Title IV.

- SUCCESSION

CHAPTER 1 - GENERAL PROVISIONS

Introduction

Uson vs. Del Rosario

1. The right of ownership of the lawful wife of a decedent who had died before the new Civil Code took effect
became vested in her upon his death, and this is so because of the imperative provision of the law which
commands that the rights of suc cession are transmitted from the moment of death. The new right
recognized by the new Civil Code in favour of the illegitimate children of the deceased cannot be
asserted to the impairment of the vested right of the lawful wife over the lands in dispute. While article
2253 of the new Civil Code provides that rights which are declared for the first time shall have retroactive
effect even though the event which gave rise to them may have occurred under the former legislation, yet this
is so only when the new rights do not prejudice any vested or acquired right of the same origin.
2. Although the lawful wife has expressly renounced her right to inherit any future property that her husband
may acquire and leave upon his death, such renunciation cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be renounced

Noel vs. CA

1. Gregorio died in 1945 long before the effectivity of the Civil Code of the Philippines on August 30,1950. Under
Article 2263 of the said Code, “rights to the inheritance of a person who died, with or without a will,
before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws,
and by the Rules of Court.
2. Under Article953 thereof, a spouse like Hilaria, who is survive by brothers or sisters or children of brothers
or sisters of the decedent, as is obtaining in this case, was entitled to receive in usufruct the part of the
inheritance pertaining to said heirs. Hilaria, however, had full ownership, not merely usufruct, over the
undivided half of the estate (Spanish CivilCode of 1889, Art. 493). It is only this undivided half-interest that
she could validly alienate.
3. Illegitimate children who were not natural were. disqualified to inherit under the Spanish Civil Code of 1889.
Article 998 of the New Civil Code of the Philippines, which gave an illegitimate child certain hereditary rights,
could not benefit Virgilio because the right of ownership of the collateral heirs of Gregorio had become vested
upon his death. Therefore, Virgilio had no right at all to transfer ownership over property which he did not
own.
4. The action to recover the undivided half-interest of the collateral heirs of Gregorio prescribes in ten years.
The cause of action is based on Article 1456 of the Civil Code of the Philippines, which made private
respondent a trustee of an implied trust in favor of the said heirs. Under Article 1144 of the Civil Code of the
Philippines, actions based upon an obligation created by law, can be brought within ten years from the time
the right of action accrues
5. The prescriptive period within which collateral heirs could file an action to recover their share in the
property sold to a third person accrued from the date of the registration of the deed of sale with the
Register of Deeds, not from the moment of death of the decedent

Art. 774. Succession is a mode of acquisition by virtue of which

1. the property, rights and obligations to the extent of the value of the inheritance, of a person
2. are transmitted through his death to another or others
3. either by his will or by operation of law.

Art. 775. In this Title, "decedent" is

1. the general term applied to the person whose property is transmitted through succession, whether or not
he left a will.

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 2. If he left a will, he is also called the testator.

Art. 782.

1. An heir(compulsory or voluntary) is a person called to the succession either by the provision of a will or
by operation of law.
2. Devisees(voluntary heir)) are persons to whom gifts of real are given by virtue of a will.
3. Legatees(voluntary heir) are persons to whom gifts of personal property are given by virtue of a will.

Art. 776 & 781

1. The inheritance includes

a. all the property, transmissible rights and obligations of a person which are existing at that time of his
death and not extinguished thereof and
b. those which have accrued thereto since the opening of the succession.

Estate of Hemady vs. Luzon Surety Co., Inc.

1. The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in the
Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue
is distributed among said heirs. The reason is that whatever payment is thus made from the estate is
ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or
reduces the shares that the heirs would have been entitled to receive. The general rule, therefore, is that a
party’s contractual rights and obligations are transmissible to the successors.
2. Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased and cannot be regarded as third parties with respect to a contract to which
the deceased was a party, touching the estate of the deceased
3. The contracts of suretyship entered into by K.H. Hemady in favor of Luzon Surety Co. not being rendered
intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves,
nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs.

Litonjua vs. Montilla, Jr.

1. The creditor of an heir of a deceased person is entitled to collect his claim out of the property which pertains
by inheritance to said heir, only after
a. all the debts of the testate or intestate succession have been paid and
b. when the net assets that are divisible among the heirs are known, because the debts of the deceased
must be paid before his heirs can inherit.
2. A person who is not a creditor of the deceased, testate or intestate, has no right to intervene either in the
proceedings brought in connection with the estate or in the settlement of the succession.

Ledesma vs. Mclachlin et al.

1. The filing of a claim before the committee on claims and apraisal appointed in the intestate of the
father, for a monetary obligation contracted by a son who died before him, does not suspend the
presciptive period of the judicial action for the recovery of said indebtedness because the said
deceased(father) not being the one who executed the same, but in the intestate of Lorenzo M. Quitco(son
who contracted the debt), which should have been instituted by the said Socorro Ledesma as provided in
section 642 of the Code of Civil Procedure, authorizing a creditor to institute said case through the
appointment of an administrator for the purpose of collecting his credit. More than ten years having thus
elapsed from the expiration of the period for the payment of said debt of P1.500, the action for its recovery
has prescribed
2. While it is true that under the provisions of articles 924 to 927 of the Civil Code, a child represents his father
or mother who died before him in the properties of his grandfather or grandmother, this right of
representation does not make the said child answerable for the obligations contracted by his
deceased father or mother, because, as may be seen from the provisions of the Code of Civil Procedure

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 referring to partition of inheritances, the inheritance is received with the benefit of inventory, that is to say,
the heirs only answer with the properties received from their predecessor. The herein defendants, as
heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to pay the
indebtedness of their said father from whom they did not inherit anything.

DKC Holdings Corporation vs. Court of Appeals

1. The general rule, therefore, is that heirs are bound by contracts entered into by their predeccesors-in-interest
except when the rights and obligations arising therefrom are not transmissible by (1) their nature,
(2)stipulation or (3) provision of law. In the case at bar, there is neither contractual stipulation nor legal
provision making the rights and obligations under the contract intransmissible. More importantly, the nature
of the rights and obligations therein are, by their nature***, transmissible. (contract of lease woth option to
buy contracted by the deceased with the petitioner)
***In the case at bar, there is no personal act required from the late Encarnacio Bartolome. Rather,
the obligation of Encarnacion in the contract to deliver possession of the subject property to
petitioner upon the exercise by the latter of its option to lease the same may very well be performed
by her heir Victor
2. It may also be stated that contracts for the payment of money debts are not transmitted to the heirs of a
party, but constitute a charge against his estate. Thus, where the client in a contract for professional services
of a lawyer died, leaving minor heirs, and the lawyer, instead of presenting his claim for professional services
under the contract to the probate court, substituted the minors as parties for his client, it was held that the
contract could not be enforced against the minors; the lawyer was limited to a recovery on the basis of
quantum meruit.”
3. There is privity of interest between an heir and his deceased predecessor—he only succeeds to what rights
his predecessor had and what is valid and binding against the latter is also valid and binding as against the
former.
4. In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The death of
a party does not excuse nonperformance of a contract which involves a property right, and the rights and
obligations thereunder pass to the personal representatives of the deceased.

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

Coronel vs. Court of Appeals

1. At the point their father drew his last breath, petitioners stepped into his shoes insofar as the subject
property is concerned, such that any rights or obligations pertaining thereto became binding and enforceable
upon them. It is expressly provided that rights to the succession are transmitted from the moment of death of
the decedent (at the time, the petitioner enter into a conditional contract of sale, his father, from whom he get
the subject of sale, is already deceased. Therefore, the petitioner cannot claim that he is not the absolute
owner at the time they entered into contract.)

Heirs of Ignacio Conti vs. Court of Appeals

1. Prior settlement of the estate is not essential before the heirs can commence any action originally pertaining
to the deceased as we explained in Quison v. Salud—Claro Quison died in 1902. It wasproven at the trial that
the present plaintiffs are next of kin and heirs, but it is said by the appellants that they are not entitled to
maintain this action because there is no evidence that any proceedings have been taken in court for the
settlement of the estate of Claro Quison, and that without such settlement, the heirs cannot maintain this
action. There is nothing in this point. As well by the Civil Code as by the Code of Civil Procedure, the title to
the property owned by a person who dies intestate passes at once to his heirs. Such transmission is, under the
present law, subject to the claims of administration and the property may be taken from the heirs for the
purpose of paying debts and expenses, but this does not prevent an immediate passage of the title, upon the
death of the intestate, from himself to his heirs. Without some showing that a judicial administrator had been
appointed in proceedings to settle the estate of Claro Quison, the right of the plaintiffs to maintain this action
is established.

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 2. Conformably with the foregoing and taken in conjunction with Arts. 777 and 494 of the Civil Code, from the
death of Lourdes Sampayo her rights as a co-owner, incidental to which is the right to ask for partition at any
time or to terminate the co-ownership, were transmitted to her rightful heirs. In so demanding partition
private respondents merely exercised the right originally pertaining to the decedent, their predecessor-in-
interest.
3. Petitioners’ theory as to the requirement of publication would have been correct had the action been for the
partition of the estate of Lourdes Sampayo, or if we were dealing with extrajudicial settlement by agreement
between heirs and the summary settlement of estates of small value. But what private respondents are
pursuing is the mere segregation of Lourdes’ onehalf share which they inherited from her through intestate
succession. This is a simple case of ordinary partition between co-owners. The applicable law in point is Sec. 1
of Rule 69 of the Rules of Court.
4. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the
value of the inheritance of a person are transmitted through his death to another or others either by his will
or by operation of law. Legal or intestate succession takes place if a person dies without a will, or with a void
will, or one which has subsequently lost its validity. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the decedent. It
was established during the trial that Lourdes died intestate and without issue. Private respondents as sister,
nephews and nieces now claim to be the collateral relatives of Lourdes.

Nufable vs. Nufable

1. As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the
will sought to be probated,
a. the due execution thereof,
b. the testator’s testamentary capacity and
c. the compliance with the requisites or solemnities prescribed by law.

Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the
provision of the will. The question of the intrinsic validity of a will normally comes only after the court has
declared that the will has been duly authenticated.

2. It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire property
located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other heirs
of Esdras—namely: Generosa, Vilfor and Marcelo—had already acquired successional rights over the said
property. This is so because of the principle contained in Article 777 of the Civil Code to the effect that the
rights to the succession are transmitted from the moment of death of the decedent. Accordingly, for the
purpose of transmission of rights, it does not matter whether the Last Will and Testament of the late
Esdras Nufable was admitted on March 30, 1966 or thereafter or that the Settlement of Estate was
approved on June 6, 1966 or months later. Thus, when Angel Nufable and his spouse mortgaged the
subject property to DBP on March 15, 1966, they had no right to mortgage the entire property. Angel’s right
over the subject property was limited only to 1/4 proindiviso share. As coowner of the subject property,
Angel’s right to sell, assign or mortgage is limited to that portion that may be allotted to him upon
termination of the coownership. Well-entrenched is the rule that a co-owner can only alienate his pro indiviso
share in the co-owned property

Lorenzo vs. Posadas

1. The accrual of the inheritance tax is distinct from the obligation to pay the same Section 1536 as amended, of
the Administrative Code, imposes the tax upon "every transmission by virtue of inheritance, devise,
bequest, gift mortis causa, or advance in anticipation of inheritance, devise, or bequest." The tax therefore is
upon transmission or the transfer or devolution of property of a decedent, made effective by his death.
According to the Civil Code, "the rights to the succession of a person are transmitted from the moment of his
death." "In other words", the heirs succeed immediately to all of the property of the deceased ancestor.
The property belongs to the heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before his death."

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 2. The provision of section 625 of the Code of Civil Procedure regarding the authentication and probate of a will
as a necessary condition to effect transmission of property does not affect the general rule laid down in
article 657 of the Civil Code. The authentication of a will implies its due execution but once probated and
allowed, the transmission is effective as of the death of the testator in accordance with article 657 of the
Civil Code.
3. The time when the heirs legally succeed to the inheritance may differ from the time when the heirs actually
receive such inheritance. Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of that
date.

Art. 778 - 780. Succession may be:

1. Testamentary;
a. results from the designation of an heir,
b. made in a will executed in the form prescribed by law.
2. Legal or intestate; or
3. Mixed - effected partly by will and partly by operation of law.

CHAPTER 2 - TESTAMENTARY SUCCESSION

SECTION 1. - Wills

SUBSECTION 1. - Wills in General

Art. 783. A will is an act whereby

1. a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition
of this estate,
2. to take effect after his death.

