or administrator
3. 1/2% of more than Php30,000, but less than
Php100,000; and Before the account of an executor or
4. 1/4% of more than Php100,000. administrator is allowed, notice shall be given to
persons interested of the time and place of
NOTE: But in any special case, where the estate examining and allowing the same; and such notice
is large, and the settlement has been attended may be given personally or by advertisement in a
with great difficulty, and has required a high newspaper or newspapers, or both, as the court
degree of capacity on the part of the executor directs.[128] A person liable as surety in respect
or administrator, a greater sum may be to such account may, upon application, be
allowed. If objection to the fees allowed to be admitted as party to such accounting.
taken, the allowance may be re-examined on
appeal.

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X. PARTITION OF ESTATE (ARTS. 1078- WHO MAY EFFECT PARTITION
1087, 1089-1105)
1. By the decedent himself during his lifetime by
an act inter vivos or by will, or
CONCEPT AND CLASSIFICATION OF 2. By a third person designated by the decedent,
PARTITION or
3. By the heirs themselves, or by a competent
Article 1078. Where there are two or more court in accordance with the New Rules of
heirs, the whole estate of the decedent is, before Court.
its partition, owned in common by such heirs,
subject to the payment of debts of the deceased. Under Section 1, Rule 74 of the Rules of Court, an
extrajudicial settlement of the estate applies only
Article 1079. Partition, in general, is the to the estate left by the deceased who died
separation, division and assignment of a thing without a will and with no creditors, and the heirs
held in common among those to whom it may are all of age or the minors are represented by
belong. The thing itself may be divided, or its their judicial or legal representatives. If the
value. property does not belong to the estate of the
decedent, the same being an exclusive property of
Extent the husband, it cannot be the subject matter of an
extrajudicial partition.
TOTAL PARTIAL

When some of the Emiliana Bautista as heir of the late Manuel
things are divided Bautista and Evangeline Bautista vs. Special
When all of the things
among all or some of First Division of the Court of Appeals, et al.
comprised in the
the participants or co- Since the property does not belong to the estate of
whole estate are
owners, the rest the first wife, the Deed of Extrajudicial Partition is
divided among all of
remaining in a state of void ab initio, being contrary to law, for in effect,
the participants or co-
indivision or it deprives the lawful owner of his property
owners.
community without due process of law. Only the property of
ownership. the estate of the decedent which is transmitted by
Duration succession can be the lawful subject matter of an
PROVISIONAL DEFINITE extrajudicial partition.
When the division is
merely temporary or Extrajudicial partition cannot constitute a
When it is stable, partition of the property during the lifetime of its
transitory until a final
final, and absolute. owner. Partition of future inheritance is
or definite division is
made. prohibited by law.
Manner or method by which it is done
EXTRAJUDICIAL JUDICIAL PARTITION BY DECEDENT
when it is effected by
the testator himself, Article 1080. Should a person make partition of
or by some person his estate by an act inter vivos, or by will, such
named by such When the court partition shall be respected, insofar as it does
testator, or by the intervenes in the not prejudice the legitime of the compulsory
participants or co- division. heirs.
owners themselves A parent who, in the interest of his or her family,
amicably or by desires to keep any agricultural, industrial, or
common accord. manufacturing enterprise intact, may avail
himself of the right granted him in this article,
4 ways the estate may be partitioned: by ordering that the legitime of the other
children to whom the property is not assigned,
1. By extrajudicial settlement; be paid in cash.
2. By an ordinary action for partition;
3. By judicial summary settlement; 2 ways by which a person may effect the partition
4. By administration proceedings. of his own property or estate:

NOTE: The last three are judicial in character. 1. By an act inter vivos

The partition of the estate by an act inter vivos
may take place in an ordinary public
instrument when such is required. Simply,
the rules regarding ordinary conveyance of

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SUCCESSION

personal and real properties must be testator should have expressly forbidden its
followed. partition, in which case the period of indivision
shall not exceed twenty years as provided in
NOTE: A partition effected by a person by article 494. This power of the testator to
an act inter vivos constitutes an exception prohibit division applies to the legitime.
to the rule declared in Art. 1347(2) of the Even though forbidden by the testator, the co-
Code that no person can enter into a ownership terminates when any of the causes
contract with respect to future for which partnership is dissolved takes place,
inheritance. or when the court finds for compelling reasons
that division should be ordered, upon petition of
2. By will one of the co-heirs.

