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Estate of K. H. Hemady v. Luzon Surety (1956) [6]
* The responsibility of the heirs for the debts of their decedent cannot exceed
the value of the inheritance they receive from him. Heirs succeed not only to th
e rights of the deceased but also to his obligations.
* General rule: a party s contractual rights and obligations are transmissible to
the successors.
* Exceptions under Art. 1311:
1) Nature of the obligation
2) Intransmissibility by stipulation of the parties
3) Obligation is not transmissible by operation of law
Art. 777
Unson v. Del Rosario (1953) [12]
The law in force at the time of the decedent s death will determine who the heirs
should be.
* Art. 2253 provides that rights which are declared for the first time by the ne
w Civil Code shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is so only whe
n the new rights do not prejudice any vested or acquired right of the same origi
n. In instant case, M s right of ownership over the lands became vested in 1945 up
on the death of her husband. The new right in favor of the illegitimate children
by the deceased cannot be asserted to the impairment of the vested right of M o
ver the lands in dispute.
De Borja v. Vda de Borja (1972) [14]
Ownership passes to the heir at the very moment of death, who therefore, from th
at moment acquires the right to dispose of his share
* Hereditary share in a decedent s estate is transmitted or vested immediately fro
m the moment of the death of such causante or predecessor in interest. Thus, the
re is no legal bar to a successor (with requisite contracting capacity) disposin
g his hereditary share immediately after such death, even if the actual extent o
f such share is not determined until the subsequent liquidation of the estate.
Bonilla v. Barcena (1976) [16]
The heirs have the right to be substituted for the deceased as party on an actio
n that survives.
* While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion.
* The moment of death is the determining factor when the heirs acquire a definit
e right to the inheritance whether such right be pure or contingent. Thus, when
F died, her claim or right to the parcel s of land in litigation was not extingu
ished by her death but was transmitted to her heirs upon her death. Her heirs ha
ve thus acquired interest in the properties in litigation and became parties-in-
interest in the case.
* The question as to whether an action survives or not depends on the nature of
the action and the damage sued for.
1) Survive: wrong complained of affects primarily and principally property and p
roperty rights, the injuries to the person being merely incidental
2) Not survive: injury complained of is to the person, the property and rights o
f property affected being incidental.
* In instant case, an action to quiet title over land in litigation affects prim
arily and principally property and property rights, and therefore is one that su
rvives even after F s death.
Art. 804
Suroza v. Honrado (1981) [41]
Art. 804 provisions are mandatory. Consequently, failure to comply with the two
requirements nullifies the will.
* The will on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because s
he and the attesting witnesses did not appear before the notary as admitted by t
he notary himself.
* A judge who admits to probate such a will should face disciplinary action. In
the absence of opposition, the judge should have personally conducted the hearin
g on the probate of the will so that he could have ascertained whether the will
was validly executed.
Abangan v. Abangan (1919) [46]
It may sometimes be presumed that the testator knew the language in which the wi
ll was written.
* The circumstance appearing in the will itself that the same was executed in Ce
bu and in the dialect of this locality where the testatrix was a neighbor [sic]
is enough, in the absence of any proof to the contrary, to presume that she knew
this dialect in which the will was written.
RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases i
t seems that, in order for the presumption to apply, the following must appear:
1) The will must be in language or dialect generally spoken in the place of exec
ution; and
2) The testator must be a native or resident of said locality
Art. 806
Payad v. Tolentino (1936) [49]
Thumb mark as signature.
* Testatrix, assisted by counsel, placed her thumb mark on each and every page o
f the questioned will and that said counsel merely wrote her name to indicate th
e place where she placed said thumb mark. In other words, counsel did not sign f
or the testatrix. She signed by placing her thumb mark on each and every page th
ereof. A statute requiring a will to be signed is satisfied if the signature is mad
e by the testator s mark. It is clear, therefore, that it was not necessary that th
e attestation clause in question should state that the testatrix requested her c
ounsel to sign her name inasmuch as the testatrix signed the will in question in
accordance with law.
Matias v. Salud (1958) [50]
* The legal requisite that the will should be signed by testator is satisfied by
a thumbprint or other mark affixed by him; and that where such mark is affixed
by the decedent, it is unnecessary to state in the attestation clause that anoth
er person wrote the testator s name at his request.
* In the instant case, it was shown that the herpes zoster that afflicted the ri
ght arm and shoulder of the testatrix made writing a difficult and painful act,
to the extent that, after writing one signature on the second page, she dropped
the pen because of an attack of pain that lasted many minutes, and evidently dis
couraged attempts to sign.
* It is to be conceded that where a testator employs an unfamiliar way of signin
g, and both the attestation clause and the will are silent on the matter, such s
ilence is a factor to be considered against the authenticity of the testament; b
ut the failure to describe the unusual signature by itself alone is not sufficie
nt to refuse probate when the evidence for the proponent fully satisfies the cou
rt that the will was executed and witnessed as required by law.
Garcia v. Lacuesta (1951) [54]
A cross as signature.
* It is not here presented that the cross appearing on the will is the usual sig
nature of the testator or even one of the ways by which he signed his name. The
mere sing of a cross cannot be likened to a thumbmark, because the cross cannot
and does not have the trustworthiness of a thumbmark.
Barut v. Cabacungan (1912) [56]
When agent must write.
* As regards the validity of the will, it is unimportant whether the person who
writes the name of the testatrix signs his own or not. The important thing is th
at it clearly appears that the name of the testatrix was signed at her express d
irection in the presence of the three witnesses and that they attested and subsc
ribed it in her presence and in the presence of each other.
* It may be wise, as a practical matter that the one who signs the testator s name
signs also hi own; but that is not essential to the validity of the will.
Nera v. Raymundo (1911) [61]
Signing in the presence of witnesses
* Jaboneta v. Gustilo: The true test of presence of the testator and the witnesse
s in the execution of a will is not whether they actually saw each other sign, b
ut whether they might have seen each other sign, had they chosen to do so, consi
dering their mental and physical position with relation to each other at the mom
ent of inscription of each signature.
* The position of the parties with relation to each other at the moment of the s
