Mixed, Article 780.
Partly by will and partly by operation Executor or administrator shall render account of his
of law.
Ex. A made will disposed half of property. If will later declared Null
and void, is this legal or mixed? Legal becos will being void,
thus his entire estate descends to the heirs by operation of Law.
Executors and administrators, Chapter 4, Section 4.
Applicable rules, Rules 78-90, Rules of Court.
Regular administrator
Order of preference for appointment
Rule 78, Section 6, Rules of Court
Letters of administration is granted: If no executor in will, or if
incompetent, or refuses trust or fails to pay bond, or dies
intestate
1. SURVIVING SPOUSE OF NEXT OF KIN or both. Discretion
of court.
2. SURVIVING SPOUSE OF NEXT OF KIN who requests to
have been appointed.
3. If 1 and 2neglects for 30 days after death of person to
apply for admin or request for admin. Be granted to some
other person, maybe granted to PRINCIPAL CREDITORS.
4. Granted to such other as COURT may determine.
P.S: All must be willing and competent.
Administrator pendente lite, Rule 80, Section 1, Rules of
Court.
If theres delay in granting letters of admin or testamentary by any
cause including an appeal for allowance or disallowance of will,
court may appoint SPECIAL ADMINISTRATOR to TAKE
POSSESSION and CHARGE of estate until questions causing delay
are DECIDED and executors or administrators APPOINTED.
Corporation or association as administrator, Art. 1060.
Juridical persons can be appointed GUARDIAN of property but NOT
PERSON OF A WARD. Or trustee, administrator or executor.
Principal duty of administrator, Rule 85, Section 8, Rules of
Court.
administration within 1 year from receipt of letters of T or A
UNLESS, court directs extension for claims of estate, payment of
debt, disposing of estate and continue to render account until
WHOLLY SETTLED.
Partition or distribution of estate, Chapter 4, Section 6(1).
Definition, Art. 1079. is the separation, division and
assignment of a thing held in common among those whom it may
belong. Thing itself or value maybe divided.
Kinds According to
A. Duration of its existence:
1. Provisional or temporary
2. Permanent
B. Extent of properties involved:
1. Partial
2. Total
C. Who made the partition:
1. Judicial by court either in course of administrative
proceedings or in ordinary action for partition.
2. Extrajudicial
a. Made by testator
b. Made by decedent in an action inter vivos
c. Made by heirs themselves
d. Made by a third person entrusted by testator or
decedent
Case: NO valid partition among heirs until after will has been
probated. This presupposes that properties to be partitioned are
the same properties in the will. N/A if: separate cases for partition
and special proceedings (originally for probate of will)
Case: Partition approved and became judgment of court +
distribution fully carried out + heirs received property = precluded
from subsequently attacking validity or any part of it.
Case: land included in partition + no allegation of improper means
or without petitioners knowledge = partition is barred by any
further litigation on said title; bring already under the control and
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jurisdiction of court for proper disposition according to tenor of
partition.
Case: any act of intended to put end to indivision among co-heirs,
legatees and devisees is deemed partition although purports to be
a sale, an exchange, a compromise or other transaction.
Case: Questions on extrajudicial settlement instituted after 25
years from assailed conveyance LACHES, means negligence or
omission to assert a right within reasonable time, warranting a
presumption that the party entitled to assert it either has
abandoned or declined to assert it.
Case: Oral partition is valid. Non registration of extrajudicial
settlement does not affect intrinsic validity.
JUDICIAL PARTITION
- Done in the order of distribution made by court.
- Will not bind those not parties thereto. So those deprived
of their rightful shares may still bring reindivicatoria within
prescriptive period.
- Can be based on a draft or project of partition. But no
delivery until project of partition is approved.
- Court not follow distribution made in will if not in
accordance with law.
- Court may compel admin. Or exec. To submit draft or
project of partition to be sufficiently informed of the
properties to be distributed.
- Partial or advanced distribution may be made by the court
even before debts of estate has been paid or before final
accounting. To safeguard creditors, bond or deposit may
be required. Court may provide that distribution is without
prejudice to superior rights of creditors. If no bond,
creditors may still insist on securities for unpaid credits
even after approval of project of partition as long as they
havent been actually distributed.