Art. 784. The making of a will is a strictly personal act;

1. it cannot be left in whole or in part of the discretion of a third person, or

2. accomplished through the instrumentality of an agent or attorney.

Castañeda vs. Alemany

1. If a will is signed by the testator or by someone else in his presence and under his express direction, it is a
matter of indifference by whom the mechanical work of writing the will is done
2. The probate of a will is conclusive as to its due execution and as to the testamentary capacity of the testator,
but not as to the validity of any provisions made in the will.
3. In proceedings for the allowance or probate of a will the courts are without jurisdiction to determine
questions concerning the validity of the provisions of the will.

Art. 785. The following cannot be left to the discretion of a 3rd person.

1. The duration or efficacy of the designation of heirs, devisees or legatees, or

2. the determination of the portions which they are to take, when referred to by name,

Art. 786. The testator may entrust to a third person

1. the distribution of
a. specific property or sums of money (already identified by the testator)
b. that he may leave in general to specified classes or causes; and also

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 2. the designation of the persons, institutions or establishments to which such property or sums are to be
given or applied.

Art. 787 – 788.

1. The testator may not make a testamentary disposition in such manner that another person has to
determine whether or not it is to be operative.
2. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by
which the disposition is to be operative shall be preferred.

Art. 789.

1. When there is
a. an imperfect description, or
b. no person or property exactly answers the description,

mistakes and omissions must be corrected, if the error appears

c. from the context of the will or

d. from extrinsic evidence, excluding the oral declarations of the testator as to his intention

2. When an uncertainty arises upon the face of the will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations.

Remedies to correct the infirmities

1. In the first situation above – determine the intention of the testator; oral evidence is allowable; however,
testimonial evidence regarding the oral declarations of the testator as to his intention is not admissible.
2. In the second situation above – determine the intention of the testator from the words of the will, excluding
the oral declarations of the testator as to his intention
3. By implication, written declaration of the testator is admissible

Art. 790.

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

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

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

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

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

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Art. 795. The validity of a will as to its form(extrinsic validity – Art. 804 to 808) depends upon the observance of
the law in force at the time it is made(time of its execution). The law existing at the date of the execution of a will
is controlling.

1. Extrinsic validity – compliance with the form prescribed by law

2. Intrinsic validity – concerns legality of testamentary dispositions; refers to the substance of the will.
a. Intrinsic validity is determined by the law in force at the time of the death of the testator and not by
the time of the execution of the will.

In re will of Riosa.

1. The issue which this appeal presents is whether in the Philippine Islands the law existing on the date of the
execution of a will, or the law existing at the death of the testator, controls.
2. The validity of the execution of a will must be tested by the statutes in force at the time of its execution
and that statutes subsequently enacted have no retrospective effect.
3. A will was executed prior to the enactment of Act No. 2645 in accordance with the law then existing, namely,
section 618 of the Code of Civil Procedure. The death of the testator occurred after the enactment of the new
law. Held: That the will is valid.

Enriquez, et al. vs. Abadia, et al.

1. ISSUE: at the time that Exhibit "A"(will) was executed in 1923 and at the time that Father Abadia died in
1943, holographic wills were not permitted. However, at the time of the hearing and when the case was to be
decided the new Civil Code was already in force, which Code permitted theexecution of holographic wills
2. The validity of a will as to form is to be judged not by the law in force at the time of the testator's death or at
the time the supposed will is presented in court for probate or when the petition is decided by the court but
at the time the instrument was executed. One reason in support of the rule is that although the will operates
upon and after the death of the testator, the wishes of the testator about the disposition of his estate among
his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the
legacy or bequest then becomes a completed act.
3. From the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it
becomes a vested right, protected under the due process clause of the Constitution against a subsequent
change in the statute adding new legal requirements of execution of wills, which would invalidate such a will.
By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the
legal requirements at the time of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by intestate succession, and no
subsequent law with more liberal requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights
in the estate by intestate succession. The general rule is that the Legislature can not validate void wills

Art. 16.

1. Real property as well as personal property is subject to the law of the country where it is situated.
2. However, intestate succession and testamentary succession, both with respect
a. to the order of succession and
b. to the amount of successional rights and
c. to the intrinsic validity of the testamentary provisions,

shall be regulated by the national law of the person whose succession is under consideration,

a. whatever may be the nature of the property and

b. regardless of the country wherein said property maybe found.

Miciano vs. Brimo

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 1. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in the will, it must be taken into consideration that
such exclusion is based on the last part of the second clause of the will, which says:

"Second. I likewise desire to state that although, by law, I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having
resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of my property and everything in
connection with this, my will, be made and disposed of in accordance with the laws in force in the
Philippine Islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons who fail to
comply with this request."

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must
respect the testator's will. The herein oppositor who, by his attitude in these proceedings, has not respected
the will of the testator and thereby not entitled to inheritance by virtue of the will.

The fact is, however, that the said condition is void, being contrary to law because

a. it expressly ignores the testator's national law when, according to article 10(now art. 16) of the Civil
Code above quoted, such national law of the testator is the one to govern his testamentary
dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of
said will with all their dispositions and requests are perfectly valid and effective it not appearing that said
clauses are contrary to the testator's national laws.

Bellis vs. Bellis

1. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to four items:
a. the order of succession;
b. the amount of successional rights;
c. the intrinsic validity of the provisions of the will; and
d. the capacity to succeed (Art. 1039)
2. A provision in a foreigner's will that his properties should be distributed in accordance with Philippine law
and not in accordance with his national law is void, being contrary to article 16 of the New Civil Code.
3. Where the decedent was a citizen of Texas and under Texas laws there are no forced heirs, the system of
legitimes in Philippine law cannot be applied to the succession to the decedent's testate because the intrinsic
validity of the provisions of the decedent's will and the amount of successional rights are to be determined
under Texas law.

Aznar vs. Garcia

1. The “national law” indicated in Article 16 of the Civil Code cannot possibly apply to any general American
Law, because there is no such law governing the validity of testamentary provisions in the United States, each
state of the union having its own private law applicable to its citizens only and in force only within the state. It
can therefore refer to no other than the private law of the state of which the decedent was a citizen. In the
case at bar, the State of California prescribes two sets of laws for its citizens, an internal law for its citizens
residing therein and a conflict of law rules for its citizens domiciled in other jurisdictions. Hence, reason
demands that the California conflict of law rules should be applied in this jurisdiction in the case at bar.

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 2. The conflict of law rule in California, Article 946 Civil Code, refers back the case, when a decedent is not
domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of domicile
cannot and should not refer the case back to California, as such action would leave the issue incapable of
determination, because the case will then be tossed back and forth between the two states. If the question has
to be decided, the Philippine court must apply its own law as the Philippines was the domicile of the
decedent, as directed in the conflict of law rule of the state of the decedent, California, and especially because
the internal law of California provides no legitime for natural children, while the Philippine law (Articles
887(4) and 894, Civil Code of the Philippines makes natural children legally acknowledged forced heirs of the
parent recognizing them).
3. As the domicile of the deceased, who was a citizen of California, was the Philippines, the validity of the
provisions of his will depriving his acknowledged natural child of the latter’s legacy, should be governed by
the Philippine law, pursuant to Article 946 of the Civil Code of California, not by the internal law of California.

SUBSECTION 2. - Testamentary Capacity and Intent

Art. 796-798. Any person(natural person only) may make a will if he is

1. not expressly prohibited by law

2. 18 years of age and above of either sex
3. of sound mind at the time of the execution of will

Art. 799.

1. To be of sound mind, it is not necessary

a. that the testator be in full possession of all his reasoning faculties, or
b. that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
2. It shall be sufficient if the testator was able at the time of making the will to know
a. the nature of the estate to be disposed of,
b. the proper objects of his bounty, and
c. the character of the testamentary act.

Bugnao vs. Ubag.

1. "Testamentary capacity is the capacity

a. to comprehend the nature of the transaction in which the testator is engaged at the time,
b. to recollect the property to be disposed of and the persons who would naturally be supposed to
have claims upon the testator, and
c. to comprehend the manner in which the instrument will distribute his property among the
objects of his bounty."
2. That the testator was mentally capable of making the will is in our opinion fully established by the testimony
of the subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind and
memory. It is true that their testimony discloses the fact that he was at that time extremely ill, in an advanced
stage of tuberculosis complicated with severe intermittent attacks of asthma; that he was too sick to rise
unaided from his bed; that he needed assistance even to raise himself to a sitting position; and that during the
paroxysms of asthma to which he was subject he could not speak; but all this evidence of physical
weakness in no wise establishes his mental incapacity or a lack of testamentary capacity, and indeed
the evidence of the subscribing witnesses as to the aid furnished them by the testator in preparing the will,
and his clear recollection of the boundaries and physical description of the various parcels of land set out
therein, taken together with the fact that he was able to give to the person who wrote the will clear and

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 explicit instructions as to his desires touching the disposition of his property, is strong evidence of his
testamentary capacity.

Bagtas vs. Paguio.

1. Where notes are made by a testator of the disposition he desires to make of his property, from which an
attorney prepares a formal will which is read to the testator, who assents to it section by section, after which
the whole will is read in a loud voice and is then signed by the testator and four witnesses in the presence of
each other, Held: That the requirements of the Code of Civil Procedure are fully complied with.
2. When a testator has never been adjudged insane by a court of competent jurisdiction, there is a presumption
of mental soundness which must be overcome by competent proof.
3. For some fourteen or fifteen years prior to his death, the testator suffered from a paralysis of the left side of
his body. A few years prior to his death, his hearing became impaired and he lost the power of speech. Owing
to the paralysis of certain muscles, his head fell to one side and saliva ran from his mouth. He retained the use
of his right hand, however, and was able to write f airly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his family. Held: Not sufficient evidence to overthrow
the legal presumption of a sound mind and disposing memory.
4. The rule of law relating to the presumption of mental soundness is well established, and the testator in the
case at bar never having been adjudged insane by a court of competent jurisdiction, this presumption
continues, and it is therefore incumbent upon the opponents to overcome this legal presumption by proper
evidence. This we think they have failed to do. There are many cases and authorities which we might cite to
show that the courts have repeatedly held that mere weakness of mind and body, induced by age and disease
do not render a person incapable of making a will. The law does not require that a person shall continue in
the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will.
5. "Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will, if
sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be
total, or extend to his immediate family or property.

Neyra vs. Neyra

1. Insom-nia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a will, to
the effect that it tended to destroy mental capacity, was held not to affect the full possession of the mental
faculties deemed necessary and sufficient for its execution. The testimony of the attending physician that the
deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his
death, was held not sufficient to establish testamentary y incapacity, in view of the positive statement of
several credible witnesses that he was conscious and able to understand what was said to him and to
communicate his desires.
2. Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that
somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will.
3. Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently
and intelligibly conversed with other persons, although lying down and unable to move or stand up
unassisted, but could still effect the sale of property belonging to him, these circumstances show that the
testator was in perfectly sound mental condition at the time of the execution of the will.
4. The mental faculties of persons suffering from Addison's disease, like the testatrix in the case, remain
unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit
of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they
preserve their mental faculties until the moments of their death.
5. The contention that the attesting witnesses were not present, at the time Encarnacion Neyra thumbmarked
the agreement and will in question, on her bed, in the sala of the house, as they were allegedly in the caida, is

10
 untenable. It has been fully shown that said witnesses were present at the time of the signing and execution of
the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not
whether they actually saw each other, at the time of the signing of the documents, but whether they might
have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it all in this case.
6. Thumbmark placed by the testatrix on the agreement and will in question is equivalent to her signature.

Baltazar vs. Laxa

1. Due execution of the will or its extrinsic validity pertains to whether the testator, being of sound mind, freely
executed the will in accordance with the formalities prescribed by law. These formalities are enshrined in
Articles 805 and 806 of the New Civil Code,
2. The state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to
execute a Will
3. A purported will is not to be denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether it will be probated would have to depend largely on the attitude of those interested in the estate of
the deceased
4. The very existence of the Will is in itself prima facie proof that the supposed testatrix has willed that her
estate be distributed in the manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given full effect independent of the attitude of the parties affected thereby.
5. Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate proceedings.64
This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.
Section 1. Allowance necessary. Conclusive as to execution.—No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the
will shall be conclusive as to its due execution.”
6. The burden to prove that Paciencia was of unsound mind at the time of the execution of the will lies on the
shoulders of the petitioners

Art. 800.

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

Art. 801

1. Supervening incapacity - does not invalidate an effective will

2. Supervening of capacity - does not validate a will made by incapable

Art. 802-803. (provisions applicable also to married men)

1. A married woman may make a will

a. without the consent of her husband, and
b. without the authority of the court.
2. A married woman may dispose by will of

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 a. all her separate property as well as
b. her share of the conjugal partnership or absolute community property.