ubscription of each signature must be such that they may see each other sign if
they choose to do so. Jaboneta doctrine: the question whether the testator and t
he subscribing witnesses to an alleged will sign the instrument in the presence
of each other does not depend upon proof of the fact that their eyes were actual
ly cast upon the paper at the moment of its subscription by each of them, but th
at at that moment existing conditions and their position with relation to each o
ther were such that by merely casting their eyes in the proper direction they co
uld have seen each other sign.
Icasiano v. Icasiano (1964) [64]
* The inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signin
g, is not per se sufficient to justify denial of probate. That the failure of th
e witness to sign page three was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the will, which bears a compl
ete set of signatures in every page.
RFB: The Icasiano holding cannot, and should not, be taken as a departure from t
he rule that the will should be signed by the witnesses on every page. The carbo
n duplicate was regular in all aspects. A cavalier disregard of the formal requi
rements of wills in reliance on Icasiano is not recommended.
Cagro v. Cagro (1953) [68]
The signatures of the witnesses must be at the bottom of the attestation clause.
* Fact: signature of the three witnesses do not appear on the bottom of the atte
station clause, but the page containing the clause is signed by the witnesses on
the left-hand margin.
* The attestation clause is a memorandum of the facts attending the execution of
the will required by law to be made by the attesting witnesses, and it must neces
sarily bear their signature. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signature at the bottom
thereof negatives their participation.
* The signatures on the left-hand margin cannot be deemed as their signature to
the clause because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the witnesses at the bottom thereof, be admitted as suffici
ent, it would be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses.
* Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) the unc
ontradicted testimony of the witnesses that the clause was already written in th
e will when the same was signed obviates fear of the majority that the clause ma
y have been only added on a subsequent occasion and not at the signing of the wi
Javellana v. Ledesma (1955) [70]
Acknowledgement before a notary public.
* Fact: Codicil signed by testatrix and witnesses at the hospital; the notary pu
blic brought the codicil to his office, and signed and sealed it there.
* Whether or not the notary signed the certification of acknowledgement in the p
resence of the testatrix and the witnesses does not affect the validity of the c
odicil. The Civil Code does not require that the signing of the testator, witnes
ses and notary should be accomplished in one single act.
* The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is not part of the
acknowledgement itself nor of the testamentary act.
RFB: (a) ratio: The certification of acknowledgement need not be signed in the p
resence of the testator and the witnesses; (b) obiter: Art. 806 does not require
that the testator and the witnesses must acknowledge on the same day that it wa
s executed.
Cruz v. Villasor (1973) [72]
The notary public cannot be counted as one of the attesting witnesses.
* The notary public before whom the will was acknowledged cannot be considered a
s the third instrumental witness since he cannot acknowledge before himself his
having signed the will. If the third witness were the notary public himself, he
would have to avow, assent, or admit his having signed the will in front of hims
elf. This cannot be done because he cannot split his personality into two so tha
t one will appear before the other to acknowledge his participation in the makin
g of the will.
* Furthermore, the function of the notary public is, among others, to guard agai
nst any illegal or immoral arrangement. That function would be defeated if the n
otary public were one of the attesting or instrumental witnesses. For then he wo
uld be interested in sustaining the validity of his own act.
* To allow the notary public to act as third witness, or one of the attesting an
d acknowledging witnesses, would have the effect of having only two attesting wi
tnesses to the will which would be in contravention of the Article 805 requiring
at least three credible witnesses to act as such and of Article 806 which requi
res that the testator and the required number of witnesses must appear before th
e notary public to acknowledge the will.
Art. 808
Garcia v. Vasquez (1970) [75]
Provision of Article 808 mandatory.
* Fact: testatrix s vision was mainly for viewing distant objects and not for read
ing print.
* For all intents and purposes of the rules on probate, the testatrix was not un
like a blind testator, and the due execution of her will would have required obs
ervance of Article 808. The rationale behind the requirement of reading the will
to the testator if he is blind or incapable of reading the will himself (as whe
n he is illiterate) , is to make the provisions thereof known to him, so that he
may be able to object if they are not in accordance with his wishes.
Alvarado v. Gaviola (1993) [80]
The requirement has been liberally applied, the SC declaring substantial complia
nce to be sufficient.
* Facts: The lawyer who drafted the will and subsequent codicil read them aloud
in the presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies p
reviously furnished them.
* Substantial compliance is acceptable where the purpose of the law has been sat
isfied, because the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never inten
ded to be so rigid and inflexible as to destroy testamentary privilege.
* It was not only the lawyer who read the documents. The notary public and the t
hree instrumental witnesses likewise read the will and codicil, albeit silently.
With four persons following the reading word with their own copies, it can be s
afely concluded that the testator was reasonably assured that what was read to h
im (those which he affirmed were in accordance with his instructions), were the
terms actually appearing in the typewritten documents.
Art. 809
Caneda v. CA (1993) [87]
* Fact: petitioners aver that the attestation clause is fatally defective since
it fails to specifically state that the instrumental witnesses to the will witne
ssed the testator signing the will in their presence and that they also signed t
he will and all the pages thereof in the presence of the testator and of one ano
* SC agrees with petitioners. The absence of a statement that the witnesses sign
ed the will and every page thereof in the presence of the testator and of one an
other is a fatal defect which must necessarily result in the disallowance of the
will. Such defect in the attestation clause cannot be characterized as merely i
nvolving form of the will or the language used therein which would warrant the a
pplication of the substantial compliance rule contemplated in Art. 809. The defe
ct is not only in the form or the language of the attestation clause but the tot
al absence of a specific element required by Art. 805 to be specifically stated
in the attestation clause.
* Proper interpretation of the substantial compliance rule in Art. 809: 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 ( from another sour
ce, from elsewhere, from outside source ) would result in the invalidation of the
attestation clause and ultimately, of the will itself.