The partition by will must be effected by a Article 1084. Voluntary heirs upon whom some
valid will duly executed in accordance with condition has been imposed cannot demand a
the formalities prescribed by law. partition until the condition has been fulfilled;
but the other co-heirs may demand it by giving
Limitation: It must not prejudice the legitime of sufficient security for the rights which the
compulsory heirs. former may have in case the condition should be
complied with, and until it is known that the
PARTITION BY THIRD PERSON condition has not been fulfilled or can never be
complied with, the partition shall be understood

to be provisional.
Article 1081. A person may, by an act inter

vivos or mortis causa, entrust the mere power to
Partition of the estate may be demanded by any of
make the partition after his death to any person
the following:
who is not one of the co-heirs.

The provisions of this and of the preceding
1. Any compulsory heir
article shall be observed even should there be
2. Any voluntary heir
among the co-heirs a minor or a person subject
3. Any legatee or devisee
to guardianship; but the mandatary, in such
4. Any person who has acquired an interest in
case, shall make an inventory of the property of
the estate
the estate, after notifying the co-heirs, the

creditors, and the legatees or devisees.
When partition cannot be demanded


What is entrusted or delegated is the mere power
1. When such partition has been expressly
of partition, not the power to distribute the
prohibited by the testator himself for a period
hereditary estate. Hence, the act of the person
which shall not exceed 20 years
delegated with such power is that of a mere agent

or mandatory. The mere physical act of partition,
Even though the partition is prohibited by the
which must not be confused with the act of
testator, the co-ownership may still be
distribution, must be done pursuant to the latter.
terminated provided that any of the causes

for which a partnership may be dissolved
NOTE: The law states that the mere power of
exists, or that the court finds for compelling
partition may be delegated either by an act
rea- sons that a division should be ordered.
inter vivos or by an act mortis causa. Hence,

following the interpretation used in Art. 1080,
2. When the co-heirs have agreed that the estate
the delegation may be made either by an act
shall not be divided for a period which shall not
inter vivos such as in a public instrument or any
exceed 10 years, renewable for another 10
other writing or by a will executed in
years
accordance with all of the formalities

prescribed by law.
3. When such partition is prohibited by law


WHO CAN DEMAND PARTITION Example: Family homes (Art. 238) and
party walls (Art. 658)
Article 1082. Every act which is intended to put
an end to indivision among co-heirs and 4. When to partition the estate would render it
legatees or devisees is deemed to be a partition, unserviceable for the use for which it is
although it should purport to be a sale, and intended
exchange, a compromise, or any other
transaction. NOTE: What is prohibited is merely the
physical division of the estate. The
Article 1083. Every co-heir has a right to partition may still be demanded if made in
demand the division of the estate unless the accordance with Art. 1086 of the Code.

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SUCCESSION

The existence of any of the causes for the Those who pay for the insolvent heir shall have
dissolution of a partnership enumerated in Arts. a right of action against him for reimbursement,
1830 and 1831 would be sufficient in order to should his financial condition improve.
justify a person entitled to do so to demand for
partition. Article 1094. An action to enforce the warranty
among heirs must be brought within ten years
Article 1085. In the partition of the estate, from the date the right of action accrues.
equality shall be observed as far as possible,
dividing the property into lots, or assigning to Article 1095. If a credit should be assigned as
each of the co-heirs things of the same nature, collectible, the co-heirs shall not be liable for the
quality and kind. subsequent insolvency of the debtor of the
estate, but only for his insolvency at the time the
Article 1086. Should a thing be indivisible, or partition is made.
would be much impaired by its being divided, it The warranty of the solvency of the debtor can
may be adjudicated to one of the heirs, provided only be enforced during the five years following
he shall pay the others the excess in cash. the partition.
Nevertheless, if any of the heirs should demand Co-heirs do not warrant bad debts, if so known
that the thing be sold at public auction and that to, and accepted by, the distributee. But if such
strangers be allowed to bid, this must be done. debts are not assigned to a co-heir, and should
be collected, in whole or in part, the amount
Article 1087. In the partition the co-heirs shall collected shall be distributed proportionately
reimburse one another for the income and fruits among the heirs.
which each one of them may have received from
any property of the estate, for any useful and Article 1096. The obligation of warranty
necessary expenses made upon such property, among co-heirs shall cease in the following
and for any damage thereto through malice or cases:
neglect. 1. When the testator himself has made the
partition, unless it appears, or it may be
Article 1089. The titles of acquisition or reasonably presumed, that his intention
ownership of each property shall be delivered to was otherwise, but the legitime shall always
the co-heir to whom said property has been remain unimpaired;
adjudicated. 2. When it has been so expressly stipulated in
the agreement of partition, unless there has
Article 1090. When the title comprises two or been bad faith;
more pieces of land which have been assigned to 3. When the eviction is due to a cause
two or more co-heirs, or when it covers one subsequent to the partition, or has been
piece of land which has been divided between caused by the fault of the distributee of the
two or more co-heirs, the title shall be delivered property.
to the one having the largest interest, and
authentic copies of the title shall be furnished to SUBSECTION 3. RESCISSION AND NULLITY OF
the other co-heirs at the expense of the estate. If PARTITION
the interest of each co-heir should be the same,
the oldest shall have the title. RECISSION OF PARTITION DUE TO LESION