- If already actually distributed, creditors can demand
recovery from heirs.
- Pending admin. Proceedings in probate court, improper to
file a separate independent action for partition.
EXTRAJUDICIAL PARTTTION by TESTATOR
Ex. Wife in will ordered payment of childs legitime in case
without naming admin or mgt. of estate to one or more heirs
INVALID because ADMIN or Mgt must be given to one or
more heirs. See art 1080.
- Testator can make partition either in will or any document
inter vivos.
- No case shall partition prejudice legitime.
EXTRAJUDICIAL PARTITION by DECEDENT
- By an act inter vivos
- Even if died intestate, still possible to partition inter vivos.
Ex. Divided properties having in mind shares of intestacy.
EXTRAJUDICIAL P. by HEIRS
Can be done as long as:
1. There are no debts
2. Everyone concerned is of age or represented by guardian.
- Can be done orally. Valid because a partition is not exactly
a conveyance for the reason that it does not involve
transfer of property from one to another but rather, a
confirmation by them of their ownership of the property.
To establish oral or parol partition, partition itself must be
clearly proved. Hearsay testimonies, not allowed.
- Oral partition is not binding to third parties. To register
agreement, a public instrument is needed. But if
extrajudicial partition so by reason of provision of will, will
must first be probated even if no debts and court approval
is needed for said extrajudicial partition.
- Assignment of right over estate made by an heir is in the
nature of extrajudicial partition where approval is
imperative. This is even if deceased had died intestate.
- Co-heirs deprived of inheritance may obtain regardless of
time.
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- Presumption: no debt if within 2 years from death of
decedent, no creditor has petitioned for letters of admin.
Who owns prior to partition, Art. 1078.
Before Partition, there is CO-HEIRSHIP
Ex. T has 2 Children (A and B). If T dies, A and B will be CO-heirs
of the WHOLE ESTATE, subject of course to payment of debts.
Case: Land equally owned by 2 individuals but one of them had in
GF introduced improvements by planting 300 coconut trees. How
to partition?
After deducting the compensation adverted to, should be
divided equally among co-owners / co-tenants.
Case: Co-heirs cannot acquire the shares of others by prescription,
and this is so as long as he recognizes expressly or implicitly the
existence of the co-heirship.
Case: Co-ownership is extinguished when portions are concretely
determined and technically described.
Case: T has 2 children, A and B. T dies, left 100k cash and land.
If property is not yet partitioned, A and B are co-heirs. If
one sells his share to stranger, right of legal redemption is
that provided by law for co-heirs.
If inheritance has been partitioned this way, A and B gets
50K each but will continue to hold land undivided, If A sells
to a stranger her RIGHT or SHARE in landApply Sale by
co-owner (art 1620) and not by a co-heir (1088) so, dont
apply legal redemption. Reason: there has already been
partition of inheritance.
- Period of legal redemption for co-owners is 30 days from
notice in writing by the vendor. For co-heirs, also 1 month.
Case: if only one heir, no need for judicial declaration of his
heirship and maybe summarily adjudicate to himself the entire
estate by means of affidavit filed in office of Registry of Property.
If two or more heirs, assign the whole of the properties left for
distribution to the heirs in certain definite proportion, an aliquot
part pertaining to each of the heirs.
Case: For extrajudicial settlement to be valid, the following must
concur:
1. Decedent left a will
2. Decedent left no debts
3. If there are debts, all are paid.
4. Heirs and liquidators are all of age
5. If minors, they are required to be represented by a judicial
guardian or legal representatives
6. Partition was made by means of public instrument or
affidavit duly filed with RD.
Case: heir predeceased representatives is raised to the place and
degree of the person represented and acquires the rights which
the latter would have if he were living.
Case: 2 or more heirs, valid for an heir to sell his share in an
estate pending liquidation. After all, this is not a case of future
inheritance for decedent is already dead.
Case: husband died left, minor and widow. Left land conjugal
property. After death, widow sold entire to X. Later, widow
procured to be guardian of minor and sold with court approval sold
of the same land to Y. supposed to be inherited by child. X caused
cancellation saying the whole was sold to him. Cancellation of
second sale will not proper as much as made validly... rights of
succession of a person is transmitted from moment of his death.
So when it sold the whole to half of it already belonged to minor
