Succession Reviewer

S SU UC CC CE ES SS SI IO ON N
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Based on

JOTTINGS AND JURISPRUDENCE IN CIVIL LAW
SUCCESSION

By Atty. Ruben Balane

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

The Code has simplified the concept of succession
and treats it simply as one of the 7 Modes of
Acquiring Ownership as enumerated in Art712 of the
NCC.

7 MODES OF ACQUIRING OWNERSHIP
1. Occupation
2. Intellectual Creation
3. Law
4. Donation
5. Estate and Intestate Succession
6. Tradition
7. Prescription

Overlap of Codal Definition with Art776
Article 774 talks of property, rights and
inheritance.
Article 776 talks of the inheritance as including
all the property, rights and obligations of a
person which are not extinguished by his death.
For clarity and better correlation, Prof. Balane
opines that Art774 should rather read:
Succession is a mode of acquisition by virtue of
which the inheritance of a person is transmitted through
his death to another or others either by his will or by
operation of law.
And the inheritance which is transmitted through
a persons death is defined by Article 776 to
include all the property, rights and obligations of
a person which are not extinguished by his
death.

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

Rule Regarding Pecuniary Obligations
A literal construction of Art774 appears to imply
that money obligations of the deceased would
pass to the heirs, to the extent that they inherit
from him.
Seemingly, this article mandates that
the heirs receive the estate, and then
pay off the creditors.
However, Philippine procedural law, as
influenced by the common-law system, lays
down a different method for the payment of
money debts, as found in Rules 88 to 90 of the
Rules of Court. It is only AFTER the debts are
paid that the residue of the estate is
distributed among the successors.

Rule 90, Sec1 provides for the When the Order for
the Distribution of Residue is made.
According to the rule, when the debts, funeral
charges and expenses of administration, the
allowance to the widow and the inheritance tax
have all been paid, that is the only time that the
court shall assign the RESIDUE of the estate to
persons entitled to it.
The rule also provides that there shall be no
distribution until the payment of the obligations
enumerated above, have been made or
provided for. However, if the distributees give a
bond for the payment of the said obligations
within such time and of such amount as fixed by
the court, the distribution may be allowed.

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

Justice JBL Reyes observed that Philippine rules of
Succession Mortis Causa proceed from an imperfect
blending of 3 Systems with Contrasting Philosophies

1. GERMANIC CONCEPT OF UNIVERSAL HEIR
Heir directly and immediately steps into the
shoes of the deceased upon the latters
death
At one single occasion [uno ictu]
Without need of any formality
En mass
Automatic Subjective Novation

2. FRANCO-SPANISH SYSTEM
Acquisition of estate by universal title but
only upon acceptance by the heir at any
time, with retroactive effect.
Acceptance may be made any time except
when the creditors or the court requires it
be done within a certain time.
This is the system followed by the NCC, by
having the following features:
a) Universality of Property Rights and
Obligations
b) Transmitted from the moment of death
c) En bloc, as an entire mass
d) Transmitted even before judicial
recognition of heirship.

CHAPTER 1
GENERAL PROVISIONS

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

As a result of the blending of these 3 systems, JBL
Reyes says that we are thus faced with divergent, if
not contradictory principles.
Do the successors acquire the WHOLE of the
transmissible assets and liabilities of the
decedent?
Art774 by virtue of succession the
property, rights and obligations, to the
extent of the value of the inheritance of
a person, are transmitted by and at the
moment of his death, implying a
transfer at that instant of the totality or
universality of assets and liabilities.

Do the successors only acquire the RESIDUUM
remaining after payment of the debts, as implied
by the Rules of Court?
Art1057 within 30 days after the court
has issued an order for the distribution
of the estate in accordance with the
RoC, the heirs, devisees and legatees
shall signify to the court having
jurisdiction, whether they accept or
repudiate the inheritance.
The order of distribution under the RoC
is issued only after the debts, taxes and
administration expenses have been
paid; hence it is arguable that the
acceptance can no longer refer to
assets already disposed of by the
administrator, but must be limited to the
net residue.
But if title vests in the heir as of the
death of the decedent then the
acceptance of the heir becomes
entirely superfluous, and the law should
limit itself to regulating the effects the
effects of a repudiation by an heir or
legatee, and its retroactive effect.

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

RESULT of these divergent rules Creditors must
now pursue their claims during the settlement
proceedings and not against the heirs individually.

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

Decedent general term, person whose property is
transmitted
Testator specific term, person who transmits his
property via a will.

It is unfortunate that the Code does not use the term
Intestate to refer to a decedent who died without a
will, This would have prevented the ambiguity now
inherent in the term decedent

ART. 776. The inheritance includes all the
property, rights and obligations of a person
which are not extinguished by his death.

Overlap of Codal Definition with Art776
Article 774 talks of property, rights and
inheritance.
Article 776 talks of the inheritance as including
all the property, rights and obligations of a
person which are not extinguished by his death.

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


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ART. 777. The rights to the succession are
transmitted from the moment of the death
of the decedent.

Time of Vesting of Successional Right

Prof. Balane says the terminology used in this article
is infelicitous because the right to the succession is
not transmitted; but rather vested.
To say that it is transmitted upon death implies
that before the decedents death, the right to the
succession was possessed by the decedent
[which is absurd].
To say that it vests upon death implies that
before the decedents death the right was
merely inchoate [which is correct].

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

The vesting of the right occurs immediately upon
the decedents death; i.e. without a moments
interruption. From this principle, the following
consequences flow
1. The law in force at the time of the decedents
death will determine who the heirs should be
New Civil Code August 30, 1950

2. Ownership passes to the heir at the very
moment of death, who therefore, from that
moment acquires the right to dispose of his
share.

3. The heirs have the right to be substituted for
the deceased as party in an action that
survives.
Because the heir acquires ownership at
the moment of death and become
parties in interest.

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

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

ART. 779. Testamentary succession is that
which results from the designation of an
heir, made in a will executed in the form
prescribed by law.

ART. 780. Mixed succession is that effected
partly by will and partly by operation of law.

3 KINDS OF SUCCESSION ACCDG TO ART. 778:
1. TESTAMENTARY
That which results from the designation
of an heir, made in a will.
2. LEGAL OR INTESTATE
Lost definition: takes place by
operation of law in the absence of a
valid will.
3. MIXED
That effected partly by will and partly by
operation of law.

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

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

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

Donations of future property shall be governed
by the provisions on testamentary succession and the
formalities of wills.

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

FOUR KINDS OF SUCCESSION ACCORDING TO
IMPORTANCE [Prof. Balane]
1. COMPULSORY
Succession to the legitime
Prevails over all other kinds

2. TESTAMENTARY [Art. 779]
Succession by will

3. INTESTATE
Succession in default of a will

4. MIXED [Art. 780]
Not a distinct kind really, but a
combination of any two or all of the first
three.

ART. 781. The inheritance of a person includes
not only the property and the transmissible
rights and obligations existing at the time
of his death, but also those which have
accrued thereto since the opening of the
succession.

Article 781 is best deleted; it serves only to confuse.
The inheritance includes only those things
enumerated in Article 776. Whatever accrues thereto
after the decedents death [which is when the
succession opens] belongs to the heir, not by virtue
of succession, but by virtue of ownership.

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

Question If the assets left behind by the decedent
are not sufficient to pay the debts, may the creditors
claims the fruits produced by the decedents property
after his death? Or do these fruits pertain to the
heirs?
But wouldnt the debts be deducted from the
estate first before the properties are distributed
to the heirs?

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

HEIR person called to the succession either by will
or by law
DEVISEE persons to whom gifts of real property
are given by virtue of a will.
LEGATEE persons to whom gifts of personal
property are given by virtue of a will.

The distinction between an heir and a devisee or
legatee is important because on this distinction
depends the correct application of Art854 on
preterition.
In cases of preterition, the institution of an heir is
annulled, while the institution of legatees and
devisees is effective to the extent that the legitimes
are not impaired.

The codal definitions are neither clear nor very
helpful. They are so open-ended that an heir can fall
under the definition of a legatee/devisee and vice-
versa.
I give X my fishpond in Navotas by definition
of heir, is not X called to the succession by
provision of a will and therefore an heir?
I give X of my estate if in the partition, X
receives a fishpond, can X, by definition, not be
considered a devisee, having received a gift of
real property by will?

The definitions of the Spanish Code in conjunction
with Castans explanations are more helpful:
HEIR one who succeeds to the WHOLE or
an Aliquot part of the inheritance
DEVISEE / LEGATEE those who succeed
to definite, specific, and individual
properties.

SECTION 1 WILLS

Subsection 1 Wills in General

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

CHAPTER 2
TESTAMENTARY SUCCESSION

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Operative Words in the Definition
1. ACT
The definition of a will as an act is too
broad and should have been more clearly
delimited with a more specific term such as
instrument or document, in view of the
provision of Art804 that every will must be
in writing.
NUNCUPATIVE or oral wills are not
recognized in our Code, unlike the Spanish
Civil Code wherein military wills could be
oral.

2. PERMITTED
Will-making is purely statutory.

3. FORMALITIES PRESCRIBED BY LAW
The requirement of form prescribed
respectively for attested and holographic
wills.

4. CONTROL TO A CERTAIN DEGREE
The testators power of testamentary
disposition is limited by the rules on
legitimes.

5. AFTER HIS DEATH
Testamentary succession, like all other
kinds of succession in our Code, is mortis
causa.

C CH HA AR RA AC CT TE ER RI IS ST TI IC CS S O OF F W WI IL LL LS S

1. PURELY PERSONAL
Articles 784, 785 and 787

2. FREE AND INTELLIGENT
Article 839
The testators consent should not be vitiated
by the causes mentioned in Article 839
paragraphs 2-6 on Insanity, Violence,
Intimidation, Undue Influence, Fraud and
Mistake.

3. SOLEMN AND FORMAL
Articles 804-814 and 820-821
The requirements of form depend on
whether the will is attested or holographic.
Articles 805-808 and 820-821 govern
attested wills. Articles 810-814 govern
holographic wills. Article 804 applies to both.

4. REVOCABLE AND AMBULATORY
Article 828

5. MORTIS CAUSA
Article 783
This is a necessary consequence of Articles
774 and 777.

6. INDIVIDUAL
Article 818
Joint wills are prohibited in this jurisdiction.

7. EXECUTED WITH ANIMUS TESTANDI
This characteristic is implied in Article 783
Rizals valedictory poem Ultimo Adios was
not a will. An instrument which merely
expresses a last wish as a thought or advice
but does not contain a disposition of property
and was not executed with animus testandi,
cannot be legally considered a will.

8. EXECUTED WITH TESTAMENTARY CAPACITY
Articles 796 803 on testamentary capacity
and intent

9. UNILATERAL
This characteristic is implied in Article 783

10. DISPOSITIVE OF PROPERTY
Article 783 seems to consider the disposition
of the testators estate mortis causa as the
purpose of will-making.

11. STATUTORY
Will-making is a permitted by statute.

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

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

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

This provision gives the will its purely personal
character.

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

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

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

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

Exception to the Rule on Non-Delegability of Will-
Making. Without this provision, the things allowed to
be delegated here would be non-delegable.

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

TWO THINGS MAY BE DELEGATED BY THE
TESTATOR
1. The designation of persons, institutions, or
establishments within the class or cause;
2. The manner of distribution

Question Suppose the testator specified the
recipients by specific designation but left to the 3
rd

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

ART. 787. The testator may not make a
testamentary disposition in such manner
that another person has to determine
whether or not it is to be operative.

This rule is consistent with, and reinforces, the purely
person character of a will, laid down in Article 784.

Page 7 of 109

This article should be interpreted rationally. It is not
to be so interpreted as to make it clash with the
principle expressed in Articles 1041-1057 of the NCC
that the heir is free to accept or reject the
testamentary disposition.
What this article prohibits is the delegation to a 3
rd

person of the power to decide whether a disposition
should take effect or not.

ART. 788. If a testamentary disposition admits
of different interpretations, in case of
doubt, that interpretation by which the
disposition is to be operative shall be
preferred.

Articles 788-794 lays down the rules of construction
and interpretation.
The underlying principle here is that testacy is
preferred to intestacy, because the former is the
express will of the decedent whereas the latter is
only his implied will.
In statutory construction, the canon is: That the thing
may rather be effective than be without effect.

A similar principle in contractual interpretation is
found in Art1373, which provides that if some
stipulation of any contract should admit of several
meanings, it shall be understood as bearing that
import which is most adequate to render it effectual.

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

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

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

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

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

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

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

Similar rules are laid down in Rule 130 Sections 10
and 14 of the Rules of Court
Sec10. Interpretation of a writing according to its legal
meaning The language of a writing is to be interpreted
according to the legal meaning it bears in the place of its
execution, unless the parties intended otherwise.

Sec14. Peculiar signification of terms The terms of a
writing are presumed to have been used in their primary and
general application, but evidence is admissible to show that they
have a local, technical, or otherwise peculiar signification, and

Page 8 of 109

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

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

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

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

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

In contractual interpretation, Articles 1373 and 1374
lay down similar principles
Art1373. If some stipulation of any contract should admit
of several meanings, it shall be understood as bearing that
import which is most adequate to render it effectual.
Art1374. The various stipulations of a contract shall be
interpreted together, attributing to the doubtful one that sense
which may result from all of them taken jointly.

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

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

ART. 793. Property acquired after the making of
a will shall only pass thereby, as if the
testator had possessed it at the time of
making the will, should it expressly appear
by the will that such was his intention.

This article creates problems which would not have
existed had it not been so nonchalantly incorporated
in the Code, an implant from the Code of Civil
Procedure and ultimately from American law.

The problem springs from the fact that this article
makes the will speak as of the time it is made, rather
than at the time of the decedents death [which is
more logical because that is when the will takes
effect according to Article 777].

Illustration X executes a will in 1985 containing a
legacy: I give to M all my shares in BPI. The
testator dies in 1990, owning at the time of his death
ten times as many BPI shares as he did when he
made the will.
Under Article 793, the shares acquired after
the will was executed are NOT included in
the legacy.

Article 793 therefore departs from the codal
philosophy of Articles 774 and 776 and
constitutes an EXCEPTION to the concept of
succession as linked to death and rendered
legally effective by death.

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

ART. 794. Every devise or legacy shall cover all
the interest which the testator could device
or bequeath in the property disposed of,
unless it clearly appears from the will that
he intended to convey a less interest.

This article should be read together with Art929,
which provides that if the testator, heir, or legatee
owns only a part of or an interest in the thing
bequeathed, the legacy or devise shall be
understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in
its entirety.

GENERAL RULE in a legacy or devise the testator
gives exactly the interest he has in the
thing.
EXCEPTIONS he can give a less interest [Art794] or
a greater interest [Art929] than he has.

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


Page 9 of 109

ART. 795. The validity of a will as to its form
depends upon the observance of the law in
force at the time it is made.

ASPECTS OF VALIDITY OF WILLS
A. EXTRINSIC refers to the requirement of
form / formal validity
1. Governing law as to TIME
a. Filipinos law in force when the will was
executed [Art795]
b. Foreigners same rile. The assumption
here is that the will is being
probated in the Philippines.

2. Governing law as to PLACE
Filipinos or Foreigners
a. Law of citizenship
b. Law of domicile
c. Law of residence
d. Law of place of execution, or
e. Philippine law
Articles 815-817 - Rules of formal validity
a. Filipino Abroad - According to the law
in the country in which he may be
and may be probated in the
Philippines
b. Alien abroad - Has effect in the
Philippines if made according to:
Law of place where he resides, Law
of his own country or Philippine law
c. Alien in the phils. - Valid in Phils. as if
executed according to Phil. laws, if:
Made according to law of country
which he is a citizen or subject, and
May be proved and allowed by law
of his own country.

B. INTRINSIC refers to the substance of the
provisions / substantive
validity

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

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

R RE E- -C CA AP P O OF F T TH HE E R RU UL LE ES S O ON N I IN NT TE ER RP PR RE ET TA AT TI IO ON N
A AN ND D C CO ON NS ST TR RU UC CT TI IO ON N O OF F W WI IL LL LS S

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

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

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

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

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

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

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

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

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

Page 10 of 109

Art2263 provides that Rights to the inheritance of a
person who died, with or without a will, before the
effectivity of this Code [August 30, 1950], shall be
governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court. The
inheritance of those who, with or without a will, die
after the beginning of the effectivity of this Code,
shall be adjudicated and distributed in accordance
with this new body of laws and by the Rules of Court;
but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code.
Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their amount
shall be reduced if in no other manner can every
compulsory heir be given his full share according to
this Code.

Art16 par2 provides that intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional rights
and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of
the person whose succession is under consideration,
whatever may be the nature of the property and
regardless of the country wherein said property may
be found.

While Art1039 provides that Capacity to Succeed is
governed by the law of the nation of the decedent.

Subsection 2 Testamentary Capacity
And Intent

ART. 796. All persons who are not expressly
prohibited by law may make a will.

ART. 797. Persons of either sex under eighteen
years of age cannot make a will.

ART. 798. In order to make a will it is essential
that the testator be of sound mind at the
time of its execution.

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

ART. 800. The law presumes that every person
is of sound mind, in the absence of proof to
the contrary.
The burden of proof that the testator
was not of sound mind at the time of
making his dispositions is on the person
who opposes the probate of the will; but if
the testator, one month, or less, before
making his will was publicly known to be
insane, the person who maintains the
validity of the will must prove that the
testator made it during a lucid interval.

ART. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of
an incapable validated by the supervening
of capacity.

Articles 796-801 lay down the rules on testamentary
capacity.
Testamentary Capacity testamenti factio;
testamentifaccin active, the legal capacity to
make a will.
Who has testamentary capacity? All NATURAL
persons, unless disqualified by law. Juridical
persons are NOT granted testamentary
capacity.

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

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

SOUNDNESS OF MIND [SANITY]
NEGATIVELY
1. Not necessary that testator be in full
possession of reasoning faculties
2. Not necessary that testators mind be wholly
unbroken, unimpaired, unshattered by
disease, injury or other cause.

POSITIVELY Ability to know 3 things
1. Nature of estate to be disposed of
Testator should have a fairly accurate
knowledge of what he owns.
The more one owns, the less accurate
his knowledge of his estate expected to
be.

2. Proper objects of ones bounty; &

Page 11 of 109

Testator should know, under ordinary
circumstances, his relatives in the most
proximate degrees, his knowledge
expectedly decreasing as the degrees
become more remote.

3. Character of testamentary act.
It is not required that the testator know
the legal nature of a will with the
erudition of a civilest.
All that he need know is that the
document he is executing is one that
disposes of his property upon death.

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

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

The time for determining mental capacity
time of execution of the will and no other
temporal criterion is to be applied

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

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

Suggested rewording
A married person may make a will without his or
her spouses consent.

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

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

Article 97 of the Family Code supersedes this in part
Art97. Either spouse may dispose by will of his
or her interest in the community property.

Subsection 3 Forms of Wills

ART. 804. Every will must be in writing and
executed in a language or dialect known to
the testator.

Art804 lays down Common Requirements that apply
both to ATTESTED and HOLOGRAPHIC wills.
Art805-808 lays down special requirements for
attested wills. Articles 810-814 lays down special
requirements for holographic wills.

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

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

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

Page 12 of 109

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

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

SPECIAL REQUIREMENTS FOR ATTESTED /
ORDINARY / NOTARIAL WILLS -
1. Subscribed by the testator or his agent in
his presence and by his express direction at
the end thereof, in the presence of the
witnesses
Subscribed by the testator To subscribe
denotes writing, more precisely to write
under. To Sign means to place a
distinguishing mark.
Thus signing has a broader meaning than
subscribing. Not every signature is a
subscription and not every distinguishing
mark is a writing.

THUMBMARK AS SIGNATURE
a) Is the placing of the testators
thumbprint a signature within the
contemplation of the article? YES, on
the authority of Payad v. Tolentino and
Matias v. Salud, the testators
thumbprint is always a valid and
sufficient signature for the purpose of
complying with the requirement of
Art805.
b) There is no basis for limiting the
validity of thumbprints only to cases of
illness or infirmity.

A CROSS AS SIGNATURE a sign of the
cross placed by the testator does not
comply with the statutory requirement of
signature, UNLESS it is the testators usual
manner of signature or one of his usual
styles of signing.

SIGNING BY AN AGENT OF THE
TESTATOR
Two Requisites
i. Must sign in the testators
presence, and
ii. By the testators express
direction
What the agent must write need not
be alleged in the will itself that agent
wrote the testators name under the
latters express direction
The essential thing, for validity, is that
the agent write the testators name,
nothing more. It would be a good
thing, but not required, for the agent to
indicate the fact of agency or authority.

May the agent be one of the attesting
witnesses?
a) If there are more than 3 witnesses
YES
b) If there are only 3 witnesses
Uncertain.

SIGNING AT THE END
If the will contains only dispositive
provisions, there will be no ambiguity
as to where the end of the will is. If
however the will contains non-
dispositive paragraphs after the
testamentary dispositions, one can
refer to two kinds of end
1. Physical End where the writing
stops
2. Logical End where the last
testamentary disposition ends

Signing at either the physical end or
logical end is equally permissible. The
non-dispositive portions are not
essential parts of the will.

Signing before the end invalidates not
only the dispositions that come after,
but the entire will, because then one of
the statutory requirements would not
have been complied with.

SIGNING IN THE PRESENCE OF
WITNESSES
Actual seeing is not required, but the
ability to see each other [the testator
and the witnesses] by merely casting
their eyes in the proper direction.

2. Attested and subscribed by at least three
credible witnesses in the presence of the

Page 13 of 109

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

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

4. The witnesses must sign every page, except
the last, on the left margin in the presence
of the testator and of one another.
Order of Signing immaterial, provided
everything is done in a single transaction.
However, if the affixation of the signatures
is done in several transactions, then it is
required for validity that the TESTATOR
affix his signature ahead of the witnesses.

5. All pages numbered correlatively in letters
on the upper part of each page.
Mandatory and Directory part
a) MANDATORY pagination by
means of a conventional system.
The purpose is to prevent insertion
or removal of pages
b) DIRECTORY pagination in
letters on the upper part of each
page.

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

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

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

Some Discrepancies
Par1 Art805 No statement that the testator
must sign in the presence of the witnesses
Par2 Art805 No statement that the testator and
the witnesses must sign every page in one
anothers presence.
But these two things are required to be
stated in the attestation clause.

Page 14 of 109

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

paragraphs of the article.

Indication of Date there is no requirement that an
attested will should be dated, unlike a holographic
will.

ART. 807. If the testator be deaf, or a deaf-mute,
he must personally read the will, if able to
do so; otherwise, he shall designate two
persons to read it and communicate to him,
in some practicable manner, the contents
thereof.

ART. 808. If the testator is blind, the will shall
be read to him twice; once by one of the
subscribing witnesses, and again, by the
notary public before whom the will is
acknowledged.

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

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

Art808 is MANDATORY
If art808 is mandatory, by analogy Art807 is also
mandatory. Failure to comply with either would
result in nullity and denial of probate.

The requirement has been liberally applied, SC
declaring substantial compliance to be sufficient.
Applies not only to blind testators but also to
those who, for one reason or another, are
incapable of reading their wills.
Substantially complied with when documents
were read aloud to the testator with each of the
3 instrumental witnesses and the notary
following the reading with their respective
copies.

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

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

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

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

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

Simplicity of the holographic will is its obvious
advantage, along with other benefits such as
1. Secrecy
2. Inexpensiveness
3. Brevity

But that very simplicity brings about disadvantages
1. Danger of forgery
2. Greater difficulty of determining
testamentary capacity
3. Increased risk of duress

REQUIREMENTS OF A HOLOGRAPHIC WILL

Page 15 of 109

1. COMPLETELY HANDWRITTEN BY THE
TESTATOR
If testator executes only part of the will in
his handwriting and other parts are not so
written, the ENTIRE will is void because
the article would be violated.

2. DATED BY HIM
Date Specification or mention, in a
written instrument, of the time [day, month
and year] it was made [executed].
Blacks Law Dictionary
As a general rule, the date in a holographic
will should include the day, month, and
year of its execution. However, when there
is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity
of the Will is established and the only issue
is whether or not the date FEB./61 is a
valid compliance, probate of the
holographic will should be allowed under
the principle of substantial compliance.
A complete date is required to provide
against such contingencies as
a) Two competing wills executed on
the same day, or
b) Of a testator becoming insane in
the day on which a will was
executed.
The law does not specify a particular
location where the date should be placed
in the will. The only requirements are that
the date be in the will itself and executed in
the hand of the testator.

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

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

Article applies only to POST MORTEM probates, it
does not apply to Ante Mortem probates since in
such cases the testator himself files the petition and
will identify the document itself.

The three witness provision in case of contested
holographic wills is DIRECTORY, not mandatory.
Testamentary wills mandatory
Holographic wills directory

Witnesses must:
1. Know the handwriting and signature of the
testator
2. Truthfully declare that handwriting and
signature is that of the testator

In the probate of a holographic will, the document
itself must be produced. Therefore, a holographic will
cannot be probated.

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

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

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

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

Page 16 of 109

without being dated, and the last
disposition has a signature and a date,
such date validates the dispositions
preceding it, whatever be the time of prior
dispositions.

Formal Requirements for Additional Dispositions in a
Holographic Will
1. Signature
2. Date

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

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

ART. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will,
the testator must authenticate the same by
his full signature.

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

ART. 815. When a Filipino is in a foreign
country, he is authorized to make a will in
any of the forms established by the law of
the country in which he may be. Such will
may be probated in the Philippines.

ART. 816. The will of an alien who is abroad
produces effect in the Philippines if made
with the formalities prescribed by the law of
the place in which he resides, or according
to the formalities observed in his country,
or in conformity with those which this Code
prescribes.

ART. 817. A will made in the Philippines by a
citizen or subject of another country, which
is executed in accordance with the law of
the country of which he is a citizen or
subject, and which might be proved and
allowed by the law of his own country, shall
have the same effect as if executed
according to the laws of the Philippines.

RULES OF FORMAL VALIDITY
1. FILIPINO ABROAD
According to the law in the country in which
he may be
And may be probated in the Philippines

2. ALIEN ABROAD
Has effect in the Philippines if made
according to:
a) Law of place where he resides
b) Law of his own country
c) Philippine law

3. ALIEN IN THE PHILS.
Valid in Philippines / As if executed
according to Philippine laws, if:
a) Made according to law of country
which he is a citizen or subject,
and
b) May be proved and allowed by law
of his own country

In relation to Articles 15 and 17 of the NCC
Art. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
NATIONALITY PRINCIPLE Philippine law
follows Filipino citizens wherever they may be.

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

LEX LOCI CELEBRATIONIS contracts, wills
and other public instruments follow the
formalities of the law where they are executed.


Page 17 of 109

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

ART. 818. Two or more persons cannot make a
will jointly, or in the same instrument,
either for their reciprocal benefit or for the
benefit of a third person.

JOINT WILL one document which constitutes the
wills of two or more individuals.
If there are separate documents, each serving as
one independent will even if written on the same
sheet, they are not joint wills prohibited by the article.

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

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

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

Subsection 4 Witnesses to Wills

ART. 820. Any person of sound mind and of the
age of eighteen years or more, and not
blind, deaf or dumb, and able to read and
write, may be a witness to the execution of
a will mention in Article 805 of this Code.

ART. 821. The following are disqualified from
being witnesses to a will:
(1) Any person not domiciled in the
Philippines
(2) Those who have been convicted of
falsification of a document, perjury
or false testimony.

SIX QUALIFICATIONS OF WITNESSES
1. Of Sound Mind
2. At Least 18 years of age
3. Not Blind, Deaf or Dumb
4. Able to read and write
5. Domiciled in the Philippines
6. Must not have been convicted of
falsification of a document, perjury or false
testimony.

As to applicability to wills executed abroad, testator
may resort to either executing a holographic will or
following the law of the place of execution, if no such
witnesses are readily available.

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

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

Page 18 of 109

As in the case of testamentary capacity under
Art801, the time of the execution of the will is the
only relevant temporal criterion in the determination
of the competence of the witnesses.

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

Article is misplaced here because it talks about
CAPACITY TO SUCCEED and not capacity to be a
witness.

Article 823 lays down a disqualification of a witness
to succeed to a legacy or devise when there are only
3 witnesses. Competence of the person as a witness
is NOT AFFECTED.
Assuming all other requisites for formal validity
are met, the will is perfectly valid but the witness
[or relatives specified in the article] cannot
inherit.

Article also applies to HEIRS. The intent of the law is
to cover all testamentary institutions.

Disqualification applies only to the testamentary
disposition made in favor of the witness or the
specified relatives. If the party is also entitled to a
legitime or an intestate share, that portion is not
affected by the partys witnessing the will.

Question Supposing there are 4 witnesses, each a
recipient of a testamentary disposition, are the
dispositions to them valid or void?
Arguable
May say that dispositions are VALID because
the law only requires that there be 3 other
competent witnesses to such will for the
disposition to be valid. For the witnesses to
be competent, they need only meet the
qualifications in Art820 and have none of the
disqualifications in Art821.
May also say that dispositions are INVALID
because the intent of the law is to avoid
witnesses from attesting to the will based on
the dispositions as a consideration for such
act. If all of the witnesses are recipients of
testamentary dispositions, then there is
greater chance that they are all witnessing
because a consideration has been given to
them.

ART. 824. A mere charge on the estate of the
testator for the payment of debts due at the
time of the testators death does not
prevent his creditors from being competent
witnesses to his will.

Because the debt or charge is not a testamentary
disposition.

Subsection 5 Codicils and Incorporation
By Reference

ART. 825. A codicil is a supplement or addition
to a will, made after the execution of a will
and annexed to be taken as a part thereof,
by which disposition made in the original
will is explained, added to, or altered.

ART. 826. In order that a codicil may be
effective, it shall be executed as in the case
of a will.

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

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

ART. 827. If a will, executed as required by this
Code, incorporates into itself by reference
any document or paper, such document or
paper shall not be considered a part of the
will unless the following requisites are
present:
(1) The document or paper referred to
in the will must be in existence at
the time of the execution of the will;
(2) The will must clearly describe and
identify the same, stating among
other things the number of pages
thereof;
(3) It must be identified by clear and
satisfactory proof as the document
or paper referred to therein; and
(4) It must be signed by the testator
and the witnesses on each and
every page, except in case of

Page 19 of 109

voluminous books of account or
inventories.

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

Subsection 6 Revocation of Wills
And Testamentary Dispositions

ART. 828. A will may be revoked by the testator
at any time before his death. Any waiver or
restriction of this right is void.

A will is essentially REVOCABLE or AMBULATORY.
This characteristic cannot be waived even by the
testator. There is no such thing as an irrevocable will.
This characteristic is consistent with the principle in
Art777 that successional rights vest only upon death.

ART. 829. A revocation done outside the
Philippines, by a person who does not have
his domicile in this country, is valid when it
is done according to the law of the place
where the will was made, or according to
the law of the place in which the testator
had his domicile at the time; and if the
revocation takes place in this country,
when it is in accordance with the
provisions of this Code.