SUBSECTION 3. - Forms of Wills

Art. 804. Every will must be

1. in writing and
2. executed in a language or dialect known to the testator.

Acop vs. Piraso

1. The decedent's alleged will, being written in English, a language unknown to said decedent, cannot be
probated, because it is prohibited by the law, which clearly and positively requires that the will be written in
the language or dialect known by the testator.

Art. 805.

1. Every will, other than a holographic will, must be

a. subscribed at the end thereof by
i. the testator himself or
ii. by the testator's name written by some other person in his presence, and by his express
direction, and
b. attested and subscribed by three or more credible witnesses in the presence of the testator and
of one another.

2. The testator or the person requested by him to write his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper part of each page.

3. The attestation shall state

a. the number of pages used upon which the will is written, and
b. the fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses, and
c. that the latter witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.

4. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

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

Cruz vs. Villasor

1. The notary public before whom the will was acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means
to avow; to own as genuine, to assent, to admit, and “before” means in front or preceding in space or ahead of.
Consequently, if the third witness were the notary public himself, he would have to avow, assent or admit his

12
 having signed the will in front of himself. This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his participation in the making of the will.
2. The function of a notary public is, among others, to guard against any illegal or immoral arrangements. That
function would be defeated if the notary public were one of the attesting witnesses. For then he would be
interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. It
would place him in an inconsistent position and the very purpose of the acknowledgment, which is to
minimize fraud would be thwarted.

Garcia vs. Lacuesta, et al.

1. When the testator expressly caused another to sign the former's name, this fact must be recited in the
attestation clause. Otherwise, the will is fatally defective.
2. Where the cross appearing on a will is not the usual signature of the testator or even one of the ways by
which he signed his name, that cross cannot be considered a valid signature. E (Thumbmark can be accepted
as a signature but not a cross mark since the latter is not as trusthworthy as the former)

Art. 809. Defects and imperfections in the (1) form of attestation or in the (2)language used therein shall not
render the will invalid

1. if it is proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805
2. In the absence of
a. bad faith,
b. forgery, or
c. fraud, or
d. undue and improper pressure and influence

Jaboneta us. Gustilo

1. The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have seen each other sign, had they chosen to do
so, considering their mental and physical condition and position with relation to each other at the moment of
inscription of each signature.
2. The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing
his signature to the will, taken together with the testimony of the remaining witnesses, which shows that
Javellana did in fact there and then sign his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving and that his The fact that Jena was still in the room
when he saw Javellana moving his hand and pen in the act of affixing his signature to the will, taken together
with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then sign his
name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in
the act of leaving and that his and in such position with relation to Javellana that he could see everything
which took place by merely casting his eyes in the proper direction and without physical obstruction to
prevent his doing.

Avera vs. Garcia and Rodriguez

1. While it is undoubtedly true that an uncontested will may be proved by the testimony of only one of the three
attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is instituted, all of the attesting
witnesses must be examined, if alive and within reach of the process of the court. It appears, however, that

13
 this point was not raised by the appellant ih the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for the first time in this court.
2. Some details at times creep into legislative enactments which are so trivial that it would be absurd to suppose
that the Legislature could have attached any decisive importance to them. The provision to the effect that the
signatures of the testator and witnesses shall be written on the left margin of each page—rather than on the
right margin—seems to be of this character. So far as concerns the authentication of the will, and of every
part thereof, it can make no possible difference whether the names appear on the left or no the right margin,
provided they are on one or the other.
3. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23,1918, not reported), this court declared a will
void which was totally lacking in the signatures required to be written on its several pages; and in the case of
Re: estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary
signatures on the margin of each leaf (folio), but not in the margin of each page containing written matter.
4. The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate
pages, were signed and not each written page; for as ob served in that case by our late lamented Chief Justice,
it was possible that in the will as there originally executed by the testatrix only the alternative pages had been
used, leaving blanks on the reverse sides, which conceivably might have been filled in subsequently.

lcasiano vs. Icasiano

1. The opinion of a handwriting expert trying to prove forgery of the testatrix's signature fails to convince the
court, not only because it is directly contradicted by another expert but principally because of the paucity of
the standards used by him (only three other signatures), considering the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue.
2. The slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable,
considering that the standard and challenged writings were affixed to different kinds of paper.
3. Neither diversity of apportionment nor prohibition against contest is evidence of fraud or undue influence in
the execution of a will.
4. Allegations of fraud and undue influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against the validity of the will.
5. The inadvertent failure of an attesting witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses
did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
6. That the signed carbon duplicate of a will was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition for
probate, where the amended petition did not substantially alter the first one filed, but merely supplemented
it by disclosing the existence of said duplicate.

Cargo vs. Cargo, et al.

1. Inasmuch as the signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the wit nesses on the lefthand margin, the will is
fatally defective. The attestation clause is "a memorandum of the facts attend ing the execution of the will"
required by law to be made by the attesting witnesses, and it must necessarily bear their signatures.
2. The petitioner and appellee contends that signatures of the three witnesses on the lefthand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the lefthand

14
 margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the tes tator and any or all of the witnesses.

Nera vs. Rimando

1. The question whether the testator and the 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 actually cast upon the
paper at the moment of its subscription by each of them, , but whether at that moment existing condition and
the position of the parties, with relation to each other, were such that by merely casting their eyes in the
proper direction they could have seen each other sign.
2. If one subscribing witness to a will is shown to have been in an outer room at the time when the testator and
the other witnesses attach their signatures to the instrument in an inner room, the will would be held
invalid—the attaching of the said signatures, under such circumstances, not being done "in the presence" of
the witness in the outer room.

Caneda vs. Court of Appeals

1. There are two (2) kinds of wills.—In addition, the ordinary will must be acknowledged before a notary public
by the testator and the attesting witnesses, hence it is likewise known as a notarial will. This kind of will is
governed by Art. 804 to 809.

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written, dated,
and signed by the hand of the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses.
A common requirement in both kinds of wills is that they should be
a. in writing and
b. must have been executed in a language or dialect known to the testator.
2. However, in the case of an ordinary or attested will, its attestation clause need not be written in a language or
dialect known to the testator since it does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to the attesting witnesses. The
last paragraph of Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to
said witnesses.
3. Purposes of attestation clause.
a. in requiring the clause to state the number of pages on which the will is written - safeguard
against possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages;
b. the subscription of the signatures of the testator and the attesting witnesses - authentication
and identification, and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.
c. by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will
as embodied in the attestation clause.

The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to
insure the authenticity thereof. As it appertains only to the witnesses and not to the testator, it
need be signed only by them. Where it is left unsigned, it would result in the invalidation of the will as it
would be possible and easy to add the clause on a subsequent occasion in the absence of the testator and the
witnesses.

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 4. It will be noted that Article 805 requires that the witnesses should both attest and subscribe to the will in the
presence of the testator and of one another. “Attestation” and “subscription” differ in meaning.

Attestation Subscription
1. act of the senses 1. act of the hand
2. mental 2. mechanical
3. to attest a will is to know that it was 3. to subscribe a paper published as a will is
published as such, and to certify the facts only to write on the same paper the names
required to constitute an actual and legal of the witnesses, for the sole purpose of
publication identification

5. What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses
and states as well the number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other. The phrase “and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin,” obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words “as his Last Will and Testament.” On the
other hand, although the words “in the presence of the testator and in the presence of each and all of us” may,
at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the witnesses since said phrase immediately follows
the words “he has signed the same and every page thereof, on the spaces provided for his signature and on the
left hand margin.” What is then clearly lacking, in the final logical analysis, is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one another. It is
our considered view that the absence of that statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here sought to be admitted to probate.
6. We stress once more that under Article 809, the defects or imperfections must only be with respect to the form
of the attestation or the language employed therein. Such defects or imperfections would not render a will
invalid should it be proved that the will was really executed and attested in compliance with Article 805. In
this regard, however, the manner of proving the due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to evidence aliunde, whether oral or written.
(the defects and imperfections in the will can be corrected only by the contents of the will itself without
resorting to external evidences)
7. In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses can
be supplied only by extrinsic evidence thereof, since an overall appreciation of the contents of the will yields
no basis whatsoever from which such facts may be plausibly deduced. What private respondent insists on are
the testimonies of his witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by indirection what in law he cannot do directly. (substantial compliance
rule in art. 809 will apply only if resort to extrinsic evidence is not necessary, hence in this case, the defect
cannot be corrected since the respondent is relying in the testimony of the witness)
8. It may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination
of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot
be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimat
ely, of the will itself.

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Lopez vs. Lopez

1. The law is clear that the attestation must state the number of pages used upon which the will is written. The
purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and
prevent any increase or decrease in the pages. While Article 809 allows substantial compliance for defects in
the form of the attestation clause, Richard likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and testament that it “consists of 7 pages including the page
on which the ratification and acknowledgment are written” cannot be deemed substantial compliance. The
will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by
mere examination of the will itself but through the presentation of evidence aliunde.

Art. 807. If the testator be deaf, or a deaf-mute,

1. he must personally read the will, if able to do so; otherwise,

2. he shall designate two persons to read it and communicate to him, in some practicable manner, the
contents thereof.

Art. 808. If the testator is blind, the will shall be read to him twice;

1. once, by one of the subscribing witnesses, and again,

2. by the notary public before whom the will is acknowledged.

Alvarado vs. Gaviola, Jr.

1. Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are “incapable of reading the(ir) will(s)(includes illetirate).” Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to
his “poor,” “defective,” or “blurred” vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term “blind” as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so
conformably with his instructions.
2. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of
the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The
purpose is to make known to the incapacitated testator the contents of the document before signing and to
give him an opportunity to object if anything is contrary to his instructions.
3. That Art. 808 was not followed strictly is beyond cavil. Petitioner contends that instead of the notary public
and an instrumental witness, it was the lawyer (private respondent) who drafted the eightpaged will and the
fivepaged codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808
requires.

In the case at bar, private respondent read the testator’s will and codicil aloud in the presence of the testator,
his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed,
upon being asked, that the contents corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known and communicated to the testator. On the contrary,
with respect to the “Huling Habilin,” the day of the execution was not the first time that Brigido had affirmed
the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that
Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator’s residence precisely for the
purpose of securing his conformity to the draft.

17
 Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The
notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator’s physician) asked the testator whether the contents of the
documents were of his own free will. Brigido answered in the affirmative. With four persons following the
reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured
that what was read to him (those which he affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents.

4. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are
intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and
inflexible as to destroy the testamentary privilege. Although there should be strict compliance with the
substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which, when taken into account, may only
defeat the testator’s will.

Art. 810.

1. A person may execute a holographic will which must be

a. entirely written,
b. dated, and
c. signed by the hand of the testator himself.
2. It is subject to
a. no other form, and
b. may be made in or out of the Philippines, and
c. need not be witnessed.

Roxas vs. De Jesus, Jr.

1. We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wills and Testaments. There is no question that the holographic
Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself
and in a language known to her. There is also no question as to its genuineness and due execution. All the
children of the testatrix agree on the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection interposed by the oppositor
respondent Luz Henson is that the holographic Will is fatally defective because the date “FEB./61” appearing
on the holographic Will is not sufficient compliance with Article 810 of the Civil Code. This objection is too
technical to be entertained.
2. In particular, a complete date is required to provide against such contingencies as that of two 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 such contingency in this case.
3. 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 appearance of fraud, bad faith, undue influence and pressure
and the authenticity of the Will is established and the only issue is whether or not the date “FEB./61”
appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.

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Labrador vs. Court of Appeals

1. The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy
of note to quote the first paragraph of the second page of the holographic will, viz:

“And this is the day in which we agreed that we are making the partitioning and assigning the respective
assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this
decision and or instruction of mine is the matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.”

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. These
requirements are present in the subject will.

Art. 812 - 813. In holographic wills

1. The dispositions of the testator written below his signature must be dated and signed by him in order to
make them valid as testamentary dispositions.
2. When a number of dispositions are signed without being dated, and the last disposition has a signature and
a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

Art. 814. In case of any

1. insertion,
2. cancellation,
3. erasure or
4. alteration

in a holographic will, the testator must authenticate the same by his full signature.

Ajero vs. Court of Appeals

1. In the same vein, Article 839 of the New Civil Code enumerates the grounds for disallowance of wills. These
lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are:
a. whether the instrument submitted is, indeed, the decedent’s last will and testament;
b. whether said will was executed in accordance with the formalities prescribed by law;
c. whether the decedent had the necessary testamentary capacity at the time the will was executed;
and,
d. whether the execution of the will and its signing were the voluntary acts of the decedent.
2. For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
3. In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be
totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil
Code. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that
is unquestionably handwritten by the testator.
4. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some
of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.