SUBSECTION 2. EFFECTS OF PARTITION
Article 1097. A partition may be rescinded or
annulled for the same causes as contracts.
Article 1091. A partition legally made confers
upon each heir the exclusive ownership of the
property adjudicated to him. Article 1098. A partition, judicial or extra-
judicial, may also be rescinded on account of
Article 1092. After the partition has been made, lesion, when any one of the co-heirs received
the co-heirs shall be reciprocally bound to things whose value is less, by at least one-fourth,
than the share to which he is entitled,
warrant the title to, and the quality of, each
property adjudicated. considering the value of the things at the time
they were adjudicated.


Article 1093. The reciprocal obligation of
warranty referred to in the preceding article Article 1099. The partition made by the
shall be proportionate to the respective testator cannot be impugned on the ground of
hereditary shares of the co-heirs, but if any one lesion, except when the legitime of the
of them should be insolvent, the other co-heirs compulsory heirs is thereby prejudiced, or
when it appears or may reasonably be
shall be liable for his part in the same
proportion, deducting the part corresponding to presumed, that the intention of the testator was
the one who should be indemnified. otherwise.

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Article 1104. A partition made with preterition
Article 1100. The action for rescission on of any of the compulsory heirs shall not be
account of lesion shall prescribe after four years rescinded, unless it be proved that there was
from the time the partition was made. bad faith or fraud on the part of the other
persons interested; but the latter shall be
If in the partition anyone of the co-heirs should proportionately obliged to pay to the person
receive a share whose value is less, by at least 1/4, omitted the share which belongs to him.
than the share to which he is entitled, considering
the value of the things at the time they were Article 1105. A partition which includes a
adjudicated, the partition, whether judicial or person believed to be an heir, but who is not,
extrajudicial, may be rescinded on account of the shall be void only with respect to such person.
lesion.
3 aspects:
2 cases where contracts may be rescinded on
account of lesion (Art. 1381): 1. One heir shares the inheritance with other
heirs who were mistakenly believed to be so
1. Those which are entered into by guardians during the partition.
whenever the wards whom they represent
suffer lesion by more than 1/4 of the value of In this case, Art. 1105 applies. The partition is
the things, which are the object thereof totally void. Hence, the declaration of nullity
2. Those agreed upon in representation of shall only result in the delivery of everything
absentees, if the latter suffer the lesion stated that had been adjudicated to the real heir
in the preceding number. since a new partition is impossible
considering that there is only one heir.
GR: If the partition, however, was effected by the
decedent himself either by an act inter vivos or by 2. There are several heirs, but a third person,
will, it cannot be impugned on the ground of without any right, had participated in the
lesion. partition in the belief that he was one of the
XPNs: heirs of the deceased.
1. When the legitime of compulsory heir is
thereby prejudiced Here, although there was consent in the
2. When it appears or may reasonably be transmission of the share to the intruder, said
presumed, that the intention of the testator transmission is void. Hence, Art. 1105 is also
was otherwise applicable.

EFFECT OF INCLUSION OF INTRUDER IN 3. Through error or mistake, a third person
PARTITION without any right is allotted the share that
would have been given to a real heir.