RULES FOR REVOCATION
Revocation made in the Philippines.
Philippine Law

Revocation made Outside Philippines.
1. Testator not domiciled in Phils.
Law of place where the WILL was
made
Law of place where the testator was
domiciled at time of revocation.
2. Testator domiciled in Phils. [Art829]
Philippine Law consistent with
domiciliary principle followed by this
article
Law of place of Revocation principle
of lex loci celebrationis
Law of place where the WILL was
made by analogy with rules on
revocation where testator is a non-
Philippine domiciliary.

Curious that the law departs from the nationality
theory and adopts the domiciliary theory.

ART. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills;
or
(3) By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or
by some other person in his presence,
and by his express direction. If burned,
torn, cancelled, or obliterated by some
other person, without the express
direction of the testator, the will may
still be established, and the estate
distributed in accordance therewith, if
its contents, and due execution, and the
fact of its unauthorized destruction,
cancellation, or obliteration are
established according to the Rules of
Court.

MODES OF REVOKING A WILL UNDER
PHILIPPINE LAW
1. BY OPERATION OF LAW
May be total or partial
Examples of revocation by operation of law
a) Preterition Art854
b) Legal Separation Art63 par4 FC
c) Unworthiness to succeed Art1032
d) Transformation, alienation or loss of
the object devised or bequeathed
Art957
e) Judicial demand of a credit given as a
legacy - Art936

2. BY A SUBSEQUENT WILL OR CODICIL
Requisites for valid revocation by a
subsequent instrument
a) Subsequent instrument must
comply with formal requirements of
a will
b) Testator must possess
testamentary capacity
c) Subsequent instrument must either
contain an express revocatory

Page 20 of 109

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

3. BY PHYSICAL DESTRUCTION
Four ways to destroy
a) Burning
b) Tearing
c) Cancelling
d) Obliterating

Physical destruction may be done by the
testator personally or by another person
acting in his presence and by his express
direction.
Unauthorized if without express
direction of testator. But what if with
express direction but not in his
presence?
Arguable. May say that it is
authorized and therefore the
destroyed instrument is revoked
because of the intent and consent of
the testator to revoke and destroy,
and that the law does not provide
that without the testators presence,
destruction will become
unauthorized.
On the other hand, it may be argued
that the testators presence is
required because at any time during
the actual burning, destroying, etc.
he may put a stop to the destruction
if he changes his mind, and that is
precisely why his presence is
required?

Effect of unauthorized destruction Will
may still be proved as lost or destroyed
[Art830 NCC and Rule 76 RoC]
However, this is possible only if the
will is attested; if the will is
holographic, it cannot be probated if
lost, even if the loss or destruction
was unauthorized, unless a copy
survives.

Elements of a Valid Revocation by
Physical Destruction
a) CORPUS physical destruction
itself; there must be evidence of
physical destruction
b) ANIMUS
Capacity and intent to revoke
Testator must have
completed everything he
intended to do
Both corpus an animus must concur.

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

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

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

ART. 832. A revocation made in a subsequent
will shall take effect, even if the new will
should become inoperative by reason of
the incapacity of the heirs, devisees or
legatees designated therein, or by their
renunciation.

Efficacy of the revocatory clause does not depend on
the testamentary disposition of the revoking will,
UNLESS the testator so provides. Revocation is
generally speaking, an absolute provision,
independent of the acceptance or capacity of the
new heirs.

Page 21 of 109

An EXCEPTION is where the testator provides in the
subsequent will that the revocation of the prior one is
dependent on the Capacity or Acceptance of the
heirs, devisees or legatees instituted in the
subsequent will.
DEPENDENT RELATIVE REVOCATION

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

It must be remembered that dependent relative
revocation applies only if it appears that the testator
intended his at of revocation to be conditioned on the
making of a new will or on its validity or efficacy.

In Molo v. Molo, the Samson v. Naval doctrine was
cited, providing that A subsequent will, containing a
clause revoking a previous will, having been
disallowed, for the reason that it was not executed in
conformity with the provisions of the Code of Civil
procedure as to the making of wills, cannot produce
the effect of annulling the previous will, inasmuch as
said revocatory clause is void.

Question supposing the institution of heirs,
legatees or devisees in the subsequent will is subject
to a suspensive condition, is the revocation of the
prior will absolute or conditional?
Depends on the testators intent.
If the subsequent will contains a revocatory
clause which is absolute or unconditional, the
revocation will be absolute regardless of the
happening or non-happening of the suspensive
condition.
But if the testator states in the subsequent will
that the revocation of the prior will is subject to
the occurrence of the suspensive condition, or if
the will does not contain a revocatory clause, the
revocation will depend on whether the condition
happens or not.
If the suspensive condition does not
occur, the institution is deemed never
to have been made and the prior
institution will be given effect. [i.e. no
revocation of prior will]
This is in accord with the juridical
nature of suspensive conditions, and is
an instance of dependent relative
revocation.

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

ART. 833. A revocation of a will based on a
false cause or an illegal cause is null and
void.

Wills are revocable ad nutum or at the testators
pleasure. The testator does not need to have a
reason to revoke the will.

Page 22 of 109

However, precisely because the law respects the
testators true intent, this article sets aside a
revocation that does not reflect such intent.

REQUISITES FOR A FALSE / ILLEGAL CAUSE TO
RENDER REVOCATION VOID
1. CAUSE MUST BE CONCRETE, FACTUAL
AND NOT PURELY SUBJECTIVE
If a testator revoked on the stated ground
that the heir was Ilocano and all Ilocanos
are bad, it would just be prejudice and the
revocation is valid because it is based on a
subjective cause.

2. IT MUST BE FALSE
3. THE TESTATOR MUST NOT KNOW OF ITS
FALSITY
4. IT MUST APPEAR FROM THE WILL THAT
THE TESTATOR IS REVOKING BECAUSE OF
THE CAUSE WHICH IS FALSE.

If the revocation is by physical destruction, and the
revoked will is holographic, then though the
revocation be void, probate will not be possible,
UNLESS a copy of the holographic will survives.

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

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

The part of the will which recognizes an illegitimate
child is NOT revocable because recognition is an
irrevocable act. Therefore, even if the will is revoked,
the recognition remains effective.

Under the Family Code, admission of illegitimate
filiation in a will would constitute proof of illegitimate
filiation. According to Article 175 of the Family Code

Art175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children.
The action must be brought within the same period
specified in Art173, except when the action is based on the
second paragraph of Art172, in which case the action may be
brought during the lifetime of the alleged parent.

Basically, the principle laid down in Art834 remains
unaltered regarding these admissions contained in
wills.

Subsection 7 Republication and
Revival of Wills

ART. 835. The testator cannot republish,
without reproducing in a subsequent will,
the dispositions contained in a previous
one which is void as to its form.

ART. 836. The execution of a codicil referring to
a previous will has the effect of
republishing the will as modified by the
codicil.

If the testator wishes to republish a will that is void as
to form, the only way to republish it is to execute a
subsequent will and reproduce [copy out] the
dispositions of the original will. Mere reference to the
prior will in the subsequent will is not enough.

A will is void as to form if it does not comply with the
requirements of Arts804-818; 810-814; 818-819.

R RE E- -C CA AP P O OF F F FO OR RM MA AL L R RE EQ QU UI IR RE EM ME EN NT TS S
O OF F A A W WI IL LL L

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

Page 23 of 109

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

Why the difference on the rules between nullity as to
form and nullity based on other grounds? Prof.
Balane says because Art835 is from Argentine Law
whole Art836 is from California Law. Go figure.

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

Illustration
In 1985, X executed will 1
In 1987, X executed will 2 and expressly
revoked will 1
In 1990, X executed will 3, revoking will 2
- When will 3 revoked will 2, it did not revive will 1.

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

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

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

Subsection 8 Allowance and
Disallowance of Wills

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

Probate of a will is MANDATORY.

TWO KINDS OF PROBATE
1. POST MORTEM after the testators death

R RE E- -C CA AP P O OF F F FO OR RM MA AL L R RE EQ QU UI IR RE EM ME EN NT TS S
O OF F A A W WI IL LL L

k. Defects and imperfections in form of attestation and
language used shall not make the will invalid if
there is substantial compliance with requirements
of Art805.
l. Law to be followed
a. Filipino abroad
b. Alien abroad
c. Alien in the Philippines
m. Prohibition on joint wills, especially by Filipinos
even if executed in foreign country allowing joint
wills.
n. Witnesses must possess all the qualifications in
Art820 and none of the disqualifications in Art821.

2. HOLOGRAPHIC WILL
a. Must be entirely written
b. Executed in a language or dialect known to testator
c. Dated by the testator
d. Signed by the hand of the testator himself
e. Witnesses required
a) Knows the handwriting and signature of the
testator
b) Explicitly declares that the will and the
signature are in the handwriting of the testator
f. Dispositions below testators signature must also be
dated and signed.
g. When several additional dispositions are signed but
not dated, the last disposition must be signed and
dated to validate the dispositions preceding it.
h. Any insertion, cancellation, erasure or alteration must
be authenticated by the testators full signature,
otherwise it shall be deemed as not made.
i. Prohibition on joint wills, especially by Filipinos even if
executed in a foreign country where joint wills are
allowed.

Page 24 of 109

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

Rules on Probate for both post and ante mortem are
found in Rule 76 of the Rules of Court.

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

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

GENERAL RULE A decree of probate, therefore
does not concern itself with the question of
INTRINSIC validity and the probate court should not
pass upon that issue.

EXCEPTION - When the probate of a will might
become an idle ceremony if on its face it appears to
be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should
meet the issue.

On the authority of Nepomuceno v. Ca, a probate
court may pass upon the issue of intrinsic validity if
on the face of the will, its intrinsic nullity is patent.

ART. 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law
have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through force or
under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and
improper pressure and influence,
on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or
did not intent that the instrument he
signed should be his will at the time
of affixing his signature thereto.

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

GROUNDS FOR DISALLOWANCE OF A WILL
1. FORMALITIES
Those referred to in Articles 804-818, 818-
819 and 829-821

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

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


Page 25 of 109

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

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

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

SECTION 2 INSTITUTION OF HEIR

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

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

ART. 841. A will shall be valid even though it
should not contain an institution of an heir,
or such institution should not comprise the
entire estate, and even though the person
so instituted should not accept the
inheritance or should be incapacitated to
succeed.
In such cases the testamentary
dispositions made in accordance with law
shall be complied with and the remainder of
the estate shall pass to the legal heirs.

ART. 842. One who has no compulsory heirs
may dispose by will of all his estate or any
part of it in favor of any person having
capacity to succeed.
One who has compulsory heirs may
dispose of his estate provided he does not
contravene the provisions of this Code with
regard to the legitime of said heirs.

Even if the will does not contain any testamentary
disposition, it will be formally valid provided it
complies with all the formal requisites. This is in
keeping with the character of wills as dispositive of
property under Art783.

HOW MUCH CAN BE DISPOSED OF BY WILL?
1. No Compulsory Heirs Entire hereditary
estate
2. There are Compulsory Heirs the
disposable portion or the net hereditary
estate minus the legitimes.

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

If the testator disposes by will of LESS than he is
allowed to, there will be MIXED succession
Testamentary succession as to the part
disposed of by will, and
Intestate succession as to the part not disposed
of by the will.
The legitimes, of course, pass by strict operation
of law.

ART. 843. The testator shall designate the heir
by his name and surname, and when there
are two persons having the same names,
he shall indicate some circumstance by
which the instituted heir may be known.
Even though the testator may have
omitted the name of the heir, should he
designate him in such manner that there
can be no doubt as to who has been
instituted, the institution shall be valid.

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

REQUIREMENT FOR DESIGNATION OF HEIR
The heir, legatee or devisee must be identified
in the will with sufficient clarity to leave no
doubt as to the testators intention.

Page 26 of 109

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

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

If there is any AMBIGUITY in the designation, it
should be resolved in light of Art789 by the context
of the will and any extrinsic evidence available,
except the testators oral declarations.
If it is not possible to resolve the ambiguity, the
testators intent becomes indeterminable and
therefore intestacy as to that portion will result.

ART. 845. Every disposition in favor of an
unknown person shall be void, unless by
some even or circumstance his identity
becomes certain. However, a disposition in
favor of a definite class or group of
persons shall be valid.

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

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

GENERAL PRESUMPTION
Equality in cases of collective designation.
If the testator intends an unequal apportionment,
he should so specify.
The article applies only in testamentary succession,
and only among testamentary heirs or devisees or
legatees.
It will NOT APPLY to an heir who is both a
compulsory and a testamentary heir, for in that
case the heir will get his legitime and his
testamentary portion.
Not explicitly covered by this article is an instance
where the shares of some of the heirs are
designated and those of others are not.
Example I institute to of my estate A, B, C
and D, of which A will get 1/3 and B is to get .
The shares of C and D are unspecified. Are they
to divide equally the remaining portion of the
of the estate, after deducting As and Bs
portions [The remainder is 5/12 of ?]
YES, because the article talks about heirs
instituted without designation of shares. A and B
have been designated their shares, therefore
Art846 applied to C and D.

ART. 847. When the testator institutes some
heirs individually and others collectively as
when he says, I designate as my heirs A
and B, and the children of C, those
collectively designated shall be considered
as individually instituted, unless it clearly
appears that the intention of the testator
was otherwise.

Equality and Individuality of Designation
This article follows the basic rule of equality in the
previous article. In addition, it established the
PRESUMPTION that the heirs collectively referred
to are designated per capita along with those
separately designated.
If the testator intends a block designation, he should
so specify.

ART. 848. If the testator should institute his
brothers and sisters, and he has some of
full blood and others of half blood, the
inheritance shall be distributed equally
unless a different intention appears.

Once again, this article follows the general rule of
equality laid down in Art846.
Also, if the testator intends an unequal
apportionment, he should so specify.

DIFFERENT RULE IN INTESTACY
Art848 only applies to testamentary succession,
wherein siblings, regardless of whether full or
half blood, get equal shares except if a different
intention of the testator appears.
In INTESTACY, the rule is different. The
applicable provision is Art 1006 which
establishes a proportion of 2:1 between full
and half blood brothers and sisters, but without
prejudice to the rule prohibiting succession ab
intestato between legitimate and illegitimate
siblings. [Art992]

Art. 1006. Should brother and sisters of the full blood
survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that
of the latter.
Art. 992. An illegitimate child has no right to inherit
ab intestate from the legitimate children and relatives of
his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.

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

Page 27 of 109

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

Question Does Art848 apply even to illegitimate
brothers and sisters, in cases where the testator is of
legitimate status and vice versa? YES. Art848 does
not distinguish.

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

Article lays down the same rule as Arts. 846 and
847.
Equality and Individuality of institution are presumed.
If the testator desires a different mode of
apportionment, he should so specify.

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

GENERAL RULE the falsity of the stated cause for
the testamentary institution DOES NOT AFFECT the
validity or efficacy of the institution.
Reason testamentary disposition is ultimately
based on liberality.

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

ART. 851. If the testator has instituted only one
heir, and the institution is limited to an
aliquot part of the inheritance, legal
succession takes place with respect to the
remainder of the estate.
The same rule applies if the testator has
instituted several heirs, each being limited
to an aliquot part, and all the parts do not
cover the whole inheritance.

The wording of the article, according to Prof. Balane,
is erroneous because legal succession does not take
place with respect to the remainder of the estate but
to the remainder of the disposable portion.
There may after all be compulsory heirs whose
legitimes will therefore cover part of the estate, the
and the legitimes do not pass by legal or intestate
succession.

Suggested Rewording
Art. 851. If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the inheritance, less
than the entire disposable portion, legal succession takes place
with respect to the remainder of the estate.
The same rule applies if the testator has instituted several
heirs, each being limited to an aliquot part, and all the parts do
not cover the whole inheritance.

Moreover, this article states exactly the same rule
laid down in Art841. there is absolutely no need for
the redundancy.

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

ART. 853. If each of the instituted heirs has
been given an aliquot part of the
inheritance, and the parts together exceed
the whole inheritance, or the whole free
portion, as the case may be, each part shall
be reduced proportionally.

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

ART. 852 the total of all the portions is less than
the whole estate or the whole disposable portion.
Therefore, a proportionate increase is necessary.
The difference cannot pass by intestacy
because the testators intention is clear to give
the instituted heirs the entire amount.

ART. 853 the reverse occurs, the total exceeds the
whole estate or the whole disposable portion. Thus a
proportionate reduction must be made.

FORMULA FOR PROPORTIONATE INCREASE
OR DECREASE

P HEIRS SHARE = X .
P TOTAL DISPOSED P TOTAL ESTATE DISPOSABLE

Page 28 of 109

ART. 854. The preterition or omission of one,
some, or all of the compulsory heirs in the
direct line, whether living at the time of the
execution of the will or born after the death
of the testator, shall annul the institution of
heir; but the devises and legacies shall be
valid insofar as they are not inofficious.
If the omitted compulsory heirs should
die before the testator, the institution shall
be effectual, without prejudice to the right
of representation.

PRETERITION means omission, but from what?
The answer to that question is the basic problem in
preterition.

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

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

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

Based on these, the holding was that
there was NO PRETERITION.

The reason was there was no TOTAL
OMISSION, inasmuch as the heir
received something from the inheritance.
The heirs remedy is not found in Art854
but in Arts. 906 and 907 for Completion
of Legitime.

Art. 906. Any compulsory heir to whom the
testator has left by any title less than the legitime
belonging to him may demand that the same may
be fully satisfied.

Art. 907. Testamentary dispositions that impair
or diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, insofar
as they may be inofficious or excessive.

If the heir is given a legacy or devise, there is
no preterition.
Should the value of the legacy or devise
be less than the recipients legitime, his
remedy is only for completion of legitime
under Articles 906 and 907.

If the heir received a donation inter vivos from
the testator the better view is that there is no
preterition
Reason donation inter vivos is treated
as an advance on the legitime under
Articles 906, 909, 910 and 1062.

Art. 909. Donations given to children shall be
charged to their legitime.
Donations made to strangers shall be charged to
that part of the estate of which the testator could have
disposed by his last will.
Insofar as they may be inofficious or may exceed
the disposable portion, they shall be reduced according
to the rules established by this Code.

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

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

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

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

WHO ARE INCLUDED WITHIN THE TERMS OF
THE ARTICLE?
A compulsory heir in the direct line, whether
living at the time of the execution of the will or
born after the death of the testator.
1. COMPULSORY HEIRS IN THE DIRECT
LINE

Page 29 of 109

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

2. Are ILLEGITIMATE DESCENDANTS OR
ASCENDANTS within the coverage of
compulsory heirs in the direct line?
Manresa YES, Scaevola NO.
Manresas seems to be the better
opinion, since the law does not
distinguish.

3. QUASI-POSTHUMOUS CHILDREN
There is a flaw in the wording of the
article. The phrase whether living at
the time of the execution of the will or
born after the death of the testator
does not, by its terms, include those
compulsory heirs in the direct line born
after the execution of the will but before
the testators death [los cuasi
posthumous].
However, such children are, without
doubt, to be included within the purview
of the protection of this article.

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

5. ADOPTED CHILDREN
Case of Acain v. IAC answers the
question of whether an adopted child is
within the contemplation of this article
as compulsory heir in the direct line
and rules in favor of the adopted childs
inclusion in the phrase.
An adopted child therefore, if totally
omitted in the inheritance, is preterited
within the contemplation of Art854 and
can invoke its protection and
consequences.
Acains logic is that since an adopted
child is given by law the same rights as
a legitimate child, vis--vis the adopter,
then the adopted child can, in proper
cases, invoke Art854 in the same
manner that a legitimate child can.
The law cited was Art39 of PD603 or
the Child and Youth Welfare Code as
supplanted by Art189[1] of the Gamily
Code, likewise supplanted by Secs 17
and 18 of RA8552 or the Domestic
Adoption Act of 1998.

EFFECT OF PRETERITION
Annulment of the institution of an heir but validity
of legacies and devisees to the extent that these
latter do not impair legitimes.
Distinction between heirs and legatees/devisees
This in the only instance when there is still a
practical effect in the distinction between an heir
and a legatee or devisee in Art782.
According to the case of Nuguid v. Nuguid,
annulment of institution of heir means only the
legacies and devises will merit consideration if
expressly given in the will. Art854 does not
mean that the mere institution of a universal heir
in a will void because of preterition would
give the heir so instituted a share in the
inheritance. As to the heir, the will is inexistent.
In that case, the only provision in the will was
the institution of the petitioner a universal heir.
That institution, by itself, was held null and void.
Therefore, intestate succession ensued.

However, this was muddled in the case of
Solano v. CA wherein it was ruled that the
preterition of illegitimate children should annul
the institution of the heir only insofar as the
legitime of the omitted heirs is impaired.
Prof. Balane says this is not annulment but
reduction, and this would erase the distinction
between the effect of preterition on the institution
of the heir and its effect on legacies and
devises.

Fortunately, this was cleared up in Acain v. CA
wherein it was held that Preterition annuls the
institution of an heir and annulment throws open
to intestate succession the entire inheritance.
The only provisions which do not result in
intestacy are the legacies and devises made in
the will for they should stand valid and
respected, except insofar as the legitimes are
concerned.

RE-CAP the correct rule of preterition is that:

Page 30 of 109

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

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

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

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

HOW TO FILL UP COMPULSORY HEIRS
IMPAIRED LEGITIME?
From the portion of the estate left undisposed of
by will.
From the shares of the testamentary heirs,
legatees and devisees, proportionally.

Superfluity and Inaccuracy of Art855
Superfluity article, properly understood, does
not apply to preterition but to completion of
legitime, it is redundant, because the rules and
manner of completing impaired legitimes are laid
down with greater detail in Articles 906, 907,
909, 910 and 911.
Inaccuracy two inaccuracies
1. Coverage should extend not only to children
and descendants but to all compulsory
heirs. As subsequent articles [906, etc.]
mandate, any compulsory heir whose
legitime is impaired may demand that the
same be fully satisfied.
2. Proportionate reductions [after consuming
the undisposed portion] should be borne not
by the compulsory heirs as such but by the
testamentary heirs, including the devisees
and legatees.
To make the compulsory heirs qua
compulsory heirs bear the reduction
would mean reducing their own
legitimes a patent absurdity.
That would be solving one problem by
creating another.
As correctly stated by Art907, it is
testamentary dispositions that must be
reduced if they impair or diminish the
legitimes of compulsory heirs.

Senator Tolentino comments that article should
be rephrased as follows -
The share of the compulsory heir omitted in a will
must first be taken from the part of the estate not disposed
of by the will, if any; if that is not sufficient, so much as may
be necessary must be taken proportionally from the shares
of the other heirs given to them by will.

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

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

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


Page 31 of 109

Outline of Rules

Kind of
Heir
PRE-
DECEASE
INCA-
PACITY
RENUN-
CIATION
DISINHERI-
TANCE
TN R TN R TN R TN R
COMPUL-
SORY

VOLUNTARY
NA NA
LEGAL
NA NA

TN Transmits nothing
R - Representation

SECTION 3 SUBSTITUTION OF HEIRS

Art. 857. Substitution is the appointment of
another heir so that he may enter into the
inheritance in default of the heir originally
instituted.

The definition of substitution is incomplete because it
covers only simple substitution and excludes the
fideicommissary. In the fideicommissary, the 2
nd
heir
does not succeed in default, but AFTER the first.

The complete definition of substitution should be
Substitution is the appointment of another heir so
that he may enter into the inheritance in default of, or
subsequent to, the heir originally substituted.

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

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

Under the old Spanish Code, in addition to the 4
enumerated, there were pupilar and ejemplar
substitutions under Arts. 775 and 776, providing that
an ascendant or the parent may substitute the
descendant below 14 years old in case the
descendant should die before age 14; and that a
substitute may be designated by an ascendant for a
descendant who is over 14 but has been declared
incompetent by reason of mental incapacity, but such
substitution shall be ineffective by a will executed by
the incompetent during a lucid interval or after he ahs
recovered his mental faculties.

KINDS OF SUBSTITUTION UNDER ART858
1. Simple or Common [vulgar] Art859
2. Brief or Compendious [brevilocua /
compendiosa] Art860
3. Reciprocal [reciproca] Art861
4. Fideicommissary [fideicomisaria] Art863

In reality, there are only 2 kinds of substitutions the
simple or common and the fideicommissary. These
two are MUTUALLY EXCLUSIVE, a substitution
must be one or the other and cannot be both at the
same time.
Brief or compendious and reciprocal substitutions are
merely variations of either the simple or
fideicommissary.

ART. 859. The testator may designate one or
more persons to substitute the heir or heirs
instituted in case such heir or heirs should
die before him, or should not wish, or
should be incapacitated to accept the
inheritance.
A simple substitution, without a
statement of the cases to which it refers,
shall comprise the there mentioned in the
preceding paragraph, unless the testator
has otherwise provided.

This article provides for SIMPLE or VULGAR
substitution.

CAUSES OF SIMPLE SUBSTITUTION
1. Predecease of the first heir
2. Renunciation of the first heir
3. Incapacity of the first heir

HOW TESTATOR MAY PROVIDE FOR SIMPLE
SUBSTITUTION WITH ALL 3 CAUSES
1. By specifying all 3 causes
2. By merely providing for a simple substitution

Restricted Simple Substitution the testator may
limit the operation of simple substitution by specifying
only one or two of the 3 causes.

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

Page 32 of 109

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

ART. 860. Two or more persons may be
substituted for one; and one person for two
or more heirs.

Brief or Compendious substitution is a possible
variation of either a simple or fideicommissary
substitution.

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

If 1 is substituted for 2 or more original heirs
Effect of default of one but not all of the original
heirs is that substitution will NOT take place but
the share left vacant will accrue to the surviving
original co-heir or co-heirs.
Substitution will take place only if ALL the
original heirs are disqualified.
The exception is where the testator provides for
substitution in the event of the death or
renunciation or incapacity of any one of the
original heirs.

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

Reciprocal substitution is a possible variation of the
simple or fideicommissary substitution.
If the heirs in a will are given unequal shares, and
they are reciprocal substitutes of each other, the
substitute shall, in addition to his given share,
acquire the share of the heir who he is substituting
for due to predecease, renunciation or incapacity.
Example, A gets and B gets . They are
reciprocally substituted. If A predeceases the
testator, B will substitute and get the share of A
[] in addition to his share, so in total he gets .
The second sentence of Art861 provides for
Proportionate Accrual. If there are more than 1 heir
instituted, and they are reciprocally substituted, the
substitutes will acquire the share of the original heir
in the same proportion as they were given in the
Example, A gets , B gets 1/3 and C gets 1/6. If
a predeceases the testator, B and C will acquire
As share in the proportion of 2:1 because
their respective testamentary shares are and
1/6. Should B predecease, A and C will get his
portion in the proportion of 3:1 because their
respective shares are and 1/6. Should C
predecease, A and B will get Cs 1/6 portion in
the proportion of 3:2 for the same reason.

ART. 862. The substitute shall be subject to the
same charges and conditions imposed
upon the instituted heir, unless the testator
has expressly provided the contrary, or the
charges or conditions are personally
applicable only to the heir instituted.

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

ART. 863. A fideicommisary substitution by
virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to
preserve and to transmit to a second heir
the whole or part of the inheritance, shall
be valid and shall take effect, provided
such substitution does not go beyond one
degree from the heir originally instituted,
and provided further, that the fiduciary or
first heir and the second heir are living at
the time of the death of the testator.

First heir fiduciary ; Second heir fideicommissary

ELEMENTS OF FIDEICOMISARIA
1. A 1
st
heir who takes the property upon the
testators death
Fiduciary enters upon the inheritance,
like every other heir, upon the opening
of the succession, which is when the
testator dies.

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

Page 33 of 109

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

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

4. Dual obligation imposed upon the 1
st
heir to:
a) Preserve the property, and
b) To transmit it after the lapse of the
period to the fideicommissary heir.

This requisite is the essence of the
fideicomisaria. This makes the position
of the fiduciary basically that of a
usufructuary, with the right to use and
enjoy the property but WITHOUT JUS
DISPONENDI.
If there is no absolute obligation to
preserve and transmit, there is no
fideicommissary substitution.
The institution is not necessarily void, it
may be valid as some other disposition
but it is not a fideicomisaria.
In PCIB v. Escolin, the institution was
held to be a simultaneous institution, a
resolutory condition on the part of the
husband while subject to a suspensive
condition on the part of the brothers-
and sisters-in-law and not a
fideicomisaria because no obligation is
imposed upon the husband to preserve
the estate or any part thereof for
anyone else.
If the testator DID NOT specify a day
when the fiduciary will deliver the
property to the fideicomissary, or when
the time of delivery is in doubt, it shall
be understood to have been left to the
fiduciarys discretion, which means the
delivery should be upon the
FIDUCIARYS DEATH. This is based
on the presumption that the testator
intended the fiduciary to enjoy the
property during his lifetime.

5. Both heirs must be living and disqualified to
succeed at the time of the testators death.
Living according to Articles 40-41
Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided
it be born later with the conditions specified in the following
article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at
the time it is completely delivered from the mother's womb.
However, if the fetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb.
Qualified according to Articles
1024-1034.

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

Page 34 of 109

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

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

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

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

Legitime passes by strict operation of law, therefore
the testator has no power over it.

ART. 865. Every fideicommisary substitution
must be expressly made in order that it
may be valid.
The fiduciary shall be obliged to deliver
the inheritance to the second heir, without
other deductions than those which arise
from legitimate expenses, credits and
improvements, save in the case where the
testator has provided otherwise.

FIDEICOMISARIA SHOULD BE EXPRESSLY
IMPOSED.
2 ways of making an express imposition
1. By the use of the term fideicommissary or
2. By imposing upon the first heir the absolute
obligation to preserve and to transmit to the
second heir.

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

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

ART. 866. The second heir shall acquire a right
to the succession from the time of the
testators death, even though he should die
before the fiduciary. The right of the
second heir shall pass to his heirs.

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

ART. 867. The following shall not take effect:

Page 35 of 109

(1) Fideicommissary substitutions
which are not made in an express
manner, either by giving them this
name, or imposing upon the
fiduciary the absolute obligation to
deliver the property to a second
heir;
(2) Provisions which contain a
perpetual prohibition to alienate,
and even a temporary one, beyond
the limit fixed in article 863.
(3) Those which impose upon the heir
the charge of paying to various
persons successively, beyond the
limit prescribed in article 863, a
certain income or pension;
(4) Those which leave to a person the
whole part of the hereditary
property in order that he may apply
or invest the same according to
secret instructions communicated
to him by the testator.

Provisions that shall NOT TAKE EFFECT
1. Fideicommissary substitutions which are not
made in an express manner
Lack of this element does not, by that
fact alone, nullify the institution. It only
means that the institution is not a
fideicomisaria.

2. Perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in article
863.
If there is a fideicomisaria, the limit is
the first heirs lifetime.
If there is no fideicomisaria, the limit is
20 years.

3. Imposes upon the heir the charge of paying a
certain income or pension to various persons
successively, beyond the limit prescribed in
article 863
There can only be 2 beneficiaries of the
pension, one after the other, and the
second must be one degree from the
first. But there is no prohibition on
simultaneous beneficiaries.

4. Leave to a person the whole part of the
hereditary property in order that he may apply
or invest the same according to secret
instructions communicated to him by the
testator.
The ostensible heir here is in reality
only a dummy, because in reality, the
person intended to be benefited is the
one to whom the secret instructions
refer. The purpose of such a
surreptitious disposition is to
circumvent some prohibition or
disqualification
This paragraph makes the ENTIRE
PROVISION VOID. The problem is the
difficulty of establishing the fact of
circumvention. Supposing the
ostensible heir conceals or destroys the
secret instructions and claims as heir
under the testamentary provision as
worded?

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

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

ART. 869. A provision whereby the testator
leaves to a person the whole or part of the
inheritance, and to another the usufruct,
shall be valid. If he fives the usufruct to
various persons, not simultaneously, but
successively, the provisions of Article 863
shall apply.

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

ART. 870. The dispositions of the testator
declaring all or part of the estate
inalienable for more than twenty years are
void.

If the testator imposes a longer period than 20 years,
the prohibition is valid only for 20 years.
If there is a fideicommissary substitution, this time
limitation will not apply. Rather, Art863 applies, which
allows as a period, the lifetime of the first heir.


Page 36 of 109

SECTION 4 CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY
DISPOSITIONS WITH A TERM

GENERAL PROVISIONS

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

3 KINDS OF TESTAMENTARY DISPOSITIONS
1. Conditional dispositions
2. Dispositions with a term
3. Dispositions with a mode [modal
dispositions]

Inaccuracies in Section heading and wording of this
article
Incomplete Section Heading should include4
modal dispositions
Incomplete wording of Article does not include
dispositions with a term

Definitions
CONDITION defined obliquely in Art1179
par1.
Art. 1179. Every obligation whose performance does not
depend upon a future or uncertain event, or upon a past
event unknown to the parties, is demandable at once.
Every obligation which contains a resolutory
condition shall also be demandable, without prejudice
to the effects of the happening of the event.

TERM defined obliquely in Art1173 pars 1 & 3
Art. 1193. Obligations for whose fulfillment a day certain
has been fixed, shall be demandable only when that
day comes.
Obligations with a resolutory period take effect at
once, but terminate upon arrival of the day certain.
A day certain is understood to be that which must
necessarily come, although it may not be known when.
If the uncertainty consists in whether the day will
come or not, the obligation is conditional, and it shall be
regulated by the rules of the preceding Section.

MODE defined obliquely in Art882.
Art. 882. The statement of the object of the institution, or
the application of the property left by the testator, or the
charge imposed by him, shall not be considered as a
condition unless it appears that such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of the
testator and for the return of anything he or they may
receive, together with its fruits and interests, if he or
they should disregard this obligation.

Proper Order of Provisions in this Section
1. General provisions Arts 871 and 872
2. Conditions Arts 873, 874, 875, 876, 877,
883 par. 2, 879, 880, 881 and 884
3. Terms Arts 878 and 885
4. Modes Arts 882 and 883 par.1

GENERAL PROVISIONS
Art871 The right of the testator to impose
conditions, terms or modes springs from
testamentary freedom. If he has the right to dispose
of his estate mortis causa, then he has the right to
make the disposition subject to a condition, term or
mode.
K KI IN ND DS S O OF F S SU UB BS ST TI IT TU UT TI IO ON NS S

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

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

3. RECIPROCAL
If the heirs in a will are given unequal shares,
and they are reciprocal substitutes of each
other, the substitute shall, in addition to his
given share, acquire the share of the heir who
he is substituting for due to predecease,
renunciation or incapacity.
The second sentence of Art861 provides for
Proportionate Accrual. If there are more than
1 heir instituted, and they are reciprocally
substituted, the substitutes will acquire the
share of the original heir in the same
proportion as they were given in the

4. FIDEICOMMISSARY
Elements of a Fideicommissary
1) A 1
st
heir who takes the property upon
the testators death
2) A 2
nd
heir who takes the property
subsequently from the fiduciary
3) The 2
nd
heir must be 1 degree from the
first heir
4) Dual obligation imposed upon the 1
st

heir to:
a. Preserve the property, and
b. To transmit it after the lapse of the
period to the fideicommissary heir.
5) Both heirs must be living and
disqualified to succeed at the time of
the testators death.
Fideicommissary substitution should be
expressly provided for in the will

Page 37 of 109

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

The legitime passes by strict operation of law,
independent of the testators will. This article is a
logical consequence of that principle.
This article is echoed by Art904 par2.

DISPOSITION WITH CONDITIONS
MAY BE BOTH RESOLUTORY
OR SUSPENSIVE.

ART. 873. Impossible conditions and those
contrary to law or good customs shall be
considered as not imposed and shall in no
manner prejudice the heir, even if the
testator should otherwise provide.

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

The rule on Donations is the same. considered as
not imposed
Art. 727. Illegal or impossible conditions in
simple and remuneratory donations shall be
considered as not imposed.

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

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

ART. 874. An absolute condition not to contract
a first or subsequent marriage shall be
considered as not written unless such
condition has been imposed on the widow
or widower by the deceased spouse or by
the latters ascendants or descendants.
Nevertheless, the right of usufruct, or
an allowance or some personal prestation
may be devised or bequeathed to any
person for the time during which he or she
should remain unmarried or in widowhood.

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

The 2
nd
paragraph of the article may provide the
testator, if he so desires, a means of terminating the
testamentary benefaction should the heir contract
marriage, even a first one. The wording of the
disposition will be crucial, it should not be so worded
as to constitute a prohibition forbidden in the first
paragraph.

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

Condition to contract marriage This article does not
prohibit the imposition of a condition to marry, either
with reference to a particular person or not.

Neither does this article declare void a relative
prohibition.

ART. 875. Any disposition made upon the
condition that the heir shall make some
provision in favor of the latter of the
testator or of any other person shall be
void.

Scriptura Captatoria Legacy-hunting dispositions,
whether to heirs or legatees, are void.

Reasons for the Prohibition
1. The captatoria converts testamentary grants
into contractual transactions
2. It deprives the heir of testamentary freedom
3. It gives the testator the power to dispose
mortis causa not only of his property but
also of his heirs.

What is declared void it is not merely the condition
that is declared void but the testamentary disposition
itself which contains the condition.


Page 38 of 109

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

ART. 877. If the condition is casual or mixed, it
shall be sufficient if it happen or be fulfilled
at any time before or after the death of the
testator, unless he has provided otherwise.
Should it have existed or should it have
been fulfilled at the time the will was
executed and the testator was unaware
thereof, it shall be deemed as complied
with.
If he had knowledge thereof, the
condition shall be considered fulfilled only
when it is of such a nature that it can no
longer exist or be complied with again.

ART. 883, par. 2. If the person interested in the
condition should prevent its fulfillment,
without the fault of the heir, the condition
shall be deemed to have been complied
with.

ART. 879. If the potestative condition imposed
upon the heir is negative or consists in not
doing or not giving something, he shall
comply by giving a security that he will not
do or give that which has been prohibited
by the testator, and that in case of
contravention he will return whatever he
may have received, together with its fruits
and interests.

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

RULES ON POTESTATIVE, CASUAL AND MIXED
CONDITIONS
A. POTESTATIVE
Positive to do something
a) GR must be fulfilled as soon as the
heir learns of the testators death
b) E if the condition was already
complied with at the time the heir
learns of the testators death, and the
condition is of such a nature that it
cannot be fulfilled again.
c) Constructive compliance Art883
par2 condition is deemed fulfilled.

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

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

ART. 880. If the heir be instituted under a
suspensive condition or term the estate
shall be placed under administration until
the condition is fulfilled, or until it becomes
certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does
not give the security required in the
preceding article.

ART. 881. The appointment of the administrator
of the estate mentioned in the preceding
article, as well as the manner of

Page 39 of 109

administration and the rights and
obligations of the administrator shall be
governed by the Rules of Court.

Between the time of the testators death and the time
of the fulfillment of the suspensive condition or of the
certainty of its non-occurrence property is to be
placed under administration.
1. If condition happens the property will be
turned over to the instituted heir
2. If it becomes certain that condition will not
happen property will be turned over to a
secondary heir [if there is one] or to the
intestate heirs, as the case may be.

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

2
nd
paragraph the property shall be in the
executors or administrators custody until the heir
furnishes the caucion muciana.

Procedural rules governing appointment of
administrator Rules 77-90 RoC.

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

Suppletorily governing conditional institutions are
Articles 1179 and 1192 on conditional obligations.

Art. 1179. Every obligation whose performance does not depend upon
a future or uncertain event, or upon a past event unknown to the
parties, is demandable at once.
Every obligation which contains a resolutory condition shall also
be demandable, without prejudice to the effects of the happening of
the event.
Art. 1180. When the debtor binds himself to pay when his means permit
him to do so, the obligation shall be deemed to be one with a period,
subject to the provisions of Article 1197.
Art. 1181. In conditional obligations, the acquisition of rights, as well as
the extinguishment or loss of those already acquired, shall depend
upon the happening of the event which constitutes the condition.
Art. 1182. When the fulfillment of the condition depends upon the sole
will of the debtor, the conditional obligation shall be void. If it
depends upon chance or upon the will of a third person, the
obligation shall take effect in conformity with the provisions of this
Code.

Art. 1183. Impossible conditions, those contrary to good customs or
public policy and those prohibited by law shall annul the obligation
which depends upon them. If the obligation is divisible, that part
thereof which is not affected by the impossible or unlawful condition
shall be valid.
The condition not to do an impossible thing shall be considered
as not having been agreed upon.
Art. 1184. The condition that some event happen at a determinate time
shall extinguish the obligation as soon as the time expires or if it has
become indubitable that the event will not take place.
Art. 1185. The condition that some event will not happen at a
determinate time shall render the obligation effective from the
moment the time indicated has elapsed, or if it has become evident
that the event cannot occur.
If no time has been fixed, the condition shall be deemed fulfilled
at such time as may have probably been contemplated, bearing in
mind the nature of the obligation.
Art. 1186. The condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment.
Art. 1187. The effects of a conditional obligation to give, once the
condition has been fulfilled, shall retroact to the day of the
constitution of the obligation. Nevertheless, when the obligation
imposes reciprocal prestations upon the parties, the fruits and
interests during the pendency of the condition shall be deemed to
have been mutually compensated. If the obligation is unilateral, the
debtor shall appropriate the fruits and interests received, unless from
the nature and circumstances of the obligation it should be inferred
that the intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall determine, in
each case, the retroactive effect of the condition that has been
complied with.
Art. 1188. The creditor may, before the fulfillment of the condition, bring
the appropriate actions for the preservation of his right.
The debtor may recover what during the same time he has paid
by mistake in case of a suspensive condition.
Art. 1189. When the conditions have been imposed with the intention of
suspending the efficacy of an obligation to give, the following rules
shall be observed in case of the improvement, loss or deterioration
of the thing during the pendency of the condition:
(1) If the thing is lost without the fault of the debtor, the obligation
shall be extinguished;
(2) If the thing is lost through the fault of the debtor, he shall be
obliged to pay damages; it is understood that the thing is lost
when it perishes, or goes out of commerce, or disappears in
such a way that its existence is unknown or it cannot be
recovered;
(3) When the thing deteriorates without the fault of the debtor, the
impairment is to be borne by the creditor;
(4) If it deteriorates through the fault of the debtor, the creditor
may choose between the rescission of the obligation and its
fulfillment, with indemnity for damages in either case;
(5) If the thing is improved by its nature, or by time, the
improvement shall inure to the benefit of the creditor;
(6) If it is improved at the expense of the debtor, he shall have no
other right than that granted to the usufructuary. (1122)
Art. 1190. When the conditions have for their purpose the
extinguishment of an obligation to give, the parties, upon the
fulfillment of said conditions, shall return to each other what they
have received.
In case of the loss, deterioration or improvement of the thing, the
provisions which, with respect to the debtor, are laid down in the
preceding article shall be applied to the party who is bound to return.
As for the obligations to do and not to do, the provisions of the
second paragraph of Article 1187 shall be observed as regards the
effect of the extinguishment of the obligation.
Art. 1191. The power to rescind obligations is implied in reciprocal
ones, in case one of the obligors should not comply with what is
incumbent upon him.
The injured party may choose between the fulfillment and the
rescission of the obligation, with the payment of damages in either
case. He may also seek rescission, even after he has chosen
fulfillment, if the latter should become impossible.
The court shall decree the rescission claimed, unless there be
just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third
persons who have acquired the thing, in accordance with Articles
1385 and 1388 and the Mortgage Law.

Page 40 of 109

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

DISPOSITION WITH TERMS

ART. 878. A disposition with a suspensive term
does not prevent the instituted heir from
acquiring his rights and transmitting them
to his heirs even before the arrival of the
term.

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

ART. 885. The designation of the day or the
time when the effects of the institution of
an heir shall commence or cease shall be
valid.
In both cases, the legal heir shall be
considered as called to the succession
until the arrival of the period or its
expiration. But in the first case he shall not
enter into possession of the property until
after having given sufficient security, with
the intervention of the instituted heir.

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

DISPOSITION WITH MODES

ART. 882. The statement of the object of the
institution, or the application of the
property left by the testator, or the charge
imposed by him, shall not be considered as
a condition unless it appears that such was
his intention.
That which has been left in this manner
may be claimed at once provided that the
instituted heir or his heirs give security for
compliance with the wishes of the testator
and for the return of anything he or they
may receive, together with its fruits and
interests, if he or they should disregard this
obligation.

The 1
st
paragraph defines a mode obliquely. A mode
is an obligation imposed upon the heir, without
suspending the effectivity of the institution [which a
condition does].
A mode must be clearly imposed as an
obligation in order to be considered as one.
Mere preferences or wishes expressed by the
testator are not modes.
A mode functions similarly to a resolutory
condition. In fact, modes could very well have
been absorbed by the concept of resolutory
conditions.

Caucion Muciana should be posted by the
instituted heir [3
rd
instance of caucion muciana]

ART. 883 par1. When without the fault of the
heir, an institution referred to in the
preceding article cannot take effect in the
exact manner stated by the testator, it shall
be complied with in a manner most
analogous to and in conformity with his
wishes.
The intention of the testator should always be the
guiding norm in determining the sufficiency of the
analogous performance.

SECTION 5 LEGITIME

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

Nature of Legitimes the legitimes are set aside by
mandate of law. Thus, the testator is required to set
aside or reserve them. Otherwise stated, the testator

Page 41 of 109

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

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

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

ART. 886. Legitime is that part of the testator's
property which he cannot dispose of
because the law has reserved it for certain
heirs who are, therefore, called compulsory
heirs.

This article gives the statutory definition of legitime.

ART. 887. The following are compulsory heirs:
1) Legitimate children and descendants,
with respect to their legitimate
parents and ascendants;
2) In default of the foregoing, legitimate
parents and ascendants, with respect
to their legitimate children and
descendants;
3) The widow or widower;
4) Acknowledged natural children, and
natural children by legal fiction;
5) Other illegitimate children referred to in
Article 287.
Compulsory heirs mentioned in Nos. 3,
4, and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate
children of the three classes mentioned,
shall inherit from them in the manner and
to the extent established by this Code.

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

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

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

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

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

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

Page 42 of 109

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

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

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

Variations in the Legitimary Portions
The legitimary system of the Philippine Code
rests on a double foundation EXCLUSION and
CONCURRENCE.

GENERAL RULE there is a basic amount of that
is given to one heir or one group of heirs. This
General Rule admits only of 3 EXCEPTIONS:
1. Art894 surviving spouse and illegitimate
children
2. Art900 par2 surviving spouse in a
marriage in articulo mortis, with the
conditions specified in that article
3. Art903 surviving spouse and illegitimate
parents.

The term legitimate child or legitimate children
includes a legally adopted child under Sec18 of
RA8552 or the Domestic Adoption Act of 1998.

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

The term legitimate child or legitimate children
shall, in proper cases, include legitimate
descendants other than children.

The term legitimate parents includes, in proper
cases, legitimate ascendants other than parents.

DIFFERENT COMBINATIONS OF COMPULSORY HEIRS

CODE COMBINATION SHARE CODAL PROVISION NOTES
LC Legitimate
Children Alone
of estate divided
equally [Art888]
Art. 888. The legitime of legitimate children
and descendants consists of one-half of the
hereditary estate of the father and of the
mother.
The latter may freely dispose of the
remaining half, subject to the rights of
illegitimate children and of the surviving
spouse as hereinafter provided.
Adopted Child has the same rights as LC
If there is more than 1 legitimate child, the
of the estate shall be divided equally among
them.
If there are legitimate children and
grandchildren, the nearer descendants
exclude the farther, so as long as there are
legitimate children, the grandchildren cannot

Page 43 of 109

inherit.
If legitimate children PREDECEASE the
testator or are INCAPACITATED to inherit,
the grandchildren get their respective parents
[the legitimate children] shares by virtue of
REPRESENTATION.
But if ALL the legitimate children
RENOUNCE, the grandchildren inherit in their
own right and the estate is divided equally
among them.
But if only a few of the legitimate children
RENOUNCE or not all renounce, the share of
those who renounce accrue to the other
legitimate children.
1LCSS One Legitimate
Child and
Surviving
Spouse
of the estate to the
legitimate child
of the estate to the
surviving spouse
[taken from the free
disposable portion of
the estate]
[Art892 par1]
Art. 892. If only one legitimate child or
descendant of the deceased survives, the
widow or widower shall be entitled to one-
fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may
inherit if it was the deceased who had given
cause for the same.
If there are two or more legitimate children
or descendants, the surviving spouse shall
be entitled to a portion equal to the legitime
of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving
spouse shall be taken from the portion that
can be freely disposed of by the testator.

LCSS Legitimate
Children and
Surviving
Spouse
of estate to
legitimate children
Share equal to that of
1 child for the
surviving spouse
[taken from the free
disposable portion of
the estate]
[Art892par2]
Art. 892. If only one legitimate child or
cause for the same.
If there are two or more legitimate children
or descendants, the surviving spouse shall
be entitled to a portion equal to the legitime
of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving
spouse shall be taken from the portion that
can be freely disposed of by the testator.

LEGAL SEPARATION between the testator
and the surviving spouse
If there is a final decree of legal separation
1. surviving spouse is the innocent party
he/she gets her legitime [Art63 par4
FC]
2. surviving spouse is the offending
spouse he/she is disqualified from
inheriting [Art63 par4 FC]
If after the final decree of legal separation
there was a reconciliation between the
parties, the reciprocal right to succeed is
restored because reconciliation sets aside the
decree [Art66 par2 FC]
LCIC Legitimate
Children and
Illegitimate
Children
of estate to the
legitimate children
of the share of 1
legitimate child to the
illegitimate children
[Art176 FC]

Illegitimate child only gets half the share of a
legitimate child. In case total of the shares of
all illegitimate children exceed the amount of
the estate, their shares shall be reduced
equally. The shares of the legitimate children
cannot be reduced.

1LCICSS One legitimate
child, illegitimate
children and
surviving
spouse
of estate to
legitimate children
Each illegitimate
child will get of the
share of a legitimate
child
of estate to the
surviving spouse,
whose share is
preferred over those
Art. 895. The legitime of each of the
acknowledged natural children and each of
the natural children by legal fiction shall
consist of one-half of the legitime of each of
the legitimate children or descendants.
The legitime of an illegitimate child who is
neither an acknowledged natural, nor a
natural child by legal fiction, shall be equal in
every case to four-fifths of the legitime of an
acknowledged natural child.
In case total of the shares of all illegitimate
children exceed the amount of the estate,
their shares shall be reduced equally. The
shares of the legitimate children and the
surviving spouse cannot be reduced.

Page 44 of 109

of the illegitimate
children, which shall
be reduced if
necessary [Art895]
The legitime of the illegitimate children shall
be taken from the portion of the estate at the
free disposal of the testator, provided that in
no case shall the total legitime of such
illegitimate children exceed that free portion,
and that the legitime of the surviving spouse
must first be fully satisfied.

LCICSS Legitimate
children,
illegitimate
children and
surviving
spouse
of estate to
legitimate children
Each illegitimate
child will get of the
share of one
legitimate child
A share equal to that
of 1 legitimate child
for the surviving
spouse, whose share
is preferred over
those of the
which shall be
reduced if necessary.
[Art895]
Art. 895. The legitime of each of the
consist of one-half of the legitime of each of
the legitimate children or descendants.
The legitime of an illegitimate child who is
neither an acknowledged natural, nor a
natural child by legal fiction, shall be equal in
every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children shall
be taken from the portion of the estate at the
free disposal of the testator, provided that in
no case shall the total legitime of such
illegitimate children exceed that free portion,
and that the legitime of the surviving spouse
must first be fully satisfied.

In case total of the shares of all illegitimate
children exceed the amount of the estate,
their shares shall be reduced equally. The
shares of the legitimate children and the
surviving spouse cannot be reduced.
LP Legitimate
parents alone
of estate [Art889] Art. 889. The legitime of legitimate parents or
ascendants consists of one-half of the
hereditary estates of their children and
descendants.
The children or descendants may freely
dispose of the other half, subject to the rights
of illegitimate children and of the surviving

There is NO RIGHT OF REPRESENTATION
in the Ascending Line.
If the one of the legitimate parents
PREDECEASE or is INCAPACITATED to
inherit, his/her share accrues to the other
parent [tama ba?]
LPIC Legitimate
parents and
illegitimate
children
of estate to
legitimate parents
of estate to
Art. 896. Illegitimate children who may survive
with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the
hereditary estate to be taken from the portion
at the free disposal of the testator.

For the illegitimate children or descendants,
the sharing shall depend on whether death
occurred before or during the effectivity of the
Family Code.
LPSS Legitimate
parents and
surviving
spouse
of estate to
legitimate parents
of estate to
surviving spouse
Art. 893. If the testator leaves no legitimate
descendants, but leaves legitimate
ascendants, the surviving spouse shall have
a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free
portion of the estate.


Page 45 of 109

LPICSS Legitimate
parents
illegitimate
children and
surviving
spouse
of estate to the
legitimate parents
of estate to the
illegitimate
children
1/8 of estate to the
surviving spouse
Art. 899. When the widow or widower survives
with legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall
be entitled to one-eighth of the hereditary estate
of the deceased which must be taken from the
free portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The
testator may freely dispose of the remaining one-
eighth of the estate.
Family Code.
SS Surviving
spouse alone
of the estate
or 1/3 if the
marriage,
being in
articulo mortis,
falls under
Art900 par 2
[Art900par1]
Art. 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-half
of the hereditary estate of the deceased spouse,
and the testator may freely dispose of the other
half.
If the marriage between the surviving spouse
and the testator was solemnized in articulo
mortis, and the testator died within three months
from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-
third of the hereditary estate, except when they
have been living as husband and wife for more
than five years. In the latter case, the legitime of
the surviving spouse shall be that specified in
the preceding paragraph.

SSIC Surviving
spouse and
illegitimate
children
1/3 of estate to
surviving
spouse
1/3 of estate to
illegitimate
children
Art. 894. If the testator leaves illegitimate
children, the surviving spouse shall be entitled to
one-third of the hereditary estate of the
deceased and the illegitimate children to another
third. The remaining third shall be at the free
disposal of the testator.
Family Code.
SSIP Surviving
spouse and
illegitimate
parents
of estate to
surviving
spouse
of estate to
illegitimate
parents
[Art903]
Art. 903. The legitime of the parents who have
an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving
spouse, nor illegitimate children, is one-half of
the hereditary estate of such illegitimate child. If
only legitimate or illegitimate children are left, the
parents are not entitled to any legitime
whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the
hereditary estate of the child, and that of the
surviving spouse also one-fourth of the estate.

IC Illegitimate
children alone
of estate
[Art901]
Art. 901. When the testator dies leaving
illegitimate children and no other compulsory
heirs, such illegitimate children shall have a right
to one-half of the hereditary estate of the
deceased.
The other half shall be at the free disposal of the
testator.
Family Code.
IP Illegitimate
parents alone
of estate
[Art903]
Art. 903. The legitime of the parents who have
an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving
spouse, nor illegitimate children, is one-half of
the hereditary estate of such illegitimate child. If
only legitimate or illegitimate children are left, the
parents are not entitled to any legitime
whatsoever. If only the widow or widower
survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the
hereditary estate of the child, and that of the
surviving spouse also one-fourth of the estate.


Page 46 of 109

ARTICLES GOVERNING THE
PARTICULAR COMBINATIONS

ART. 888. The legitime of legitimate children
and descendants consists of one-half of
the hereditary estate of the father and of
the mother.
The latter may freely dispose of the
remaining half, subject to the rights of
illegitimate children and of the surviving

Equal sharing the legitimate children share the in
equal parts, regardless of age, sec or marriage of
origin. The provision should have been explicit about
this. The counterpart provision in intestacy [Art979
par1 and Art980] is quite explicit on this.

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

The only qualification to the rule that the nearer
exclude the more remote in the descending line is
representation when proper [Arts970-977]

There is no limit to the number of degrees in the
descending line that may be called to succeed,
whether in their own right or by representation.

ART. 889. The legitime of legitimate parents or
ascendants consists of one-half of the
hereditary estates of their children and
descendants.
The children or descendants may freely
dispose of the other half, subject to the
rights of illegitimate children and of the
surviving spouse as hereinafter provided.

ART. 890. The legitime reserved for the
legitimate parents shall be divided between
them equally; if one of the parents should
have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor
mother, but is survived by ascendants of
equal degree of the paternal and maternal
lines, the legitime shall be divided equally
between both lines. If the ascendants
should be of different degrees, it shall
pertain entirely to the ones nearest in
degree of either line.

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

3 BASIC RULES ON SUCCESSION IN THE
ASCENDING LINE
1. The nearer exclude the more remote.
This rule in the ascending line admits of
no qualification, since there is no
representation in the ascending line.
[Art972 par1]

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

3. Equal division within the line.
After the portion corresponding to the
line has been assigned, there will be
equal apportionment between or
among the recipients within the line,
should there be more than one.

Note also, there is no right of representation in the
ascending line.

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

ART. 892. If only one legitimate child or
cause for the same.
If there are two or more legitimate
children or descendants, the surviving
spouse shall be entitled to a portion equal
to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the

Page 47 of 109

surviving spouse shall be taken from the
portion that can be freely disposed of by
the testator.

1 LEGITIMATE CHILD / SURVIVING SPOUSE the
sharing is for the legitimate child and for the
surviving spouse.

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

DEATH PENDENTE LITE if either spouse dies
during the pendency of the proceedings for legal
separation, the proceedings are TERMINATED and
the surviving spouse inherits from the deceased
spouse, no matter which spouse died.

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

PROBLEM A and B are married. A disappears
and is absent for the required period. B then
contracts a second marriage with C, both in
good faith. Out of nowhere, A reappears
[surprise!], and so the marriage between B and
C is terminated. Under Art43[5] the reciprocal
right of succession between A and B as the
original spouses remains. What if B dies? Can A
and C inherit from him/her?

The same problem arises in cases of marriages
judicially annulled or declared void ab initio,
because of the provisions of Art50 par1 of the
Family Code The effects provided for by
paragraphs 2,3,4 and 5 of article 43 and by
article 44 shall also apply in the proper cases to
marriages which are void ab initio or annulled by
final judgment under Articles 40 and 45.

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

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

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

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

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

Page 48 of 109

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

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

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

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

This article has been pro tanto amended by Articles
163, 165 and 176 of the Family Code.

ONE LEGITIMATE CHILD / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE the sharing is
for the illegitimate child, for the surviving
spouse, and for each illegitimate child. These
sharings are based on Art.892 of NCC and Art176 of
FC.

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

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

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

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

ILLEGITIMATE CHILDREN / LEGITIMATE
PARENTS the sharing is for the legitimate
parents collectively and for the illegitimate children
collectively.

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

Page 49 of 109

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

ART. 897. When the widow or widower survives
with legitimate children or descendants,
and acknowledged natural children, or
natural children by legal fiction, such
surviving spouse shall be entitled to a
portion equal to the legitime of each of the
legitimate children which must be taken
from that part of the estate which the
testator can freely dispose of.

ART. 898. If the widow or widower survives
with legitimate children or descendants,
and with illegitimate children other than
acknowledged natural, or natural children
by legal fiction, the share of the surviving
spouse shall be the same as that provided
in the preceding article.

The 2 articles are merely reiterations of the rules
already laid down in Articles 892 and 895 and need
not be explained.

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

LEGITIMATE PARENTS / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE

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

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

ART. 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-
half of the hereditary estate of the
deceased spouse, and the testator may
freely dispose of the other half.
If the marriage between the surviving
spouse and the testator was solemnized in
articulo mortis, and the testator died within
three months from the time of the marriage,
the legitime of the surviving spouse as the
sole heir shall be one-third of the hereditary
estate, except when they have been living
as husband and wife for more than five
years. In the latter case, the legitime of the
surviving spouse shall be that specified in
the preceding paragraph.

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

NOTE the last requisite is not explicit in the article
but can be derived from the sense and intent of the
provision. The law does not regard such marriages
with eager approval.

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

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

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

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


Page 50 of 109

Rule of Article 902 compared with Rule of Article 992
In the case of descendants of legitimate children,
the right of representation is given only to legitimate
descendants, by virtue of Art992.

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

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

ILLEGITIMATE PARENTS ALONE they get of
the estate. Note that in the illegitimate ascending
line, the right DOES NOT go beyond the parents.

ILLEGITIMATE PARENTS / SURVIVING SPOUSE
the sharing is for the parents collectively and
for the spouse.

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

Art. 891. The ascendant who inherits from his
descendant any property which the latter
may have acquired by gratuitous title from
another ascendant, or a brother or sister, is
obliged to reserve such property as he may
have acquired by operation of law for the
benefit of relatives who are within the third
degree and who belong to the line from
which said property came.

The Reserva Troncal

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

Reservas and Reversiones in the Spanish Code
1. Reserva Viudal
2. Reserva Troncal
3. Reversion Legal
4. Reversion Adoptiva

Purpose of the Reserva Troncal
The reserve troncal is a special rule designed
primarily to assure the return of the reservable
property to the 3
rd
degree relatives belonging to
the line from which the property originally came,
and to avoid its being dissipated by the relatives
of the inheriting ascendant [the reservista].
Also to avoid the danger that property existing for
many years in a familys patrimony might pass
gratuitously to outsiders through the accident of
marriage and untimely death.

PROCESS 3 Transmissions Involved
1. First Transfer by gratuitous title, from a
person to his descendant, brother or sister.
2. Second Transfer by operation of law, from the
transferee in the first transfer [prepositus] to
another ascendant [reservista]. It is this second
transfer that creates the reserva.
3. Third Transfer from the transferee in the
second transfer [reservista] to the relatives
within the 3
rd
degree of the Prepositus, coming
from the line of the Origin.