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 5. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. Thus, unless the unauthenticated alterations, cancellations or insertions were made
on the date of the holographic will or on testator’s signature, their presence does not invalidate the will
itself. The lack of authentication will only result in disallowance of such changes.
6. It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary
conditions for the validity of the holographic will (Article 810). Only the requirements of Article 810 of the
New Civil Code—and not those found in Article 813 and 814 of the same Code—are essential to the
probate of a holographic will.
7. As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with
her father’s other heirs.

Kalaw vs. Relova

1. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, x x x the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.
2. However, when as in this case, the holographic Will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite
of full authentication by 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
authenticate it in the manner required by law by affixing her full signature.
3. Petitioner Rosa is bound by the factual finding of the trial court that testator herself crossed out Rosa’s
name as sole heir. Hence, the substitution of Gregorio as sole heir even if void for not being authenticated
as prescribed by law will not result in Rosa being declared heir. The original unaltered will naming Rosa
as sole heir cannot, however, be given effect in view of the trial court’s factual finding that the testatrix
had by her own handwriting substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both Rosa and Gregorio as her
next of kin succeed to her intestate estate.

Art. 811.

1. In the probate of a holographic will,

a. If the will is not contested - it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature are in
the handwriting of the testator.
b. If the will is contested - at least three of such witnesses shall be required.
2. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it
necessary, expert testimony may be resorted to.

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Codoy vs. Calugay

1. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word
“shall– connotes a mandatory order. We have ruled that “shall– in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is that the word “shall,–
when used in a statute, is mandatory.
2. The goal to be achieved by Article 811 is to give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat
the wishes of the testator.
3. The possibility of a false document being adjudged as the will of the testator cannot be eliminated, which is
why if the holographic will is contested, the law requires three witnesses to declare that the will was in the
handwriting of the deceased.

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

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities
prescribed by

1. the law of the place in which he resides, or

2. according to the formalities observed in his country, or
3. in conformity with those which this Code prescribes.

Art. 817. A will made in the Philippines by a citizen or subject of another country,

1. which is executed in accordance with the law of the country of which he is a citizen or subject, and
2. which might be proved and allowed by the law of his own country

shall have the same effect as if executed according to the laws of the Philippines.

Testate Estate of Bohanan vs. Bohanan, et al.

1. Article 10 of the old Civil Code (Article 16, new Civil Code) provides that the validity of testamentary
dispositions are to be governed by the national law of the person whose succession is in question. In
case at bar, the testator was a citizen of the State of Nevada. Since the laws of said state allow the testator
to dispose of all his property according to his will, his testamentary dispositions depriving his wife
and children of what should be their legitimes under the laws of the Philippines, should be respected
and the project of partition made in accordance with his testamentary dispositions should be approved.

Art. 818. Two or more persons cannot make a will

1. jointly, or
2. in the same instrument,

either for their reciprocal benefit or for the benefit of a third person.

Art. 819. Wills

1. prohibited by the preceding article,

2. executed by Filipinos in a foreign country

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 shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been
executed.

Vda. de Perez vs. Tolete

1. The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines: “Art. 816. The will
of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law
of the place in which he resides, or according to the formalities observed in his country, or in conformity with
those which this Code prescribes.” Thus, proof that both wills conform with the formalities prescribed by
New York laws or by Philippine laws is imperative.
2. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the
Philippines are as follows:
a. the due execution of the will in accordance with the foreign laws;
b. the testator has his domicile in the foreign country and not in the Philippines;
c. the will has been admitted to probate in such country;
d. the fact that the foreign tribunal is a probate court, and
e. the laws of a foreign country on procedure and allowance of wills
3. There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated
jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be “liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of
every action and proceeding.” A literal application of the Rules should be avoided if they would only result in
the delay in the administration of justice
4. What the law expressly prohibits is the making of joint wills(NOT JOINT PROBATE OF SEPARATE WILLS)
either for the testators’ reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines,
Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain
essentially the same provisions and pertain to property which in all probability are conjugal in nature,
practical considerations dictate their joint probate
5. The rule that the court having jurisdiction over the reprobate of a will shall “cause notice thereof to be given
as in case of an original will presented for allowance” (Revised Rules of Court, Rule 27, Section 2) means that
with regard to notices, the will probated abroad should be treated as if it were an “original will” or a will that
is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which
require publication and notice by mail or personally to the “known heirs, legatees, and devisees of the
testator resident in the Philippines” and to the executor, if he is not the petitioner, are required.

SUBSECTION 4. - Witnesses to Wills

Art. 820. Qualification of a person who may be a witness to the execution of a will mentioned in Article 805 of this
Code

1. of sound mind and

2. of the age of eighteen years or more, and
3. not blind, deaf or dumb, and
4. able to read and write

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Art. 821. The following are disqualified from being witnesses to a will:

1. Any person not domiciled in the Philippines;

2. Those who have been convicted of
a. falsification of a document,
b. perjury or
c. false testimony.

Gonzales vs. Court of Appeals

1. We reject petitioner’s contention that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness,
because such attributes are presumed of the witness unless the contrary is proved otherwise by the
opposing party.
2. We also reject as without merit petitioner’s contention that the term “credible” as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness.
3. In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the
statute, that is Arts. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his
testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in
the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L22005, May 3, 1968, the
Supreme Court held and ruled that: “Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to
believe his testimony.”
4. In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for
their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that
evidence be first established on record that the witnesses have a good standing in the community or that they
are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless
the contrary is established otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will they have attested.
5. A will duly acknowledged before a notary public has in its favor the presumption of regularity, as for example,
regarding the date when the notary was furnished the residence certificates of the witnesses
6. These are indeed unimportant details which could have been affected by the lapse of time and the treachery
of human memory such that by themselves would not alter the probative value of their testimonies on the
true execution of the will, (Pascua vs. de la Cruz, 28 SCRA 421, 424) for it cannot be expected that the
testimony of every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human experience teach us “that
contradictions of witnesses generally occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence.
7. Petitioner’s exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of the willmaking have testified in favor of the
probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof,
who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no

23
 claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final
analysis, the herein conflict is factual and We go back to the rule that the Supreme Court cannot review and
revise the findings of fact of the respondent Court of Appeals.

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

Art. 823.

1. If a person
a. attests the execution of a will,
b. to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will,
c. such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of
such person, or any one claiming under such person or spouse, or parent, or child,

be void, unless there are three other competent witnesses to such will.
2. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been
made or given.

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

SUBSECTION 5. - Codicils and Incorporation by Reference

Art. 825. A codicil is

1. supplement or addition to a will annexed to be taken as a part thereof,

2. made after the execution of a will,
3. by which disposition made in the original will is explained, added to, or altered.

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

Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the will unless the following requisites are present:

1. The document or paper referred to in the will must be in existence at the time of the execution of the will;
2. The will must clearly describe and identify the same, stating among other things the number of pages
thereof;
3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; and
4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous
books of account or inventories.

Unson vs. Abella

1. At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit
the testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will,
for there were reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch
as since the announcement of the trial of the petition for the probate of the will, said witness has been in frequent
communication with the contestants and their attorney, and has refused to hold any conference with the

24
 attorneys for the proponent. Though the general rule is that, if opposition is presented to the probate of a will,
all the attesting witnesses must be produced; nevertheless, there are exceptions to this rule, to wit: When
one of the witnesses is
a. dead, or
b. cannot be served with process of the court, or
c. his reputation for truth is questioned, or
d. he appears to be hostile to the cause of the parties seeking the probate of the will.

In such cases the will may be admitted to probate, if upon the evidence actually introduced the court is
satisfied of the due execution of the will, inasmuch as even if said witness had been produced and had testified
against the application, the result would not have been changed, if the court was satisfied upon the evidence
adduced that the will has been executed in the manner prescribed by the law.

2. When in a will, reference is made to an inventory of the properties of the testator, which has thus been
made a part of the will, if the will has an attestation clause that meets the requirements of the law, no other
attestation clause is necessary for the said inventory, but that of the will, will be sufficient for the validity both
of the will and the inventory.
3. Paging in inventory with Arabic numerals is in compliance with the spirit of the law, requiring that the paging
of a will be made in letters, and is just as valid as paging with letters A, B, C, etc. Objective of correlating pages
is met.

SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions

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

Art. 829. A revocation done

1. outside the Philippines,

2. by a person who does not have his domicile in this country,

is valid when it is done according to the

1. law of the place where the will was made,

2. law of the place in which the testator had his domicile at the time;
3. if the revocation takes place in this country, when it is in accordance with the provisions of this Code.

Art. 830. No will shall be revoked except in the following cases:

1. By implication of law; or
2. By some will, codicil, or other writing executed as provided in case of wills; or
3. By burning, tearing, cancelling, or obliterating the will
a. with the intention of revoking it,
b. by the testator himself, or by some other person in his presence, and by his express direction.

If burned, torn, cancelled, or obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in accordance therewith, if the
following are established according to the Rules of Court:

25
 a. if its contents,
b. due execution,
c. the fact of its unauthorized destruction, cancellation, or obliteration

Testate Estate of Adriana Maloto vs. Court of Appeals

1. 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 destruction is coupled with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by the testator himself. It may be performed by another
person but under the express direction and in the presence of the testator.
2. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his express
direction. There is paucity of evidence to show compliance with these requirements. For one, the document
or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established another, the burning was
not proven to have been done under the express direction of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at
the place where the stove (presumably in the kitchen) was located in which the papers proferred as a will
were burned. Guadalupe, we think, believed that the papers she destroyed was the will only because,
according to her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.
3. Res judicata will not lie in this action. For one, there is yet, strictly speaking, no final judgment rendered
insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the intestate Settlement of the estate of Adria iana. As
such, that j udgment could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate.
This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will. After all, an action for probate, as it implies, is founded on the presence
of a will and with the objective of proving its due execution and validity, something which can not be properly
done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent
left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in
an action for probate

Molo vs. Molo

1. A subsequent will containing a clause revoking a previous will, having been disallowed for the reason that
it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of annuling the previous will, inasmuch as said revocatory
clause is void. (Note: this is not in conflict with Art. 832 since in the said Art., the will is merely inoperative
and not necessarily void)
2. It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a will may be revoked
"by some will, codicil, or other writing executed as provided in case of wills"; but it cannot be said that the
1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as
provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to
probate, it cannot have the effect of revocation.
3. Even in the supposition that the destruction of the original will by the testator could be presumed from the
failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior
will where it is founded on the mistaken belief that the later will has been validly executed and would
be given due effect. The earlier will can still be admitted to probate under the principle of "dependent

26
 relative revocation". The theory on which this principle is predicated is that the testator did not intend to
die intestate. And this intention is clearly manifest where he executed two wills on two different occasions
and instituted his wife as his universal heir.
4. Principle of dependent relative revocation - The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise the inference that the testator meant the
revocation of the old to depend upon the efficacy of the new disposition intended to be substituted,
the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original
will remains in full force But a mere intent to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon the valid execution
of a new will.

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

Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become
inoperative by reason of the

1. incapacity of the heirs, devisees or legatees designated therein, or

2. by their renunciation.

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

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

SUBSECTION 7. - Republication and Revival of Wills

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

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

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

SUBSECTION 8. - Allowance and Disallowance of Wills

Art. 838.

1. No will shall pass either real or personal property unless it is proved and allowed in accordance with the
Rules of Court.
2. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the
testator's a death shall govern.

27
 3. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
4. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.

Cañiza vs. Court of Appeals

1. A will is essentially ambulatory; at any time prior to the testator’s death, it may be changed or revoked; and
until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being
quite explicit: “No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court” (ART. 838, id.). An owner’s intention to confer title in the future to
persons possessing property by his tolerance, is not inconsistent with the former’s taking back possession in
the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the
owner’s resumption of possession is apparent: she needed to generate income from the house on account of
the physical infirmities afflicting her, arising from her extreme age.
2. An ejectment case survives the death of a party. Cañiza’s demise did not extinguish the desahucio suit
instituted by her through her guardian. That action, not being a purely personal one, survived her death; her
heirs have taken her place and now represent her interests in the appeal at bar.