Art. 810
Roxas v. De Jesus (1985) [103]
* Issue: whether FEB./61 appearing in the holographic will is a valid compliance w
ith Art. 810.
* A complete date is required to provide against such contingencies as that of t
wo competing wills executed on the same day, or of a testator becoming insane on
the day on which a will was executed. There is no contingency in this case.
* As a general rule, the date in a holographic will should include the day, month,
and year of its execution. However, when, as in the case at bar, there is no ap
pearance 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./91 i
s a valid compliance with Art. 810, probate of the holographic will should be al
lowed under the principle of substantial compliance.
Labrador v. CA (1990) [105]
* Fact: date appears in the body of the holographic will.
* 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. Both requirements are present in the subje
ct will.
Art. 811
Azaola v. Singson (1960) [110]
The three-witness provision in case of contested holographic wills is directory,
not mandatory.
* Since the authenticity of the will was not contested, proponent was not requir
ed to produce more than one witness; but even if the genuineness of the holograp
hic will were contested, Art. 811 cannot be interpreted as to require the compul
sory presentation of three witnesses to identify the handwriting of the testator
, under the penalty of having the probate denied.
* Since no witness may have been present at the execution of a holographic will,
none being required by law, it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the pr
* Art. 811 foresees the possibility that no qualified witness may be found (or w
hat amounts to the same thing, that no competent witness may be willing to testi
fy to the authenticity of the will, and provides for resort to expert evidence t
o supply the deficiency. Such resort to expert evidence is conditioned by if the
Court deem it necessary, which reveal that what the law deems essential is that t
he Court should be convinced of the will s authenticity. Since the law leaves it t
o the trial court to decide if experts are still needed, no unfavorable inferenc
e can be drawn from a party s failure to offer expert evidence, until and unless t
he court expresses dissatisfaction with the testimony of the lay witnesses.
* SC s conclusion: the rule of Art. 811, par. 1, is merely directory and is not ma
Codoy v.Calugay (1999)
* Fact: holographic will challenged for forgery. 6 witnesses of proponent did no
t categorically state that they know the handwriting and signature of the testat
rix; whereas, 2 did so.
* Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate of c
ontested holographic will at least three witnesses explicitly declare the signat
ure in the will is the genuine signature of the testator.
* SC (Pardo): We are convinced, based on the language used, that Article 811 is man
datory. We have ruled that shall in a statute commonly denotes an imperative obli
gation and is inconsistent with the idea of discretion and that the presumption
is that the word shall when used in a statute is mandatory. Case remanded because t
he Court found that the testimony of the aforesaid 2 witnesses was not convincin
Query: has this ruling reversed Azaola, supra.?
1) Azaola is not on all fours with this case. Here, the will was contested (gro
und: forgery), in Azaola the will was not contested.
2) RFB s personal view: No, because the basis of the remand that the Court did not
find the testimony of the 2 witnesses satisfactory is perfectly consistent with Az
aola that QUALITY of the testimony, not the quantity of the witnesses, is the cr
iterion. Thus, SC s statement that three-witness rule is mandatory is an obiter.
We can read Azaola and Godoy together.
Gan v. Yap (1958) [114]
In the probate of a holographic will, the document itself must be produced. Ther
efore, a lost holographic will cannot be probated.
* When the will itself is not submitted, the means of opposition and of assessin
g the evidence, are not available. And then, the only guaranty of authenticity the
testator s handwriting has disappeared.
* The execution and the 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 wil
* Ordinary vs. holographic wills. The difference lies in the nature of wills. In
holographic wills, the only guarantee of authenticity is the handwriting itself
; in ordinary wills, the testimony of the subscribing or instrumental witnesses
and of the notary. The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing witnesses are av
ailable to authenticate.
Rodelas v. Aranza (1982) [122]
Exception to the Gan ruling.
* Issue: whether a lost holographic will can be proved by means of a photostatic
* Evidently, the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because the authenticity of the handwriting of the deceased
can be determined by the probate court (i.e., comparison can be made with the s
tandard writings of the testator.
Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
* Issue: whether the original unaltered text after subsequent alterations and in
sertions were voided by the Trial Court for lack of authentication by full signa
ture of the testatrix, should be probated or not.
* Velasco v. Lopez: when a number of erasures, corrections, and interlineations
made by the testator in a holographic will have not been noted under his signatu
re, the will is not thereby invalidated as a whole, but at most only as respects
the particular words, erased, or interlined.
* However, when as in this case, the holographic will in dispute had only one su
bstantial provision, which was altered by substituting the original heir with an
other, but which alteration did not carry the requisite of full authentication b
y the full signature of the testator, the effect must be that the entire will is
voided or revoked for the simple reason that nothing remains in the will after
that which could remain valid. To state that the will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to authentic
ate it in the manner required by lay by affixing her full signature.
* Velasco ruling must be held confined to such insertions, cancellations, erasur
es or alterations in a holographic will, which affect only the efficacy of the a
ltered words themselves but not the essence and validity of the will itself.
Subsection 4-Witnesses to Wills
Article 821
Gonzales vs. CA
Under the law, there is no mandatory requirement that the witness testif
y initially or at any time during the trial as to his good standing in the commu
nity, his reputation for trustworthiness and reliableness, his honesty and uprig
htness in order that his testimony may be believed and accepted by the trial cou
rt. It is enough that the qualifications enumerated in Article 820 of the Civil
Code are complied with, such that the soundness of his mind can be shown by or d
educed from his answers to the questions propounded to him, that his age (18 yea
rs or more) is shown from his appearance, testimony, or competently proved other
wise, as well as the fact that he is not blind, deaf or dumb and that he is able
to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. The attributes of the g
ood standing of the witness in the community, his reputation for trustworthiness
and reliableness, his honesty and uprightness are presumed of the witness unles
s the contrary is proved otherwise by the opposing party.
In probate proceedings, the instrumental witnesses are not character wit
nesses for they merely attest the execution of a will or testament and affirm th
e formalities attendant to said execution.
Credible witnesses' mean competent witnesses and not those who testify to
facts from or upon hearsay.