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

Origin Reservista Reservatarios
(Relative w/in
3
rd
degree of
Prepositus)
By Gratuitous By Operation
Title of Law

Prepositus

RESERVA TRONCAL

Page 51 of 109

2 BASIC RULES
I. No inquiry is to be made beyond the Origin/
Mediate Source. It does not matter who the
owner of the property was before it was
acquired by the Origin.
II. All the relationships among the parties must
be legitimate. The provisions of Art891 only
apply to legitimate relatives.

4 PARTIES TO THE RESERVA TRONCAL

1. ORIGIN OR THE MEDIATE SOURCE
o He is either the ascendant or a brother or
sister of the Prepositus.
o Ascendant from any degree of ascent.
o Brother/Sister 2 Schools of Thought
a) Relationship must be of HALF BLOOD
because otherwise the property
would not change lines. This means
that if the relationship is Full Blood,
there is no reserve because then it
would not be possible to identify the
line of origin.
b) It does not matter whether the
fraternal relationship is of the full or
half-blood. In either case, a reserve
may arise. Since the law makes no
distinction, we should not make one.

2. PREPOSITUS
o He is either the descendant or a brother/
sister of the Origin who receives the property
from the Origin by gratuitous title. Thus, in
the scheme of the reserva troncal, he is the
FIRST transferee of the property.
o While the property is still with the Prepositus,
there is yet NO RESERVA. The reserva
arises only upon the second transfer.
o Consequently, while the property is owned by
the Prepositus, he has all the rights of
ownership over it and may exercise such
rights in order to prevent a reserva from
arising. He can do this by
a) Substituting or alienating the property
b) Bequeathing or devising it either to the
potential reservista or to 3
rd
persons
[subject to constraints of the legitime]
c) Partitioning in such a way as to assign
the property to parties other than the
potential reservista [again subject to
the constraints of the legitime].

o In this sense, the Prepositus is deemed the
Arbiter of the Reserva Troncal.

3. RESERVISTA [RESERVOR]
o He is an ascendant of the Prepositus, of
whatever degree. The Reservista must be an
ascendant other than the Origin/ Mediate
Source [if the latter is also an ascendant].
o The law is clear - it refers to the Origin/
Mediate Source as another ascendant. If
these two parties are the same person, there
would be no reserva troncal.

o Should the Origin/Mediate Source and the
Reservista belong to Different Lines?
- Example: A receives by donation a
parcel of land from his paternal
grandfather X. Upon As death, the
parcel passes by intestacy to his father Y
[Xs son]. The property never left the
line, is Y obliged to reserve?
- One View NO, because another
ascendant is one belonging to a line
other than that of the reservista.
- Another View YES, because [1] the
law makes no distinction, and [2] the
purpose of the reserve is not only
curative but also preventive, i.e. to
prevent the property from leaving the
line.

4. RESERVATARIOS [RESERVEES]
o The reserva is in favor of a class, collectively
referred to as the Reservatarios [reservees].

REQUISITES OF RESERVA TRONCAL

1. That the property was acquired by a
descendant [prepositus] from an ascendant
or from a brother or sister [origin] by
gratuitous title.

o The term descendant should read person
because if the grantor is a brother or sister,
the one acquiring obviously is not a
descendant.
o Acquisition is by gratuitous title when the
recipient does not give anything in return. It
encompasses transmissions by donation or
by succession of whatever kind.

2. That said descendant [prepositus] died
without an issue.

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

3. That the property is inherited by another
ascendant [reservista] by operation of law;
and

o Transmission by operation of law is limited
by succession, either to the legitime or by
intestacy.

4. That there are relatives within the 3
rd
degree
belonging to the line from which said
property came [reservatarios].

o These relatives, called the reservatarios or
reservees, are those that are within the 3
rd

degree of the line of the Origin.


Page 52 of 109

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

2) He must belong to the line from
which the property came. This is
determined by the Origin/Mediate
Source.

- If an ascendant, the Mediate Source
is either of the paternal or maternal
line.
- If a half-brother or half-sister, the
same is true.
- If however, it is a brother or sister of
the full blood, it would not be
possible to distinguish the lines.
- To those who hold the opinion that a
reserva would not exist in such case
of full blood siblings, Manresas
comment should be the norm: that
the question of line would be
indifferent.

o Question must the Reservatario also be
related to the Mediate Source?
- Manresa says NO, the article speaks
solely of 2 lines, the paternal and the
maternal of the descendant, without
regard to subdivisions.
- Sanchez Roman says YES, otherwise
results would arise completely contrary
to the purpose of this reserva, which is to
prevent the property from passing to
persons not of the line of origin.

o Reserva in favor of reservatarios as a CLASS
- to be qualified as a reservatario, is it
necessary that one must already be LIVING
when the prepositus dies?
- NO, because the reserva is established
in favor of a GROUP or CLASS, the
relatives within the 3
rd
degree, and not in
favor of specific individuals.
- As long, therefore, as the reservatario is
alive at the time of the reservaristas
death, he qualifies as such, even if he
was conceived and born after the
Prepositus death.

o Preference Among the Reservatarios
- Upon death of the ascendant reservista,
the reservable property should pass, not
to all the reservatorios as a class, but
only to those NEAREST in degree to the
descendant [prepositus], excluding those
reservatarios of more remote degree.
[Padura v. Baldovino]
- In other words, the reserve troncal
merely determines the group of relatives
[reservatarios] to whom the property
should be returned; but within that group,
the individual right to the property should
be decided by the applicable rules of
ordinary intestate succession, since
Art891 does not specify otherwise.
- Thus, according to the Padura ruling,
which subjects the choice of
reservatarios to the rules of intestate
succession, those reservatarios nearer
in degree of relationship to the
Prepositus will exclude those more
remotely related.

o Representation Among the Reservatarios
- As in intestate succession, the rule of
preference of degree among
reservatarios is qualified by the rule of
representation.
- The right of representation cannot be
alleged when the one claiming the same
as a reservatario of the reservable
property is not among the relatives within
the 3
rd
degree belonging to the line from
which such property came, inasmuch as
the right granted by the Civil Code in
Art811 is in the highest degree personal
and for the exclusive benefit of
designated persons who are the
relatives withint the 3
rd
degree of the
person from whm the reservable
property came. Therefore, relatives of
the 4
th
degree and the succeeding
degrees can never be considered as
reservatarios since the law does not
recognize them as such.
- Nevertheless, there is a right of
representation on the part of the
reservatarios who are within the 3
rd

degree mentioned by law, as in the case
of nephews of the deceased person from
whom the reservable property came.
These reservatarios have the right to
represent their ascendants [fathers and
mothers] who are the brothers of the
said deceased person and relatives
within the 3
rd
degree in accordance with
Art811. [Florentino v. Florentino]
- Actually, there will only be 1 instance of
representation among the reservatarios,
which is in case of the Prepositus being
survived by brothers/sisters and children
of a predeceased or incapacitated
brother or sister.

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

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

Page 53 of 109

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

From Edroso, the following may be derived:
A. The reservistas right over the reserved
property is one of ownership.
B. The ownership is subject to a
RESOLUTORY CONDITION, i.e. the
existence of reservatorias at the time of the
reservistas death.
C. The right of ownership is alienable, but
subject to the same resolutory condition.
D. The reservistas right of ownership is
registerable.

2. Juridical Nature from the viewpoint of the
RESERVATARIOS
- The nature of the reservatarios right is,
Manresa says, that during the whole
period between the constitution in legal
form of the right required by law to be
reserved and the extinction thereof, the
relatives within the 3
rd
degree, after the
right that in their turn may pertain to
them has been assured, have only an
EXPECTATION and therefore they do
not even have the capacity to transmit
that expectation to their heirs.
- The relatives within the 3
rd
degree in
whose favor the right is reserved cannot
dispose of the property, first because it is
in no way, either actually, constructively
or formally, in their possession; and,
moreover, because they have no title of
ownership or of fee simple which they
can transmit to another, on the
hypothesis that only when the person
who must reserve the right should die
before them will they take their place in
the succession of the descendant of
whom they are relatives within the 3
rd

degree, that is to say, a second
contingent place in said legitimate
succession in the fashion of aspirants to
a possible future legacy. [Edroso v.
Sablan]
- The reserva instituted by law instituted
by law in favor of the heirs within the 3
rd

degree belonging to the line from which
the reservable property came,
constitutes a REAL RIGHT which the
reserve may alienate and dispose of,
albeit conditionally, the CONDITION
being that the alienation shall transfer
ownership to the vendee only if an when
the reserve survives the person obliged
to reserve. [Sienes v. Esparcia]

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

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

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

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

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

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

Page 54 of 109

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

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

Reserved Property Does Not Form Part of the
Reservistas Estate Upon his Death
o The contention that an intestacy proceeding
is still necessary rests upon the assumption
that the reservatario will succeed in, or
inherit, the reservable property from the
reservista. This is not true. The reservatario
is not the reservistas successor mortis causa
nor is the reservable property part of the
reservistas estate; the reservatario receives
the property as a conditional heir of the
Prepositus, said property merely reverting to
the line of origin from which it had temporarily
and accidentally strayed during the
reservistas lifetime.
o It is a consequence of these principles that
upon the death of the reservista, the
reservatario nearest to the prepositus
becomes, automatically and by operation of
law, the owner of the reservable property. As
already stated, that property is no part of the
estate of the reservista, and does not even
answer for the debts of the latter. Hence, its
acquisition by the reservatario may be
entered in the property records without
necessity of estate proceedings, since the
basic requisites therefor appear of record.
[Cano v. Director]

o Of course, where the registration decree
merely specifies the reservable character of
the property, without determining the identity
of the reservatario or where several
reservatarios dispute the property among
themselves, further proceedings are
unavoidable.

o As a consequence of the rule laid down in
Cano, since the reserved property is not
computed as part of the reservistas
estate, it is not taken into account in
determining the legitimes of the
reservistas compulsory heirs.

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

o 2 Theories have been Advanced
- Reserva Maxima as much of the
potentially reservable property as
possible must be deemed included in the
part that passes by operation of law.
This maximizes the scope of the
reserva.
- Reserva Minima every single property
in the Prepositus estate must be
deemed to pass, partly by will and partly
by operation of law, in the same
proportion that the part given by will
bears to the part not so given.
o Reserva Minima is more widely accepted.

Rights and Obligations
There are no specific implementing articles on the
reserva troncal.
Under the Old Code, the provisions viudal were
extended to the troncal, thus the rights of the
reservatarios and the corresponding obligations of
the reservista were:
a. To inventory the reserved properties
b. To annotate the reservable character [if
registered immovables] in the Registry of
Property within 90 days from acceptance
by the reservista.
c. To appraise the immovables
d. To secure by means of mortgage: [i] the
indemnity for any deterioration of or
damage to the property occasioned by the
reservistas fault or negligence, and [ii] the
payment of the value of such reserved
movables as may have been alienated by
the reservista onerously or gratuitously.

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

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

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

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

Page 55 of 109

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

Art. 904. The testator cannot deprive his
compulsory heirs of their legitime, except
in cases expressly specified by law.
Neither can he impose upon the same
any burden, encumbrance, condition, or
substitution of any kind whatsoever.

As already laid down in Art886, the legitime is not
within the testators control. It passes to the
compulsory heirs by strict operation of law.

Testator Devoid of Power to Deprive Compulsory
Heirs of Legitime
It is the law, not the testator, which determines
the transmission of the legitimes. Consequently, it
is not within the testators power to deprive the
compulsory heirs of their legitime.
EXCEPTION the only instance in which the law
allows the testator to deprive the compulsory
heirs of their legitimes is DISINHERITANCE
under Arts915-923, the grounds being set forth
under Arts919-921.

Testator Devoid of Power to Impose Burdens on
Legitime
As also reiterated in Art872, the testator cannot
impair the legitime, as a consequence of the
principle that the legitime passes by strict
operation of law.

EXCEPTIONS When the Law grants the Testator
Some Power over the Legitime
1. Article 1080 par2
A parent who, in the interest of his or her
family, desires to keep any agricultural,
industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in this
article, by ordering that the legitime of the other
children to whom the property is not assigned,
be paid in cash.

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

Restrictions on Legitime Imposed by Law
A. Article 159, Family Code
The Family Home shall continue despite
the death of one or both spouses or of the
unmarried head of the family for a period of 10
years or for as long as there is a minor
beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons
therefor. This rule shall apply regardless of
whoever owns the property or constituted the
family home.

B. The Reserva Troncal

Art. 905. Every renunciation or compromise as
regards a future legitime between the
person owing it and his compulsory heirs
is void, and the latter may claim the same
upon the death of the former; but they must
bring to collation whatever they may have
received by virtue of the renunciation or
compromise.

Reason for the Rule
Before the predecessors death, the heirs right is
simply inchoate.

Duty to Collate
Any property which the compulsory heir may have
gratuitously received from his predecessor by
virtue of the renunciation or compromise will be
considered an advance on his legitime and must
be duly credited.

Scope of Prohibition
This article applies only to transactions of
compromise or renunciation between the
predecessor and the prospective compulsory heir.

QUESTION Is a transaction between the
prospective compulsory heir and another prospective
compulsory heir, or between a prospective compulsory
heir and a stranger, interdicted?
YES under Article 1347 par2: No contract may
be entered into upon future inheritance except in
cases expressly provided by law.

Art. 906. Any compulsory heir to whom the
testator has left by any title less than the
legitime belonging to him may demand that
the same be fully satisfied.

RIGHT OF COMPLETION OF LEGITIME
This rule applies only to transmissions by
gratuitous title.

Cross-References, related articles
Art855 if the title by which the testator
transmitted property is intestate succession

Page 56 of 109

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

In relation to Arts909 and 910

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

Art. 907. Testamentary dispositions that impair
or diminish the legitime of the compulsory
heirs shall be reduced on petition of the
same, insofar as they may be inofficious or
excessive.

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

Art. 908. To determine the legitime, the value of
the property left at the death of the testator
shall be considered, deducting all debts
and charges, which shall not include those
imposed in the will.
To the net value of the hereditary
estate, shall be added the value of all
donations by the testator that are subject to
collation, at the time he made them.

The NET HEREDITARY ESTATE
Articles 888-903 set forth the legitimes of the
compulsory heirs, either inheriting alone or in
various combinations. Those articles gave the
legitimes in the form of fractions, or proportions of
the decedents estate.
This article makes possible the computation of the
absolute amounts of the legitimes by laying down
the manner of computing the net value of the
estate [the net hereditary estate], on which the
proportions are based.

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

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

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

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


Page 57 of 109

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

Art. 909. Donations given to children shall be
charged to their legitime.
Donations made to strangers shall be
charged to that part of the estate of which
the testator could have disposed by his last
will.
Insofar as they may be inofficious or
may exceed the disposable portion, they
shall be reduced according to the rules
established by this Code.

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

Donations Inter Vivos to Compulsory Heirs
Donations inter vivos to a compulsory heir shall
be imputed to his legitime, i.e. considered as an
advance on his legitime.

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

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

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

Art. 911. After the legitime has been determined
in accordance with the three preceding
articles, the reduction shall be made as
follows:
(1) Donations shall be respected as long as
the legitime can be covered, reducing
or annulling, if necessary, the devises
or legacies made in the will;

(2) The reduction of the devises or legacies
shall be pro rata, without any
distinction whatever.
If the testator has directed that a
certain devise or legacy be paid in
preference to others, it shall not suffer
any reduction until the latter have been
applied in full to the payment of the
legitime.

(3) If the devise or legacy consists of a
usufruct or life annuity, whose value
may be considered greater than that of
the disposable portion, the compulsory
heirs may choose between complying
with the testamentary provision and
delivering to the devisee or legatee the
part of the inheritance of which the
testator could freely dispose.

This provision implements the principle laid down in
Articles 872, 886 and 904 - the inviolability of the
legitime.
Thus, if the legitimes are impaired, the gratuitous
dispositions of the testator [either inter vivos or mortis
causa] have to be set aside or reduced as may be
required to cover the legitimes.

Method of Reduction
There is an order of priorities to be observed in
the reduction of the testators gratuitous
dispositions, thus
A. First, reduce pro rata the non-preferred
legacies and devises [Art911 (2)], and the
testamentary dispositions [Art907]. Among
these legacies, devises and testamentary
dispositions, there is no preference.
B. Second, reduce pro rata the preferred
legacies and devises [Art911, last par.]
C. Third, reduce the donations inter vivos
according to the inverse order of their dates
[i.e. the oldest is the most preferred] [Art773].

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


Page 58 of 109

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

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

Art. 912. If the devise subject to reduction
should consist of real property, which
cannot be conveniently divided, it shall go
to the devisee if the reduction does not
absorb one-half of its value; and in a
contrary case, to the compulsory heirs; but
the former and the latter shall reimburse
each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime
may retain the entire property, provided its
value does not exceed that of the
disposable portion and of the share
pertaining to him as legitime.

This rule covers cases where:
1) The devise has to be reduced, and
2) The thing given as a devise is indivisible

RULES
1. If the extent of reduction is LESS THAN of
the value of the thing it should be given to
the devisee.
2. If the extent of reduction is OR MORE of
the value of the thing it should be given to
the compulsory heir.

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

Art. 913. If the heirs or devisees do not choose
to avail themselves of the right granted by
the preceding article, any heir or devisee
who did not have such right may exercise
it; should the latter not make use of it, the
property shall be sold at public auction at
the instance of any one of the interested
parties.

This article applies if neither party [the compulsory
heir/s and the devisee] elects to exercise his right
under Art912.

How the Thing Devised Should be Disposed Of:
A. Any other heir or devisee, who elects to do so,
may acquire the thing and pay the parties [the
compulsory heir and the devisee in question]
their respective shares in money.
B. If no heir or devisee elects to acquire it, it shall
be sold at public auction and the net proceeds
accordingly divided between the parties
concerned.

Note this rule of constructive partition is similar to
that in co-ownership [Art498] and in partition of the
decedents estate [Art1086], except that, in these two
latter cases, the acquisition by one of the co-owners or
co-heirs can be done only if all the co-owners or co-
heirs agree to such acquisition.

Art. 914. The testator may devise and bequeath
the free portion as he may deem fit.

Simply a re-statement of Art842.

SECTION 6.
DISINHERITANCE

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

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


Page 59 of 109

Note the strictness of the requisites indicates the
policy of the law. It regards disinheritance with disfavor
and will grant it only with reluctance, because
disinheritance results in deprivation of legitime.

EFFECT OF DISINHERITANCE

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

- For Surviving Spouse [Article 921]
a) Convicted of Attempt against life of
Testator, his/her descendants/ascendants.
b) Accused Testator of a Crime punishable
with imprisonment for 6 years or more, and
the accusation is fond to be False.
c) Spouse, by Fraud, Violence, Intimidation, or
Undue Influence causes the testator to
make a Will or change one already made.
d) Has given cause for legal separation
e) Has given grounds for loss of parental
authority
f) Unjustifiable refusal to support the children
or the other spouse

- If this is not present, or the cause specified is not
among those set forth in the Code, there is
ineffective disinheritance under article 918.

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

4. It must be Unconditional

5. It must be Total

6. The cause must be True

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

REQUISITES OF A VALID DISINHERITANCE

1. It must be made in a Will
- Must be formally valid and admitted to probate

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

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

Page 60 of 109

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

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

Made in a Will the 1
st
clause of this article
constitutes the first requisite of disinheritance, that it
must be made in a will.
The will obviously, must be FORMALLY VALID
and must be admitted to PROBATE.

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

Art. 917. The burden of proving the truth of the
cause for disinheritance shall rest upon the
other heirs of the testator, if the
disinherited heir should deny it.

7
TH
requisite it must be noted that the truth here is
not presumed, it must be proved. All the disinherited
heir need do is deny the cause and the burden is
thrown upon those who would uphold the
disinheritance.

Art. 918. Disinheritance without a specification
of the cause, or for a cause the truth of
which, if contradicted, is not proved, or
which is not one of those set forth in this
Code, shall annul the institution of heirs
insofar as it may prejudice the person
disinherited; but the devises and legacies
and other testamentary dispositions shall
be valid to such extent as will not impair
the legitime.

This article sets forth requisites 3 and 6 of
disinheritance.

INEFFECTIVE DISINHERITANCE
If the disinheritance lacks one or other of the
requisites mentioned in this article, the heir in
question gets his legitime.
As to whether he will also get any part of the
intestate portion or not, this depends on whether
the testator gave away the free portion through
o If he did, these dispositions are VALID and
the compulsory heir improperly disinherited
gets only his legitime.
o If the testator did not, the compulsory heir will
be entitled to his corresponding share of the
free portion as well.

Note the difference between the effect of
ineffective disinheritance and that of preterition
under article 854:
Art. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before
the testator, the institution shall be effectual, without
prejudice to the right of representation.

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

There are 8 Causes for disinheritance of Children
or Descendants Whether Legitimate or
Illegitimate [Exclusive enumeration]

1. Has been found Guilty of an Attempt
Against the Life of the Testator or the
latters spouse, descendants or ascendants
o The word attempt here is used non-
technically and should not be construed to

Page 61 of 109

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

2. Has Accused the Testator of a Crime
punishable by 6 years or more, and the
accusation is found to be Groundless
o The word accused here is used generically
and will include:
a) Filing of a complaint before the
prosecutor, or
b) Presenting incriminating evidence
against the testator, or
c) Even suppressing exculpatory
evidence
o The crime of which the testator is accused
must carry a penalty of at least 6 years
imprisonment.
- Prof. Balane says that the terminology
used should be more than 6 years
imprisonment because 6 years still
falls within prision correccional. 1 day
beyond that places it within the next
higher penalty of prision mayor.
- If the penalty prescribed is prision
correccional, does it fall under the
contemplation of this paragraph?
o The testator must be ACQUITTED.
o The accusation must be found to be
groundless, i.e. the judgment of acquittal
must state that either
a) No crime was committed or
b) The accused did not commit the crime
o An acquittal based on reasonable ground
will not be a ground for disinheritance.

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

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

5. Refusal W/O justifiable cause to Support the
parent or ascendant who disinherits
o There must have been a need and a
demand for support [in relation to Art 203
of the Family Code]
Art. 203. The obligation to give support shall be
demandable from the time the person who has a
right to receive the same needs it for maintenance,
but it shall not be paid except from the date of
judicial or extra-judicial demand.
Support pendente lite may be claimed in
accordance with the Rules of Court.
Payment shall be made within the first five days of
each corresponding month or when the recipient
dies, his heirs shall not be obliged to return what he
has received in advance.

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

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

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

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

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

Page 62 of 109

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

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

There are also 8 Causes for the Disinheritance of
Parents or Ascendants, whether Legitimate or
Illegitimate. [Exclusive enumeration]
1. When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life or attempted against
their virtue
o This paragraph encompasses 3 grounds:

a) Abandonment also includes those
penalized by law under articles 276-
277 of the RPC, Article 59 of PD603
and all conduct constituting
repeated or total refusal or failure to
care for the child. According to the
case of Chua v. Cabangbang, mere
acquiescence without more is not
sufficient to constitute
abandonment. However, when the
mother completely withheld her
presence, her love, her care and the
opportunity to show maternal
affection; and totally denied her
support and maintenance, her
silence and inaction having been
prolonged for such a time, then it
can be legally inferred that there is
abandonment. Question will
consent to adoption of a child
constitute abandonment?

b) Inducement to live a corrupt and
immoral life under Art231[2] of
the Family Code as a ground for
suspension or deprivation of
parental authority.

c) Attempt against Virtue no
conviction is required here.

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

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

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

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

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

7. Refusal to support the Children or
Descendants without justifiable cause


Page 63 of 109

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

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

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

There are 6 causes for disinheriting a Spouse these
grounds are exclusive.
1. Spouse is convicted of an Attempt against
the life of the Testator, his or her
descendants or ascendants.

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

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

4. Spouse has given cause for legal separation
o A decree of legal separation is not
required.

o According to Art55 of the Family Code,
there are 10 grounds for legal separation:
a) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child or a child of
the petitioner [natural or adopted].
b) Physical violence or moral pressure to
compel the petitioner to change
religious or political affiliation
c) Attempt of respondent to corrupt or
induce the petitioner, a common child,
or a child of petitioner [natural or
adopted] to engage in prostitution or
connivance in such corruption or
inducement.
d) Final judgment sentencing the
respondent to imprisonment of more
than 6 years, even if pardoned.
e) Drug addiction or habitual alcoholism
of the respondent
f) Lesbianism or homosexuality of the
respondent
g) Contracting by the respondent of a
subsequent bigamous marriage,
whether in the Philippines or abroad
h) Sexual infidelity or perversion
i) Attempt by the respondent against the
life of the petitioner
j) Abandonment of the petitioner by
respondent without justifiable cause
for more than 1 year.

5. Has given grounds for loss of parental
authority

6. Unjustifiable refusal to support the children
or the other spouse

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

Art. 922. A subsequent reconciliation between
the offender and the offended person
deprives the latter of the right to disinherit,
and renders ineffectual any disinheritance
that may have been made.

Meaning of Reconciliation either an express pardon
extended by the testator to the offending heir or
unequivocal conduct of the testator towards the
offending heir which reveals the testators intent to
forgive the offense.
a) If Express Pardon a general pardon extended
by the testator on his deathbed to all who have
offended him will not suffice; it must be a
pardon expressly and concretely extended to
the offender, who accepts it.
b) If conduct the intent to forgive must be clear.
This is ultimately a question of fact which will be
resolved, in case of controversy, by the courts.

Effect of Reconciliation
a) If it occurs before disinheritance is made right
to disinherit is extinguished
b) If it occurs after the disinheritance is made
disinheritance is set aside. The effects of
setting aside the disinheritance are:
i. The disinherited heir is restored to his
legitime
ii. If the disinheriting will did not dispose of
the disposable portion, the disinherited heir
is entitled to his proportionate share [in
intestacy] if any, of the disposable portion.
iii. If the disinheriting will disposed of
disposable portion [or any part thereof] in
favor of testamentary heirs, legatees or
devisees, such dispositions remain valid.


Page 64 of 109

Article 922 is in relation to Article 1033.

Art. 923. The children and descendants of the
person disinherited shall take his or her
place and shall preserve the rights of
compulsory heirs with respect to the
legitime; but the disinherited parent shall
not have the usufruct or administration of
the property which constitutes the legitime.

Right of Representation in Disinheritance
The right of representation is granted only to
descendants of disinherited descendants.
This rule is laid down in Art972 par1 which
provides: the right of representation takes place
in the direct descending line, but never in the
ascending.
Thus, a disinherited child will be represented by
his children or other descendants.
However, if the heir disinherited is a
parent/ascendant or spouse, the children or the
descendants of the disinherited heir do not have
any right of representation. Thus, this article is
carelessly worded.

Extent of Representation
The representative take the place of the
disinherited heir not only with respect to the
legitime, but also to any intestate portion that the
disinherited heir would have inherited.
Representation therefore occurs in compulsory
and intestate succession, but not in testamentary
succession.

SECTION 7.
LEGACIES AND DEVISES

Art. 924. All things and rights which are within
the commerce of man be bequeathed or
devised.

Definition of Legacies and Devises legacies and
devises are codally defined [by indirection] in Art782
par2
A more accurate definition of the terms can be
found either in Art660 of the Spanish Code or in
Castan
o Article 660 of the Spanish Code
- Legacy: testamentary disposition of
personal property by particular title
- Devise: testamentary disposition of
real property by particular title
o Castan
- Legacy: testamentary disposition of
specific or generic personal property
- Devise: testamentary disposition of
specific or generic real property.

It is important, in defining a legacy or a devise, to
distinguish it from a testamentary disposition to an heir
because of the effects of preterition. Essentially, the
difference is that an heir receives an aliquot or
fractional part of the inheritance, whereas a legatee or
devisee receives specific or generic personalty or
realty, respectively.

What can be devised or bequeathed - anything within
the commerce of man. It is not required that the thing
devised or bequeathed belong to the testator.

Limitations on Legacy or Devise it should not impair
the legitime.

Art. 925. A testator may charge with legacies
and devises not only his compulsory heirs
but also the legatees and devisees.
The latter shall be liable for the charge
only to the extent of the value of the legacy
or the devise received by them. The
compulsory heirs shall not be liable for the
charge beyond the amount of the free
portion given them.

Art. 926. When the testator charges one of the
heirs with a legacy or devise, he alone shall
be bound.
Should he not charge anyone in
particular, all shall be liable in the same
proportion in which they may inherit.

WHO is charged with the Legacy
General Rule the Estate
Exception however, the testator may impose the
burden on a testamentary heir or a legatee or
devisee. If he does so, then the heir, legatee or
devisee charged will, if he accepts the
disposition in his favor, be bound to deliver the
legacy or devise to the person specified. This
will be in the nature of a subsidiary legacy or
devise. As far as the heir, legatee or devisee
charged is concerned, it will be a MODE.
The wording of Art925 is erroneous because a
compulsory heir, as such, cannot be burdened
with a legacy or devise because that would impair
his legitime. Only a testamentary heir can be so
burdened.
Extent of liability of heir, devisee or legatee in
case of subsidiary legacies or devises the value
of the benefit received from the testator.

Art. 927. If two or more heirs take possession
of the estate, they shall be solidarily liable
for the loss or destruction of a thing
devised or bequeathed, even though only
one of them should have been negligent.

The liability imposed by this article is based on malice,
fault or negligence.

Page 65 of 109

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

Art. 928. The heir who is bound to deliver the
legacy or devise shall be liable in case of
eviction, if the thing is indeterminate and is
indicated only by its kind.

WHO is Liable in case of EVICTION?
General Rule the Estate
In case of a subsidiary legacy or devise the heir,
legatee or devisee charged.

Art. 929. If the testator, heir, or legatee owns
only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be
understood limited to such part or interest,
unless the testator expressly declares that
he gives the thing in its entirety.

Art. 930. The legacy or devise of a thing
belonging to another person is void, if the
testator erroneously believed that the thing
pertained to him. But if the thing
bequeathed, though not belonging to the
testator when he made the will, afterwards
becomes his, by whatever title, the
disposition shall take effect.

Art. 931. If the testator orders that a thing
belonging to another be acquired in order
that it be given to a legatee or devisee, the
heir upon whom the obligation is imposed
or the estate must acquire it and give the
same to the legatee or devisee; but if the
owner of the thing refuses to alienate the
same, or demands an excessive price
therefor, the heir or the estate shall only be
obliged to give the just value of the thing.

Art. 932. The legacy or devise of a thing which
at the time of the execution of the will
already belonged to the legatee or devisee
shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the
thing be freed from such interest or
encumbrance, the legacy or devise shall be
valid to that extent.

