Chapter 3.

LEGAL OR INTESTATE SUCCESSION

Issue:
Article: Surviving Spouse, Brothers and Sisters, Nephews and
Nieces
Case: Cacho vs Udan L-19996 April 30, 1965
Facts:
Silvina G. Udan, single, and a resident of San Marcelino,
Zambales, died leaving a purported will naming her son, Francisco
G. Udan, and one Wencesla Cacho, as her sole heirs, share and
share alike. Wencesla Cacho, filed a petition to probate said Will in
the Court of First Instance of Zambales on 14 January 1960. On 15
February 1960 Rustico G. Udan, legitimate brother of the testatrix,
filed an opposition to the probate. Atty. Guillermo Pablo, Jr., filed his
Appearance and Urgent Motion for Postponement for and in behalf
of his client Francisco G. Udan, the appointed heir in the Will.
Francisco G. Udan, through counsel, filed his opposition to the
probate of this will. On 15 September 1960 oppositor Rustico G.
Udan, through counsel, verbally moved to withdraw his opposition,
dated 13 February 1960, due to the appearance of Francisco G.
Udan, the named heir in the will and said opposition was ordered
withdrawn. After one witness, the Notary Public who made and
notarize the will, had testified in court, oppositor Francisco G. Udan
died on June 1961 in San Marcelino, Zambales, Philippines.
After the death of Francisco G. Udan, John G. Udan and
Rustico G. Udan, both legitimate brothers of the testatrix Silvina G.
Udan, filed their respective oppositions on the ground that the will
was not attested and executed as required by law, that the testatrix
was incapacitated to execute it; and that it was procured by fraud or
undue influence.

Whether or not, the brothers John and Rustico Udan may

claim to be heirs intestate of their legitimate sister, Silvina?
Held:
No. It is clear from Article 988 and 1003 of the Civil Code of
the Philippines, in force at the time of the death of the testatrix that
the brothers may not claim to be heirs intestate of their legitimate
sister, Silvina. The collateral relatives of one who died intestate
inherit only in the absence of descendants, ascendants, and
illegitimate children. Having Francisco Udan as the illegitimate son
of the late Silvina which fact is not denied by the oppositor brothers.
He is so acknowledged to be in the testament, where said
Francisco is termed "son" by the testatrix. Hence, the death of
Francisco two years after his mother's demise does not improve the
situation of appellants. The rights acquired by the former are only
transmitted by his death to his own heirs at law not to the
appellants, who are legitimate brothers of his mother, for the reason
that, the legitimate relatives of the mother cannot succeed her
illegitimate child. This is clear from Article 992 of the Civil Code.
Francisco Udan did survive his mother, and acquired the rights to
the succession from the moment of her death. While there is no
document or pleading in the records showing repudiation of the
inheritance by Francisco Udan. The latter's own opposition to the
probate of the alleged will is perfectly compatible with the intention
to exclude the proponent Cacho as testamentary coheir, and to
claim the entire inheritance as heir ab intestato
Abellana de Bacayo v. Ferraris de Borromeo (Aug. 31, 1965)

Jose Benedicto Luna Reyes, J.:

Melodia was last seen in Intramuros, Manila (where

she was a resident since 1937). The estate
proceedings were had since Melodia was
presumptively dead (she was last seen in 1944).

She left 6,000 pesos worth of properties located in

Cebu City.

She left no direct descendants, her only surviving

relatives being;

Mateo C. Bacalso and C. Kintanar for petitioner-appellant.

Gaudioso Sosmea and C. Tomakin for oppositors-appellees.

CAPTION/PROBLEM:
Melodia
Ferraris
was
declared
presumptively dead after not being seen for 10 years. Her closest
surviving relatives were an aunt (half-sister of Melodias father), 3
nieces, and a nephew (all children of Melodias only brother). Who
are the intestate heirs of Melodia? Do the nieces and nephew
(niblings) exclude the aunt (or vice versa)?