Subsection 6
Article 830
Maloto vs. CA
It is clear that the physical act of destruction of a will, like burning
in this case, does not per se constitute an effective revocation, unless the de
struction is coupled with animus revocandi on the part of the testator. It is no
t imperative that the physical destruction be done by the testator himself. It m
ay be performed by another person but under the express direction and in the pre
sence of the testator. Of course, it goes without saying that the document destr
oyed must be the will itself."Animus revocandi is only one of the necessary elem
ents for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, oblit
erating, or cancelling the will carried out by the testator or by another person
in his presence and under his express direction.
Gago vs. Mamuyac
The law does not require any evidence of the revocation or cancellation
of the will to be preserved. It therefore becomes difficult at times to prove th
e cancellation or revocation of wills. The fact that such cancellation or revoca
tion has taken place must either remain unproved or be inferred from evidence sh
owing that after due search the original will cannot be found. Where a will whic
h 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 t
he same was cancelled or destroyed. The same presumption arises where it is show
n that the testator had ready access to the will and it cannot be found after hi
s death. It will not be presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator.

Subsection 8- Allowance and Disallowance of Wills

Article 838
Guevara vs. Guevara
The proceeding for the probate of a will is one in rem, with notice by p
ublication to the whole world and with personal notice to each of the known heir
s, legatees, and devisees of the testator. Although not contested, the due execu
tion of the will and the fact that the testator at the time of its execution was
of sound and disposing mind and not acting under duress, menace, and undue infl
uence or fraud, must be proved to the satisfaction of the court, and only then m
ay the will be legalized and given effect by means of a certificate of its allow
ance, signed by the judge and attested by the seal of the court; and when the wi
ll devises real property, attested copies thereof and of the certificate of allo
wance must be recorded in the register of deeds of the province in which the lan
d lies. It will readily be seen from the above provisions of the law that the pr
esentation of a will to the court for probate is mandatory and its allowance by
the court is essential and indispensable to its efficacy.
The heirs may not disregard the provisions of the will unless those prov
isions are contrary to law. Neither may they do away with the presentation of th
e will to the court for probate, because such suppression of the will is contrar
y to law and public policy. The law enjoins the probate of the will and public p
olicy requires it, because unless the will is probated and notice thereof given
to the whole world, the right of a person to dispose of his property by will may
be rendered nugatory,
De la Cerna vs. Potot
In a case where a joint will between husband and wife was executed and t
he will was probated when the husband died before the effectivity of the Civil C
ode, the final decree of probate has conclusive effect as to the last will and t
estament, despite the fact that even then the Civil Code already decreed the inv
alidity of joint wills. A final judgment rendered on a petition for the probate
of a will is binding upon the whole world and public policy and sound practice d
emand that at the risk of occasional errors, judgment of courts should become fi
nal at some definite date fixed by law. The probate decree of the will of the hu
sband could only affect the share of the deceased husband. It could not include
the disposition of the share of the wife who was then still alive, and over whos
e interest in the conjugal properties the probate court acquired no jurisdiction
, precisely because her estate could not then be in issue. It follows that the v
alidity of the joint will, in so far as the estate of the wife was concerned, mu
st be, on her death, reexamined and adjudicated de novo, since a joint will is c
onsidered a separate will of each testator. Thus, probate of the wife s will is de
nied as joint wills are now prohibited by the Civil Code.