Dorotheo vs. Court of Appeals

1. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it
may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified
the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set
aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and
nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is
binding on the whole world.
2. It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be
probated, particularly on three aspects:
a. whether the will submitted is indeed, the decedent’s last will and testament;
b. compliance with the prescribed formalities for the execution of wills;
c. the testamentary capacity of the testator; and the due execution of the last will and testament.
3. What includes due execution of a will.—Under the Civil Code, due execution includes a determination of
whether
a. the testator was of sound and disposing mind at the time of its execution,
b. that he had freely executed the will and was not acting under duress, fraud, menace or undue influence
c. that the will is genuine and not a forgery,
d. that he was of the proper testamentary age and
e. that he is a person not expressly prohibited by law from making a will.
4. The intrinsic validity is another matter and questions regarding the same may still be raised even after the
will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and
testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for
dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the
laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. This is specially so
when the courts had already determined in a final and executory decision that the will is intrinsically void.
Such determination having attained that character of finality is binding on this Court which will no longer be
disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of
which the party had the opportunity to challenge before the higher tribunals must stand and should no longer
be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not

28
 avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed
to have fully agreed and is satisfied with the decision or order.
5. No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic
and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic
validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity—that is whether
the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that
the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.

Mercado vs. Santos and Daza

1. The probate of a will by the probate court having jurisdiction thereof is considered as conclusive as to its
due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the
time when he executed the will, and was not acting under duress, menace, fraud, or undue influence, and that
the will is genuine and not a forgery.
2. The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by publication as a
prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted,
the judgment of the court is binding upon everybody, even against the State.
3. Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong. The will in question having been probated by a competent
court the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery.
4. Upon the facts stated in the opinion of the court, it was held: That in view of the provisions of sections 306,
333 and 625 of the Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of
a will which had been duly admitted to probate by a court of competent Jurisdiction

Art. 839. The will shall be disallowed in any of the following cases:

1. If the formalities required by law have not been complied with;

2. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
3. If it was executed through force or under duress, or the influence of fear, or threats;
4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of
some other person;
5. If the signature of the testator was procured by fraud;
6. If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time
of affixing his signature thereto.

Nepomuceno vs. Court of Appeals

1. The fact that the probate court declared a devise made in a will null and void will be sustained where no
useful purpose will be served by requiring the filing of a separate civil action and restricting the court only to
the issue of extrinsic validity of the will.—We are of the opinion that in view of certain unusual provisions of
the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which
the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly
in passing upon the will's intrinsic validity even before its formal validity had been established. The probate
of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue.
2. A devise given by a married man estranged from his wife for 22 years prior to his death, to a woman with
whom he has been living for said period of time is void.—Moreover, the prohibition in Article 739 of the Civil

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 Code is against the making of a donation between persons who are living in adultery or concubinage. It is the
donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.

Tolentino vs. Francisco

1. When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if available, but
the validity of the will in no wise depends upon the united support of the will by all of those witnesses. A will
may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do not
unite with the other, or others, in proving all the facts upon which the validity of the will rests. It is sufficient
if the court is satisfied from all the proof that the will was executed and attested in the manner required by
law.

SECTION 2. - Institution of Heir

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

Art. 841. A will shall be valid even though

1. it should not contain an institution of an heir, or

2. such institution should not comprise the entire estate, and
3. even though the person so instituted should not accept the inheritance or
4. should be incapacitated to succeed.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of
the estate shall pass to the legal heirs.

Art. 842.

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

Pecson vs. Coronel

1. Even if the appointment of a beneficiary do not seem to be the most usual and ordinary because the
beneficiary is not a relative of the testatrix who has relatives by blood, this alone will not render the
appointment void per se.
2. Clerical or grammatical errors are ordinarily not considered of vital importance where the intention is
manifest. It will not vitiate the attestation clause where it is evident that its omission was due to carelessness
of the clerk or to lack of mastery of the language, and that what was meant is that the witnesses signed in the
presence of each other.

Art. 843 – 843.

1. The testator shall designate the heir by his name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the instituted heir may be known.

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 2. If among persons having the same names and surnames, there is a similarity of circumstances in such a way
that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be
an heir.
3. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is
possible, in any other manner, to know with certainty the person instituted.
4. Even though the testator may have omitted the name of the heir, should he designate him in such manner
that there can be no doubt as to who has been instituted, the institution shall be valid.

Art. 845. Every disposition in favor of

1. an unknown person - void, unless by some event or circumstance his identity becomes certain.
2. definite class or group of persons - valid.

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

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

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

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

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

Art. 851. Legal succession takes place with respect to the remainder of the estate

1. If the testator has instituted only one heir, and

2. the institution is limited to an aliquot part of the inheritance

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the
parts do not cover the whole inheritance.

Art. 852. Each part shall be increased proportionally

1. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or
the whole free portion, as the case may be, and (without this intention, Art 851 shall govern)
2. each of them has been instituted to an aliquot part of the inheritance and
3. their aliquot parts together do not cover the whole inheritance, or the whole free portion

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

Art. 854.

1. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the death of the testator, shall annul the institution of
heir; but the devises and legacies shall be valid insofar as they are not inofficious.

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 2. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of representation.

Nuguid vs. Nuguid, et al.

1. Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct
ascending line— her parents, and her holographic will does not explicitly disinherit them but simply omits
their names altogether, the case is one of preterition of the parents, not a case of ineffective disinheritance.

Preterition Ineffective Disinheritance

consists in the omission in the testator’s will of the Testamentary disposition depriving any
forced heirs or anyone of them, either because compulsory heir of his share in the legitime for a
a. they are not mentioned therein, or, cause authorized by law
b. though mentioned, they are neither
instituted as heirs nor are expressly
disinherited
annul the institution of heir in toto, unless in the will also “annul the institution of heirs”, but only “insofar
there are, in addition, testamentary dispositions in as it may prejudice the person disinherited”.
the form of devises or legacies
the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally
deprived.
2. Where the onesentence will institutes the petitioner as the sole, universal heir and preterits the parents of the
testatrix, and it contains no specif ic legacies or bequests, such universal institution of petitioner, by itself, is
void. And intestate succession ensues.
3. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in
Article 854 of the New Civil Code suggests that the mere institution of a universal heir in a will—void because
of preterition—would give the heir so instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies
apart and separate from the nullified institution of heir.

Acain vs. Intermediate Appellate Court

1. Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend
or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not
in the direct line. However, the same thing cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned by petitioner Under Article 39 of P.D. No. 603,
known at the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties
as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It
cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted
child and the widow were deprived of at least their legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.
2. Preterition annuls the institution of an heir and annulment throws open to intestate succession The only
provisions which do not result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except in so far as the legitimes are concerned.
3. Institution of petitioner and his brothers and sisters to the entire inheritance totally abrogates the will.—The
universal institution of petitioner together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such institution of universal heirs—
without any other testamentary disposition in the will—amounts to a declaration that nothing at all was
written. No legacies nor devises having been provided in the will the whole property of the deceased has been

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 left by universal title to petitioner and his brothers and sisters. The effect of annulling the institution of heirs
will be, necessarily, the opening of a total intestacy except that proper legacies and devises must, as already
stated above, be respected.
4. In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the
estate, or in the will, or in the property to be affected by it either
a. as executor or
b. as a claimant of the estate and
c. an interested party is one who would be benefited by the estate such as an heir or one who has a
claim against the estate like a creditor

Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual item of personal or real property he is called upon to
receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir. However,
intestacy having resulted from the preterition of respondent adopted child and the universal institution of
heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of
the will left by the deceased and Special Proceedings No. 591ACEB must be dismissed.

5. As stated by respondent Court, the general rule is that the probate court’s authority is limited only to the
extrinsic validity of the will, the due execution thereof, the testator’s testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
come only after the Court has declared that the will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will. The
rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situa tion constrains it to do and pass upon certain provisions of the will. In Nuguid
v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preterition. The probate
court acting on thE motion held that the will in question was a complete nullity and dismissed the petition
without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical
considerations.
6. For private respondents to have tolerated the probate of the will and allowed the case to progress when on its
face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as
universal heirs coupled with the obvious fact that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved. The remedies of certiorari and
prohibition were properly availed of by private respondents.

Neri et al. vs. Akutin and Children

"ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether living at the execution
of the will or born after the death of the testator, shall annul the institution of heirs; but the legacies and
betterments shall be valid in so far as they are not inofficious. "The preterrition of the widower or widow
does not annul the institution; but the person omitted shall retain all the rights granted to him by article 834,
835, 836, and 837 of this Code.

"If the forced heirs omitted die before the testator, the institution shall become operatives."

"ART. 817. Testamentary disposition which diminish the legitime of the forced heirs shall be reduced on
petition of the same in so far as they are inofficious or excessive."

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 "ART. 851. Disinheritance made without a statement of the cause, or for a cause the truth of which, if contested,
is not shown or which is not one of those stated in the four following articles shall annul the institution of
heirs in so far as it is prejudicial to the disinherited persons; but the legacies, betterments, and other
testamentary dispositions shall be valid in so far as they are not prejudicial to said legitime."

1. According to the findings of fact in this case, the testator left all his property by universal title to the children
by his second marriage, and that without expressly disinheriting the children by his first marriage, he left
nothing to them. Held: That this is a case of preterition govern by article 814 of the Civil Code, which provides
that the institution of heirs shall be annulled and intestate succession should be declared.
2. The folliwing example will make the question clearer:

The testator has two legitimate sons, A and B, and in his will he leaves all his property to A, with total
preterition of B. Upon these facts, shall the court annul entirely the institution of heir in favor of A and declare
a total intestacy, or shall it merely refuse the bequest left to A. giving him two thirds, that is, one third of free
disposal and onethird of betterments, plus onehalf of the other third as strict legitime, and awarding B only
the remaining onehalf of the strict legitime? If the court does the first, it applies article 814; if the second, it
applies article 851 or 817. But article 851 applies only in case of unfounded disinheritance, and all are
agreed that the present case is not one of disinheritance but of preterition. Article 817 is merely a general
rule inapplicable to specific cases provided by law, such as that of pretertion or disinheritance.
3. The annulment of the institution of heirs in cases of pretetion does not always carry with it the ineffictiveness
of the whole will. Neither Manresa nor Sanchez Roman northis court has ever said so. If, aside from the
institution of heirs, there are in the will provisions leaving to the heirs so instituted or to other persons some
specific properties in the form of legacies or mejoras, such testamentary provisions shall be effective and the
legacies and mejoras shall be respected in so far as they are not inofficious or excessive, according to article
814. in the instant case, however, no legacies or mejoras are provided in the will, the whole property of the
deceased having been left by universal title to the children of the second marriage. The effect, therefore, of
annulling the institution of heirs will be necessarily the opening of a total intestacy.
4. The theory is advanced that the bequest made by universal title in favor of the children by the second
marriage should be treated as legado and majora and, accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a complete abrogation of article 814 and 851 of the Civil Code.
If every case of institution of heirs maybe made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of article 814 and 815 regarding total or partial
nullity of the institution, would be absolutely meaningless and will never have any application at all.
And the remaining provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be absorbed by article 817. This, instead of construing, this visions of the Civil Code.
5. The distructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of
heirs from legacies and betterments, and a general from a special provision. With reference to article
814, which is the only provision material to the disposition of this case, it must be observed that the
institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterment.
And they are separate and distinct not only because they are distinctly and separately treated in said article
but beacuase they are in themselves different. Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to pacific property bequeathed by a particular or special
title. The first is also different from a betterment which would be made expressly as such (article 828). The
only instance of implied betterment recognized by law is where legacies are made which cannot be included
in the free portion (article 828). But again an institution of heirs cannot be taken as a legacy.
6. It should be borne in mind, further, that althought article 814 contains two different provisions, its special
purpose is to establich a specific rule concerning a specific testamentary provision; namely, the institution of
heirs in a case of preterition. Its other provision regarding the validity of legacies and betterments if not

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 inofficious is a mere reiteration of the general rule contained in orde provisions (article 815 and 817) and
signifies merely that it also applies in case of preterition.

Non vs. Court of Appeals

1. When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in
question included, was transmitted to her heirs—her husband Julian and their children Nilo Viado, Rebecca
Viado, Leah Viado and Delia Viado. The inheritance, which vested from the moment of death of the decedent,
remained under a co-ownership regime among the heirs until partition. Every act intended to put an end to
indivision among coheirs and legatees or devisees would be a partition although it would purport to be a sale,
an exchange, a compromise, a donation or an extrajudicial settlement.
2. The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement
verily has had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud
and bad faith, does not justify a collateral attack on Transfer Certificate of Title No. 373646. The relief, as so
correctly pointed out by the Court of Appeals, instead rests on Article 1104 of the Civil Code to the effect that
where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted
properly in ordering the remand of the case for further proceedings to make the proper valuation of the
Isarog property and ascertainment of the amount due petitioner Delia Viado.