HELD: The nieces and nephew are the intestate heirs. The aunt is
excluded. Under NCC 1009, the absence of siblings or nieces and
nephews is a precondition to the other collateral relatives being
called to the succession. If such condition is satisfied, the collateral
relatives then inherit in equal parts, subject to the general rule that
nearer relatives exclude farther relatives.

FACTS

Dec. 22, 1960 Filomena ABELLANA de Bacayo filed a

petition for the summary settlement of the estate of
MELODIA Ferraris before the Cebu CFI.

Abellana (Melodias aunt; half-sister of her

father)

Gaudencia, Catalina, Conchita, and Juanito,

all
surnamed
Ferraris
(FERRARIS
SIBLINGS, children of Melodias only brother
Arturo, who died in 1947 [predeceased
Melodia]). They opposed the estate
proceedings.

Sep 20, 1961 - CFI RULING: In favor of the Ferraris

siblings.
o

The Ferraris siblings, as children of Melodias only

predeceased brother, exclude Abellana because the
former are nearer in degree (two degrees) than the
latter since nieces and nephews succeed by right of
representation, while Abellana is three degrees
distant from Melodia, and because other collateral
relatives are excluded by brothers or sisters or

children of brothers or sisters of the decedent in

accordance with NCC 1009.
o

brothers/sisters
of
the
decedent.
If
only
nieces/nephews are left, they shall inherit in equal
portions.

Abellana filed a paupers appeal before the SC.

o

ISSUE (HELD): Who should inherit the intestate estate of a

deceased person when he or she is survived only by collateral
relatives, to wit an aunt and the children of a brother who
predeceased him or her? Otherwise, will the aunt concur with the
children of the decedent's brother in the inheritance or will the
former be excluded by the latter? (The nieces and nephews will
inherit; and they will exclude the aunt.)

BUT in case of intestacy, nephews/nieces of the

decedent exclude all other collateral relatives
from the succession. BASES: NCC 1001, 1004,
1005, and 1009.

NCC 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.
RATIO

Abellana: She is in the same degree of relationship to

Melodia as the Ferraris siblings (3 degrees). Also, under
NCC 975, nephews and nieces do not have the right of
representation when they concur with uncles or aunts;
hence they succeed in their own right.
SC: Agrees with both of Abellanas contentions,
nevertheless CFI decision is correct and must be upheld
insofar as it conforms to the rules about to be set forth.
o

Abellana is correct in claiming that under NCC 975,

nieces/nephews do not inherit by right of
representation
unless
they
concur
with

Under NCC 1009, the absence of siblings and

niblings of the decedent is a precondition to the
succeeding by the other collateral relatives (aunts,
uncles, cousins, etc.)

The old Civil Code was clearer on the matter:

ART. 952. In the absence of brother, or

sisters and of nephews or nieces, children of
the former, whether of the whole blood or not,
the surviving spouse, if not separated by a
final decree of divorce, shall succeed to the
entire estate of the deceased.

ART. 954. Should there be neither brothers or

sisters, nor children of brothers or sisters, nor
a surviving spouse, the other collateral
relatives shall succeed to the estate of
deceased.

The latter shall succeed without distinction of lines or preference

among them by reason of the whole blood.
o

Under Arts. 952 and 954 of the old Code, siblings

and niblings of the decedent inherited ahead of the
surviving spouse, while the other collateral
relatives inherited only after the surviving
spouse. The New Civil Code simply placed the
spouse on par with the siblings and niblings of
the deceased, without altering the preferred
position of the latter vis--vis the other collateral
relatives.
The reliance on Tolentinos commentaries to NCC
1009 is misplaced. Indeed there is no order of
preference under NCC 1009, but this is true with
respect to Other collaterals because their order of
preference is already provided for in NCC 9621,
which embodied the general principle that relatives
nearer in degree exclude the farther ones.
Tolentino does not say that nephews and nieces
concur with other collaterals of equal degree. In fact
he is of the opposing view (and counsel for Abellana
unethically failed to quote the whole portion of
Tolentinos comments which shows this):