Gallanosa vs. Arcangel

A decree of probate is conclusive as to the due execution or formal vali
dity of a will. That means that the testator was of sound and disposing mind at
the time when he executed the will and was not acting under duress, menace, frau
d, or undue influence; that the will was signed by him in the presence of the re
quired number of witnesses, and that the will is genuine and is not a forgery. A
ccordingly, these facts cannot again be questioned in a subsequent proceeding, n
ot even in a criminal action for the forgery of the will. After the finality of
the allowance of a will, the issue as to the voluntariness of its execution cann
ot be raised anymore.
The following are included in the term formal validity and therefore are
conclusively settled by a final decree of probate:
i. that the testator was of sound and disposing mind
ii. that his consent was not vitiated
iii. that the will was signed by the requisite number of witnesses
iv. that the will is genuine
Nepomuceno vs. CA
The general rule is that in probate proceedings, the court's area of inq
uiry is limited to an examination and resolution of the extrinsic validity of th
e Will. The rule, however, is not inflexible and absolute. Given exceptional cir
cumstances, the probate court is not powerless to do what the situation constrai
ns it to do and pass upon certain provisions of the Will. The probate of a will
might become an idle ceremony if on its face it appears intrinsically void. Wher
e practical considerations demand that the intrinsic validity of the will be pas
sed upon, even before it is probated, the court should meet the issue.

SECTION 2- Institution of Heir

Article 850
Austria vs. Reyes
Before the institution of heirs may be annulled under article 850 of the
Civil Code, the following requisites must concur: First, the cause for the inst
itution of heirs must be stated in the will; second, the cause must be shown to
be false; and third, it must appear from the face of the will that the testator
would not have made such institution if he had known the falsity of the cause.
Article 854
Reyes vs. Barretto-Datu
If there is a compulsory heir in the direct line, such heir is institute
d in the will, and the testamentary disposition given to such heir is less than
her legitime, there is no preterition. There is no total omission, inasmuch as t
he heir received something from the inheritance. The remedy is for completion of
legitime under Articles 906 and 907.
Aznar vs. Duncan
Manresa defines preterition as the omission of the heir in the will, eit
her by not naming him at all or, while mentioning him as father, son, etc., by n
ot instituting him as heir without disinheriting him expressly, nor assigning to
him some part of the properties. In a case where the testator left to one who w
as a forced heir a legacy worth less than the legitime, but without referring to
the legatee as an heir or even as a relative, and willed the rest of the estate
to other persons, it was held that Article 815 applied, and the heir could not
ask that the institution of heirs be annulled entirely, but only that the legiti
mate be completed.
Acain vs. IAC
An adopted child, if totally omitted in the inheritance, is preterited a
nd can invoke its protection and consequences. Since an adopted child is given
by law the same rights as a legitimate child, the adopted child can, in proper c
ases, invoke Article 854 in the same manner a legitimate child can.
Nuguid vs. Nuguid
To 'annul' means to abrogate, to make void. The word annul employed in t
he statute (Article 854) means that the universal institution of petitioner to t
he entire inheritance results in totally abrogating the will. Because, the nulli
fication of such institution of universal heir without any other testamentary di
sposition in the will amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 offers no leeway for inferentia
l interpretation. Giving it an expansive meaning will tear up by the roots the f
abric of the statute. (Note that what was involved here was a universal institut
ion of a sole heir, nothing more. Article 854 annuls his institution, thus no mo
re heirs are left. Hence, the entire will is void.)

SECTION 3-Substitution of Heirs

Article 863
Palacios vs. Ramirez
What is meant by "one degree" from the first heir is explained by Tolent
ino as follows:
"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution,
or transmission. The Supreme Court of Spain has decidedly adopted this construct
ion. From this point of view, there can be only one transmission or substitution
, and the substitute need not be related to the first heir. Manresa, Morell, and
Sanchez Roman, however, construe the word 'degree' as generation, and the prese
nt Code has obviously followed this interpretation, by providing that the substi
tution shall not go beyond one degree 'from the heir originally instituted.' The
Code thus clearly indicates that the second heir must be related to and be one
generation from the first heir.
"From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation or
degree from the fiduciary."
PCI Bank vs. Escolin
If there is no absolute obligation imposed upon the first heir to preser
ve the property and transmit it to a second heir, there is no fideicomisaria. Th
e institution is not necessarily void; it may be valid as some other disposition
, but it is not a fideicomisaria.

SECTION 5- Legitime
Article 887
Rosales vs. Rosales
The surviving spouse referred to in Article 887 who is entitled to the l
egitime, is the spouse of the decedent and not the spouse of a child who has pre
deceased the decedent.