Article 1101. The heir who is sued shall have In this case, both Arts. 1104 and 1105 shall
the option of indemnifying the plaintiff for the apply.
loss, or consenting to a new partition.
Indemnity may be made by payment in cash or GR: Under Art. 1104, the partition shall not be
by the delivery of a thing of the same kind and rescinded
quality as that awarded to the plaintiff. XPN: Unless it be proved that there was bad
If a new partition is made, it shall affect neither faith or fraud on the part of the other persons
those who have not been prejudiced nor those interested, but the latter shall be
have not received more than their just share. proportionately obliged to pay to the person
omitted the share which belongs to him.
Article 1102. An heir who has alienated the
whole or a considerable part of the real property Under Art. 1105, the partition shall be void,
adjudicated to him cannot maintain an action but only with respect to the intruder. Hence,
for rescission on the ground of lesion, but he there must be a declaration of nullity of the
shall have a right to be indemnified in cash. partition, but only with respect to the share
adjudicated to the intruder. This share,
Article 1103. The omission of one or more including fruits, shall, in turn, be delivered to
objects or securities of the inheritance shall not the omitted heir as payment of his share,
cause the rescission of the partition on the without prejudice to any additional
ground of lesion, but the partition shall be obligation incurred under Art. 1104.
completed by the distribution of the objects or
securities which have been omitted.

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SUCCESSION

adopters and both shall acquire the
XI. LEGAL REDEMPTION (ART. 1088)
reciprocal rights and obligations arising
from the relationship of parent and child,
Article 1088. Should any of the heirs sell his including the right of the adopted to use the
hereditary rights to a stranger before the surname of the adopters;
partition, any or all of the co-heirs may be (2) The parental authority of the parents by
subrogated to the rights of the purchaser by nature over the adopted shall terminate
reimbursing him for the price of the sale, and be vested in the adopters, except that if
provided they do so within the period of 1 the adopter is the spouse of the parent by
month from the time they were notified in nature of the adopted, parental authority
writing of the sale by the vendor. over the adopted shall be exercised jointly
by both spouses; and
LEGAL REDEMPTION IN FAVOR OF CO-HEIRS (3) The adopted shall remain an intestate heir
of his parents and other blood relatives.
(39[1]a, [2]a, [3]a, PD 603).
The right of legal redemption is predicated upon

the fact that the sale made by the co-heir is
Art. 190. Legal or intestate succession to the
effected before the partition of the estate but after
estate of the adopted shall be governed by the
the death of the decedent. Since the rights to the
following rules:
succession are transmitted at the very moment of
(1) Legitimate and illegitimate children and
the death of the decedent, an heir has the right to
descendants and the surviving spouse of
alienate his undivided share in the inheritance.
the adopted shall inherit from the adopted,

in accordance with the ordinary rules of
However, he has an obligation to notify the other
legal or intestate succession;
co-heirs of the alienation. Such notification must
(2) When the parents, legitimate or
be made in writing. In such case, the co-heirs are
illegitimate, or the legitimate ascendants of
given one month from the time of such
the adopted concur with the adopters, they
notification within which to exercise their right of
shall divide the entire estate, one-half to be
redemption by reimbursing the vendee for the
inherited by the parents or ascendants and
price of the sale.
the other half, by the adopters;

(3) When the surviving spouse or the
Requisites of right of redemption:
illegitimate children of the adopted concur

with the adopters, they shall divide the
1. There must be several co-heirs
entire estate in equal shares, one-half to be
2. One of them sells his rights to a stranger
inherited by the spouse or the illegitimate
3. The sale is made before the partition is
children of the adopted and the other half,
effected
by the adopters.
4. The right of redemption must be exercised by
(4) When the adopters concur with the
one or more of the co-heirs within a period of
illegitimate children and the surviving
one month to be counted from the time that
spouse of the adopted, they shall divide the
they were notified in writing by the co- heir
entire estate in equal shares, one-third to be
vendor
inherited by the illegitimate children, one-
5. The vendee is reimbursed for the price of the
third by the surviving spouse, and one-third
sale.
by the adopters;

(5) When only the adopters survive, they shall
XII. PROVISIONS OF THE FAMILY CODE inherit the entire estate; and
THAT AFFECT THE LAWS ON SUCCESSION (6) When only collateral blood relatives of the
adopted survive, then the ordinary rules of

legal or intestate succession shall apply.
Art. 176. Illegitimate children shall use the
(39[4]a, PD 603).
surname and shall be under the parental

authority of their mother, and shall be entitled

to support in conformity with this Code. The

legitime of each illegitimate child shall consist of

one-half of the legitime of a legitimate child.

Except for this modification, all other provisions

in the Civil Code governing successional rights

shall remain in force.



Art. 189. Adoption shall have the following

effects:

(1) For civil purposes, the adopted shall be

deemed to be a legitimate child of the


180 Succession Reviewer by S. V. Makayan