Art. 933. If the thing bequeathed belonged to
the legatee or devisee at the time of the
execution of the will, the legacy or devise
shall be without effect, even though it may
have subsequently alienated by him.
If the legatee or devisee acquires it
gratuitously after such time, he can claim
nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title
he can demand reimbursement from the
heir or the estate.

Art. 934. If the testator should bequeath or
devise something pledged or mortgaged to
secure a recoverable debt before the
execution of the will, the estate is obliged
to pay the debt, unless the contrary
intention appears.
The same rule applies when the thing is
pledged or mortgaged after the execution
of the will.
Any other charge, perpetual or
temporary, with which the thing
bequeathed is burdened, passes with it to
the legatee or devisee.

Art. 935. The legacy of a credit against a third
person or of the remission or release of a
debt of the legatee shall be effective only
as regards that part of the credit or debt
existing at the time of the death of the
testator.
In the first case, the estate shall comply
with the legacy by assigning to the legatee
all rights of action it may have against the
debtor. In the second case, by giving the
legatee an acquittance, should he request
one.
In both cases, the legacy shall
comprise all interests on the credit or debt
which may be due the testator at the time of
his death.

Art. 936. The legacy referred to in the preceding
article shall lapse if the testator, after
having made it, should bring an action
against the debtor for the payment of his
debt, even if such payment should not have
been effected at the time of his death.
The legacy to the debtor of the thing
pledged by him is understood to discharge
only the right of pledge.

Art. 937. A generic legacy of release or
remission of debts comprises those
existing at the time of the execution of the
will, but not subsequent ones.

Legacy / Devise of a thing owned in part by the
testator [Art929]
General Rule conveys only the interest or part
owned by the testator
Exception if the testator provides otherwise, viz:
a) He may convey more than he owns the
estate should try to acquire the part or
interest owned by other parties. If the other

Page 66 of 109

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

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

If the testator knew that the thing did not belong to
him but did not order its acquisition the Code is
SILENT on this. The most rational solution seems
to be that such a disposition should be considered
VALID, because:
a) The fact that the testator, with knowledge
of the other persons ownership,
bequeathed the thing, implies an order to
acquire
b) At worst, there is a doubt, and doubts
should be resolved in favor of testacy [Arts
788 and 791]

Art. 788. If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred.
Art. 791. The words of a will are to receive an
interpretation which will give to every expression some effect,
rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy.

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

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

If the thing was owned by another person at the
time of the making of the will and acquired
thereafter by the legatee/devisee:
a) If the testator erroneously believed that it
belonged to him legacy or devise is VOID
b) If the testator was not in error
- If the thing was acquired onerously by
legatee/devisee the legatee or
devisee is entitled to reimbursement.
- If the thing was acquired gratuitously
by legatee/devisee nothing more is
due.

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

Legacy / Devise to remove an encumbrance over a
thing belonging to the legatee / devisee under Art932
par2 VALID, if the encumbrance can be removed for
a consideration.

Legacy / Devise of a thing pledged or mortgaged
under Article 934 the encumbrance must be
removed by paying the debt, UNLESS the testator
intended otherwise.

Legacy of Credit or Remission [Articles 935-937]
Applies only to amount still unpaid at the time of
the testators death [under Art935]
Revoked if testator subsequently sues the debtor
for collection [[Article 936]
If Generic, applies only to those existing at the
time of execution of the will [under Articles 937
and 793], unless otherwise provided.

Art. 938. A legacy or devise made to a creditor
shall not be applied to his credit, unless the
testator so expressly declares.
In the latter case, the creditor shall have
the right to collect the excess, if any, of the
credit or of the legacy or devise.

Art. 939. If the testator orders the payment of
what he believes he owes but does not in
fact owe, the disposition shall be
considered as not written. If as regards a
specified debt more than the amount
thereof is ordered paid, the excess is not
due, unless a contrary intention appears.
The foregoing provisions are without
prejudice to the fulfillment of natural
obligations.

Legacy / Devise to a Creditor [Art938]
General Rule will be treated like any other
legacy / devise and therefore will not be imputed
to the debt.
Exception will be imputed to the debt if the
testator so provides, and if the debt exceeds the
legacy / devise, the excess may be demanded as
an obligation of the estate.
NOTE if the testator does provide that the
legacy / devise should be imputed to the debt and
the amount of the debt is equal to or more than
the value of the legacy/devise it would be folly for
the creditor to accept the benefit. He will be

Page 67 of 109

much better off renouncing the legacy/devise and
filing a claim for the credit.

Testamentary Instruction to Pay a Debt [Art939]
a) This is not a testamentary disposition, but
merely a direction to discharge a civil
obligation.
b) Instruction to pay non-existing debt should be
DISREGARDED, because this would solution
indebiti.
c) Instruction to pay more than what is due
effective only as to what is due, unless the
bigger amount specified constitutes a natural
obligation under Articles 1423 1430.

Art. 940. In alternative legacies or devises, the
choice is presumed to be left to the heir
upon whom the obligation to give the
legacy or devise may be imposed, or the
executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may
have been given the choice, dies before
making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises,
except as herein provided, the provisions
of this Code regulating obligations of the
same kind shall be observed, save such
modifications as may appear from the
intention expressed by the testator.

Alternative legacies / devises
Definition One which provides that, among
several things mentioned, only one is to be given.

Right of Choice
General Rule
1) The estate, through the executor or
administrator in a direct legacy or devise
2) The heir, legatee, or devisee charged in a
subsidiary legacy or devise

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

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

If the person who is to choose dies before choice is
made:
a) If the choice belonged to executor or
administrator the right is transmitted to his
successor in office.
b) If the choice belongs to an heir, legatee or
devisee the right is transmitted to his own
heirs.

The choice is irrevocable.
Provisions suppletorily governing Articles 1199-
1205, on alternative obligations.

Art. 941. A legacy of generic personal property
shall be valid even if there be no things of
the same kind in the estate.
A devise of indeterminate real property
shall be valid only if there be immovable
property of its kind in the estate.
The right of choice shall belong to the
executor or administrator who shall comply
with the legacy by the delivery of a thing
which is neither of inferior nor of superior
quality.

Art. 942. Whenever the testator expressly
leaves the right of choice to the heir, or to
the legatee or devisee, the former may give
or the latter may choose whichever he may
prefer.

Art. 943. If the heir, legatee or devisee cannot
make the choice, in case it has been
granted him, his right shall pass to his
heirs; but a choice once made shall be
irrevocable.

Generic legacies / devises
Rules on Validity [Article 941]
A. Generic Legacy valid even if no such
movables exist in the testators estate upon his
death. The estate will simply have to acquire
what is given by legacy.
B. Generic Devise valid only if there exists such
an immovable in the testators estate at the
time of his death.

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

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

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


Page 68 of 109

Finality of Choice irrevocable, once made.

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

Art. 944. A legacy for education lasts until the
legatee is of age, or beyond the age of
majority in order that the legatee may finish
some professional, vocational or general
course, provided he pursues his course
diligently.
A legacy for support lasts during the
lifetime of the legatee, if the testator has
not otherwise provided.
If the testator has not fixed the amount
of such legacies, it shall be fixed in
accordance with the social standing and
the circumstances of the legatee and the
value of the estate.
If the testator or during his lifetime
used to give the legatee a certain sum of
money or other things by way of support,
the same amount shall be deemed
bequeathed, unless it be markedly
disproportionate to the value of the estate.

Art. 945. If a periodical pension, or a certain
annual, monthly, or weekly amount is
bequeathed, the legatee may petition the
court for the first installment upon the
death of the testator, and for the following
ones which shall be due at the beginning of
each period; such payment shall not be
returned, even though the legatee should
die before the expiration of the period
which has commenced.

Legacy for Education
Duration age of majority or the completion of a
professional, vocational or general course,
whichever comes later. In the latter instance, only
if the legatee pursues his studies diligently.
Amount
o Primarily that fixed by the testator
o Secondarily that which is proper, as
determined by 2 variables: [1] the social
standing and circumstances of the legatee,
and [2] the value of the disposable portion
of the estate.

Legacy for Support
Duration the legatees lifetime, unless the
testator has provided otherwise
Amount
o Primarily that fixed by the testator
o Secondarily that which the testator during
his lifetime used to give the legatee by way
of support, unless markedly
disproportionate to the value of the
disposable portion
o Tertiarily that which is reasonable, on the
basis of 2 variables: [1] the social standing
and the circumstances of the legatee, and
[2] the value of the disposable portion.

Legacy of a Periodical Pension
Demandability upon the testators death and the
succeeding ones at the beginning of the period
without duty to reimburse should the legatee due
before the lapse of the period.

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

Art. 946. If the thing bequeathed should be
subject to a usufruct, the legatee or devisee
shall respect such right until it is legally
extinguished.

This article lays down the same rule as Art934 par3.

Art. 947. The legatee or devisee acquires a right
to the pure and simple legacies or devises
from the death of the testator, and
transmits it to his heirs.

Demandability, Ownership and Fruits of Legacies/
Devises

Demand-
ability
When
Ownership
Vests
Fruits
Pure and
Determinate
Upon
Testators
death
Upon Testators
death
Upon the
testators death
[under Art948]
Pure and
Generic
Upon
Testators
death
a. if from
testators estate
upon testators
death
b. if acquired
from a 3
rd

person upon
acquisition
Upon determi-
nation, unless
testator provides
otherwise
[Art949]
With a
Suspensive
Term
Upon the
arrival of the
term
Upon arrival of
the term, but the
right to it vests
upon the
testators death
[under Art878]
Upon the arrival
of the term
[implied from
Art885]
With a
Suspensive
Condition
Upon the
happening of
the condition
Upon the
testators death,
if the condition is
Upon the
happening of the
condition, unless

Page 69 of 109

fulfilled [under
Art1187]
testator provides
otherwise
[Art884 in rel. to
Art1187]

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

Art. 948. If the legacy or device is of a specific
and determinate thing pertaining to the
testator, the legatee or devisee acquires the
ownership thereof upon the death of the
testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected
income; but not the income which was due
and unpaid before the latter's death.
From the moment of the testator's
death, the thing bequeathed shall be at the
risk of the legatee or devisee, who shall,
therefore, bear its loss or deterioration, and
shall be benefited by its increase or
improvement, without prejudice to the
responsibility of the executor or
administrator.

Art. 949. If the bequest should not be of a
specific and determinate thing, but is
generic or of quantity, its fruits and
interests from the time of the death of the
testator shall pertain to the legatee or
devisee if the testator has expressly so
ordered.

Art. 950. If the estate should not be sufficient to
cover all the legacies or devises, their
payment shall be made in the following
order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the
testator to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific,
determinate thing which forms a part
of the estate;
(6) All others pro rata.

Order of Preference among Legacies and Devises in
case the Estate is Not Sufficient for All of them
1. Remuneratory legacies or devises
2. Legacies or devises declared by the testator to
be preferential
3. Legacies for support
4. Legacies for education
5. Legacies or devises of a specific, determinate
thing which forms a part of the estate
6. All others, pro rata

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

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

Art. 951. The thing bequeathed shall be
delivered with all its accessories and
accessories and in the condition in which it
may be upon the death of the testator.

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

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

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

Page 70 of 109

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

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

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

Although the efficacy of a legacy or devise vests upon
the testators death, actual delivery does not take
place at that time. Debts first have to be paid, then
legitimes have to be determined, and the testamentary
dispositions (including legacies and devises)
computed lest they impair the legitimes. It is only after
these steps have been taken that the beneficiaries of
the will can take possession.

Art. 954. The legatee or devisee cannot accept
a part of the legacy or devise and repudiate
the other, if the latter be onerous.
Should he die before having accepted
the legacy or devise, leaving several heirs,
some of the latter may accept and the
others may repudiate the share
respectively belonging to them in the
legacy or devise.

Art. 955. The legatee or devisee of two legacies
or devises, one of which is onerous, cannot
renounce the onerous one and accept the
other. If both are onerous or gratuitous, he
shall be free to accept or renounce both, or
to renounce either. But if the testator
intended that the two legacies or devises
should be inseparable from each other, the
legatee or devisee must either accept or
renounce both.
Any compulsory heir who is at the
same time a legatee or devisee may waive
the inheritance and accept the legacy or
devise, or renounce the latter and accept
the former, or waive or accept both.

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

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

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

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

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

Art. 956. If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or
if the legacy or devise for any reason
should become ineffective, it shall be
merged into the mass of the estate, except
in cases of substitution and of the right of
accretion.

Rules in Case of Repudiation by or Incapacity of
Legatee/Devisee
1. Primarily SUBSTITUTION
2. Secondarily ACCRETION
3. Tertiarily INTESTACY

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

Page 71 of 109

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

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

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

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

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

Art. 958. A mistake as to the name of the thing
bequeathed or devised, is of no
consequence, if it is possible to identify the
thing which the testator intended to
bequeath or devise.

This principle is already set forth in Art789

Art. 959. A disposition made in general terms in
favor of the testator's relatives shall be
understood to be in favor of those nearest
in degree.

This article is misplaced because it applies not just to
legatee/devisees but to all testamentary heirs as well.
It should be placed under the chapter on Institution of
Heir.

SECTION 1.
GENERAL PROVISIONS

Art. 960. Legal or intestate succession takes
place:
(1) If a person dies without a will, or with
a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an
heir to, or dispose of all the property
belonging to the testator. In such
case, legal succession shall take
place only with respect to the
property of which the testator has not
disposed;
(3) If the suspensive condition attached
to the institution of heir does not
happen or is not fulfilled, or if the heir
dies before the testator, or repudiates
the inheritance, there being no
substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable
of succeeding, except in cases
provided in this Code.

Legal or Intestate Succession Defined
Not defined by the Code, unlike testamentary and
mixed succession.
But the draft Code, as well as the Spanish Code
defines intestate succession as taking place by
operation of law in the absence of a valid will.
And the Spanish Code provides that succession
results from a persons will as manifested in a
testament, or in default thereof, by operation of
law.

INSTANCES WHEN LEGAL OR INTESTATE
SUCCESSION OPERATED
1. If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity.

CHAPTER 3
LEGAL OR INTESTATE SUCCESSION

Page 72 of 109

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

2. When the will does not institute an heir to,
or dispose of all the property belonging to
the testator. In such case, legal succession
shall take place only with respect to the
property of which the testator has not
disposed.
o In these instances, intestacy may be total
or partial.

3. If the suspensive condition attached to the
institution of an heir does not happen or is
not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there
being no substitution and no right of
accretion takes place
o Intestacy here may also be total or partial,
depending on the extent of the
disposition that turns out to be
inoperative.

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

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

Art. 961. In default of testamentary heirs, the
law vests the inheritance, in accordance
with the rules hereinafter set forth, in the
legitimate and illegitimate relatives of the
deceased, in the surviving spouse, and in
the State.

Art. 962. In every inheritance, the relative
nearest in degree excludes the more
distant ones, saving the right of
representation when it properly takes
place.
Relatives in the same degree shall
inherit in equal shares, subject to the
provisions of article 1006 with respect to
relatives of the full and half blood, and of
Article 987, paragraph 2, concerning
division between the paternal and maternal
lines.

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

Groups of intestate heirs and the different
combinations in intestacy are outlined under Arts. 978-
1010.

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

BASIC RULES OF INTESTACY
1. The Rule of Preference of Lines
The 3 lines of relationship are:
a) The descending
b) The ascending, and
c) The collateral

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

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

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


Page 73 of 109

SUBSECTION 1. - Relationship

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

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

Art. 965. The direct line is either descending or
ascending.
The former unites the head of the family
with those who descend from him.
The latter binds a person with those
from whom he descends.

Art. 966. In the line, as many degrees are
counted as there are generations or
persons, excluding the progenitor.
In the direct line, ascent is made to the
common ancestor. Thus, the child is one
degree removed from the parent, two from
the grandfather, and three from the great-
grandparent.
In the collateral line, ascent is made to
the common ancestor and then descent is
made to the person with whom the
computation is to be made. Thus, a person
is two degrees removed from his brother,
three from his uncle, who is the brother of
his father, four from his first cousin, and so
forth.

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

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

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

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

B. Collateral Line computation of degree is
important in the collateral line because intestate
succession extends only to the FIFTH [5
th
]
DEGREE of Collateral relationship (Art1010)
o Mode of Counting Degrees in the
Collateral Line [Art966 par3]
i. From the reference point, ascend
to nearest common ancestor [if
there are more than 1 nearest
common ancestor, choose any
one.]
ii. Then descend to the other
reference point
iii. Number of generations
constituting the ascent and the
descent is the degree of the
collateral relationship.

o Collaterals by Degrees
- First degree none
DIRECT LINE

DEGREE

COLLATERAL LINE
DESCENDING

DIRECT
ASCENDING

LINE
DIRECT & COLLATERAL

COLLATERAL
DESCENDING DIRECT &
ASCENDING DIRECT


Page 74 of 109

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

Art. 967. Full blood relationship is that existing
between persons who have the same father
and the same mother.
Half blood relationship is that existing
between persons who have the same
father, but not the same mother, or the
same mother, but not the same father.

Importance of distinction between full-blood and half-
blood relationship with reference to brothers and
sisters and nephews and nieces, there is a ratio of 2:1
for full-blood and half-blood relationship, respectively.
[Arts1006 and 1008]
With respect to collateral relatives, the full-blood and
half-blood relationship is NOT MATERIAL.

Art. 968. If there are several relatives of the
same degree, and one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the
same degree, save the right of
representation when it should take place.

ACCRETION IN INTESTACY
There is accretion in intestacy among heirs of the
same degree, in case of PREDECEASE,
INCAPACITY or RENUNCIATION of any one of
them. [Art1015]
1) In case of predecease or incapacity,
representation, if proper, will PREVENT
accretion from occurring.
2) Relatives must be in the same kind of
relationship for accretion to take place
the heirs involved must be in the same kind
of relationship to the decedent. This is
because of the principle of the preference
of lines in intestate succession. Thus, there
can be no accretion among a grandchild, a
grandparent and a brother of the decedent
[even if they are all related to him in the 2
nd

degree] because they are not inheriting
together in the first place.

Art. 969. If the inheritance should be repudiated
by the nearest relative, should there be one
only, or by all the nearest relatives called
by law to succeed, should there be several,
those of the following degree shall inherit
in their own right and cannot represent the
person or persons repudiating the
inheritance.

EFFECT OF RENUNCIATION BY ALL IN THE SAME
DEGREE
The right of succession should first be passed on
the heirs in succeeding degrees [in successive
order] before the next line can succeed, because
of the rule of preference of lines. Thus:
1) The descending line first if all the
descendants of a certain degree renounce,
succession passes to the descendants of
the next degree [i.e. grandchildren], and so
on, ad indefinitum.
2) The ascending line next should no one be
left in the descending line, the heirs in the
ascending line acquire the right of
succession, again in order of degrees of
proximity.
3) The collateral line last only if ALL the
descendants and ascendants renounce will
the collateral relatives acquire the right to
succeed.

Predecease or Incapacity by All in the Same Degree
This eventuality is not provided for by the article.
The rules outlined, however, are equally
applicable to such situation, except in cases
where REPRESENTATION is proper [in
descending line]
Representation does not apply in cases of
universal renunciation outlined above, because
there is no representation in renunciation. [Art977]

SUBSECTION 2. - Right of Representation

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


Page 75 of 109

Art. 971. The representative is called to the
succession by the law and not by the
person represented. The representative
does not succeed the person represented
but the one whom the person represented
would have succeeded.

Art. 972. The right of representation takes place
in the direct descending line, but never in
the ascending.
In the collateral line, it takes place only
in favor of the children of brothers or
sisters, whether they be of the full or half
blood.

Art. 973. In order that representation may take
place, it is necessary that the
representative himself be capable of
succeeding the decedent.

Art. 974. Whenever there is succession by
representation, the division of the estate
shall be made per stirpes, in such manner
that the representative or representatives
shall not inherit more than what the person
they represent would inherit, if he were
living or could inherit.

Art. 975. When children of one or more
brothers or sisters of the deceased survive,
they shall inherit from the latter by
representation, if they survive with their
uncles or aunts. But if they alone survive,
they shall inherit in equal portions.

Art. 976. A person may represent him whose
inheritance he has renounced.

Art. 977. Heirs who repudiate their share may
not be represented.

REPRESENTATION
Definition a right created by fiction of law, by
virtue of which the representative is raised to the
place and the degree of the person represented,
and acquires the rights which the latter would
have if he were living or if he could have inherited.
[Art970]
o Criticisms the term representation, it
has been suggested that a better term to
call this legal process is either hereditary
subrogation or successional subrogation
because the person inheriting in anothers
stead actually represents no one and truly
succeeds in his own right. The term fiction
of law is criticized as inaccurate, as well,
because the law has ample authority to
predetermine who are to be called to
inherit, and the law needs no resort to
fictions but merely to make use of its power
to designate those who are to take the
inheritance.

INSTANCES WHEN REPRESENTATION
OPERATES

A. Predecease
B. Incapacity or Unworthiness, and
C. Disinheritance

Instance when Representation NEVER operates
RENUNCIATION

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

There is no representation in testamentary
succession

IN WHAT LINE DOES REPRESENTATION OBTAIN
A. With respect to the LEGITIME in the direct
descending line only [Art972]
B. With respect to INTESTACY the general rule
is in the direct descending line as well,
EXCEPT in one instance, in the collateral line
in case of nephews and nieces representing
brothers and sisters of the deceased [Art975]

REPRESENTATION BY ILLEGITIMATE CHILDREN
If the child to be represented is legitimate only
legitimate children/descendants can represent
him [Art992]
If the child to be represented is illegitimate
BOTH legitimate and illegitimate
children/descendants can represent him [Arts902,
989 and 990]

Thus
X

Legitimate Illegitimate

A B

Legit. Illegit. Legit.
Illegit.

A1 A2 B1 B2

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

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

Page 76 of 109

extend to the relatives of either party.
[Teotico v. Del Val]

REPRESENTATION BY RENOUNCER
Although a renounce cannot be represented, he
can represent the person whose inheritance he
has renounced [Art976]. This is because in the 2
nd

sentence of Art971, the representative does not
succeed the person represented but the one
whom the person represented would have
succeeded.
Example A is the father of B and C is the son of
B, and therefore the grandchild of A. B dies and C
renounces his inheritance. But if A dies and there
is a right of representation, C can still inherit from
A in representation of B, even if C previously
renounced his inheritance from B. This is because
in the latter case, C is inheriting from A and not
from B.

HOW REPRESENTATION OPERATES
PER STIRPES the representative or
representatives receive only what the person
represented would have received. If there is more
than 1 representative in the same degree, then
divide the portion EQUALLY, without prejudice to
the distinction between legitimate and illegitimate
children when applicable.

RULES ON QUALIFICATION
A. The representative must be qualified to
succeed the decedent. [Art973]
o Again, the rationale is found in the 2
nd

sentence of Art971, stating that the
representative does not succeed the
person represented but the one whom the
person represented would have
succeeded.

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

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

REPRESENTATION BY GRANDCHILDREN AND
REPRESENTATION BY NEPHEWS/NIECES:
Difference in Rule
A. If ALL the children are disqualified the
grandchildren still inherit by representation
[what the parents should have gotten] under
Art982.
B. If ALL the brothers/sisters are disqualified
the nephews and nieces inherit PER CAPITA
under Art975.

Some Suggestions more explicit provisions on:
o What are the occasions or causes for the
operation of representation?
o In what kinds of succession does
representation operate?

PROBLEM ON REPRESENTATION
Note, Im not sure about the answers, please re-check

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

A B C D E

C1 C2 D1 D2 E1
E2

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

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


Page 77 of 109


Page 78 of 109

SECTION 2. ORDER OF INTESTATE SUCCESSION

INTESTACY RULES OF EXCLUSION AND CONCURRENCE

HEIRS

EXCLUDE

CONCUR

ARE EXCLUDED BY

1. Legitimate
Children

Parents, Collaterals and
the State
The surviving spouse and
No one
2. Illegitimate
Children
Illegitimate parents,
collaterals and the state
Surviving spouse, legitimate
children and the legitimate parents
No one
3. Legitimate
Parents
Collaterals and the state Illegitimate children and the
surviving spouse
Legitimate children
4. Illegitimate
Parents
Collaterals and the state Surviving spouse Legitimate and
5. Surviving
Spouse
Collaterals, EXCEPT
brothers, sisters,
nephews and nieces,
and the State
Legitimate children, illegitimate
children, legitimate parents,
illegitimate parents and brothers,
sisters, nephews and nieces.
No one
6. Brothers,
sisters,
nephews and
nieces
All other collateral
relatives up to 5
th
degree
and the state
Surviving spouse Legitimate & illegitimate
children, and legitimate
& illegitimate parents
7. Other
Collaterals
Collaterals remoter in
degree, and the state
Collaterals in the same degree All others
8. The State No one No one Everyone

COMBINATIONS IN INTESTATE SUCCESSION

HEIR

SHARE

PROVISION

1. Legitimate
children
Whole estate, equally divided Art. 979. Legitimate children and their descendants succeed the parents
and other ascendants, without distinction as to sex or age, and even
if they should come from different marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child.

2. Legitimate
children and
Illegitimate
children
Whole estate with share of 1
legit child for EACH illegitimate
child
Art. 983. If illegitimate children survive with legitimate children, the shares
of the former shall be in the proportions prescribed by Article 895.
Art. 176 FAMILY CODE. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall be
entitled to 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.

3. Legitimate
children and
surviving spouse
Whole estate, divided equally,
including the surviving spouse
Art. 996. If a widow or widower and legitimate children or descendants
are left, the surviving spouse has in the succession the same share
as that of each of the children.

4. Legitimate
children,
surviving spouse
and illegitimate
children
Whole estate, the spouse getting
the share of 1 legitimate child
and the illegitimate child getting
the share of 1 legitimate child.
Art. 999. When the widow or widower survives with legitimate children or
their descendants and illegitimate children or their descendants,
whether legitimate or illegitimate, such widow or widower shall be
entitled to the same share as that of a legitimate child.
Art. 176 FAMILY CODE. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall be
entitled to 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.


Page 79 of 109

5. Legitimate
parents alone
Whole estate, equally Art. 985. In default of legitimate children and descendants of the
deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives.

6. Legitimate
ascendants
Whole estate, division equally by
line
Art. 987. In default of the father and mother, the ascendants nearest in
degree shall inherit.
Should there be more than one of equal degree belonging to the
same line they shall divide the inheritance per capita; should they be
of different lines but of equal degree, one-half shall go to the paternal
and the other half to the maternal ascendants. In each line the
division shall be made per capita.

7. Legitimate
parents and
illegitimate
children
Legitimate parents get of the
estate divided equally between
them and the illegitimate children
get of the estate divided also
equally
Art. 991. If legitimate ascendants are left, the illegitimate children shall
divide the inheritance with them, taking one-half of the estate,
whatever be the number of the ascendants or of the illegitimate
children.
8. Legitimate
parents and
surviving spouse
Legit parents get of the estate
and the surviving spouse gets
the other half
Art. 997. When the widow or widower survives with legitimate parents or
ascendants, the surviving spouse shall be entitled to one-half of the
estate, and the legitimate parents or ascendants to the other half.

9. Legitimate
parents,
surviving spouse
and illegitimate
children
Legit parents get , the surviving
spouse gets and the
illegitimate children get .
Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate
children are left, the ascendants shall be entitled to one-half of the
inheritance, and the other half shall be divided between the surviving
spouse and the illegitimate children so that such widow or widower
shall have one-fourth of the estate, and the illegitimate children the
other fourth.

10. Illegitimate
children
The whole estate, divided equally Art. 988. In the absence of legitimate descendants or ascendants, the
illegitimate children shall succeed to the entire estate of the
deceased.

11. Illegitimate
children and
surviving spouse
The illegitimate children get
and the surviving spouse gets
the other
Art. 998. If a widow or widower survives with illegitimate children, such
widow or widower shall be entitled to one-half of the inheritance, and
the illegitimate children or their descendants, whether legitimate or
illegitimate, to the other half.

12. Surviving spouse The whole estate Art. 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the
entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half of the
estate, and the latter the other half.

Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the entire estate,
without prejudice to the rights of brothers and sisters, nephews and
nieces, should there be any, under article 1001.

13. Surviving spouse
and illegitimate
parents
Spouse gets of estate,
illegitimate parents get the other

No provision, but by analogy to Art997.
Art. 997. When the widow or widower survives with legitimate parents or
ascendants, the surviving spouse shall be entitled to one-half of the
estate, and the legitimate parents or ascendants to the other half.

and legitimate
brothers, sisters,
nephews and
nieces
Spouse gets and the
legitimate BSNN get , with the
nephews and nieces inheriting by
representation in proper cases
Art. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the
inheritance and the brothers and sisters or their children to the other
half.
and illegitimate
brother, sisters,
nephews and
nieces
Spouse gets while illegitimate
BSNN get , with representation
Art. 994. In default of the father or mother, an illegitimate child shall be
succeeded by his or her surviving spouse who shall be entitled to the
entire estate.
If the widow or widower should survive with brothers and
sisters, nephews and nieces, she or he shall inherit one-half of the
estate, and the latter the other half.


Page 80 of 109

16. Illegitimate
parents
The whole estate Art. 993. If an illegitimate child should die without issue, either legitimate
or illegitimate, his father or mother shall succeed to his entire estate;
and if the child's filiation is duly proved as to both parents, who are
both living, they shall inherit from him share and share alike.

17. Illegitimate
parents and any
children
Illegitimate parents are excluded
by the children
Art. 993. If an illegitimate child should die without issue, either legitimate
or illegitimate, his father or mother shall succeed to his entire estate;
and if the child's filiation is duly proved as to both parents, who are
both living, they shall inherit from him share and share alike.

18. Legitimate
brothers and
sisters
Whole estate, half blood gets
of full bloods share [2:1]
Art. 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares.
Art. 1006. Should brother and sisters of the full blood survive together
with brothers and sisters of the half blood, the former shall be entitled
to a share double that of the latter.

19. Legitimate
brothers &
sisters, nephews
& nieces
Whole estate, 2:1 for half blood,
with representation for nephews
and nieces
Art. 1005. Should brothers and sisters survive together with nephews and
nieces, who are the children of the descendant's brothers and sisters
of the full blood, the former shall inherit per capita, and the latter per
stirpes.
Art. 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for
the brothers and sisters of the full blood.

20. Nephews and
nieces with
uncles and aunts
Uncles and aunts are excluded.
The nephews and nieces get the
whole estate
Art. 1009. Should there be neither brothers nor sisters nor children of
brothers or sisters, the other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole blood.
And the case of Bacayo v Borromeo

21. Illegitimate
brothers and
sisters
Whole estate, 2:1 full and half
blood
No article governing
22. Illegitimate
brothers &
sisters, nephews
& nieces
Whole estate No article governing
23. Nephews and
nieces
Whole, PER CAPITA, 2:1 ratio Art. 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by representation,
if they survive with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions.
Art. 1008. Children of brothers and sisters of the half blood shall succeed
per capita or per stirpes, in accordance with the rules laid down for
the brothers and sisters of the full blood.