Lapuz vs. Eufemio

An action for legal separation which involves nothing more than the bed-
and-board separation of the spouses (there being no absolute divorce in this jur
isdiction) is purely personal. Being personal in character, it follows that the
death of one party to the action causes the death of the action itself actio per
sonalis moritur cum persona. Thus, death of either party during the pendency of
a petition for legal separation results in the dismissal of the case.
Nial vs. Badayog
May the heirs of a deceased person file a petition for the declaration o
f nullity of his marriage after his death? Petitions for the declaration of the
voidability of a marriage can only be brought during the lifetime of the parties
and not after the death of either. A void marriage, on the other hand, can be
brought even after the death of either party. The Code is silent as to who can
file a petition for declaration of nullity of marriage. Any proper interested p
arty (heirs of the deceased husband) may attack a void marriage.
Baritua vs. CA
Legitimate ascendants (parents of the deceased) succeed only when the de
scendant dies without a legitimate ascendant. The surviving spouse concurs with
all classes of heirs. Thus, where an obligation has been paid to the spouse and
descendants, the obligation is extinguished and the legitimate ascendants have
no right to claim upon the obligation.
Article 891
Solivio vs. CA
The reserva troncal only applies to properties inherited by an ascendant
or a brother or sister. It does not apply to property inherited by a descendant
from his ascendant, the reverse of the situation covered by Article 891.
Padura vs. Baldovino
The reserva troncal is a special rule designed primarily to assure the r
eturn of the reservable property to the third degree relatives belonging to the
line from which the property originally came, and avoid its being dissipated int
o and by the relatives of the inheriting ascendant.
The reserva merely determines the group of relatives to whom the propert
y should be returned; but within that group the individual right to the property
should be decided by the applicable rules of ordinary intestate succession, sin
ce Article 891 does not specify otherwise. (RFB: Those reservatarios nearer in d
egree to the prepositus will exclude the more remotely related.)
Florentino vs. Florentino
I Any ascendant who inherits from his descendant any property, while there
are living, within the third degree, relatives of the latter, is nothing but a
life usufructuary or a fiduciary of the reservable property received. He is, how
ever, the legitimate owner of his own property which is not reservable property
and which constitutes his legitime, according to article 809 of the Civil Code.
But if, afterwards, all of the relatives, within the third degree, of the descen
dant (from whom came the reservable property) die or disappear, the said propert
y becomes free property, by operation of law, and is thereby converted into the
legitime of the ascendant heir who can transmit it at his death to his legitimat
e successors or testamentary heirs. This property has now lost its nature of res
ervable property, pertaining thereto at the death of the relatives, called reser
vatarios, who belonged within the third degree to the line from which such prope
rty came.
The right of representation cannot be alleged when the one claming same
as a reservatario of the reservable property is not among the relatives within t
he third degree belonging to the line from which such property came, inasmuch as
the right granted by the Civil Code in article 811 is in the highest degree per
sonal and for the exclusive benefit of designated persons who are the relatives,
within the third degree, of the person from whom the reservable property came.
Therefore, relatives of the fourth and the succeeding degrees can never be consi
dered as reservatarios, since the law does not recognize them as such.
(RFB: Actually there will be only one instance of representation among the reser
vatarios, i.e., a case of the Prepositus being survived by brothers/sisters and
children of a predeceased or incapacitated brother or sister.)
Edroso vs. Sablan
1. The reservista s right over the reserved property is one of ownership.
2. The ownership is subject to a resolutory condition, i.e. the existence of res
ervatarios at the time of the reservista s death.
3. The right of ownership is alienable, but subject to the same resolutory condi
4. The reservista s right of ownership is registrable.
The conclusion is that the person required by article 811 to reserve the
right has, beyond any doubt at all, the rights of use and usufruct. He has, more
over, for the reasons set forth, the legal title and dominion, although under a
condition subsequent. Clearly he has, under an express provision of the law, the
right to dispose of the property reserved, and to dispose of is to alienate, al
though 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 cond
ition, reside in him while he lives. After the right required by law to be reser
ved has been assured, he can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor t
he right is reserved cannot dispose of the property, first because it is 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 transm
it to another, on the hypothesis that only when the person who must reserve the
right should die before them will they acquire it, thus creating a fee simple, a
nd only then will they take their place in the succession of the descendant of w
hom they are relatives within the third degree, that is to say, a second conting
ent place in said legitimate succession in the fashion of aspirants to a possibl
e future legacy.
Sienes vs. Esparcia
1. The reservatarios have a right of expectancy over the property.
2. The right is subject to a suspensive condition, i.e. the expectancy ripens in
to ownership if the reservatarios survive the reservista.
3. The right is alienable, but subject to the same suspensive condition.
4. The right is registrable.
(Query: Edroso case says reservatarios right is not alienable, Sienes says it is
. Resolve. Personally, I think Sienes is right.)
Gonzales vs. CFI
Can a reservista convey by will, reservable property to relervatarios in
the third degree and by-pass those in the second? NO. Article 891 clearly indic
ates that the reservable properties should be inherited by all the nearest relat
ives within the third degree from the prepositus. She could not select the reser
vees to whom the reservable property should be given and deprive the other reser
vees of their share therein.
The reservable property does not form part of the reservista s estate and
should be given to all the seven reservatarios or nearest relatives of the prepo
situs within the third degree. While it is true that by giving the reservable pr
operty to only one reservatario, it did not pass into the hands of strangers, ne
vertheless, it is likewise true that the reservista was only one of the reservat
arios and there is no reason founded upon law and justice why the other reservat
arios should be deprived of their shares in the reservable property. The propert
y passes by strict operation of law.
Cano vs. Director
Upon the death of the reservista, the reservatario nearest to the prepos
itus becomes, automatically and by operation of law, the owner of the reservabl
e property. That property is no part of the estate of the reservista, and does n
ot even answer for the debts of the latter. Hence, its acquisition by the reserv
atario may be entered in the property records without necessity of estate procee
dings, since the basic requisites therefor appear of record. It is equally well
settled that the reservable property cannot be transmitted by a reservista to he
r or his own successors mortis causa, so long as a reservatario within the third
degree from the prepositus and belonging to the line whence the property came,
is in existence when the reservista dies.