which half she could not dispose without first appointed as
guardian. The children had automatically become owners upon
fathers death. , no formal or judicial declaration of heirship or
ownership is essential. This, sale to X pertaining to share of child is
null and void. Sale to Y, was made under court authority. This,
second sale should not be cancelled.
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Case: A and B inherited land. A sold whole to C without Bs
consent. After, admin proceedings, and admin appointed. B wants
to 1. Invalidate sale to C and redeem As share from C. rights if
inheritance are transmitted upon death or decedent, consequently,
B may exercise his legal rights without waiting for result of admin
proceedings (custodial egis for example). Since its now on Cs
possession where administrator never attempted to divest C in
possession, the property is not certainly not in custodia legis
Case: Administrator is not a mere alter ego of heirs but is an
officer of the court entrusted with management and settlement of
estate until with courts approval he has distributed and delivered
to the heirs their respective shares of the inheritance which
distribution and delivery should be made only after, not before the
payment of all debts, expenses, taxes and after declaration of the
heirs had been made. Before completion of the liquidation heirs
have generally no right to interfere in its administration.
Case: deed of extrajudicial settlement is a public document, a
public document executed with all the legal formalities is entitled
to presumption of truth as to recitals contained therein. To
overthrow, a certificate of a notary public is impt, not only
preponderance of evidence.
How to partition
Adjudication by sole heir, Section 1, Rule 74, Rules
of Court
Cabayao v Caagay, G.R. No. L-6636, Aug.
2, 1954
Extra-judicial settlement among heirs
Section 1, Rule 74, Rules of Court
Sanchez v CA, 87 SCAD 463 (1997)
Extra-judicial partition by testator, Art. 1080
- By act inter-vivos other than will, no formalities is
required.
- Partition is only effective after death/
- Partition is not a mode of acquiring ownership. Since no
will has been made, it follows that the mode will be
succession (intestate succession). Partition here is merely
the physical determination of the part to be given to each
heir.
Partial distribution of estate pending final determination of estate
or intestate proceedings should as much as possible be
discouraged by courts and unless in extreme cases, such form of
advances of inheritance should not be countenanced. Creditors and
rightful heirs must be assured of their shares.
Partition by mandatary, Art. 1081.
Mere power to make Partition means the power to make a
physical division of the hereditary property. The third person is not
allowed to make the disposition or distribution of property.
Ex. Power of giving one heir 2/3 and another heir 1/3 not
allowed. Disposition must have been made by the decedent or
testator himself.
Testator is not allowed to entrust power to physically partition to
an executor who is also an heir. This is because, it can be doubted
whether or not he can partition the property with impartiality.
If one of the heirs is minor, it requires:
1. Notification to co-heirs, creditors, legatees , devisees
2. Inventory of the estate.
Mandatary person entrusted to make the partition.
- Should not be a co-heir.
- His partition may be either approved or rejected by the
heirs.
- If rejected, probate court can be called upon to decide the
conflict.
Implied partition, Art. 1082.
- It exist as long as co-ownership ceases to exist. If after
partition, properties are still supposed to be owned in
common, there can be a later partition of this.
Ex. A, B and C were co-heirs. It was agreed to sell the property
and give proceeds to A. Agreement is oral. Valid partition
because indivision has ceased.
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Ex. Refer above, if a demands the sale but dies before sale is
effected, is right to proceeds transmitted to his own heir? Yes.
If already sold property, no need of further partition.
See compromise agreement case, page 645
Prohibited partition, Arts. 494, 1083.
- As long as not prohibited, partition can be demanded
anytime. This right does not prescribe and can apply to co-
legatee. The heir desiring partition must make parties to
the suit all persons interested in the estate.
- Only demanded if co-ownership still exists.
- Prohibition to partition not exceeding 20 years, applies to
legitime.
- Even if theres prohibition, the heirs by mutual agreement
can still make partition and a party cannot afterwards ask
for recession because he would be estoppel. No estoppel if
theres vitiated consent.
- If one object to the partition or sale, lone property will
have to be upheld by court so desire of decedent can be