Art. 855. The share of a child or descendant omitted in a will must

1. first be taken from the part of the estate not disposed of by the will, if any;
2. if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the
other compulsory heirs.

Art. 856.

1. A voluntary heir who dies before the testator transmits nothing to his heirs.
2. Except in cases expressly provided for in this Code, no right is transmitted to the heirs of the ff:
a. A compulsory heir who dies before the testator,
b. a person incapacitated to succeed, and
c. one who renounces the inheritance

SECTION 3. - Substitution of Heirs

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

Art. 858. Substitution of heirs may be: (SBRF)

1. Simple or common;
2. Brief or compendious;
3. Reciprocal; or
4. Fideicommissary.

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Art. 859.

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

Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs. (2 or more for 1
and vice versa)

Art. 861.

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

Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir,
unless

1. the testator has expressly provided the contrary, or

2. the charges or conditions are personally applicable only to the heir instituted.

Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid
and shall take effect, provided

1. such substitution does not go beyond one degree from the heir originally instituted, AND
2. that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

G. de Perez vs. Garchitorena and Casimiro

1. Considering the nature of simple substitution by the heir's death before the testator, and the fact that by
clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after
the testatrix, this cannot be a case of simple substitution.
2. The testatrix limits the transmission of her estate to the children of the heiress by this provision, "in
such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it
is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the
substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil
Code which prescribes that fideicommissary substitutions shall be valid "provided they do not go
beyond the second degree."
3. MANRESA: Fideicommissary substitution, requires the following:
a. A first heir called primarily to the enjoyment of the estate.(no power to dispose; merely usurfruct is
granted)
b. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a
part of the estate.

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 c. A second heir.
d. the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit
from the latter and not from the fiduciary.
4. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to
Manresa, are present in the case of substitution now under consideration, to wit:
a. A first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress,
called to the enjoyment of the estate
b. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of
the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass
unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of
the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case
she should die after the testatrix.
c. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both
in clause X and in clause XI.
d. Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or
second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is,
rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution,
in which the second heir does not inherit from the heir first instituted, but from the testator
5. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the
plaintiff herein, as her absolute property, but to her children, from the moment of the death of the
testatrix, Ana Maria Alcantara.

Rabadilla vs. Court of Appeals

1. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.
2. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first
instituted. Under substitutions in general, the testator may either (1) provide for the designation of another
heir to whom the property shall pass in case the original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave his/her property to one
person with the express charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.
3. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
a. incapacity,
b. predecease or
c. renunciation.

In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or renunciation, the testatrix’s near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the
conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix’s near
descendants.

4. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact

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 allowed under the Codicil to alienate the property provided the negotiation is with the near descendants
or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the property and its transmission to the
second heir. “Without this obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution.” Also, the near descendants’ right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver
part of the usufruct to private respondent.
5. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the
first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by
first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to
the instituted heir, Dr. Jorge Rabadilla.
6. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as
an institucion sub modo or a modal institution. In a modal institution, the testator states the, object of the
institution, the purpose or application of the property left by the testator, or the charge imposed by the
testator upon the heir. A “mode” imposes an obligation upon the heir or legatee but it does not affect the
efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is
similar to a resolutory condition.
7. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should
not be considered a condition unless it clearly appears from the Will itself that such was the intention of the
testator. In case of doubt, the institution should be considered as modal and not conditional.
8. Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his
property, to take effect after his death. Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be
the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.

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

Art. 865.

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

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

Art. 867. The following shall not take effect:

1. Fideicommissary substitutions which are not made in an express manner, either

a. by giving them this name, or
b. imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;
2. Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit
fixed in article 863;
3. Those which impose upon the heir the charge of paying to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension;

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4. Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him by the testator.

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

Art. 869.

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

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

SECTION 4. - Conditional Testamentary Dispositions and Testamentary Dispositions With a Term

Art. 871. The institution of an heir may be made

1. conditionally, or
2. for a certain purpose or cause.

Art. 872. The testator cannot impose any

1. charge,
2. condition, or
3. substitution whatsoever

upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.

Art. 873. The following shall be considered as not imposed and shall in no manner prejudice the heir, even if the
testator should otherwise provide

1. Impossible conditions and

2. those contrary to law or good customs

Art. 874.

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

MORENTE vs. DE LA SANTA.

1. “That my said husband shall not leave my brothers after my death, and that he shall not marry anyone; should
my said husband have children by anyone, he shall not convey any portion of the property left by me, except
the onethird part thereof and the two remaining thirds shall be and remain for my brother Vicente or his
children should he have any.”

39
 It is nowhere expressly said that if he does leave the testatrix's sisters, or does not continue to dwell in the
building mentioned in the will he shall forfeit the property given him in the first clause; nor is it anywhere
expressly said that if he marries again he shall incur such a loss. But it is expressly provided that if one event
does happen the disposition of the property contained in the first clause of the will shall be changed. It is said
that if he has children by anyone, twothirds of that property shall pass to Vicente, the brother of the testatrix.

2. A testator may insert conditional provisions in his will, as prescribed by article 790 of the Civil Code. Under
article 793, a prohibition against another marriage may also be imposed, in certain cases, upon the widow or
widower. But, in order to make a testamentary provision conditional, such condition must fairly appear
from the language used in the will. It will not be presumed.

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

Art. 876.

1. Any purely potestative condition(fulfilment depends exclusively on the heir and the condition cannot be
done by some other person) imposed upon an heir must be fulfilled by him as soon as he learns of the
testator's death.
2. This rule shall not apply when the condition,
a. already complied with,
b. cannot be fulfilled again

Art. 877.

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

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

Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving
something, he shall comply by giving a security

1. that he will not do or give that which has been prohibited by the testator, and
2. that in case of contravention he will return whatever he may have received, together with its fruits and
interests.

Art. 880.

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

Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the
manner of the administration and the rights and obligations of the administrator shall be governed by the Rules
of Court.

40
Art. 882.

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

Art. 883.

1. When without the fault of the heir,

2. an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator,

it shall be complied with in a manner most analogous to and in conformity with his wishes.

1. If the person interested in the condition

2. should prevent its fulfillment, without the fault of the heir

the condition shall be deemed to have been complied with.

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

Art. 885.

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

SECTION 5. - Legitime

Art. 886. Legitime is that

1. part of the testator's property

2. which he cannot dispose of
3. because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.

Art. 887.

1. The following are compulsory heirs:

a. Legitimate children and descendants, with respect to their legitimate parents and ascendants; (legitimate
children includes legitimated child and legally adopted children; extra judicial adoption is not recognized)
b. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and
descendants;
c. the widow or widower;
d. Acknowledged natural children, and natural children by legal fiction; (should be omitted by virtue of the
amendment in the family code)
e. Other illegitimate children referred to in Article 287. (should be recognized, otherwise, the illegitimate
child can only be a voluntary heir)

41
 2. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
3. In all cases of illegitimate children, their filiation must be duly proved.
4. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code.

Comments:

1. In 1.a. and 1.b. above, rule of proximity applies – the nearer heir excludes the farther except in cases where
right of representation is proper
2. In 1.b. above, the adopting parents and not the natural parents are the compulsory heirs, except in case where
in the biological parent is the spouse of the adopter.
3. The following are not included above and therefore not compulsory heirs:
a. Parents-in-law
b. Brothers and sisters

Rosales vs. Rosales

1. A surviving spouse is not an intestate heir of his or her parentin law. There is no provision in the Civil Code
which states that a widow (surviving spouse) is an intestate their of her motherinlaw. The entire code is
devoid of any provision which entitles her to inherit from her motherinlaw either by her own right or by the
right of representation.
2. Neither is a widow (surviving spouse) a compulsory heir of her parentinlaw in accordance with the
provisions of Article 887 of the Civil Code.—The aforesaid provision of law refers to the estate of the
deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not
apply to the estate of a parent in law. Indeed, the surviving spouse is considered a third person as regards the
estate of the parentinlaw.

Baritua vs. Court of Appeals

1. It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate
descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been
established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not
successorsininterest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly
in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone
child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground
for the disqualification of a surviving spouse as an heir of the deceased spouse.
2. The purchase price of the damaged tricycle loaned to Bienvenido (private respondents’ deceased son) and the
latter’s funeral expenses shouldered by private respondents are not liabilities of petitioners. They are but
money claims against the estate of private respondents’ deceased son.

Art. 888 - 889.

1. The legitime of legitimate children and descendants or legitimate parents or ascendants in the absence of
legitimate children and descendants consists of one-half of the hereditary estate.
2. The remaining half maybe freely, subject to the rights of
a. of the surviving spouse and
b. illegitimate children

Comments:

1. Legitime of surviving spouse and illegitimate children shall be taken from the free portion
2. Order of preference in the satisfaction of legitime
a. Legitimate children and descendants/legitimate parents and ascendants
b. Surviving spouse

42
 c. Illegitimate children (legitime of A and B above shall not be disturbed by the legitime of the illegitimate
children)
3. Legitime of illegitimate children is ½ of legitime of a legitimate children

Francisco vs. FranciscoAlfonso

1. Gregorio Francisco did not own any other property. If indeed the parcels of land involved were the only
property left by their father, the sale in fact would deprive respondent of her share in her father’s estate. By
law, she is entitled to half of the estate of her father as his only legitimate child. The legal heirs of the late
Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the estate.
His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by
law.

Art. 890.

1. The legitime reserved for the legitimate parents shall be

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

Art. 891. The ascendant who

1. inherits from his descendant any property

2. which the latter may have acquired by gratuitous title
3. from another ascendant, or a brother or sister,

is obliged to reserve such property as he may have acquired by operation of law for the benefit of

1. relatives who are within the third degree(counting from the deceased descendant) and
2. who belong to the line from which said property came.

Nieva and Alcala vs. Alcala and Deocampo.

1. Article 811 of the Civil Code which provides that "any ascendant who inherits from his descendant any
property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged
to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within
the third degree belonging to the line from which such property came," does not apply to illegitimate
relatives.
2. MANRESA: 'in Civil Code, the legitimate relationship forms the general rule and the natural relationship the
exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or
parents, of ascendants or descendants, and in them reference is of course made to those who are legitimate;
and when it desires to make a provision applicable only to natural relationship, it does not say father or
mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of
ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural
parents.
3. MANRESA: article 811 occupies in the Code is proof that it refers only to legitimate ascendants. And if there
were any doubt, it disappears upon considering the text of article 938, which states that the provisions of
article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending
line

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Florentino vs. Florentino.

1. The property proceeding from an ascendant or from a brother of a deceased descendant—who may have
acquired same by lucrative title and from whom afterwards another ascendant of deceased will inherit—is by
law invested with the character of reservable property in favor of said deceased's relatives, within the
third degree, of the line from whence such property proceeds.
2. The ascendant, who inherits property of a reservable character from his deceased descendant who has a
relative within the third degree still living, is no more than a life usufructuary or a fiduciary of said
reservable property. But if, during the lifetime of the said ascendant, all the relatives, within the third
degree, of his predecessor in interest should die or disappear, according to law the condition of
reservation with which the property had been burdened ceases to exist, and said property now becomes
a part of the legitimate legitime of the ascendant who had inherited same through the death of those for
whom it had been reserved (reservatarios).
3. According to the order of succession prescribed by law for legitimes, when there are relatives within the third
degree of the deceased descendant, the right of the relative's nearest reservative (reservatario) to the
property excludes that of the one more remote. Wherefore the property ought to be handed over to said
relative by the reservist (reservista), without it being possible to allege a right of representation when he who
attempts the same is not comprehended within the third degree, among the predecessorininterest's relatives.
Inasmuch as the right conceded by the aforementioned article 811 of the Civil Code is, in the highest degree,
for the personal and exclusive benefit of the persons pointed out by law, in no manner can there be
included relatives of the fourth and succeeding degrees, not recognized by law.

Solivio vs. Court of Appeals

1. Trial court has no jurisdiction to entertain an action for partition and recovery of properties belonging to the
estate of a deceased person, while the probate proceedings for the settlement of said estate are still pending
in another branch of the same court.
2. Probate proceedings are proceedings in rem, publication of the notice of the proceedings is constructive
notice to the whole world.
3. Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not
an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in
question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia
Solivio, who is his relative within the third degree on his mother’s side. The reserva troncal applies to
properties inherited by an ascendant from a descendant who inherited it from another 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.
4. The persons involved in reserva troncal are:
a. The person obliged to reserve is the reservoir (reservista)—the ascendant who inherits by
operation of law property from his descendants.
b. The persons for whom the property is reserved are the reservees (reservatarios)—relatives within
the third degree counted from the descendant (propositus), and belonging to the line from which the
property came.
c. The propositus—the descendant who received by gratuitous title and died without issue, making
his other ascendant inherit by operation of law.”