24. Other collaterals Whole, PER CAPITA, nearer
excludes the more remote in
degree
Art. 1009. Should there be neither brothers nor sisters nor children of
brothers or sisters, the other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth
degree of relationship in the collateral line.

25. The state Whole estate Art. 1011. In default of persons entitled to succeed in accordance with the
provisions of the preceding Sections, the State shall inherit the whole
estate.


Page 81 of 109

AS TO THE STATE
Assignment and disposition of decedents asses
a) If decedent was a resident of the
Philippines at ANY Time
i. Personal Property to
municipality of last residence
ii. Real Property where situated

b) If decedent was NEVER a resident of the
Philippines where property is situated,
whether real or personal property.

How property is to be used
a) For the benefit of public educational and
charitable institutions in the respective
municipalities/cities
b) Alternatively, at the instance of an
interested party, or motu proprio, court may
order creation of a permanent trust for the
benefit of the institutions concerned.

SECTION 2.
ORDER OF INTESTATE SUCCESSION

SUBSECTION 1. - Descending Direct Line

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

WHO ARE THE INTESTATE HEIRS [not in order]
A. Legitimate Children/Descendants
B. Illegitimate Children/Descendants
C. Legitimate Parents/Ascendants
D. Illegitimate Parents
E. Surviving Spouse
F. Brothers, Sisters, Nephews, Nieces
G. Other Collaterals up to the 5
th
degree
H. The State

The first 5 classes of intestate heirs are also
compulsory heirs.
There is also an overlapping of compulsory and
intestate succession, i.e. the legitime and the
intestate portions merge.
There is a very close parallel between the rules of
compulsory succession and those of intestate
succession.

Art. 979. Legitimate children and their
descendants succeed the parents and
other ascendants, without distinction as to
sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the
property of the adopting parents in the
same manner as a legitimate child.

The right of an adopted child in relation to the adopter
is governed by sections 17 and 18 of RA8552, which
lays down the same rule that an adopted child
succeeds to the property of the adopting parents in the
same manner as a legitimate child.

Art. 980. The children of the deceased shall
always inherit from him in their own right,
dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and
descendants of other children who are
dead, survive, the former shall inherit in
their own right, and the latter by right of
representation.

Art. 982. The grandchildren and other
descendants shall inherit by right of
representation, and if any one of them
should have died, leaving several heirs, the
portion pertaining to him shall be divided
among the latter in equal portions.

Grandchildren do not inherit per capita even if all
children die they inherit per stirpes, EXCEPT if ALL
children renounce, then the grandchildren will inherit in
their own right / per capita.

Art. 983. If illegitimate children survive with
legitimate children, the shares of the former
shall be in the proportions prescribed by
Article 895.

The proportion of the shares of legitimate and
illegitimate children has been simplified to 2:1 by virtue
of the amendments introduced by Articles 163 and
176 of the Family Code.

In this combination, care should be taken lest the
legitimes of the legitimate children be impaired.
Consequently, a 2-step process should be observed
1) Segregate the legitimes of the children
both legitimate and illegitimate
2) If any residue is left, apportion it in the
proportion of 2:1.

It is possible depending on the number of legitimates
and illegitimates that the estate may not even be
sufficient to satisfy the legitimes, in which case, the
second step in the process will not even be feasible. In
fact, in such case, the legitimes of the
ILLEGITIMATES will have to be reduced pro rata.

Art. 984. In case of the death of an adopted
child, leaving no children or descendants,
his parents and relatives by consanguinity
and not by adoption, shall be his legal
heirs.

Repealed by Sections 17 and 18 of RA8552.

Page 82 of 109

SUBSECTION 2. - Ascending Direct Line

Art. 985. In default of legitimate children and
descendants of the deceased, his parents
and ascendants shall inherit from him, to
the exclusion of collateral relatives.

Art. 986. The father and mother, if living, shall
inherit in equal shares.
Should one only of them survive, he or
she shall succeed to the entire estate of the
child.

Art. 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal
degree belonging to the same line they
shall divide the inheritance per capita;
should they be of different lines but of
equal degree, one-half shall go to the
paternal and the other half to the maternal
ascendants. In each line the division shall
be made per capita.

There is no right of representation in the ascending
line.

SUBSECTION 3. - Illegitimate Children

Art. 988. In the absence of legitimate
descendants or ascendants, the illegitimate
children shall succeed to the entire estate
of the deceased.

Art. 989. If, together with illegitimate children,
there should survive descendants of
another illegitimate child who is dead, the
former shall succeed in their own right and
the latter by right of representation.

Only difference an illegitimate child can be
represented bi either an illegitimate or legitimate child
of his. While a legitimate child can only be represented
by a legitimate child of his.

Art. 990. The hereditary rights granted by the
two preceding articles to illegitimate
children shall be transmitted upon their
death to their descendants, who shall
inherit by right of representation from their
deceased grandparent.

Art. 991. If legitimate ascendants are left, the
illegitimate children shall divide the
inheritance with them, taking one-half of
the estate, whatever be the number of the
ascendants or of the illegitimate children.

Art. 992. An illegitimate child has no right to
inherit ab intestato from the legitimate
children and relatives of his father or
mother; nor shall such children or relatives
inherit in the same manner from the
illegitimate child.

MEMORIZE!
This is the well-known and much criticized
successional barrier between legitimate and
illegitimate relatives of a decedent.

Art. 993. If an illegitimate child should die
without issue, either legitimate or
illegitimate, his father or mother shall
succeed to his entire estate; and if the
child's filiation is duly proved as to both
parents, who are both living, they shall
inherit from him share and share alike.

Art. 994. In default of the father or mother, an
illegitimate child shall be succeeded by his
or her surviving spouse who shall be
entitled to the entire estate.
If the widow or widower should survive
with brothers and sisters, nephews and
nieces, she or he shall inherit one-half of
the estate, and the latter the other half.

SUBSECTION 4. - Surviving Spouse

There are no rules on marriage mortis cause [unlike in
legitimes]

Art. 995. In the absence of legitimate
descendants and ascendants, and
illegitimate children and their descendants,
whether legitimate or illegitimate, the
surviving spouse shall inherit the entire
estate, without prejudice to the rights of
brothers and sisters, nephews and nieces,
should there be any, under article 1001.

Art. 996. If a widow or widower and legitimate
children or descendants are left, the
surviving spouse has in the succession the
same share as that of each of the children.

This rule holds even if there is only 1 legitimate child,
in which case, the child and the surviving spouse will
divide the estate equally.

Page 83 of 109

When the law speaks of brothers and sisters,
nephews and nieces as legal heirs of an illegitimate
child, it refers to illegitimate brothers and sisters as
well as to the children, whether legitimate or
illegitimate, of such brothers and sisters.

with legitimate parents or ascendants, the
surviving spouse shall be entitled to one-
half of the estate, and the legitimate
parents or ascendants to the other half.

Art. 998. If a widow or widower survives with
illegitimate children, such widow or
widower shall be entitled to one-half of the
inheritance, and the illegitimate children or
their descendants, whether legitimate or
illegitimate, to the other half.

with legitimate children or their
descendants and illegitimate children or
their descendants, whether legitimate or
illegitimate, such widow or widower shall
be entitled to the same share as that of a
legitimate child.

Art. 1000. If legitimate ascendants, the
surviving spouse, and illegitimate children
are left, the ascendants shall be entitled to
one-half of the inheritance, and the other
half shall be divided between the surviving
spouse and the illegitimate children so that
such widow or widower shall have one-
fourth of the estate, and the illegitimate
children the other fourth.

Art. 1001. Should brothers and sisters or their
children survive with the widow or
widower, the latter shall be entitled to one-
half of the inheritance and the brothers and
sisters or their children to the other half.

Art. 1002. In case of a legal separation, if the
surviving spouse gave cause for the
separation, he or she shall not have any of
the rights granted in the preceding articles.

SUBSECTION 5. - Collateral Relatives

Art. 1003. If there are no descendants,
ascendants, illegitimate children, or a
surviving spouse, the collateral relatives
shall succeed to the entire estate of the
deceased in accordance with the following
articles.

Art. 1004. Should the only survivors be
brothers and sisters of the full blood, they
shall inherit in equal shares.

Prescriptive period for the claim is FIVE YEARS from
the delivery of the property to the state or political
subdivision concerned.
Who may make the claim any person entitled by
succession to the estate, including any heir of any kind
of succession, legitime, testamentary or intestate.

THE PROBLEM OF PARTIAL INTESTACY
The combinations laid down in Articles 978-1014
cover only cases of TOTAL intestacy. There is no
provision to govern cases of partial intestacy when the
decedent has left a will disposing of part, but not all, of
the disposable portion.
How then should the estate be divided if the decedent
died with a will but the will does not dispose of the
entire free or disposable portion? The problem is
solved by inference, bearing in mind the laws intent,
thus:
1) Trace where the free portion went in total
intestacy
2) Since part of that free portion was
disposed of by will, the testamentary
provision should be carried out, and what
is left of the free portion should then be
given to the intended beneficiary in
intestacy.

EXAMPLE
X died, leaving as his survivors his legitimate
parents A and B and his wife Y, without any
children. He left a will giving 1/8 of his entire
estate to Caritas Manila. His net estate is worth
P600,000.

PROCESS/ANSWER
The will is not inofficious, since it disposes only of
1/8 of the estate, the disposable portion being .
The legitimes of the compulsory heirs are
o A and B as legitimate parents of estate =
P300,000
o Y as surviving spouse of estate =
P150,000
In total intestacy, the sharings would have been
[according to Art997]
o A and B to of the estate = P300,000
o Y to of the estate = P300,000
The intended recipient of the undisposed portion
is Y since she is the one to whom the entire free
portion went in total intestacy [since A and B
simply got their legitimes.
Therefore, since part of the free portion was given
away by will, the remainder should be given to Y.
Hence, Caritas Manila gets 1/8 or P75,000. A and
B get or P300,000 divided between them, so
P150,000 each. Y then gets P225,000. All shares
total to the P600,000 estate.


Page 84 of 109

Art. 1005. Should brothers and sisters survive
together with nephews and nieces, who are
the children of the descendant's brothers
and sisters of the full blood, the former
shall inherit per capita, and the latter per
stirpes.

Art. 1006. Should brother and sisters of the full
blood survive together with brothers and
sisters of the half blood, the former shall be
entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the
half blood, some on the father's and some
on the mother's side, are the only
survivors, all shall inherit in equal shares
without distinction as to the origin of the
property.

Art. 1008. Children of brothers and sisters of
the half blood shall succeed per capita or
per stirpes, in accordance with the rules
laid down for the brothers and sisters of
the full blood.

Art. 1009. Should there be neither brothers nor
sisters nor children of brothers or sisters,
the other collateral relatives shall succeed
to the estate.
The latter shall succeed without
distinction of lines or preference among
them by reason of relationship by the
whole blood.

Art. 1010. The right to inherit ab intestato shall
not extend beyond the fifth degree of
relationship in the collateral line.

SUBSECTION 6. - The State

Art. 1011. In default of persons entitled to
succeed in accordance with the provisions
of the preceding Sections, the State shall
inherit the whole estate.

Art. 1012. In order that the State may take
possession of the property mentioned in
the preceding article, the pertinent
provisions of the Rules of Court must be
observed.

Art. 1013. After the payment of debts and
charges, the personal property shall be
assigned to the municipality or city where
the deceased last resided in the
Philippines, and the real estate to the
municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the
Philippines, the whole estate shall be
assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers, in such
municipalities or cities. The court shall
distribute the estate as the respective
needs of each beneficiary may warrant.
The court, at the instance of an
interested party, or on its own motion, may
order the establishment of a permanent
trust, so that only the income from the
property shall be used.

Art. 1014. If a person legally entitled to the
estate of the deceased appears and files a
claim thereto with the court within five
years from the date the property was
delivered to the State, such person shall be
entitled to the possession of the same, or if
sold the municipality or city shall be
accountable to him for such part of the
proceeds as may not have been lawfully
spent.

In case of partial intestacy

SECTION 1.
RIGHT OF ACCRETION

Art. 1015. Accretion is a right by virtue of
which, when two or more persons are
called to the same inheritance, devise or
legacy, the part assigned to the one who
renounces or cannot receive his share, or
who died before the testator, is added or
incorporated to that of his co-heirs, co-
devisees, or co-legatees.

Art. 1016. In order that the right of accretion
may take place in a testamentary
succession, it shall be necessary:
(1) That two or more persons be called to
the same inheritance, or to the same
portion thereof, pro indiviso; and
(2) That one of the persons thus called die
before the testator, or renounce the

CHAPTER 4
PROVISIONS COMMON TO TESTATE AND
INTESTATE SUCCESSIONS


Page 85 of 109

inheritance, or be incapacitated to
receive it.

ACCRETION
Definition a right by virtue of which, when 2 or
more persons are called to the same inheritance,
devise or legacy, the part assigned to the one
who renounces or cannot receive his share, or
who died before the testator.

Occasions for Operation of Accretion
a) RENUNCIATION
b) PREDECEASE
c) INCAPACITY

ELEMENTS FOR ACCRETION IN
TESTAMENTARY SUCCESSION
1) 2 or more persons are called to the
same inheritance, or to the same
portion thereof, pro indiviso
o Meaning of pro indiviso:
Either the co-heirs are instituted
without individual designation of
shares, ex. I institute A and B to
of my estate. Or
The co-heirs are instituted with
the specification that they share
equally [in equal shares] or that
they have the same fractional
sharing for each [Art1017].
Examples: I institute A, B and C
to of my estate in equal
shares, or I institute A, B and C
to of my estate, each of them to
take 1/3 of such .
Will accretion occur if the
fractional sharings of the co-heirs
are unequal? YES. All that the law
requires is that the institution be
pro indiviso, which means as
undivided or in common. The
term does not import equality of
shares. Thus, accretion will occur
even if the sharings are unequal,
as long as the result is co-
ownership.

2) One of the persons thus called die
before the testator, or renounce the
inheritance or be incapacitated to
receive it.
o Renunciation, predecease or
incapacity of one or more but LESS
THAN ALL of the instituted heirs.

Art. 1017. The words "one-half for each" or "in
equal shares" or any others which, though
designating an aliquot part, do not identify
it by such description as shall make each
heir the exclusive owner of determinate
property, shall not exclude the right of
accretion.
In case of money or fungible goods, if
the share of each heir is not earmarked,
there shall be a right of accretion.

Art. 1018. In legal succession the share of the
person who repudiates the inheritance
shall always accrue to his co-heirs.

In intestacy, accretion occurs
A. In repudiation or renunciation accretion is
subordinate to representation in intestacy.
B. In predecease, only if representation does not
take place
C. In incapacity or unworthiness, only if
representation does not take place.

The co-heirs in whose favor accretion occurs must be
co-heirs in the same category as the excluded heir.
Example, if X dies intestate and is survived by
his wife Y and his brothers A, B and C. If C
renounces, his portion goes to A and B by
accretion. Y is not an accruing co-heir, not
being of the same category or class.

Art. 1019. The heirs to whom the portion goes
by the right of accretion take it in the same
proportion that they inherit.

General Rule - Accretion should be proportional.

Art. 1020. The heirs to whom the inheritance
accrues shall succeed to all the rights and
obligations which the heir who renounced
or could not receive it would have had.

EXCEPTIONS to general rule that accretion should be
proportional

a) In testamentary succession, if the testator
provides otherwise,
b) If the obligation is purely persona, and
hence intransmissible.

Art. 1021. Among the compulsory heirs the
right of accretion shall take place only
when the free portion is left to two or more
of them, or to any one of them and to a
stranger.
Should the part repudiated be the
legitime, the other co-heirs shall succeed to
it in their own right, and not by the right of
accretion.

1
ST
paragraph 3 kinds of succession: compulsory,
testamentary and intestate. These 3 are distinct,
although they may operate simultaneously.
Consequently, accretion is restricted in its operation
within the confines of the particular kind of succession
involved.

Page 86 of 109

2
ND
paragraph there is NO ACCRETION in the
LEGITIME. In most cases, this rule will not
substantially affect the operation of the legitime. The
possible significance of this is when it comes to the
computation of legitimes of illegitimate children or the
surviving spouse, when concurring with legitimate
children.

Art. 1022. In testamentary succession, when
the right of accretion does not take place,
the vacant portion of the instituted heirs, if
no substitute has been designated, shall
pass to the legal heirs of the testator, who
shall receive it with the same charges and
obligations.

In the testamentary succession, accretion is
subordinate to substitution, if the testator so provided.
This is because substitution is the testators express
intent, whereas accretion is merely his implied intent.
Obviously, if there is neither substitution nor accretion,
the part left vacant will lapse into intestacy and will be
disposed of accordingly.

Art. 1023. Accretion shall also take place
among devisees, legatees and
usufructuaries under the same conditions
established for heirs.

SECTION 2.
CAPACITY TO SUCCEED
BY WILL OR BY INTESTACY

Art. 1024. Persons not incapacitated by law
may succeed by will or ab intestato.
The provisions relating to incapacity by
will are equally applicable to intestate
succession.

The general rule is in favor of capacity to succeed, as
long as the successor has juridical personality.
Incapacity must be based on some legal ground and
must be shown.
The second paragraph is inaccurate. Some grounds
for incapacity to succeed by will have no application to
compulsory or intestate succession.
The articles laying down the cause of incapacity to
succeed are Articles 1027, 2028 and 1032.
A. Article 1027 pars. 1-5 applicable only to
testamentary succession
B. Article 1027 par6 applicable to ALL kinds
of succession
C. Article 1028 applicable only to
testamentary succession
D. Article 1032 applicable to ALL kinds of
succession

Art. 1025. In order to be capacitated to inherit,
the heir, devisee or legatee must be living
at the moment the succession opens,
except in case of representation, when it is
proper.
A child already conceived at the time of
the death of the decedent is capable of
succeeding provided it be born later under
the conditions prescribed in article 41.

REQUIREMENT FOR CAPACITY TO SUCCEED OF
NATURAL PERSONS

A. General rule must be LIVING when
succession opens
1. When succession opens the
decedents death under Art777
2. Meaning of living it is enough that the
heir, devisee or legatee be already
conceived when the decedent dies,
provided it be born later, in accordance
with Articles 40 and 41. Inheriting is
favorable to the child.

B. If institution is subject to a Suspensive
Condition
o Successor must ALSO be living when
the condition happens [Art1034 par3].
Thus, in a conditional institution, the
successor must be living BOTH when
the decedent dies AND when the
condition happens.

C. If institution subject to a Suspensive Term
o The requirement of being alive applies
only at the moment of the decedents
death, the successor need not be alive,
when the term arrives [Art878]

Representation NOT an exception to Requirement
The requirement that the successor should be
alive when the decedent dies is absolute. There is
no exception to this rule, the provisions of this
article notwithstanding.
For representation to occur, the representation
must at least already be conceived when the
decedent dies, because of the provisions of
Articles 971 and 973.
Example X has 2 sons A and B. B was
disinherited by X. X died in 1985. In 1988 B begot
a child. Bs child cannot represent B in the
succession to X.

Art. 1026. A testamentary disposition may be
made to the State, provinces, municipal
corporations, private corporations,
organizations, or associations for religious,
scientific, cultural, educational, or
charitable purposes.
All other corporations or entities may
succeed under a will, unless there is a

Page 87 of 109

provision to the contrary in their charter or
the laws of their creation, and always
subject to the same.

REQUIREMENT FOR CAPACITY OF JURIDICAL
PERSONS TO SUCCEED
It must already EXIST as a juridical person when
the decedent dies.
Organizations or associations which do not
possess juridical personality cannot succeed,
because legally, they would not exist. The
enumeration of juridical persons is found in Art
44:
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality
begins as soon as they have been constituted according to
law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.

For institutions subject to suspensive conditions
or terms, the rules outlined in the previous article
apply.

Art. 1027. The following are incapable of
succeeding:
(1) The priest who heard the confession of
the testator during his last illness, or
the minister of the gospel who
extended spiritual aid to him during the
same period;
(2) The relatives of such priest or minister
of the gospel within the fourth degree,
the church, order, chapter, community,
organization, or institution to which
such priest or minister may belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his
favor before the final accounts of the
guardianship have been approved, even
if the testator should die after the
approval thereof; nevertheless, any
provision made by the ward in favor of
the guardian when the latter is his
ascendant, descendant, brother, sister,
or spouse, shall be valid;
(4) Any attesting witness to the execution
of a will, the spouse, parents, or
children, or any one claiming under
such witness, spouse, parents, or
children;
(5) Any physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness;
(6) Individuals, associations and
corporations not permitted by law to
inherit.

Pars. 1-5 apply only to TESTAMENTARY Succession.
They have no application to the legitime or to
intestacy. Thus, a person may be disqualified to
succeed by will under these paragraphs but will still be
entitled to a legitime or to an intestate portion.
It is unfortunate that these paragraphs, [except
Par3, which clearly limits its application to
testamentary dispositions] do not state clearly that
they only apply to testamentary succession and
not to the legitime or intestacy.
Par6 is misplaced because it provides for TOTAL
disqualification. It should be made a separate article.
Rationale of Pars. 1-5 the law, in imposing a
disqualification, seeks to prevent any possible abuse
of the moral or spiritual ascendancy for purposes of
testamentary benefit.
This disqualification is peremptory. No actual duress
or influence need be shown, these are conclusively
presumed. Proof of absence of duress or influence is
irrelevant and will not remove the disqualification.

PERSONS INCAPACITATED TO SUCCEED
1. Priest or minister of the gospel
o Requisites:
a) The will must have been executed
during the testators last illness
b) The spiritual ministration must have
been extended during the last
illness.
c) The will must have been executed
during or after the spiritual
ministration.
o Notwithstanding the seemingly restrictive
terms of this disqualification, it applies not
only to Christian priests, pastors, ministers
and so forth, but also to all individuals
belonging to other religions, sects or cults,
whose office or function is to extend the
peculiar spiritual ministrations of their
creed.

2. Priests 4
th
degree relatives and his Church
o Purpose of disqualification to prevent
indirect violations or circumventions of
par1.
o Spouse of religious minister does the
prohibition apply to the spouse of the
minister? YES. Although the Catholic
priest s celibate, the priesthood or
ministry of other denominations or
religions are not. Certainly, the mischief
sought to be averted can be perpetrated
by the spouse.

3. Guardian as to disposition before Final
Accounting
o When disqualification applies the will
must have been executed by the ward

Page 88 of 109

during the effectivity of the guardianship,
which means at anytime between the
commencement of the guardianship and
its dissolution.
o What kind of guardianship covered
terms of disqualification seem to be
limited to guardians over the property. In
view, however, of the purpose of the
prohibition, the argument that this
prohibition should apply as well to
guardians over the person is most
tenable.
o Exception a guardian who happens to
be an ascendant, descendant, brother,
sister or spouse of the ward-testator is
excluded from the prohibition. Curiously,
thus exception is not allowed in the other
paragraphs.

4. Attesting witness or Spouse, Parents,
Children or any one claiming under such
witness, spouse, parents or children
o Essentially a reiteration of the
disqualification in Art823, but cast more
in general terms, since this article
nullifies not just legacies and devises but
all testamentary dispositions made in the
witness favor.
o NOTE there is a discrepancy between
this paragraph and Art823, which allows
for an exception: i.e. if there are 3 other
competent witnesses. That exception
should be read into this paragraph.

5. Physician, surgeon, nurse, health officer or
druggist
o Scope of Prohibition the person must
have taken care of the testator during
the latters final illness. Taking Care
means medical attendance with some
regularity or continuity that the possibility
of duress or influence exists.
o However, the pharmacist who only
happens to fill a prescription does not fall
under the interdiction.

6. Individuals, associations and corporations
not permitted by law

Bewildering variations in the rules
Why do some paragraphs [pars 2 and 4]
disqualify relatives but another [par5] does not?
Why is the exception in par3 not applied to
paragraphs 1 and 5?
The reason is that the article is derived from
various sources from the Old Code, the Code of
Civil Procedure and the ideas of the Code
Commission.

Art. 1028. The prohibitions mentioned in article
739, concerning donations inter vivos shall
apply to testamentary provisions.

The Disqualification laid down by this article applies
only to TESTAMENTARY SUCCESSION
By the provisions of this article, those are disqualified
from receiving donations under Art739 are likewise
disqualified from receiving testamentary dispositions
from the parties specified in that article.
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descedants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee; and
the guilt of the donor and donee may be proved by preponderance
of evidence in the same action.

Art. 1029. Should the testator dispose of the
whole or part of his property for prayers
and pious works for the benefit of his soul,
in general terms and without specifying its
application, the executor, with the court's
approval shall deliver one-half thereof or its
proceeds to the church or denomination to
which the testator may belong, to be used
for such prayers and pious works, and the
other half to the State, for the purposes
mentioned in Article 1013.

REQUISITES
A. Disposition for prayers and pious works for the
benefit of the testators soul
B. No specification of application of the disposition

Apportionment of the Disposition or its Proceeds
A. One-half [1/2] to the Church or denomination to
which the testator belonged
B. One-half [1/2] to the State, to be applied as
provided for under Art1013

Art. 1030. Testamentary provisions in favor of
the poor in general, without designation of
particular persons or of any community,
shall be deemed limited to the poor living in
the domicile of the testator at the time of
his death, unless it should clearly appear
that his intention was otherwise.
The designation of the persons who are
to be considered as poor and the
distribution of the property shall be made
by the person appointed by the testator for
the purpose; in default of such person, by
the executor, and should there be no
executor, by the justice of the peace, the
mayor, and the municipal treasurer, who
shall decide by a majority of votes all
questions that may arise. In all these cases,
the approval of the Court of First Instance
shall be necessary.

Page 89 of 109

The preceding paragraph shall apply
when the testator has disposed of his
property in favor of the poor of a definite
locality.

The named beneficiaries here are the poor, either of a
definite locality [par3] or of no designated locality
[par1]. In the latter case, the beneficiaries shall be the
poor of the testators domicile, unless excluded by the
testator in his will.
Who are to determine the individual beneficiaries
within the class designated by the testator?
A. The person authorized by the testator or in his
default,
B. The executor, or in his default,
C. The administrator.
In fact, the committee specified in this article will
have no occasion to function.

Art. 1031. A testamentary provision in favor of
a disqualified person, even though made
under the guise of an onerous contract, or
made through an intermediary, shall be
void.

Rationale What cannot be done by direction cannot
be done by indirection. The simulation must be
proved, for this article to apply.
Effect of simulation or circumvention The article
provides that the disposition is void, hence ineffective
both as to the intended beneficiary and the
intermediary. The intestate heirs, to whom the
property would go, have the right to claim the nullity.

Art. 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted
of an attempt against the life of the
testator, his or her spouse,
(3) Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
will or to change one already made;
(7) Any person who by the same means
prevents another from making a will,
or from revoking one already made,
or who supplants, conceals, or alters
the latter's will;
(8) Any person who falsifies or forges a
supposed will of the decedent.

This article applies to all kinds of succession

GROUNDS FOR UNWORTHINESS

1. Parents who have abandoned their children
or induced their daughters to lead a corrupt
or immoral life, or attempted against their
virtue
o There are 3 grounds given:
1) Abandonment of the child
2) Inducement of a daughter to lead a
corrupt or immoral life
3) Attempt against a daughters virtue

o All these 3 grounds are also grounds for
disinheritance of parents or ascendants
under Art920. The same rules apply.

2. Person convicted of an attempt against the
life of the testator, his or her spouse,
descendants or ascendants
o Also a ground for disinheritance under
Art919. The same rules apply.

3. Person who accused the testator of a crime
for which the law prescribed imprisonment
for 6 years or more, if the accusation has
been found to be groundless

4. Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law within
a month, unless the authorities have already
taken action
o One requisite of this ground for
disqualification makes this paragraph non-
operative a legal obligation to make an
accusation. There is no such obligation
under the present law.
o However, the Requisites of this paragraph
are
a) The heir has knowledge of the
violent death of the decedent
b) The heir is of legal age
c) The heir fails to report it to an officer
of the law within a month after
learning of it

Page 90 of 109

d) The authorities have not yet taken
action
e) There is a legal obligation for the
heir to make an accusation.

5. Person convicted of adultery or concubine
age with the spouse of the testator

6. Any person who by fraud, violence,
intimidation or undue influence should
cause the testator to make a will or to
change one already made

7. Person who by the same means prevents
another from making a will, or from revoking
one already made, or who supplants,
conceals, or alters the latters will

8. Person who falsifies or forges a supposed
will of the decedent

EFFECT OF UNWORTHINESS
Unworthiness gives rise to total disqualification,
i.e. the unworthy heir is incapacitated to succeed
from the offended party by ANY FORM OF
SUCCESSION.
Thus, unworthiness and disinheritance have
identical effects. Unworthiness is disinheritance
imposed by law.
That unworthiness deprives the unworthy heir
even of the legitime is clear from Article 1035.

Art. 1033. The cause of unworthiness shall be
without effect if the testator had knowledge
thereof at the time he made the will, or if,
having known of them subsequently, he
should condone them in writing.

Restoration to Capacity the unworthiness is set
aside and the unworthy heir restored to capacity in 2
ways:
1. A written condonation, or
2. The execution by the offended party of a will
with knowledge of the cause of unworthiness.

Question regarding the second mode, is it enough
that the offended party execute a will with knowledge
of the existence of the cause of unworthiness?
o Balane says that the better opinion is that it is
NOT enough, the will must either institute the
unworthy heir or restore him to capacity.

Common Grounds for Unworthiness and
Disinheritance: Conflicting Modes of Lifting
Disqualification [Articles 1033 and 922]
A. Most of the grounds for unworthiness are also
grounds for disinheritance under Art1032.
There is no problem if the offended party
does not choose to disinherit the offending
heir, because then only the rules of
unworthiness will operate.
Should the offended party, however, elect
to disinherit the offender, the 2 set of rules
on disinheritance and unworthiness would
overlap.
The problem then arises: HOW IS THE
DISQUALIFIED HEIR RESTORED TO
CAPACITY?
Under the rules on disinheritance, a
subsequent reconciliation is enough
(Art922); under those on unworthiness,
either a written pardon or a subsequent will
is required.
Supposing that there is a reconciliation but
nothing in writing, will it be correct to
conclude that the heir is restored to
capacity under the rule on disinheritance
but stays disqualified under the rule on
unworthiness?
Balane says this seems unacceptable
because that would make the rules on
unworthiness [which is by operation of law
and is only the implied will of the offended
party] prevail over those on disinheritance
[which is his express will]

B. THUS, the most acceptable reconciliation seems
to be the following:
1. If offended party DOES NOT MAKE A WILL
subsequent to the occurrence of the common
cause apply article 1033, unworthiness sets
in ipso facto and written condonation is
necessary to restore capacity.
2. If offended party MAKES A WILL subsequent
to the occurrence of the common cause
a. If he knew of the cause
i. If he disinherits art922,
disinheritance is ineffective.
ii. If he institutes or pardons the
offender offender restored to
capacity.
iii. If will is silent this is disputed. But
the better opinion is that the
unworthiness stays.
b. If he did not know of the cause
unworthiness stays

Art. 1034. In order to judge the capacity of the
heir, devisee or legatee, his qualification at
the time of the death of the decedent shall
be the criterion.
In cases falling under Nos. 2, 3, or 5 of
Article 1032, it shall be necessary to wait
until final judgment is rendered, and in the
case falling under No. 4, the expiration of
the month allowed for the report.
If the institution, devise or legacy
should be conditional, the time of the
compliance with the condition shall also be
considered.