given effect.
Provisional partition, Art. 1084.
Voluntary heirs can demand partition, when:
1. If pure heirs, ANYTIME subject to ART 1083. If together
with them, there are conditional heirs, sufficient security
must be given by the pure heirs to safeguard the rights of
the conditional heirs.
2. If conditional (suspense) heirs, cannot demand partition
until condition is fulfilled.
When to demand partition, Art. 1083, 1084.
Equality in partition, Art. 1085, 1086, 1087.
If project of partition has been submitted in probate court, heir
must be allowed to present to present proof of reasonableness or
unreasonableness of project OW, it may said that heirs are
deprived of property without due process of law. Without
necessary hearing to compel heirs to participate.
If even ONE heir should demand a public auction, this must be
done.
Assignment or sale of real estate by commissioners- if
commissioner sees that real estate or portion cannot be divided
without great prejudice to interest of parties, court may order it
assigned to one of the parties willing to take same, provided he
pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties
interested asks that property be sold, instead of being so assigned,
in which case the court shall order the commissioners to sell the
real estate at public sale and the commissioners shall sell the
same accordingly.
Reimbursement by co-heirs must be made of:
1. Income and fruits
2. Useful and necessary expenses
3. Damages through malice and neglect
Reimbursements may be sought in an action for judicial partition.
If partition was extrajudicial, action for reimbursement would lie
by itself.
Legal redemption by co-heirs, Art. 1088.
The following requisites must all be present:
1. Two or more heirs
- Heirs include legatees
2. One must sell his hereditary rights
Not donation but sale. But onerous donation or
adjudicacion en pago is equivalent to a sale. Also, barter.
-actual not contemplated sale.
Voluntary or involuntary. Hereditary rights not specific
object nor rights in specific object.
Future rights are not hereditary rights.
Sale of hereditary rights before partition is valid subject to
legal redemption.
3. Buyer must be a stranger
If buyer is himself one of co-heirs, others cannot redeem.
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Strangers refer to : a. not heirs, and b. heirs who do not
succeed (incapacitated child), c. legatee, devisees,
creditors
Strangers is to prevent several numbers of co-owners.
4. Sale must be before partition
Case: A, B, C, D inherited. Partitioned at each. Then A died
and same whole was partitioned. B for . C and D . In other
words, only B inherited from a while C and D received from
original. If B sells his aliquot part to X. Can D claim right of
redemption as co-heir?
D cannot redeem as co-heir under Art 1088 but as co-
owner Art 1620. Here, there was already partition and
even if property is undivided, the fact is they are already
co-owners and not co-heirs. Secondly, D not a coheir of
B with respect to inheritance from A since D received
nothing from A. What he got was exactly what he had
already inherited from first decedent.
Sale for payment of debts of decedents estate no legal
redemption.
In admin and liquidation, sales ordered by probate court to
pay debts are final and not subject to L.R. Unlike ordinary
execution sales, no legal provision allows redemption in
sales of property to pay deceased debts.
5. At least one co-heir must demand the redemption
No matter what like as long as still a co-heir can
redeem. If he himself has sold his right, he cannot redeem
except if he has re-acquired what he sold by the exercise of
the right of conventional redemption.
If more than one desires to redeem, all who are
entitled may redeem in proportion to their respective shares
in the inheritance provided, redemption in favor of one has
not yet taken place.
Stranger who purchases co-heirs right is not
entitled to redeem if another co heir sells his right to another
stranger.
Right to redeem is personal and cannot be
transmitted except, co-heirs own heir can exercise his rights
in case of death.
6. Demand must be made within a period of one month from
time of notification in writing
One month from time the vendor informs the
would be redemptioner in writing that there has
been an actual sale.
If the other co-heir knew even without demand,
the one month period will begin to run from the
moment of knowledge. For the only purpose of
notification is to inform or give knowledge.
Notification is oral- still the same.
Registration of deed of sale with RD is not
sufficient notice esp. when what was involved is
unregistered land.
Method of notification is exclusive for the law has
not provided an alternative.
7. Redemption must reimburse the price of the sale
Ex. A, B and C are co-heirs. Before partition, A sold his