Sumaya vs. Intermediate Appellate Court

1. Petitioners not innocent purchasers for value and in good faith.—Petitioners would want this Court to
reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent
purchasers for value, xxx xxx The court a quo found otherwise. Upon the death of the propositus, Raul
Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of
selfadjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by
Raul from his father Jose, Sr and from his maternal grandmother,. The court a quo further ruled that said
affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable
character of the properties. Under the rule of notice, it is presumed that the purchaser has examined every
instrument of record affecting the title. Such presumption is irrebuttable.

44
 2. It was admitted that the certificates of titles covering the properties in question show that they were free
from any liens and encumbrances at the time of the sale. The fact remains however, that the affidavit of
selfadjudication executed by Consuelo stating the source of the properties thereby showing the reservable
nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole
world in accordance with Section 52 of the Property Registration Decree.
3. In reserve troncal, the reservor (the ascendant who inherited from a descendant property which the latter
inherited from another ascendant) has the duty to reserve and therefore, the duty to annotate also.

Riosa vs. Rocha

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.— Section 596 of the Code of Civil
Procedure, authorizing the heirs of a person who died intestate to make extrajudicial partition of the property
of the deceased, without going into any court of justice, makes express reference to intestate succession, and
therefore excludes testate succession.
2. In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at
the same time instituted proceeding for the probate of the will and the administration of the estate. When the
time came for making the partition, they submitted to the court the extrajudicial partition previously made by
them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations
created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to
the heirs from the time the extrajudicial partition was made, but from the time said partition was approved
by the court.
3. The reservor is bound to register the reservation within ninety days from the date of the adjudication of the
property to the heirs by the court. After this period, the reservees have the right to enforce compliance with
said obligation,
4. Where a reservable property is sold by the reservor, without having registered its reservable character, the
obligation to register the same is transferred to the purchaser, when, in making the purchase, the latter knew
the facts which give the property the reservable character.
5. The law does not require the reservor to secure the reservation with a mortgage or bond as to the real
property, the notation of the reservation in the registry of property being sufficient (art. 977, Civil Code). This
security for the value of the real property, which is required by the law (art. 9 paragraph 4, of the Civil Code),
in case it is sold 'before acquiring the reservable character, in a reservation by the widowed spouse
6. Reservable property neither comes nor falls under the absolute dominion of the ascendant who inherits and
receives same from his deceased descendant and; therefore, neither forms part of his estate nor integrates
the legitime of his forced heirs. It becomes the ascendant's own property, received as an inheritance, only
under the condition that all of the deceased descendant's relatives, within the third degree, shall have died.
Under these circumstances the property, transmitted by the predecessor in interest to his ascendant, has lost
its character of reservation.
7. Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his
own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful
inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir
receiving same as an inheritance from his ascendant has the strict obligation of its delivery to the
relatives, within the third degree, of the predecessor in interest, without prejudicing the right of the
heir to an aliquot part of property, if he has at the same time the right of a reservatario.

De Papa vs. Camacho

1. In reserva troncal, the successional rights of the relatives of the praepositus within the 3rd degree are
determined by, and subject to, the rules of intestate succession; so as to exclude uncles and aunts of the
descendant from the reservable property by his niece or nephew.
2. Following the order prescribed by law in legitimate succession, when there are relatives of the descendant
within the third degree, the right of the nearest relative, called reservatario, over the property which the
reservista (person holding it subject to reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the 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 personal

45
 and for the exclusive benefit of designated persons who are 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
considered as reservatarios, since the law does not recognize them as such.
3. Reversion of the reservable property being governed by the rules on intestate succession, the
plaintiffsappellees must be held without any right thereto because, as aunt and uncles, respectively, of
Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendantappellant,
although they are related to him within the same degree as the latter.
4. Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a
precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. We, therefore, hold,
and so rule, that under our laws of succession, a decedent’s uncles and aunts may not succeed ab intestate so
long as nephews and nieces of the decedent survive and are willing and qualified to succeed.
5. Had the reversionary property passed directly from the praepositus, there is no doubt that the
plaintiffsappellees would have been excluded by the defendantappellant under the rules of intestate
succession. There is no reason why a different result should obtain simply because “the transmission of the
property was delayed by the interregnum of the reserva;” i.e., the property took a “detour” through an
ascendant—thereby giving rise to the reservation—before its transmission to the reservatario.

Mendoza vs. Delos Santos

1. There are three (3) lines of transmission in reserva troncal. The first transmission is by gratuitous title,
whether by inheritance or donation, from an ascendant/brother/sister to a descendant called the prepositus.
The second transmission is by operation of law from the prepositus to the other ascendant or reservor, also
called the reservista. The third and last transmission is from the reservista to the reservees or reservatarios
who must be relatives within the third degree from which the property came.
2. The persons involved in reserva troncal are: (1) The ascendant or brother or sister from whom the property
was received by the descendant by lucrative or gratuitous title; (2) The descendant or prepositus
(propositus) who received the property; (3) The reservor (reservista), the other ascendant who obtained the
property from the prepositus by operation of law; and (4) The reservee (reservatario) who is within the third
degree from the prepositus and who belongs to the (linea o tronco) from which the property came and for
whom the property should be reserved by the reservor. It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he is the ascendant from where the first transmission
occurred, or from whom Gregoria inherited the properties in dispute. The law does not go farther than such
ascendant/brother/sister in determining the lineal character of the property. It was also immaterial for the
CA to determine whether Exequiel predeceased Placido and Dominga or whether Gregoria predeceased
Exequiel. What is pertinent is that Exequiel owned the properties and he is the ascendant from whom the
properties in dispute originally came. Gregoria, on the other hand, is the descendant who received the
properties from Exequiel by gratuitous title.
3. Article 891 simply requires that the property should have been acquired by the descendant or prepositus
from an ascendant by gratuitous or lucrative title. A transmission is gratuitous or by gratuitous title when the
recipient does not give anything in return. At risk of being repetitious, what was clearly established in this
case is that the properties in dispute were owned by Exequiel (ascendant). After his death, Gregoria
(descendant/prepositus) acquired the properties as inheritance.
4. Gregoria’s ascendants are her parents, Exequiel and Leonor, her grandparents, greatgrandparents and so on.
On the other hand, Gregoria’s descendants, if she had one, would be her children, grandchildren and
greatgrandchildren. Not being Gregoria’s ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is made to the common ancestor and then
descent to the relative from whom the computation is made. In the case of Julia’s collateral relationship with
Gregoria, ascent is to be made from Gregoria to her mother Leonor (one line/degree), then to the common
ancestor, that is, Julia and Leonor’s parents (second line/degree), and then descent to Julia, her aunt (third
line/degree). Thus, Julia is Gregoria’s collateral relative within the third degree and not her ascendant.
5. Petitioners cannot be considered reservees/reservatarios as they are not relatives within the third degree of
Gregoria from whom the properties came. The person from whom the degree should be reckoned is the
descendant/prepositus—the one at the end of the line from which the property came and upon whom the
property last revolved by descent. It is Gregoria in this case. Petitioners are Gregoria’s fourth degree relatives,

46
 being her first cousins. First cousins of the prepositus are fourth degree relatives and are not reservees or
reservatarios.
6. They cannot even claim representation of their predecessors Antonio and Valentin as Article 891 grants a
personal right of reservation only to the relatives up to the third degree from whom the reservable properties
came. The only recognized exemption is in the case of nephews and nieces of the prepositus, who have the
right to represent their ascendants (fathers and mothers) who are the brothers/sisters of the prepositus and
relatives within the third degree. In Florentino v. Florentino, the Court stated: Following the order prescribed
by law in legitimate succession, when there are relatives of the descendant within the third degree, the right
of the nearest relative, called reservatario, over the property which the reservista (person holding it subject
to reservation) should return to him, excludes that of the one more remote. The right of representation
cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the
relatives within the third degree belong to the line from which such property came, inasmuch as the right
granted by the Civil Code in [A]rticle 811 [now Article 891] is in the highest degree personal and for the
exclusive benefit of the 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 considered as reservatarios, since the law does not recognize them as such. x x x [N]evertheless there is
right of representation on the part of reservatarios who are within the third degree mentioned by law, as in
the case of nephews of the deceased person from whom the reservable property came.
7. The Court takes note of a palpable error in the RTC’s disposition of the case. In upholding the right of
petitioners over the properties, the RTC ordered the reconveyance of the properties to petitioners and the
transfer of the titles in their names. What the RTC should have done, assuming for argument’s sake that
reserva troncal is applicable, is have the reservable nature of the property registered on respondent’s titles.
In fact, respondent, as reservista, has the duty to reserve and to annotate the reservable character of the
property on the title. In reserva troncal, the reservista who inherits from a prepositus, whether by the latter’s
wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute
ownership. All the attributes of ownership belong to him exclusively. The reservor has the legal title and
dominion to the reservable property but subject to the resolutory condition that such title is extinguished if
the reservoir predeceased the reservee. The reservor is a usufructuary of the reservable property. He may
alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the
reservor. The transferee’s rights are revoked upon the survival of the reservees at the time of the death of the
reservoir but become indefeasible when the reservees predecease the reservor. (Citations omitted) It is when
the reservation takes place or is extinguished, that a reservatario becomes, by operation of law, the owner of
the reservable property. In any event, the foregoing discussion does not detract from the fact that petitioners
are not entitled to a reservation of the properties in dispute.

Art. 892 – 894 & 899 - 900.

Survived by/Legitime Legitime of Surviving Spouse

1. only one legitimate child or ½ of the hereditary estate ¼ of the hereditary estate
descendant of the deceased***
2. two or more legitimate children or ½ of the hereditary estate equal to the legitime of each of the
descendants*** legitimate children or descendants
3. no legitimate descendants, but leaves ½ of the hereditary estate ¼ of the hereditary estate
legitimate ascendants
4. illegitimate children only 1/3 of the hereditary estate 1/3 of the hereditary estate
5. legitimate parents or ascendants and Legitimate parents or ascendants 1/8 of the hereditary estate =(
with illegitimate children = ½ of the hereditary estate

Illegitimate children = ¼ of the

hereditary estate
6. no other heirs
a. Gen Rule: -nil- ½ of the hereditary estate

b. Exception: (1)marriage 1/3 of the hereditary estate

between the surviving

47
 spouse and the testator was
solemnized in articulo
mortis, and the (3)testator
died within three months
from the time of the
marriage
½ of the hereditary estate
c. Exception to the exception:
they have been living as
husband and wife for more
than five years

1. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for
the same.
2. In above cases, the legitime of the surviving spouse and illegitimate children shall be taken from the portion
that can be freely disposed of by the testator.

***Comments:

1. Descendants refer to the children of a deceased child and they represent their deceased parent in the estate of
the testator. The legitime of surviving spouse is based on the number of child represented by the descendant
and not based on the number of descendants.
2. If only some repudiate, the divisor is the number of children who accepted the inheritance.

Art. 897 – 898. Merely repetition of Art. 892 by virtue of the amendment in the family code.

Art. 895. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of
the testator, provided that

1. in no case shall the total legitime of such illegitimate children exceed that free portion(therefore the
illegitimate children will share equally in the remaining free portion) , and
2. that the legitime of the surviving spouse must first be fully satisfied.

Art. 896 & 901 & 903.

Survivor Legitime
1. Illegitimate children ¼ of the hereditary estate
+
legitimate parents or ascendants of the ½ of the hereditary estate
deceased (Art. 896)
2. Illegitimate children (Art 901) ½ of the hereditary estate
3. Illegitimate parents only (parents of an illegitimate ½ of the hereditary estate
child) (Art 903)***
4. Illegitimate parents ¼ of the hereditary estate
+
Surviving spouse (Art 903)*** ¼ of the hereditary estate

***Art. 903.

1. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever.
2. Only the parents of the illegitimate child are entitled to legitime; other ascendants are disqualified.

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

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Comment:

1. Note that illegitimate children of a legitimate child has no right of representation

LLORENTE VS. RODRIGUEZ ET AL.

1. A natural child has no right to represent its natural father or mother in the succession of the legitimate
ascendants of the latter.

Art. 904. The testator cannot

1. deprive his compulsory heirs of their legitime, except in cases expressly specified by law, or
2. impose upon the same legitime any (BECS)
a. burden,
b. encumbrance,
c. condition, or
d. substitution of any kind whatsoever.