Page 91 of 109

When Capacity is to be Determined
A. General Rule the time of the decedents
death
o Because that is when successional
rights vest.

B. If institution is subject to suspensive condition
1. Time of the decedents death AND
2. Time of the happening of the condition

C. If final judgment is a requisite of unworthiness
at the time of final judgment.

Art. 1035. If the person excluded from the
inheritance by reason of incapacity should
be a child or descendant of the decedent
and should have children or descendants,
the latter shall acquire his right to the
legitime.
The person so excluded shall not enjoy
the usufruct and administration of the
property thus inherited by his children.

Representation in Unworthiness
Unworthiness is one of the 3 occasions for
representation to operate.

Extent of Representation
Representation in unworthiness [as also in
predecease and disinheritance] extends not only
to the legitime but also to whatever portion in
intestate succession the person represented may
have been entitled to.
The first paragraph of the article should not be
taken to imply that representation is confined to
the legitime.

Representation in the Collateral Line
If the unworthy heir is a brother or sister, his
children [nephews and nieces of the decedent]
will represent under art972 par2.

Second Paragraph Articles 225-226 of the Family
Code should be read together with the second
paragraph of this article
A. As to usufruct the prohibition in this provision
has become unnecessary because of Art226
par2 of the Family Code.
B. As to administration the disqualification
remains, and this right shall be exercised either
by a judicially appointed guardian or those
vested by law with substitute parental authority
under Art216 of the Family Code.

Art. 1036. Alienations of hereditary property,
and acts of administration performed by
the excluded heir, before the judicial order
of exclusion, are valid as to the third
persons who acted in good faith; but the
co-heirs shall have a right to recover
damages from the disqualified heir.

Good Faith of Transferee as Determining Factor of
Validity
The validity of the alienation is determined by the
good faith or bad faith of the transferee, not of the
transferor [the excluded heir]
For the transferee to be in good faith, he must
have acquired the thing for value and without
knowledge of the defect of the transferors title.
Thus, a donee cannot claim the benefit of this
provision, since he did not acquire for value.

Note that in cases of valid alienations by the
disqualified heir, the rightful heirs are not without a
remedy: they may go after the disqualified heir for
damages.

Art. 1037. The unworthy heir who is excluded
from the succession has a right to demand
indemnity or any expenses incurred in the
preservation of the hereditary property, and
to enforce such credits as he may have
against the estate.

The right of reimbursement granted by this article to
the excluded heir is irrespective of his bad faith
because the expenses referred to in this article are
necessary expenses which have to be reimbursed
even to a possessor in bad faith [under Articles 443
and 546 par1]

Art. 1038. Any person incapable of succession,
who, disregarding the prohibition stated in
the preceding articles, entered into the
possession of the hereditary property, shall
be obliged to return it together it its
accessions.
He shall be liable for all the fruits and
rents he may have received, or could have
received through the exercise of due
diligence.

The disqualified heir, referred to in this article, who
took possession of the hereditary property, is a
possessor in bad faith, because he took possession
disregarding the provision stated in the preceding
articles.
Hence, the law applies to him the rules on possession
in bad faith:
1. The obligation to return, with accessions
2. Liability for fruits which were received and could
have been received.
These are the same rules laid down in Art549.
Period for action to recover Under Art 1040, 5 years.

Art. 1039. Capacity to succeed is governed by
the law of the nation of the decedent.


Page 92 of 109

National law of decedent governs capacity note that
it is the national law of the DECENDENT and not that
of the heir that governs the capacity to succeed.
This is the same principle as Art16 par2.
Art. 16. Real property as well as personal property is subject to
the law of the country where it is stipulated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.

Art. 1040. The action for a declaration of
incapacity and for the recovery of the
inheritance, devise or legacy shall be
brought within five years from the time the
disqualified person took possession
thereof. It may be brought by any one who
may have an interest in the succession.

5 years prescriptive period applies both to the
declaration of incapacity of the heir and the recovery
of the inheritance or portion thereof wrongfully
possessed by the disqualified heir.
In effect, this is a special prescriptive period for this
action. It is an exception to the prescriptive periods for
recovery of movables [8years] and of immovables
[30years] laid down respectively in Articles 1140 and
1141.

SECTION 3.
ACCEPTANCE AND REPUDIATION
OF THE INHERITANCE

Art. 1041. The acceptance or repudiation of the
inheritance is an act which is purely
voluntary and free.

Acceptance of Inheritance a Free Act
The acceptance of property through succession
whether in the form of a legitime, testamentary
succession or intestacy is, like the acceptance
of a donation, essentially free and voluntary.
No one can be required to accept a benefit: Non
potest liberalitas nolenti adquiri.

The following articles lay down the requirements for
acceptance and repudiation. It should be noted that
the rules for acceptance are much more LIBERAL
than those for repudiation. This is because
acceptance is beneficial whereas repudiation is
prejudicial to the successor.

Art. 1042. The effects of the acceptance or
repudiation shall always retroact to the
moment of the death of the decedent.

This has the same underlying philosophy as Art777.
The moment of death is the time succession vests.

RETROACTIVITY
A. Of Acceptance the successor will be deemed
to have owned and possessed the property
from the precise moment of the decedents
death. This rule has consequences with respect
to acquisitive prescription, capacity to succeed,
representation, etc.
B. Of Renunciation the renouncer is deemed
never to have owned or possessed the
property. Consequently, the substitute, co-heir
or intestate heir who gets the property in default
of the renouncer is deemed to have owned and
possessed it from the moment of the
decedents death.
C. Conditional Institutions the principle of
retroactivity is not overridden even if the
institution is subject to a suspensive condition.
Upon the happening of the condition, the
property passes to the heir but with retroactive
effect. This is the same principle enunciated in
conditional obligations [Art1187]. Similarly, if
the condition does not happen, the property
goes to the appropriate successor, with the
same retroactive effect.

However, for conditional institutions, the provisions of
Art880 should be complied with, to wit, the property
should be placed under administration during the
interim.

Art. 1043. No person may accept or repudiate
an inheritance unless he is certain of the
death of the person from whom he is to
inherit, and of his right to the inheritance.

Acceptance or renunciation must be made knowingly.
Unless the successor has knowledge of the two things
mentioned in this article, his acceptance or
renunciation is not effective.

Art. 1044. Any person having the free disposal
of his property may accept or repudiate an
inheritance.
Any inheritance left to minors or
incapacitated persons may be accepted by
their parents or guardians. Parents or
guardians may repudiate the inheritance
left to their wards only by judicial
authorization.
The right to accept an inheritance left to
the poor shall belong to the persons
designated by the testator to determine the
beneficiaries and distribute the property, or
in their default, to those mentioned in
Article 1030.


Page 93 of 109

Requirement for Personal Acceptance or Renunciation
Capacity to act is required for personal
acceptance or renunciation.
Acceptance or Renunciation on behalf of minors or
other incapacitated parties
Minors and other capacitated parties may accept
or renounce only through their legal
representatives. However, for renunciation there
is the added requirement of court approval. The
rules for renunciation are stricter than those for
acceptance.
Acceptance of Testamentary Grants to the Poor
The persons empowered in Art1030 to select the
recipients of testamentary grants to the poor in
general are likewise empowered to accept on
their behalf.

Note that:
1. These authorized individuals can only
accept, not reject the grant.
2. The persons selected as qualified recipients
are, for their own part, free to accept or
renounce the benefit.

Art. 1045. The lawful representatives of
corporations, associations, institutions and
entities qualified to acquire property may
accept any inheritance left to the latter, but
in order to repudiate it, the approval of the
court shall be necessary.

Art. 1046. Public official establishments can
neither accept nor repudiate an inheritance
without the approval of the government.

These provisions lay down rules similar to those
concerning acceptance or renunciation on behalf of
minors and incompetents. The legal representatives
may accept or renounce the testamentary grant on
behalf of the entity represented, but for renunciation,
court approval is, additionally required.

Art. 1047. A married woman of age may
repudiate an inheritance without the
consent of her husband.

Acceptance or renunciation by a Married person
There is no suggestion in this article that a
married man of age does not have the capacity to
renounce without his wifes consent.
The rule is more accurately worded as follows A
married person of age and not incapacitated for
any reason may accept or renounce an
inheritance without his or her spouses consent.

Art. 1048. Deaf-mutes who can read and write
may accept or repudiate the inheritance
personally or through an agent. Should
they not be able to read and write, the
inheritance shall be accepted by their
guardians. These guardians may repudiate
the same with judicial approval.

Capacity of Deaf-mute to accept or renounce this
article must be correlated with Art1327, which
provides:
Art. 1327. The following cannot give consent to a contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes who do not
know how to write.

Thus, a deaf-mute who can read and write has
contractual capacity, and can accept or renounce on
his own behalf.

However, an illiterate deaf-mute is incompetent and
the rules on acceptance and renunciation through a
representative apply. [Art1044]
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made
in a public or private document.
A tacit acceptance is one resulting from
acts by which the intention to accept is
necessarily implied, or which one would
have no right to do except in the capacity
of an heir.
Acts of mere preservation or
provisional administration do not imply an
acceptance of the inheritance if, through
such acts, the title or capacity of an heir
has not been assumed.

KINDS OF ACCEPTANCE
A. Express
1. Public Documents or
2. Private Writing
B. Tacit
C. Implied [Art1057]

Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns
his right to a stranger, or to his co-
heirs, or to any of them;
(2) If the heir renounces the same, even
though gratuitously, for the benefit of
one or more of his co-heirs;
(3) If he renounces it for a price in favor
of all his co-heirs indiscriminately;
but if this renunciation should be
gratuitous, and the co-heirs in whose
favor it is made are those upon whom
the portion renounced should devolve
by virtue of accretion, the inheritance
shall not be deemed as accepted.

TACIT ACCEPTANCE

Page 94 of 109

Inferred from acts revealing an intent to accept. In
general, a tacit acceptance is inferred from acts of
ownership performed by the heir over the
property.
The enumeration in this article is illustrative but
not exclusive.

Instances of Tacit Acceptance
A. Par1 Onerous or gratuitous conveyance in
favor of one, some or all of his co-heirs or to a
stranger. This is an act of ownership, which
necessarily implies that the heir has accepted
the inheritance.
B. Par2 Gratuitous renunciation in favor of one
or some of his co-heirs. This is not in fact a
renunciation but a conveyance in favor of the
co-heirs specified. It partakes of the nature of
donation and therefore must conform to the
prescribed form of donations under Arts 748-
749.

If the gratuitous renunciation is in favor
of ALL the heirs but in proportions
DIFFERENT from those in which they
would receive by accretion, it is still a
conveyance and must be treated as a
tacit acceptance.
A fortiori, if the renunciation in favor of
one or some of the co-heirs is for an
onerous consideration, there is an
acceptance.

C. Par3 Onerous renunciation in favor of all the
co-heirs indiscriminately; this is not in fact a
renunciation but a sale f his portion and
therefore constitutes a tacit acceptance.
Gratuitous renunciation in favor of the
co-heirs indiscriminately this is a true
renunciation and cannot be treated as a
tacit acceptance. Indiscriminate
renunciation means a renouncement,
gratuitously made, in favor of all the co-
heirs who would get the renounced
portion by virtue of accretion.
The same rule applies even if the part
renounced in this manner is the legitime,
notwithstanding that there is no accretion
in the legitime, as long as the
renunciation is indiscriminate.

Art. 1051. The repudiation of an inheritance
shall be made in a public or authentic
instrument, or by petition presented to the
court having jurisdiction over the
testamentary or intestate proceedings.

FORMS OF RENUNCIATION
A. Public or Authentic [genuine] Instrument
B. Petition filed in the Settlement Proceedings

Form of renunciation stricter the law has stricter
requisites for renunciation, since it is not beneficial to
the heir.

Art. 1052. If the heir repudiates the inheritance
to the prejudice of his own creditors, the
latter may petition the court to authorize
them to accept it in the name of the heir.
The acceptance shall benefit the
creditors only to an extent sufficient to
cover the amount of their credits. The
excess, should there be any, shall in no
case pertain to the renouncer, but shall be
adjudicated to the persons to whom, in
accordance with the rules established in
this Code, it may belong.

This is an instance of accion pauliana, which is the
right given to creditors to impugn or set aside
contracts, transactions or dispositions of their debtors
which will prejudice or defraud them.
The same principle is expressed in Art1177 and
Art1313 of the Civil Code.
Art. 1177. The creditors, after having pursued the property in
possession of the debtor to satisfy their claims, may exercise all
the rights and bring all the actions of the latter for the same
purpose, save those which are inherent in his person; they may
also impugn the acts which the debtor may have done to
defraud them.
Art. 1313. Creditors are protected in cases of contracts intended to
defraud them.

The right of the creditor to accept the inheritance in
the name of the debtor extends only to the amount or
value necessary to satisfy the credit. Any amount in
excess of that may be validly renounced by the
debtor-heir.

Art. 1053. If the heir should die without having
accepted or repudiated the inheritance his
right shall be transmitted to his heirs.

This rule is a consequence of the principle that the
rieght of succession vests at the moment of death.
Therefore, the right of the heir who dies before
accepting or renouncing is already vested and is
transmitted to the heirs heirs.
The right to the inheritance itself forms part of the
inheritance of the heir and therefore, the heir of the
heir can exercise the right granted by this article only if
he [the heirs heir] accepts his own predecessors
inheritance. If he renounces, obviously he cannot
exercise this right.

Art. 1054. Should there be several heirs called
to the inheritance, some of them may
accept and the others may repudiate it.

If there are several heirs, their right to accept or right
corresponds to the aliquot share to which they are
entitled.

Page 95 of 109

Thus, if X dies and Y, his heir, himself dies before
accepting or renouncing the inheritance, leaving A, B
and C as his own heirs A, B and C each has the
right to accept or renounce his corresponding 1/3
interest in whatever Y was entitled to inherit from X.
Question should one or more of the heirs renounce,
to whom will the repudiated portion go? To the ones
who accept, by accretion? Or to the intestate heirs of
the decedent whose inheritance the predecessor of
the heirs was unable to accept or renounce?

Art. 1055. If a person, who is called to the same
inheritance as an heir by will and ab
intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is
understood to have repudiated it in both
capacities.
Should he repudiate it as an intestate
heir, without knowledge of his being a
testamentary heir, he may still accept it in
the latter capacity.

This article governs the situation when a person is
BOTH a testamentary heir [or legatee or devisee and
an intestate heir], with respect to the same
inheritance.

RULES
A. If he renounces as testamentary heir [or
legatee or devisee] he is deemed to have
renounced as intestate heir as well.
B. If he renounces as intestate heir without
knowledge of his being a testamentary heir [or
legatee or devisee] he is NOT deemed to
have renounced as testamentary heir and may
therefore accept or renounce separately in the
latter capacity.

Rationale the testamentary disposition is the
express will of the testator, whereas intestacy is only
his implied will. One who renounces the express will is
deemed to have renounced the implied also, but not
the other way around.
Question supposing the heir renounces as intestate
heir with knowledge of his being testamentary heir,
may he accept in the latter capacity? Balane says
YES, in light of the rationale of the rule.

NON-APPLICABILITY OF RULE TO LEGITIME
In view of the rationale of the rule, should the heir
be simultaneously a compulsory heir and a
testamentary heir, he can accept either or both.
The legitime passes not because of any implied
will or wish of the decedent but by strict operation
of law, irrespective of the decedents wishes.
Thus, the term ab intestate in this article refers
solely to intestate succession.
To the same effect is the rule laid down in Art955
par2, regarding a person who is simultaneously a
compulsory heir and a legatee or devisee.

Art. 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and
cannot be impugned, except when it was
made through any of the causes that vitiate
consent, or when an unknown will appears.

EXCEPTIONS TO THE RULE OF FINALITY OF
ACCEPTANCE OR RENUNCIATION
A. Vitiated Consent the factors are:
1. Violence
2. Intimidation
3. Undue Influence
4. Mistake
5. Fraud
B. Appearance of an unknown will this applies if
the newly-discovered will is subsequent to any
will which may have formed the basis for the
acceptance or renouncement. The new will
[assuming it is valid and admitted to probate]
reopens the whole affair and will call for a new
acceptance or renunciation.

Art. 1057. Within thirty days after the court has
issued an order for the distribution of the
estate in accordance with the Rules of
Court, the heirs, devisees and legatees
shall signify to the court having jurisdiction
whether they accept or repudiate the
inheritance.
If they do not do so within that time,
they are deemed to have accepted the
inheritance.

This is IMPLIED ACCEPTANCE the failure to signify
the acceptance or renunciation within the 30-day
period specified by this article
Qui tacet consentire videtur silence means yes.

SECTION 4.
EXECUTORS AND ADMINISTRATORS

Art. 1058. All matters relating to the
appointment, powers and duties of
executors and administrators and
concerning the administration of estates of
deceased persons shall be governed by the
Rules of Court.

With reference to Rules 78-90 of the Rules of Court.

Art. 1059. If the assets of the estate of a
decedent which can be applied to the
payment of debts are not sufficient for that
purpose, the provisions of Articles 2239 to
2251 on Preference of Credits shall be
observed, provided that the expenses

Page 96 of 109

referred to in Article 2244, No. 8, shall be
those involved in the administration of the
decedent's estate.

In relation to Articles 2239-2251 and 2244

Art. 1060. A corporation or association
authorized to conduct the business of a
trust company in the Philippines may be
appointed as an executor, administrator,
guardian of an estate, or trustee, in like
manner as an individual; but it shall not be
appointed guardian of the person of a ward.

Rule 78 of the RoC governs the issuance of letters
testamentary and of administration and should be read
together with this article.

SECTION 5.
COLLATION

THREE MEANINGS OF THE TERM COLLATION
AS USED IN THE FF ARTICLES:
1. Collation as COMPUTATION [add]
o This is a simple accounting or
arithmetical process, whereby the value
of all donations inter vivos made by the
decedent is added to his available
assets in order to arrive at the value of
the net hereditary estate.
o Article 908

2. Collation as IMPUTATION [subtract]
o This is the process by which donations
inter vivos made by the decedent are
correspondingly charged either to the
donees legitime or against the
disposable portion.
o Articles 909 and 910

3. Collation as RETURN
o This takes place when a donation inter
vivos is found to be inofficious [i.e.
exceeds the disposable portion] and so
much of its value as is inofficious is
returned to the decedents estate to
satisfy the legitimes.
o Articles 909 and 910 also provide for
this.

Art. 1061. Every compulsory heir, who
succeeds with other compulsory heirs,
must bring into the mass of the estate any
property or right which he may have
received from the decedent, during the
lifetime of the latter, by way of donation, or
any other gratuitous title, in order that it
may be computed in the determination of
the legitime of each heir, and in the account
of the partition.

This article refers to the COMPUTATION of all
donations inter vivos made by the decedent, for the
purpose of determining the value of the net estate.
This is exactly the same thing that is referred to in
Art908 par2. The process is purely arithmetical,
and is merely paper computation.

What Should be Included in the Computation
ALL donations inter vivos whether made to
compulsory heirs or to strangers, should be
included in the computation of the net hereditary
estate. This is the 3
rd
step in the process of
computing the net hereditary estate under Art908.

Value to be Computed
Only the value of the property donated AT THE
TIME THE DONATION WAS MADE is to be
computed since in donations ownership transfers
at the time the donation is perfected.
Thus, any subsequent increase in value is for the
donees benefit, and any decrease is for his
account.

Purpose of the Article is to determine the amount of
the net estate so as to ensure that the legitimes are
not impaired.

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

Collation in the sense of IMPUTATION
That donations inter vivos made by the decedent
to a compulsory heir are, as a general rule,
imputed to or charged against the heirs legitime.

RULES ON IMPUTATION OF
DONATIONS INTER VIVOS:

A. Donations inter vivos to compulsory heirs
o GR: Should be imputed to the heirs
legitime and is considered as an
advance on the legitime.
o EXCEPTIONS
1. If the donor provides in the Deed of
Donation otherwise
2. If the donee renounces the
inheritance, because in this case the
donee gives up his status as a
compulsory heir and therefore
cannot be considered as one.

o In case either exception applies, the
donation will have to be imputed to the
FREE PORTION.

Page 97 of 109

o Question supposing the compulsory heir
received a donation inter vivos from the
decedent but the value of the donation
exceeds the donees legitime? The
donation will be imputed to the donees
legitime to the extent of the lefitimes
value and the excess, to the free portion.

B. Donations inter vivos to strangers
o Imputed to the free portion

C. Instances when donations inter vivos are to
be imputed to the FREE PORTION
1. When made to strangers
2. When made to compulsory heirs, and
the donor so provides that it will be
imputed to the free portion
3. When made to compulsory heirs who
renounce the inheritance
4. When in excess of the compulsory heirs
legitime, as to the excess.

Art. 1063. Property left by will is not deemed
subject to collation, if the testator has not
otherwise provided, but the legitime shall in
any case remain unimpaired.

Collation in the sense of IMPUTATION.
This article applies to Donations Mortis Cause [the
previous article applies to donations inter vivos].
Therefore, here the testamentary disposition is as a
general rule, not deemed as an advance on the
legitime.

RULE ON TESTAMENTARY DISPOSITIONS TO
COMPULSORY HEIRS
GR: they should NOT be imputed to the legitime
but to the free portion. Hence, the compulsory
heir receives the testamentary disposition in
addition to his legitime.
EXCEPTION: if the testator provides otherwise.
Then the testamentary disposition in favor of the
heir WILL be MERGED with his legitime. That will
make the disposition illusory.

Art. 1064. When the grandchildren, who survive
with their uncles, aunts, or cousins, inherit
from their grandparents in representation
of their father or mother, they shall bring to
collation all that their parents, if alive,
would have been obliged to bring, even
though such grandchildren have not
inherited the property.
They shall also bring to collation all that
they may have received from the decedent
during his lifetime, unless the testator has
provided otherwise, in which case his
wishes must be respected, if the legitime of
the co-heirs is not prejudiced.

This article applies to 2 instances:
1. When the grandchildren of the decedent
inheriting by representation concurrently with
children of the decedent [uncles and aunts of
the grandchildren] who are inheriting in their
own right, or
2. The grandchildren inherit by representation
with other grandchildren [cousins of the
grandchildren].

What the Grandchildren have to Collate or Impute to
the Legitime
A. Whatever the parent whom they are
representing would have been obliged to
collate; and
B. Whatever they themselves have received from
the grandparent by gratuitous title, subject to
the same rules and exceptions in Art1062.

Art. 1065. Parents are not obliged to bring to
collation in the inheritance of their
ascendants any property which may have
been donated by the latter to their children.

Collation in the sense of IMPUTATION.
A person should not collate what his parent gave to
his child since he is not the recipient of the
conveyance.
Against what part of the estate the conveyance is
imputable the donation to the grandchild should be
imputed to the FREE PORTION, since the donation is
to a stranger.

Art. 1066. Neither shall donations to the spouse
of the child be brought to collation; but if
they have been given by the parent to the
spouses jointly, the child shall be obliged
to bring to collation one-half of the thing
donated.


RULES ON DONATIONS TO THE SPOUSE
OF THE CHILD
A. Donations made by a person to his son-in-law
or daughter-in-law are SEPARATE property of
the donee and should not be imputed to the
legitime of the donors child [the donees
spouse]. The donation is one made to a
stranger.
B. If the donation is made to the spouse JOINTLY,
one-half belongs to the donors child and
should be treated in accordance with Art1062
and the other half is the property of the donors
son or daughter-in-law and should be treated
as a donation to a stranger.
o This presumption of equality of aliquot
shares [as to the division between
spouses] will yield to a different
designation by the donor.


Page 98 of 109

These rules are consistent with the Family Code
A. In ACP Article 92 par. 1
Art. 92. The following shall be excluded from the community
property:
(1) Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the
income thereof, if any, unless it is expressly provided
by the donor, testator or grantor that they shall form
part of the community property;

B. In CPG Art109 (2) and Article 113.
Art. 109. The following shall be the exclusive property of each
spouse:
(2) That which each acquires during the marriage by
gratuitous title;

Art. 113. Property donated or left by will to the spouses,
jointly and with designation of determinate shares, shall
pertain to the donee-spouses as his or her own exclusive
property, and in the absence of designation, share and
share alike, without prejudice to the right of accretion when
proper.

Art. 1067. Expenses for support, education,
medical attendance, even in extraordinary
illness, apprenticeship, ordinary
equipment, or customary gifts are not
subject to collation.

Collation in the sense of COMPUTATION [add].
The expenses mentioned should not even be included
in the computation of the decedents estate. This is in
effect a qualification of or an exception to the rule in
Art1061. The reason is that it would be extremely
impractical or impossible to make an accounting of all
these items.
Justice Hofilena says these are not really donations
but expenses. According to Tolentino, educational
expenses in the elementary and high school levels are
considered as expenses and not subject to collation,
but higher levels of education should be collated.
Support in this article has a restrictive meaning, it
DOES NOT include expenses for the recipients
professional, vocational or other career because these
are items governed by Art1068.

Art. 1068. Expenses incurred by the parents in
giving their children a professional,
vocational or other career shall not be
brought to collation unless the parents so
provide, or unless they impair the legitime;
but when their collation is required, the
sum which the child would have spent if he
had lived in the house and company of his
parents shall be deducted therefrom.

This article states that as a general rule:
o The expenses incurred by the parents for the
childs professional, vocational or other career
[i.e. courses beyond the secondary level] are an
exception to the rule laid down in Art1062.
o Hence, these expenses, if not inofficious,
although donations, should NOT be charged
against the recipients legitime but against the
FREE PORTION, unless the parents provide
otherwise.

Contrary Provision by parents -
o Should the parents provide otherwise, the child is
entitled under this article to deduct from the said
amount the sum corresponding to what his
parents would have spent on him had he stayed
at home and loafed.

Art. 1069. Any sums paid by a parent in
satisfaction of the debts of his children,
election expenses, fines, and similar
expenses shall be brought to collation.

The items under this article constitute donations by the
parent to the child and therefore should be treated like
other donations to compulsory heirs under art1062.

Art. 1070. Wedding gifts by parents and
ascendants consisting of jewelry, clothing,
and outfit, shall not be reduced as
inofficious except insofar as they may
exceed one-tenth of the sum which is
disposable by will.

This article applies only to wedding gifts given by
parents or ascendants to children or descendants.

Scope and Operation of this Article
A. The article covers only wedding gifts consisting
of jewelry, clothing and wedding outfit.
According to Manresa, outfit includes the items
necessary for an individuals personal use. It
does not include other property, whether real or
personal, that would be governed by Art1062.

B. Literally construed, this article seems to state
that the value of such wedding gifts cannot go
beyond 1/10 of the free portion of the donors
estate. Any excess will be considered
inofficious and should be returned in the same
manner and at the same time as other
inofficious donations. It further seems that as o
the allowable 1/10, this is to be imputed to the
free portion.
o The question is why should the gift be
reduced as inofficious just because it
exceeds 1/10 of the free portion?
o SO, Manresa interprets the article to mean
that the gift will be imputed to the free
portion to the extent of 1/10 of the free
portion. Beyond that value, the excess
will be imputable to the recipients
legitime.

Page 99 of 109

Art. 1071. The same things donated are not to
be brought to collation and partition, but
only their value at the time of the donation,
even though their just value may not then
have been assessed.
Their subsequent increase or
deterioration and even their total loss or
destruction, be it accidental or culpable,
shall be for the benefit or account and risk
of the donee.

Collation in 2 senses: COMPUTATION &
IMPUTATION

What value is to be computed and imputed:
o Only the value of the thing donated at the time the
donation was made should be considered in the
computation of the donors estate.
o Similarly, only the things value at the time the
donation was made should be impited whether
to the legitime or to the free portion.

Reason any appreciation or depreciation of the thing
after that time should be for the donees account,
since the donation transfers ownership to him.

Art. 1072. In the collation of a donation made
by both parents, one-half shall be brought
to the inheritance of the father, and the
other half, to that of the mother. That given
by one alone shall be brought to collation
in his or her inheritance.

Collation in 2 senses: COMPUTATION &
IMPUTATION

JOINT DONATIONS
The 1
st
sentence of this article presupposes either
a regime of ACP or of CPG between the donor
spouses. A joint donation by them will be treated,
upon dissolution of the property regime, as
pertaining in equal shares to the estate of each.

DONATIONS BY ONE PARENT ALONE
Such a donation will be of separately-owned
property and should be treated as such.

Art. 1073. The donee's share of the estate shall
be reduced by an amount equal to that
already received by him; and his co-heirs
shall receive an equivalent, as much as
possible, in property of the same nature,
class and quality.

This article requires not only equivalence in amount,
but as far as possible, also in the kind of property
received. This of course will yield to a different
agreement among the heirs.

Art. 1074. Should the provisions of the
preceding article be impracticable, if the
property donated was immovable, the co-
heirs shall be entitled to receive its
equivalent in cash or securities, at the rate
of quotation; and should there be neither
cash or marketable securities in the estate,
so much of the other property as may be
necessary shall be sold at public auction.
If the property donated was movable,
the co-heirs shall only have a right to select
an equivalent of other personal property of
the inheritance at its just price.

This article provides for the closes analogue to strict
equivalence, in case there are not enough of the same
things to distribute among all.
Again, this will yield to a contrary agreement among
the heirs.

Art. 1075. The fruits and interest of the property
subject to collation shall not pertain to the
estate except from the day on which the
succession is opened.
For the purpose of ascertaining their
amount, the fruits and interest of the
property of the estate of the same kind and
quality as that subject to collation shall be
made the standard of assessment.

Collation in the sense of RETURN
Rationale
If any donation turns out to be inofficious, then the
obligation to return it to the estate arises as of the
time the succession vests, which is the time of the
decedents death, because it is from that time the
compulsory heirs right to the inheritance
becomes absolute. From that time therefore the
compulsory heir is entitled to the fruits.

Extent of Right to Fruits
The entirety of the fruits and interests shall pertain
to the compulsory heir, only if the donation is
TOTALLY inofficious.
If the donation is only partially inofficious, the right
to the fruits and interests shall be PRORATED
between the compulsory heir and the donee, in
proportion to their respective interests over the
property.

Art. 1076. The co-heirs are bound to reimburse
to the donee the necessary expenses which
he has incurred for the preservation of the
property donated to him, though they may
not have augmented its value.