Chapter 3 Legal or Intestate Succession

Article 977
Section 1 General Provisions
Subsection 2 Right of Representation
Teotico vs. Del Val
The relationship established by adoption is limited solely to the adopte
r and the adopted does not extend to the relatives of the adopting parents or of
the adopted child except only as expressly provided for by law. Hence, no relat
ionship is created between the adopted and the collaterals of the adopting paren
ts. As a consequence, the adopted is an heir of the adopter but not of the relat
ives of the adopter. Thus, an adopted can neither represent nor be represented.
Section 2 Order of Intestate Sucession
Subsection 1 Descending Direct Line
Article 979
Sayson vs. CA
The philosophy underlying this article is that a person's love descends
first to his children and grandchildren before it ascends to his parents and the
reafter spreads among his collateral relatives. It is also supposed that one of
his purposes in acquiring properties is to leave them eventually to his children
as a token of his love for them and as a provision for their continued care eve
n after he is gone from this earth.
There is no question that a legitimate daughter of a person who predecea
sed his parents, and thus their granddaughter, has a right to represent her dec
eased father in the distribution of the intestate estate of her grandparents. Un
der Article 981, she is entitled to the share her father would have directly inh
erited had he survived, which shall be equal to the shares of her grandparents'
other children.
But a different conclusion must be reached for persons to whom the grandp
arents were total strangers. While it is true that the adopted child shall be de
emed to be a legitimate child and have the same right as the latter, these right
s do not include the right of representation. The relationship created by the ad
option is between only the adopting parents and the adopted child and does not e
xtend to the blood relatives of either party.
Subsection 3 Illegitimate Children
Article 992
Corpus vs. Administrator
There is a successional barrier between the legitimate and illegitimate
relatives of the deceased. The rule in article 943 is now found in article 992 o
f the Civil Code which provides that "an illegitimate child has no right to inhe
rit ab intestato from the legitimate children and relatives of his father or mot
her; nor shall such children or relatives inherit in the same manner from the il
legitimate child".
That rule is based on the theory that the illegitimate child is disgracefully lo
oked upon by the legitimate family while the legitimate family is, in turn, hate
d by the illegitimate child. The law does not recognize the blood tie and seeks
to avoid further grounds of resentment
Leonardo vs. CA
An illegitimate cannot, by right of representation, claim a share of the
estate left by the legitimate relatives left by his father considering that, as
found again by the Court of Appeals, he was born outside wedlock as shown by th
e fact that when he was born on September 13, 1938, his alleged putative father
and mother were not yet married, and what is more, his alleged father's first ma
rriage was still subsisting. At most, petitioner would be an illegitimate child
who has no right to inherit ab intestato from the legitimate children and relati
ves of his father.
Diaz vs. CA
Article 992 of the New Civil Code provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato between the illegitimate
child and the legitimate children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but this is not recogniz
ed by law for the purposes of Art. 992. Between the legitimate family and the il
legitimate family there is presumed to be an intervening antagonism and incompat
ibility. The illegitimate child is disgracefully looked down upon by the legitim
ate family; the family is in turn, hated by the illegitimate child; the latter c
onsiders the privileged condition of the former, and the resources of which it i
s thereby deprived; the former, in turn, sees in the illegitimate child nothing
but the product of sin, palpable evidence of a blemish broken in life; the law d
oes no more than recognize this truth, by avoiding further grounds of resentment
. So that while Art, 992 prevents the illegitimate issue of a legitimate child f
rom representing him in the intestate succession of the grandparent, the illegit
imates of an illegitimate child can now do so.
Diaz vs. CA
The right of representation is not available to illegitimate descendants
of legitimate children in the inheritance of a legitimate grandparent. It may be
argued, as done by petitioners, that the illegitimate descendant of a legitimat
e child is entitled to represent by virtue of the provisions of Article 982, whi
ch provides that "the grandchildren and other descendants shall inherit by right
of representation." Such a conclusion is erroneous. It would allow intestate su
ccession by an illegitimate child to the legitimate parent of his father or moth
er, a situation which would set at naught the provisions of Article 992. Article
982 is inapplicable to instant case because Article 992 prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate childr
en and relatives of the father or mother. It may not be amiss to state that Arti
cle 982 is the general rule and Article 992 the exception.
The word "relative" as used in Article 992 is broad enough to comprehend
all the kindred of the person spoken of. The word "relatives" should be construe
d in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say:
According to Prof. Balane, to interpret the term relatives in Article 992
in a more restrictive sense than it is used and intended is not warranted by an
y rule of interpretation. Besides, he further states that when the law intends t