hereditary rights to X for 100k. X sold to Y for 200K. If B
wants to redeem, how much will he pay Y? Only 100.
This cannot be evaded by a conveyance of the interest to a
third person at a higher price. Subsequent buyers get the
property burdened with the right of co-heirs to effect a
redemption at the price for which the heir who sold it
parted with it.
Effects of partition, Art. 1091.
Partition and distribution made estate is finally settled.
Results to exclusive ownership over the property
adjudicated. Relatives neither compulsory , voluntary,
legatees, devisees cannot question judicial partition made
as a consequence of a validly probated will, particularly if
the probate had long before become final.
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Case: unless and until issue of ownership is definitely resolved, it
would be premature to effect a partition of the properties.
After partition, rights of third parties remain unaffected.
Purchase of hereditary rights, before partition acquires the
properties that would be allotted to the vendor heir in the
partition.
Warranty, Art. 1092.
Warranty of title and quality:
a. Title (eviction)
b. Quality (hidden defects)
Warranty against eviction
Not necessary that heir be deprived of full ownership.
Enough that there be burden or encumbrance that must be
respected.
Need not be final judgment before recourse to the
warranty can be sought, as long as no heir objects.
Nature of warranty, warrants:
a. Reciprocal ad proportionate
b. May be waived
Reciprocal and proportionate warranty, Art.
1093.
1. Proportional liability
2. Responsibility in the meantime for another insolvency
3. Right of reimbursement
Prescription of warranty, Art. 1094.
Ten years from date the right of action accrues.
End of warranty, Art. 1096.
1. Testator himself caused the partition.
2. When so expressly stipulated in agreement of partition.
3. Eviction is due to cause subsequent to partition or by fault
of the distribution of property.
Nullity of partition, Chapter 4, Section 6(3).
Grounds, Art. 1097.
Rescission or annulment of partition:
Presupposes an ordinarily valid contract but with extrinsic
defect like prejudice to creditors.
Presupposes a contract with intrinsic defect like vices in
consent.
Presence of fraud, excusable mistake, or inadvertence
makes a partition annullable.
Mere disregard to provisions of will, will not annul partition
if everybody concerned had freely given his consent for all
would be in estoppel.
Case: Absence of a co-heirs, will not bind him unless theres SPA
(OW< lack of authority) or ratification (lack of ratification).
GR: action for portion among co-heirs do not prescribe.
This only applies as long as one of some of them do not hold the
property in question under an adverse title. see page 662
Prescription does not run in favor of co- heir or co-owner as long
as he expressly or impliedly recognizes the co-ownership.
Mere refusal to accede without specifying grounds cannot be
considered notice to other co-owners if the occupants claim of title
in himself in repudiation of the co-ownership.
If ownership is still in dispute, partition is inappropriate.
Lesion, Art. 1098.
Lesion or damage must be at least OW, rescission will
not lie.
If less, proper action is damages.
When allowed, Art. 1099.
May still be rescinded, more or less of :
1. Legitime is impaired
2. Intent of testator is for his partition to be rescinded should
there be lesion.
When not allowed, Art. 1102,
1103.
Rescission requires mutual restitution.
Preterition in one or more objects in a WILL will give rise
to a mixed succession.
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Preterition of an object in partition does not give rise to

rescission.

Prescription, Art. 1100.

After 4 years, action will fail.
In case of judicial partition, 4 years begins to run not from time of
project partition but from time there is court approval for had it
been disapproved, it would have been void.

Preterition in partition, Art. 1104.

Compulsory heirs in partition and not in institution.
Such preterition will not cause rescission except:
1. Fraud
2. Bad faith
With this, partition can be considered invalid.
Ex. Illegitimate can file action of recovery of his share from
other hers whom property has been adjudicated.

Case: D.V, retarded was excluded in extrajudicial settlement

have the effect of preterition. Absence proof of fraud or bad faith,
does not justify collateral attack. But the preterited heir shall be
paid the value of the share pertaining to her.

Void partition, Art.1105.

Not completely void
Theres intrusion
Only part corresponding to non-heir is void.
Those able to get shares, although they are not entitled
thereto, must give them to one who is an heir and lawfully
entitled to receive the same.

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