Page 100 of 109

The donee who collates in kind an
immovable which has been given to him
must be reimbursed by his co-heirs for the
improvements which have increased the
value of the property, and which exist at the
time the partition if effected.
As to works made on the estate for the
mere pleasure of the donee, no
reimbursement is due him for them; he has,
however, the right to remove them, if he
can do so without injuring the estate.

Collation in the sense of RETURN
The rules in this article govern necessary [par1],
useful [par2] and ornamental [par3] expenses incurred
by the donee who is now obliged to return.

TOTAL OR PARTIAL RETURN
The extent of the application of the rules in this
article depends on the extent of the obligation to
return, thus:

1. If the thing has to be returned in its ENTIRETY
because the donation is totally inofficious
a. Necessary expenses reimbursement
must be to the full extent of the
expenses incurred. This is in relation
to Art546 par1:
Art. 546. Necessary expenses shall be refunded
to every possessor; but only the possessor in
good faith may retain the thing until he has
been reimbursed therefor.

b. Useful expenses reimbursement
must be to the full extent provided that
the improvement is still in existence.
This is in relation to Art546 par2:
Useful expenses shall be refunded only to the
possessor in good faith with the same right of
retention, the person who has defeated him in the
possession having the option of refunding the
amount of the expenses or of paying the increase
in value which the thing may have acquired by
reason thereof.

c. Ornamental expenses NO
reimbursement demandable, but the
right to removal is granted if no injury
to the estate will be cause. This is in
relation to Article 548:
Art. 548. Expenses for pure luxury or mere
pleasure shall not be refunded to the
possessor in good faith; but he may remove
the ornaments with which he has embellished
the principal thing if it suffers no injury thereby,
and if his successor in the possession does not
prefer to refund the amount expended.

2. If the thing has to be returned only in PART
because the donation is only partially inofficious
a. Necessary and useful expenses the
reimbursement is also partial, in
proportion to the value to be returned.
b. Ornamental expenses the same rule
as in total return, unless the property
is physically divided and the ornament
happens to be located in the portion
assigned to the donee, in which case
he will have all the rights of ownership.

Confusion in terminology the situation treated in this
article is really a case of reduction of inofficious
donations and the rules set forth in this article really
belong in the provisions on inofficious donations in
Articles 910, 910 and 911. The confusion would have
been avoided if the Code had not insisted on using the
term collation so variedly.

Art. 1077. Should any question arise among the
co-heirs upon the obligation to bring to
collation or as to the things which are
subject to collation, the distribution of the
estate shall not be interrupted for this
reason, provided adequate security is
given.

The division and distribution of the estate can be
made partially, should there be controversy as to the
inclusion of certain items in the computation of the
estates value or the imputation of the heirs shares.
The distribution can proceed on the items that are not
controverted.
SECTION 6.
PARTITION AND DISTRIBUTION OF
THE ESTATE

SUBSECTION 1. - Partition

The immediate effect of the decedents death is the
vesting of the successional rights of the successors,
because the rights to the succession are transmitted
from the moment of the death of the decedent.
What the successors acquire vested rights over is the
net estate and the net estate is what remains after all
the unpaid debts of the decedent are paid, and the
value of all the donations inter vivos is added. Thus,
debts first have to be paid; it is possible, if the debts
exceed the assets, that after the debts are paid, there
will be no estate to speak of.
If however the decedents gross assets exceed his
liabilities, or if there are inofficious donations to be
returned, his net estate passes to his successors
[heirs, legatees, devisees] at the precise moment of
death.
The estate however, is a mass of properties, usually
consisting of various items. The immediate effect
therefore, of the decedents death as far as
successional rights are concerned, is a CO-
OWNERSHIP of the heirs over the entire mass. The
legatees and devisees will acquire a right to the
specific items given to them, assuming the legacies
and devises are not inofficious.

Page 101 of 109

The actual partition of the estate among the heirs
terminating the co-ownership can be done basically
through 2 methods:
1. Extrajudicial agreement among the heirs, or
2. Judicial proceedings

The sequence may be outlines as:
1. Upon decedents death co-ownership of heirs
over net hereditary or partible estate
2. Subsequent Partition
a. By extrajudicial agreement under Rule
74 Sec1 of the ROC
b. Through judicial order in appropriate
proceedings under Rule 90 RoC

Actually, the judicial proceeding in which the partition
is ordered comprises the entire settlement of the
estate of the decedent, covered by Rules 73-90 of the
RoC
In this part of successional law, i.e. the partition of the
estate, substantive law and procedural law intersect.

Art. 1078. Where there are two or more heirs,
the whole estate of the decedent is, before
its partition, owned in common by such
heirs, subject to the payment of debts of
the deceased.

Art. 1079. Partition, in general, is the
separation, division and assignment of a
thing held in common among those to
whom it may belong. The thing itself may
be divided, or its value.
Partition ends the co-ownership among the co-heirs as
to the thing partitioned.

KINDS OF PARTITION
A. Actual physical division of the thing among
the co-heirs
B. Constructive any act, other than physical
division, which terminates the co-ownership
[such as sale to a 3
rd
person in relation to
Articles 1082 and 1086].

Art. 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it
does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or
her family, desires to keep any agricultural,
industrial, or manufacturing enterprise
intact, may avail himself of the right
granted him in this article, by ordering that
the legitime of the other children to whom
the property is not assigned, be paid in
cash.

PARTITION BY CAUSANTE
The causante [decedent] can himself effect the
partition of his estate.
1. Nature of Partition by Causante a partition
made by the causante has the ff.
characteristics:
a. It takes effect only upon death,
b. It is revocable as long as the causante
is alive; hence the causante can
change or modify it, or even rescind it
during his lifetime.

o These characteristics stem from the fact that
the partition is based on succession as the
mode of transfer and succession is
necessarily mortis causa. Succession, in our
law, cannot take place during the causantes
lifetime; that would be a donation inter vivos,
not succession.

2. How causante may make the Partition
a. By WILL, or
b. By Act Inter Vivos
i. Form of Partition by Act Inter Vivos
there is authority to the effect that a
partition inter vivos should be in writing
and in a public instrument. [Fajardo v.
Fajardo] But in an obiter, SC held that
even an oral partition is valid. [Chavez
v. IAC]

ii. In case of a partition inter vivos, must
there be a prior will?
Certainly, a mere partition inter
vivos which does not observe the
formalities of a will cannot by itself,
make testamentary dispositions
because that would circumvent the
requirement that dispositions mortis
causa can be made only by means
of a will. A person cannot, in the
guise of making a partition, make
disposition of property to take effect
upon his death.
Justice HOFI says that if partition is
made by private writing, after which
a will is executed, the subsequent
will DOES NOT cure the private
writing. Therefore, the partition is
not effective.
Alsua Betts v. CA provides that
the partition inter vivos is void even
if a subsequent will is executed in
conformity with the provisions of the
prior partition.
The case of Legasto v. Verzosa
provides that a mere partition not
connected to a will is not binding.
The act of disposition has to be by
will, but the partition/distribution may
be done by will or in writing. Still, it
must be pursuant to or connected to
a WILL.

3. Possible Effect of Amended Wording of Art1080:

Page 102 of 109

The old Code used the term testator while
Art1080 used the term person. Under the
present provision, a partition inter vivos can
be validly made even without a prior
supporting will, provided that it is not used to
make mortis causa dispositions Nothing can
take the place of a will to dispose of property
mortis causa.
Hence, the only way a partition without a will
can be valid is by following strictly the
intestate portions provided by law: i.e. the
partition should conform exactly to the
portions provided by law in intestate
succession, for then the causante would not
be making testamentary dispositions in the
partition the dispositions would be by virtue
of intestate succession.

Limitation on Partition by Causante
The legitimes of the causantes compulsory heirs
cannot be impaired by partition made by him,
whether in a will or by an act inter vivos, pursuant
to Art904.

Paragraph 2 Partition to Keep an Enterprise Intact
It seems only a parent is allowed the privilege of
this paragraph.
It is understood that this privilege to make the
partition in such a way as to keep the enterprise
intact can be exercised only if enough cash or
other property is available to satisfy the legitimes
of the other children. Under no circumstances
should the legitimes be impaired.

Art. 1081. A person may, by an act inter vivos
or mortis causa, intrust the mere power to
make the partition after his death to any
person who is not one of the co-heirs.
The provisions of this and of the
preceding article shall be observed even
should there be among the co-heirs a minor
or a person subject to guardianship; but
the mandatary, in such case, shall make an
inventory of the property of the estate, after
notifying the co-heirs, the creditors, and
the legatees or devisees.

Mandatary cannot be a co-heir the reason for this
prohibition is to ensure fairness and impartiality.

Art. 1082. Every act which is intended to put an
end to indivision among co-heirs and
legatees or devisees is deemed to be a
partition, although it should purport to be a
sale, and exchange, a compromise, or any
other transaction.

CONSTRUCTIVE PARTITION
Partition may be actual or constructive, in relation
to Article 1079. This article refers to cases of
constructive partition.

Art. 1083. Every co-heir has a right to demand
the division of the estate unless the
testator should have expressly forbidden
its partition, in which case the period of
indivision shall not exceed twenty years as
provided in article 494. This power of the
testator to prohibit division applies to the
legitime.
Even though forbidden by the testator,
the co-ownership terminates when any of
the causes for which partnership is
dissolved takes place, or when the court
finds for compelling reasons that division
should be ordered, upon petition of one of
the co-heirs.

Partition Generally a Matter of Right
As a general rule, any co-heir may demand
partition at any time. This is the same rule laid
down in Art494 par1:
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition
of the thing owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing undivided for a
certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.

EXCEPTIONS despite this imposed
indivision, partition may be demanded:
1. When any of the causes for dissolution of a
partnership occurs, under Arts. 1830-1831:

Art. 1830. Dissolution is caused:
(1) Without violation of the agreement between the
partners:
(a) By the termination of the definite term or
particular undertaking specified in the agreement;
(b) By the express will of any partner, who must act
in good faith, when no definite term or particular is
specified;
(c) By the express will of all the partners who have
not assigned their interests or suffered them to be
charged for their separate debts, either before or
after the termination of any specified term or
particular undertaking;
(d) By the expulsion of any partner from the business
bona fide in accordance with such a power

Page 103 of 109

conferred by the agreement between the
partners;

(2) In contravention of the agreement between the
partners, where the circumstances do not permit a
dissolution under any other provision of this article,
by the express will of any partner at any time;
(3) By any event which makes it unlawful for the
business of the partnership to be carried on or for
the members to carry it on in partnership;
(4) When a specific thing which a partner had promised
to contribute to the partnership, perishes before the
delivery; in any case by the loss of the thing, when
the partner who contributed it having reserved the
ownership thereof, has only transferred to the
partnership the use or enjoyment of the same; but
the partnership shall not be dissolved by the loss of
the thing when it occurs after the partnership has
acquired the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of the
partnership;
(7) By the civil interdiction of any partner;
(8) By decree of court under the following article.

Art. 1831. On application by or for a partner the court shall
decree a dissolution whenever:
(1) A partner has been declared insane in any judicial
proceeding or is shown to be of unsound mind;
(2) A partner becomes in any other way incapable of
performing his part of the partnership contract;
(3) A partner has been guilty of such conduct as tends
to affect prejudicially the carrying on of the business;
(4) A partner wilfully or persistently commits a breach of
the partnership agreement, or otherwise so conducts
himself in matters relating to the partnership
business that it is not reasonably practicable to carry
on the business in partnership with him;
(5) The business of the partnership can only be carried
on at a loss;
(6) Other circumstances render a dissolution equitable.

On the application of the purchaser of a partner's
interest under Article 1813 or 1814:
(1) After the termination of the specified term or
particular undertaking;
(2) At any time if the partnership was a partnership at
will when the interest was assigned or when the
charging order was issued.

2. When the Court finds compelling reasons for
partition.

When the co-heirs agree on indivision for a period
not exceeding 10years, renewable for like
periods.

Art. 1084. Voluntary heirs upon whom some
condition has been imposed cannot
demand a partition until the condition has
been fulfilled; but the other co-heirs may
demand it by giving sufficient security for
the rights which the former may have in
case the condition should be complied
with, and until it is known that the condition
has not been fulfilled or can never be
complied with, the partition shall be
understood to be provisional.

Application of Article Institutions with a Suspensive
Condition
Rationale
The heir instituted under a suspensive condition
acquires no rights unless and until the condition
happens.
The other heirs not so instituted, however, should
not be deprived of their right to demand partition,
subject to the obligation to protect the inchoate
right of the conditional heir, by furnishing
adequate security.

Art. 1085. In the partition of the estate, equality
shall be observed as far as possible,
dividing the property into lots, or assigning
to each of the co-heirs things of the same
nature, quality and kind.

EQUALITY AMONG CO-HEIRS
Quantitative the shares of the co-heirs are not
necessarily equal in value, but are determined by
the law and by will.
Qualitative whatever the aliquot portions be,
however, the law mandates equality in nature,
kind and quality, so that if A gets a parcel of rice
land, B should also be given one.

EXCEPTIONS / QUALIFICATIONS to the requirement
of Qualitative Equality
1. If the causante has made the partition himself
2. If the co-heirs agree otherwise
3. If qualitative equality is impossible or
impracticable.

Art. 1086. Should a thing be indivisible, or
would be much impaired by its being
divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the
excess in cash.
Nevertheless, if any of the heirs should
demand that the thing be sold at public
auction and that strangers be allowed to
bid, this must be done.

This is another instance of constructive partition: sale
of the thing and division of the proceeds among the
heirs. This will have to be resorted to if the thing is
essentially indivisible or in physical partition will so
diminish its value that it becomes unserviceable or
useless.
To whom thing may be sold:
1. To a 3
rd
person, or
2. If none of the co-heirs object, to any one of
them who is interested. If more than one are
interested in buying, they may buy it jointly
and have the proceeds distributed among the
others to the extent of their respective

Page 104 of 109

shares. But the co-ownership will continue as
to the buyers.

Art. 1087. In the partition the co-heirs shall
reimburse one another for the income and
fruits which each one of them may have
received from any property of the estate,
for any useful and necessary expenses
made upon such property, and for any
damage thereto through malice or neglect.

MUTUAL ACCOUNTING
Upon partition, the co-heirs shall render a mutual
accounting of benefits received and expenses,
both necessary and useful, incurred by each of
them.
Thus, any heir who between the decedents death
and partition time, received fruits from the estate
shall reimburse his co-heirs their respective
shares, in proportion to the hereditary interest of
each.
Similarly, any heir who incurred necessary or
useful expenses on the hereditary estate may
demand reimbursement from his co-heirs in the
same proportion.
This article lays down the same rule contained in
the Title on Co-ownership under Art500:
Art. 500. Upon partition, there shall be a mutual accounting
for benefits received and reimbursements for expenses made.
Likewise, each co-owner shall pay for damages caused by
reason of his negligence or fraud.

Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the
partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser
by reimbursing him for the price of the sale,
provided they do so within the period of
one month from the time they were notified
in writing of the sale by the vendor.

Right of an Heir to Convey Share Before Partition
Successional rights vest upon the decedents
death. Consequently, an heir may dispose of his
aliquot share after that time; he may do this
gratuitously or onerously.

RIGHT OF REDEMPTION IN CASE OF SALE
In the event any co-heir sells his aliquot portion to
a stranger before partition time, this article entitles
any co-heir to redeem the portion sold.
A. Sale must be to a stranger a stranger
within the meaning of this article is anyone
who is not a co-heir. [Basa v. Aguilar]
B. When right of redemption may be
exercised the right may be exercised
only before partition, not after. [Caro v. CA]

Requirement of Written Notice
The article gives the co-heirs the right of
redemption, which can be exercised within one
month from written notice to them by the vendor.
Written notice therefore is required; without it the
period does not commence to run. The SC has,
as a rule, interpreted this requirement of written
notice strictly.
Garcia v. Calaliman Written notice is
indispensable, actual knowledge of the sale
acquired in some other manners by the
redemptioner, notwithstanding. He or she is still
entitled to written notice to remove all uncertainty
as to the sale, its terms and its validity, and to
quiet any doubt that the alienation is not definitive.
The law not having provided for any alternative,
the method of notifications remains exclusive,
though the Code does not prescribe any particular
form of written notice nor any distinctive method
for written notification of redemption.

The same rule is laid down in Art1620 which applies
where the co-ownership covers specific property.
While Article 1088 applies where the co-ownership
covers the mass of the hereditary estate. But the
distinction is academic and the rule is the same.
Art. 1620. A co-owner of a thing may exercise the right of
redemption in case the shares of all the other co-owners or of
any of them, are sold to a third person. If the price of the
alienation is grossly excessive, the redemptioner shall pay only
a reasonable one.
Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they
may respectively have in the thing owned in common.

When more than one co-owner wish to redeem
implicit in article 1088 and explicit in article 1620 is
that in such case, ALL the co-owners wishing to
redeem may do so, but in proportion to each ones
hereditary interest over the mass.

Art. 1089. The titles of acquisition or ownership
of each property shall be delivered to the
co-heir to whom said property has been
adjudicated.

This is particularly important in case of registered land
because the old title has to be surrendered so that a
new title in the name of the heir may be issued.

Art. 1090. When the title comprises two or more
pieces of land which have been assigned to
two or more co-heirs, or when it covers one
piece of land which has been divided
between two or more co-heirs, the title shall
be delivered to the one having the largest
interest, and authentic copies of the title
shall be furnished to the other co-heirs at
the expense of the estate. If the interest of
each co-heir should be the same, the oldest
shall have the title.


Page 105 of 109

This article only provides for the right over the
document.
The co-heirs however have the right to have the title
divided into individual titles, a separate one for each of
the owners to correspond to the separate portions
held by them respectively.

SUBSECTION 2. - Effects of Partition

Art. 1091. A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him.

The effect of partition is termination of co-ownership.

Art. 1092. After the partition has been made,
the co-heirs shall be reciprocally bound to
warrant the title to, and the quality of, each
property adjudicated.

OBLIGATION OF MUTUAL WARRANTY
Partition among co-heirs imposes upon them the
same mutual obligation of warranties imposed
among co-owners in general.
According to Art501: Every co-owner shall, after
partition, be liable for defects of title and quality of
the portion assigned to each of the other co-
owners.

RULE ON WARRANTIES
The applicable rules on warranties are found in
Articles 1547-1580 in the title on Sales, insofar as
those articles are not inconsistent with the rules
given in this subsection.

Art. 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be
proportionate to the respective hereditary
shares of the co-heirs, but if any one of
them should be insolvent, the other co-
heirs shall be liable for his part in the same
proportion, deducting the part
corresponding to the one who should be
indemnified.
Those who pay for the insolvent heir
shall have a right of action against him for
reimbursement, should his financial
condition improve.

Proportional Liability of Co-heirs on Warranty
Burdens should be proportional to benefits.

Insolvency of One of Obligors should one of the co-
heirs bound to make good the warranty be insolvent,
his portion shall be borne proportionally by all,
including the one entitled to the warranty: Example -
Co-heirs are A, B, C, D and E in equal shares of
P60k each. B claims warranty for the total amount
of his share because he was evicted.
A, C, D and E have to contribute P12k each to
make good the warranty. Since there was eviction
in the amount of P60k, the total value to be
partitioned was only P240k, hence P48k each.
Should A be insolvent, his P12k share shall be
borne by all the others, including B. Hence, C, D
and E have to contribute P3k more, making their
individual liability P15k. B receives a total of P45k,
having borne his own share of P3k from As
insolvency.

EXCEPTION to right to reimbursement from insolvent
obligor: insolvency that is judicially declared, under the
Insolvency Law, since judicially declared insolvency
extinguishes all obligations.

Art. 1094. An action to enforce the warranty
among heirs must be brought within ten
years from the date the right of action
accrues.

Art. 1095. If a credit should be assigned as
collectible, the co-heirs shall not be liable
for the subsequent insolvency of the debtor
of the estate, but only for his insolvency at
the time the partition is made.
The warranty of the solvency of the
debtor can only be enforced during the five
years following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by, the distributee.
But if such debts are not assigned to a co-
heir, and should be collected, in whole or in
part, the amount collected shall be
distributed proportionately among the
heirs.

Credit Assigned to Co-Heir in Partition
The warranty covers only insolvency of the
decedents debtor at the time of partition, not
subsequent insolvency, for which the co-heir
takes the risk.
Foolhardy is the co-heir who will accept a
collectible as part of his share in the partition. A
credit, even under the best of circumstances, is
aleatory.

The warranty has a special prescriptive period of FIVE
(5) YEARS.

Bad Debt Assigned to a Co-Heir
A co-heir who accepts a known bad debt as his
share is either a fool or a masochist.

Art. 1096. The obligation of warranty among co-
heirs shall cease in the following cases:

Page 106 of 109

(1) When the testator himself has made
the partition, unless it appears, or it
may be reasonably presumed, that his
intention was otherwise, but the
legitime shall always remain
unimpaired;
(2) When it has been so expressly
stipulated in the agreement of
partition, unless there has been bad
faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has
been caused by the fault of the
distributee of the property.

This article enumerates the instances when there is
NO MUTUAL WARRANTY. It is not accurate to refer
to it as a cessation, since there was none to begin
with. These are
1. Partition by the testator himself save where
the legitime is impaired.
2. Agreement among the co-heirs to suppress the
warranty.
3. Supervening events causing the loss or the
diminution in value.
4. Fault of the co-heir
5. Waiver

SUBSECTION 3. - Rescission and Nullity
of Partition

Art. 1097. A partition may be rescinded or
annulled for the same causes as contracts.

CAUSES FOR ANNULMENT
Art. 1390. The following contracts are voidable or
annullable, even though there may have been
no damage to the contracting parties:
(1) Those where one of the parties is
incapable of giving consent to a contract;
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud.

These contracts are binding, unless they are
annulled by a proper action in court. They are
susceptible of ratification.

CAUSES FOR RESCISSION
Art. 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians
whenever the wards whom they represent
suffer lesion by more than one-fourth of the
value of the things which are the object
thereof;
(2) Those agreed upon in representation of
absentees, if the latter suffer the lesion stated
in the preceding number;
(3) Those undertaken in fraud of creditors when
the latter cannot in any other manner collect
the claims due them;
(4) Those which refer to things under litigation if
they have been entered into by the defendant
without the knowledge and approval of the
litigants or of competent judicial authority;
(5) All other contracts specially declared by law to
be subject to rescission.

Paragraphs 1 and 2 are modified by the following
article.

Art. 1098. A partition, judicial or extra-judicial,
may also be rescinded on account of
lesion, when any one of the co-heirs
received things whose value is less, by at
least one-fourth, than the share to which he
is entitled, considering the value of the
things at the time they were adjudicated.

LESION is economic injury, where the party receives
less than he is entitled to receive. Lesion is
exceedingly difficult to determine and evaluate and is
viewed with increasing disfavor by modern civil law.

Amount of Lesion
The minimum extent of lesion for rescission to be
available is ONE-FOURTH or 25%.
Note the slight variation from paragraphs 1 and 2
of Art1381 which specifies MORE than .
Evidently, in cases of partition of the inheritance,
Art1098 applies.

AN EXCEPTION TO THIS ARTICLE IS FOUND IN
THE FOLLOWING ARTICLE.

Art. 1099. The partition made by the testator
cannot be impugned on the ground of
lesion, except when the legitime of the
compulsory heirs is thereby prejudiced, or
when it appears or may reasonably be
presumed, that the intention of the testator
was otherwise.

This article is an exception to the preceding article.
A partition made by the Testator himself is NOT
subject to rescission even in case of lesion in the
amount specified in the preceding article.
EXCEPT in the following cases:
1. Impairment of the legitime [even if the lesion
is less than one-fourth]
2. Mistake by the testator or vitiation of his
intent.

Art. 1100. The action for rescission on account
of lesion shall prescribe after four years
from the time the partition was made.


Page 107 of 109

Prescriptive period of FOUR (4) YEARS this is the
same period laid down in the general rule of rescission
of contracts under article 1389.

Art. 1101. The heir who is sued shall have the
option of indemnifying the plaintiff for the
loss, or consenting to a new partition.
Indemnity may be made by payment in
cash or by the delivery of a thing of the
same kind and quality as that awarded to
the plaintiff.
If a new partition is made, it shall affect
neither those who have not been
prejudiced nor those have not received
more than their just share.

OBLIGORS OPTIONS it is the co-heir who is sued
for rescission who has the option. He has 2 choices:
1. To have a Re-partition, or
2. To indemnify the co-heir the amount of the
lesion suffered.

Art. 1102. An heir who has alienated the whole
or a considerable part of the real property
adjudicated to him cannot maintain an
action for rescission on the ground of
lesion, but he shall have a right to be
indemnified in cash.

Correlated with the preceding article, this article is
unnecessary since anyway it is the party sued who is
given the option.

Art. 1103. The omission of one or more objects
or securities of the inheritance shall not
cause the rescission of the partition on the
ground of lesion, but the partition shall be
completed by the distribution of the objects
or securities which have been omitted.

Incompleteness of the partition is not a ground for
rescission. The remedy is a supplemental partition.

Art. 1104. A partition made with preterition of
any of the compulsory heirs shall not be
rescinded, unless it be proved that there
was bad faith or fraud on the part of the
other persons interested; but the latter
shall be proportionately obliged to pay to
the person omitted the share which
belongs to him.

This is NOT preterition under Art854. This is simply an
omission of a compulsory heir in the partition, the
assumption being something is left for him in the form
of an undisposed portion of the estate. The omitted
heir simply gets his rightful share [Non v. CA]
If the compulsory heir is one in the direct line and is
totally omitted from the inheritance, Art854 applies.

Art. 1105. A partition which includes a person
believed to be an heir, but who is not, shall
be void only with respect to such person.

This is the reverse of the preceding article. Here an
outsider is mistakenly included in the partition. The
bvious remedy is to recover the property from him and
have it redistributed among the proper recipients.


Page 108 of 109

COMPARISON OF RULES ON TESTATE
AND INTESTATE SUCCESSION

RULE
TESTATE INTESTATE NOTES
RIGHT OF
ACCRETION

Art. 1016. In order that the right of
accretion may take place in a
testamentary succession, it
shall be necessary:
(1) That two or more persons
be called to the same
inheritance, or to the same
portion thereof, pro
indiviso; and
(2) That one of the persons
thus called die before the
testator, or renounce the
inheritance, or be
incapacitated to receive it.

Art. 1022. In testamentary
succession, when the right of
accretion does not take place,
the vacant portion of the
instituted heirs, if no substitute
has been designated, shall
pass to the legal heirs of the
testator, who shall receive it
with the same charges and
obligations.
Art. 1018. In legal succession the
share of the person who
repudiates the inheritance shall
always accrue to his co-heirs.

Art. 968. If there are several
relatives of the same degree,
and one or some of them are
unwilling or incapacitated to
succeed, his portion shall
accrue to the others of the
same degree, save the right of
representation when it should
take place.
Art. 1015. Accretion is a right by
virtue of which, when two or
more persons are called to the
same inheritance, devise or
legacy, the part assigned to the
one who renounces or cannot
receive his share, or who died
before the testator, is added or
incorporated to that of his co-
heirs, co-devisees, or co-
legatees.

Art. 1019. The heirs to whom the
portion goes by the right of
accretion take it in the same
proportion that they inherit.

Art. 1021. Among the compulsory
heirs the right of accretion shall
take place only when the free
portion is left to two or more of
them, or to any one of them and
to a stranger.
Should the part repudiated
be the legitime, the other co-
heirs shall succeed to it in their
own right, and not by the right of
accretion.

CAPACITY TO
SUCCEED
Art. 1025. In order to be
capacitated to inherit, the heir,
devisee or legatee must be
living at the moment the
succession opens, except in
case of representation, when it
is proper.
A child already conceived
at the time of the death of the
decedent is capable of
succeeding provided it be born
later under the conditions
prescribed in article 41.
Art. 1025. In order to be
capacitated to inherit, the heir,
devisee or legatee must be
living at the moment the
succession opens, except in
case of representation, when it
is proper.
A child already conceived
at the time of the death of the
decedent is capable of
succeeding provided it be born
later under the conditions
prescribed in article 41.

Art. 1024. Persons not
incapacitated by law may
succeed by will or ab intestato.
The provisions relating to
incapacity by will are equally
applicable to intestate
succession.

ACCEPTANCE
OR
REPUDIATION
OF
INHERITANCE
Art. 1055. If a person, who is called
to the same inheritance as an
heir by will and ab intestato,
repudiates the inheritance in his
capacity as a testamentary heir,
he is understood to have
repudiated it in both capacities.
Should he repudiate it as
an intestate heir, without
knowledge of his being a
testamentary heir, he may still
accept it in the latter capacity.
Art. 1055. If a person, who is called
to the same inheritance as an
heir by will and ab intestato,
repudiates the inheritance in his
capacity as a testamentary heir,
he is understood to have
repudiated it in both capacities.
Should he repudiate it as
an intestate heir, without
knowledge of his being a
testamentary heir, he may still
accept it in the latter capacity.
Art. 1041. The acceptance or
repudiation of the inheritance is
an act which is purely voluntary
and free.

Art. 1042. The effects of the
acceptance or repudiation shall
always retroact to the moment
of the death of the decedent.

Art. 1043. No person may accept
or repudiate an inheritance
unless he is certain of the death
of the person from whom he is
to inherit, and of his right to the
inheritance.


Page 109 of 109

HALF BLOOD
AND FULL
BLOOD
BROTHERS
AND SISTERS
Art. 848. If the testator should
institute his brothers and
sisters, and he has some of full
blood and others of half blood,
the inheritance shall be
distributed equally unless a
different intention appears.
Art. 1006. Should brother and
sisters of the full blood survive
together with brothers and
sisters of the half blood, the
former shall be entitled to a
share double that of the latter.

REPRESENTA
TION
Art. 856. A voluntary heir who dies
before the testator transmits
nothing to his heirs.
A compulsory heir who dies before
the testator, a person
incapacitated to succeed, and
one who renounces the
inheritance, shall transmit no
right to his own heirs except in
cases expressly provided for in
this Code.
Art. 969. If the inheritance should
be repudiated by the nearest
relative, should there be one
only, or by all the nearest
relatives called by law to
succeed, should there be
several, those of the following
degree shall inherit in their own
right and cannot represent the
person or persons repudiating
the inheritance.
Art. 972. The right of
representation takes place in
the direct descending line, but
never in the ascending.
In the collateral line, it
takes place only in favor of the
children of brothers or sisters,
whether they be of the full or
half blood.

Art. 973. In order that
representation may take place,
it is necessary that the
representative himself be
capable of succeeding the
decedent.

Art. 974. Whenever there is
succession by representation,
the division of the estate shall
be made per stirpes, in such
manner that the representative
or representatives shall not
inherit more than what the
person they represent would
inherit, if he were living or could
inherit.

Art. 975. When children of one or
more brothers or sisters of the
deceased survive, they shall
inherit from the latter by
representation, if they survive
with their uncles or aunts. But if
they alone survive, they shall
inherit in equal portions.

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