o use the term in a more restrictive sense, it qualifies the term with the word
collateral, as in Articles 1003 and 1009 of the New Civil Code.
Subsection 4 Surviving Spouse
Article 996
Santillon vs. Miranda
There is a conflict with what the Civil Code provides as legitime of a s
pouse and what he or she may receive by way of intestacy. Art. 892 of the New Ci
vil Code falls under the chapter on Testamentary Succession; whereas Art. 996 co
mes under the chapter on Legal or Intestate Succession. Art. 892 merely fixes th
e legitime of the surviving spouse and Art. 888 thereof, the legitime of childre
n in testate succession. While it may indicate the intent of the law with respec
t to the ideal shares that a child and a spouse should get when they concur with
each other, it does not fix the amount of shares that such child and spouse are
entitled to when intestacy occurs. Thus, upon intestacy, the provisions of Art.
996 applies.
Chapter 4 Provisions Common to Testate and Intestate Succession
Section 2 Capacity to Succeed by Will or by Intestacy
Article 1025
Parish Priest of Roman Catholic Church vs. Rigor
Where a priest makes a provision in his will that certain legacies shall
pass to his nearest male relative who pursues priesthood, it is said to be limi
ted to those living at the time of the execution of the will. We hold that the s
aid bequest refers to the testator's nearest male relative living at the time of
his death and not to any indefinite time thereafter. "In order to be capacitate
d to inherit, the heir, devisee or legatee must be living at the moment the succ
ession opens, except in case of representation, when it is proper" (Art. 1025, C
ivil Code).
Section 5 Collation
Article 1061
Vizconde vs. CA
Collation is the act by virtue of which descendants or other forced heir
s who intervene in the division of the inheritance of an ascendant bring into th
e common mass, the property which they received from him, so that the division m
ay be made according to law and the will of the testator. Collation is only req
uired of compulsory heirs succeeding with other compulsory heirs and involves pr
operty 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 pred
ecessor 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 prope
rty or the subject matter of collationable donation. What is brought to collatio
n is not the property donated itself, but rather the value of such property at t
he time it was donated, the rationale being that the donation is a real alienat
ion 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.
Thus, it is an error to require a son-in-law of the decedent to be inclu
ded in the collation as he is not a compulsory heir.
Section 6 Partition and Distribution of the Estate
Subsection 1 Partition
Fajardo vs. Fajardo
There are only two ways in which said partition could have been made: By
an act inter vivos, or by will. In either case there were formalities which mus
t be followed. If the partition was made by an act inter vivos, it should have b
een reduced in writing in a public instrument, because it was a conveyance of r
eal estate. If by last will and testament, the legal requisites should have been
Chavez vs. IAC
Art. 1080 of the Civil Code clearly gives a person two options in making
a partition of his estate; either by an act inter vivos or by will. When a pers
on makes a partition by will, it is imperative that such partition must be execu
ted in accordance with the provisions of the law on wills; however, when a perso
n makes the partition of his estate by an act inter vivos, such partition may ev
en be oral or written, and need not be in the form of a will, provided that the
partition does not prejudice the legitime of compulsory heirs. (RFB: This ruling
should not be used as it raises eyebrows very high. It gives a partition an irr
evocable character and allows a conveyance of the compulsory heirs of their legi
times even during their lifetimes.)
Legasto vs. Verzosa
A testator may, by an act inter vivos, partition his property, but he mu
st first make a will with all the formalities provided for by law. And it could
not be otherwise, for without a will there can be no testator; when the law, the
refore, speaks of the partition inter vivos made by a testator of his property,
it necessarily refers to that property which he has devised to his heirs. A pers
on who disposes of his property gratis inter vivos is not called a testator, but
a donor. In employing the word "testator," the law evidently desired to disting
uish between one who freely donates his property in life and one who disposes of
it by will to take effect after his death.
Article 1082
Tuason vs. Tuason Jr.
Where heirs contracted with a third person to develop their co-owned lot
, with the stipulation that the co-ownership shall subsist until all the lots h
ave been sold, is not a violation of Art. 400, and is only a mere incident to th
e main object of the partnership, which is to dissolve the co-ownership.
Article 1088
Garcia vs. Calaliman
Written notice is required for the period of onemonth for the other co-h
eirs to redeem begins to run. Both the letter and spirit of the new Civil Code a
rgue against any attempt to widen the scope of the notice specified in Article 1
088 by including therein any other kind of notice, such as verbal or by registra
tion. Written notice is indispensable, actual knowledge of the sale acquired in
some other manners by the redemptioner, notwithstanding. He or she is still enti
tled to written notice, as exacted by the Code, 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 parti
cular form of written notice nor any distinctive method for written notification
of redemption

Wills and Succession

4 Blue 95 1