Other collaterals. The last of the relatives of the decedent to

succeed in intestate succession are the collaterals other than
brothers or sisters or children of brothers or sisters. They are,
however, limited to relatives within the fifth degree. Beyond this, we
can safely say there is hardly any affection to merit the succession
of collaterals. Under the law, therefore, relatives beyond the fifth
degree are no longer considered as relatives, for successional
purposes.
Article 1009 does not state any order of preference. However, this
article should be understood in connection with the general rule that
the nearest relatives exclude the farther. Collaterals of the same
degree inherit in equal parts, there being no right of representation.
They succeed without distinction of lines or preference among them
on account of the whole blood relationship.

DISPOSITION: Decision affirmed.

Bicomong vs. Almanza (G.R. No. L-37365, November 29,

1977)
FACTS:
Simeon Bagsic was married to Sisenanda and they had 3 children
(Perpetua, Igmedia and Ignacio). When Sisenanda died, Simeon
remarried to Silvestra and they had 2 children (Felipa and
Maura). The plaintiffs are the grandchildren of Simeon with his
children in his first marriage. Respondents are the heirs of the
children of Simeon in his second marriage.

The subject matter is the half undivided share of Maura Bagsic in

5 parcels of land which she inherited from Silvestra Glorioso.
There are 3 sets of plaintiffs: the Bicomongs, the Tolentinos, and
Francisca Bagsic, for their shares in the properties of Maura
Bagsic. When Maura Bagsic died, the properties passed on to
Cristeta Almanza, who also died without division of the
properties.
The trial court rendered judgment in favor of plaintiffs. The
Almanzas appealed to CA. It was contended that since Maura
died ahead of Felipa, the latter succeeded to Mauras estate, to
the exclusion of the plaintiffs. They said the relatives nearest in
degree excludes the more distant ones. The plaintiffs claim that
Felipa died ahead of Maura.
ISSUE: Whether or not Maura is succeeded by Felipa to
the exclusion of nephews and nieces of half blood.
RULING:
No. In the absence of descendants, ascendants, illegitimate
children, or surviving spouse, collateral relatives succeed to the
entire estate of deceased.
It appearing that Maura Bagsic, child of the 2nd marriage in
which her share is in dispute, died intestate without an issue, and
her husband and all her ascendants had died ahead of her, she is
succeeded by the surviving collateral relatives, namely the
daughter of her sister of full blood and the 10 children of her
brother and 2 sisters of half blood in accordance with the
provision of Art. 975 of the New Civil Code.

By virtue of said provision, the aforementioned nephews and

nieces are entitled to inherit in their own right. Nephews and
nieces alone do not inherit by right of representation (that is per
stirpes) unless concurring with brothers or sisters of the
deceased.
Article 975 makes no qualification as to whether the nephews or
nieces are on the maternal or paternal line and without
preference as to whether their relationship to the deceased is by
whole or half blood, the sole niece of whole blood of the
deceased does not exclude the ten nephews and 2 sisters of half
blood.

CITY OF MANILA vs ARCHBISHOP of MANILA

The City of Manila wants certain properties being administered by
the Roman Catholic Church to be declared escheated. It claims that
the original owner of said properties, a certain Ana Sarmiento, has
died sometime in 1668 intestate with no heirs to succeed. The
Archbishop contends that the church has rightfully and legally
succeeded to the possession and administration of said property
that it had been managing for more than 200 years.
ISSUE: Whether or not the said properties should be escheated.
HELD: No. It was shown that Ana Sarmiento did not die intestate.
Evidence presented has shown a genuine will and codicils. It was
further shown that the heir named therein, her nephew, has
religiously complied with the terms of said will. Therefore, the
properties cannot be escheated in favor of the government.