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

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (the action for the full satisfaction of the legitime is called action ad
supplendam legitimam)

Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or excessive. (only compulsory heirs can file petition for
reduction of excess testamentary dispositions)

Art. 908. To determine the legitime,

1. the value of the property left at the death of the testator

2. deduct all debts and charges, which shall not include those imposed in the will
3. add the value of all donations by the testator that are subject to collation, at the time he made them.

Comments:

1. charges imposed in the will where devises and legacies are to be given by the estate to voluntary heirs must
be included in the computation of the estate
2. Donations made by the testator must be added whether the same are made to compulsory heirs or to
strangers

Art. 909 - 910.

1. Donations given to children, whether legitimate or illegitimate, shall be charged to their legitime.
2. Donations made to strangers shall be charged to that part of the estate of which the testator could have
disposed by his last will.(free portion)
3. Insofar as they may be inofficious or may exceed the disposable portion(pertaining to donation to stranger or
illegitimate child), they shall be reduced according to the rules established by this Code.

Art. 911. (Note: This article applies when there is a question between compulsory heirs and devisees or legatees. Art.
950 applies when the question is exclusively among the devisees and legatees themselves)

1. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be
made as follows: (order of distribution of the net estate)
a. Legitimes

49
 b. Donations inter vivos not yet delivered (donation inter vivos is preferred over donation mortis causa)
c. Preferred diveses and legacies
d. Other devises or legacies (pro rata share, without any distinction whatever)
2. In case of necessity of reduction, the inverse orer shall be followed – exempting the legitimes
3. If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than
that of the disposable portion, the compulsory heirs may choose between
a. complying with the testamentary provision and
b. delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose.

Art. 912.

1. If the devise subject to reduction should consist of real property, which cannot be conveniently divided,
a. it shall go to the devisee if the reduction does not absorb one-half of its value(<50%); and
b. in a contrary case (=> 50%), to the compulsory heirs

but the former and the latter shall reimburse each other in cash for what respectively belongs to
them.

2. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that
of the disposable portion and of the share pertaining to him as legitime.

Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article,

1. any heir or devisee who did not have such right may exercise it;
2. should the latter not make use of it, the property shall be sold at public auction at the instance of any one of
the interested parties.

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

SECTION 6. - Disinheritance

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

Comments:

1. Disinheritance must be total not partial.

2. Only compulsory heirs can be disinherited.
3. Disinheritance need not be in the very instrument where the disposition of the properties is done.
4. An adopter may disinherit the adopted but cannot revoke the adoption. Adopted child has right of
representation.

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

Comments:

1. No disinheritance in intestacy. Thus, if the will, where the disinheritance is expressed, was void, there is no
disinheritance there being an intestacy.
2. Requisites of valid disinheritance: (ECE CUT)
a. It must be expressed in a will.
b. Disinherited heir must be clearly identified.
c. Cause of disinheritance must be among those explicitly stated by law.
d. Cause must be certain, true and its existence be duly proved by evidence.
e. Disinheritance must be unconditional

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 f. Disinheritance must be total or complete.

Ching vs. Rodriguez

1. An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to
settlement of the estate of a deceased person such as advancement of property made by the decedent, partake
of the nature of a special proceeding, which concomitantly requires the application of specific rules as
provided for in the Rules of Court. A special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact. It is distinguished from an ordinary civil action where a party sues another
for the enforcement or protection of a right, or the prevention or redress of a wrong. To initiate a special
proceeding, a petition and not a complaint should be filed.
2. Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal cause
therefor shall be specified. This Court agrees with the RTC and the CA that while the respondents in their
Complaint and Amended Complaint sought the disinheritance of Ramon, no will or any instrument
supposedly effecting the disposition of Antonio’s estate was ever mentioned. Hence, despite the prayer
for Ramon’s disinheritance, Civil Case No. 02105251 does not partake of the nature of a special proceeding and
does not call for the probate court’s exercise of its limited jurisdiction.

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

Comment:

1. Preponderance of evidence is enough to prove the truth of the cause for disinheritance.

Art. 918.

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

Art. 919 – 921.

The following shall be sufficient causes for the disinheritance of

children and descendants, legitimate parents or ascendants, Spouse (Art 921)
as well as illegitimate (Art. 919) whether legitimate or
(ACASA MDC) illegitimate(Art 920)
1. has accused the testator of a 1. SAME 1. SAME
crime for which the
a. law prescribes imprisonment
for six years or more,
b. if the accusation has been found
to be false
2. causes the testator to make a 2. SAME 2. SAME
will or to change one already
made by
a. fraud,
b. violence,
c. intimidation, or
d. undue influence
3. convicted of an attempt against 3. SAME 3. convicted of an attempt

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 the life of the against the life of the
a. testator, a. testator,
b. his or her spouse, b. his or her descendants,
c. descendants, or ascendants or ascendants
4. refusal without justifiable cause 4. refusal without justifiable 4. Unjustifiable refusal to
to support the parent or cause to support the support
ascendant who disinherits such children or descendants a. the children or
child or descendant b. the other spouse
5. convicted of adultery or 5. SAME -
concubinage with the spouse of
the testator
- 6. loss of parental authority 5. has given grounds for the
for causes specified in this loss of parental authority
Code

6. Maltreatment of the testator by
word or deed
7. child or descendant leads a
dishonorable or disgraceful life
8. Conviction of a crime which
carries with it the penalty of civil
interdiction
7. When the parents have 6. has given cause for legal
a. abandoned their separation (see Art. 55, FC;
children or no need for decree of legal
b. induced their daughters separation)
to live a corrupt or
immoral life, or
c. attempted against their
virtue
8. An attempt by one of the
parents against the life of
the other, unless there has
been a reconciliation
between them

Comments:

1. Attempt against the life

a. Negligence or reckless imprudence resulting to death or injuries is not enough. There must be intent
to kill.
b. There must be conviction by final judgement
c. A principal or accomplice can be disinherited. But if he is just an accessory after-the-fact, as his
participation is subsequent to the commission of the crime, he could not be disinherited.
d. If thereafter, he is granted executive clemency or pardon, he may still be disinherited. Disinheritance
is personal to the testator.
2. False accusation against the testator
a. Giving false testimony in a criminal case against the testator is also covered.
3. Conviction of adultery or concubinage with the souse of the testator:
a. There must be conviction by final judgement. It is not the spouse of the testator, but the child or
descendant or parent or ascendant who can be disinherited under this cause.
i. The guilty spouse, however, may be disinherited because “he/she has given cause for legal
separation”. Under this cause for disinheritance, conviction is not required. It is enough to
prove the adultery or concubinage during the testate or intestate proceedings.
b. Even without express disinheritance, the guilty spouse is deemed disinherited by operation of law in
case of a legal separation decreed by court. (applies to testate and intestate succession)
4. Unjustified refusal to give support
a. There must first be either judicial or extrajudicial demand.

52
 “The obligation to give support shall be demandable from the time the person who has the right to
receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or
extrajudicial demand.” (Art. 203, FC)
b. Valid causes for refusing support:
i. Resources of the one to give support had been reduced to a point where he cannot give
support without neglecting his own needs or that of his family
ii. Recipient no longer need the allowance for subsistence
iii. Recipient has committed some acts which give rise to disinheritance
5. Loss of Parental authority
a. Grounds for loss of parental authority
i. Judicial declaration of abandonment of the child
ii. Judicial declaration of absence or incapacity of the person exercising parental authority
iii. Final judgement of a competent court divesting the party concerned of parental authority
iv. Allowing the child to be subjected to sexual abuse
b. Grounds for suspension of parental authority
i. Treats the child with excessive harshness or cruelty
ii. Gives the child corrupting orders, counsel or example
iii. Compels the child to beg
iv. Subjects the child or allows him to be subjected to acts of lasciviousness
v. A parent who has convicted of a crime with penalty of civil interdiction
c. Paragraph 6 of Art. 920 refers to loss and not suspension of parental authority
d. Paragraph 5 of Art. 921 – there is no need for judicial pronouncement for the loss of parental
authority just like in giving causes for legal separation.

6. Maltreatment of the testator (Art 919)

a. The use of grossly abusive language or slanderous criticisms against the testator is maltreatment by
word
b. All acts of physical violence against the testator but not sufficient to kill are considered
maltreatment. Otherwise, the acts/s may be considered an attempt against the life of the testator.
c. No conviction is necessary. (Art 919)
7. Dishonorable or disgraceful life
a. Destructive to the good reputation of the family where he belongs
b. Isolated act is not sufficient. There must be some kind of continuity and constancy in the leading of a
life of dishonour or disgrace.
8. Civil interdiction (Art. 919)
a. It is an accessory mandatory penalty deemed imposed when the sentence is within the range of
reclusion temporal to death.

9. Abandonment/ Inducement to corrupt life/ Attempt against virtue(Art 920)

a. Abandoned child is defined as one who has no proper parental care or guardianship, or whose
parents or guardians have deserted him for a period of atleast 6 continuous months.
b. Inducement of daughters to lead a corrupt or immoral life need not be prostitution. It can be inducing
her to be a concubine.
c. Mere attempt against the virtue of the daughter(includes granddaughter) is sufficient cause for
disinheritance.

Pecson vs. Mediavillo.

1. Disinheritance of a lawful heir can only be made for one of the causes expressly fixed by law. (Arts. 848, 756,
853, and 849, Civil Code.) Such disinheritance can only be effected by a will in which shall be mentioned the
legal grounds or causes for such disinheritance. Article 850 of the Civil Code provides that the reason for the
disinheritance shall be established by the heirs of the testator. In other words, if the person disinherited shall
deny the truthfulness of the cause of disinheritance, he may be permitted to support his allegations by proof.
(Art. 851, Civil Code.) In accordance with the foregoing provisions of the Civil Code, courts may inquire into

53
 the justice of a disinheritance, and if they find that the disinheritance was without cause, that part of the will
may be pronounced null and void.

Art. 922. A subsequent reconciliation between the offender and the offended person

1. deprives the latter of the right to disinherit, and

2. renders ineffectual any disinheritance that may have been made.

Comment:

1. Causes sufficient to revoke disinheritance:

a. Reconciliation
b. Nullification of the will
c. Subsequent institution of the disinherited heir in a subsequent will

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

Comment:

1. This article does not apply to a parent or spouse.

SECTION 7. - Legacies and Devises

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

Comments:

1. To be within the commerce of man, the thing or right must be

a. Susceptible of appropriation by natural or juridical persons; and
b. Transmissible from one person to another such as by sale, donation, barter or other forms of
conveyance.
2. Examples of those outside the commerce of man
a. Property for public use/service
b. Res nullius properties(those without owner)
c. Illegal things

Art. 925. A testator may charge with legacies and devises

1. his compulsory heirs - shall not be liable for the charge beyond the amount of the free portion given them
2. the legatees and devisees - liable for the charge only to the extent of the value of the legacy or the devise
received by them

Comments:

1. If nobody is designated to give the devise or legacy, it shall be the estate which will do so through the
executor or administrator.
2. If the devisee or legatee is charged with the duty to give a devise or legacy, there is what is known as sub-
devise or sub-legacy.

Art. 926.

1. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.

54
 2. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may
inherit.

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

Comment:

1. Solidary liability covers also fraud and delay.

Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is

1. indeterminate and
2. is indicated only by its kind.

Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the
thing in its entirety(CW Art 931).

Art. 930.

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

Comment:

1. EXPN above is justified by the fact that the will becomes effective only after the death of the testator.

Art. 931.

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

Art. 932.

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

Comments:

1. The devisee or legatee is not even entitled to the value of the thing bequeathed because the legacy or devisee
is ineffective.
2. If the thing bequeathed is partly owned by the devisee or legatee, it is void with respect to the interest of the
devisee or legatee. With respect to the other part, it is valid if the testator orders expressly that the thing be
freed from interest or encumbrance.

Art. 933.

55
 1. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the
legacy or devise shall be without effect, even though it may have subsequently alienated by him.
2. If the legatee or devisee acquires it after such time
a. Gratuitously - he can claim nothing by virtue of the legacy or devise;
b. acquired by onerous title - he can demand reimbursement from the heir or the estate.

Art. 934.

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

Comments:

1. The devisee or legatee may be expressly burdened by the testator to pay the debt secured provided the
amount does not exceed the value of the devise or legacy.
2. Other charges – pertains to burdens not intended to secure the payment of the debt.

Art. 935.

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

Art. 936.

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

Art. 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution
of the will, but not subsequent ones. (CW Art 935)

Comments:

1. This article refers to generic legacy wherein no specific debt is mentioned. All debts are remitted except those
incurred after the execution of the will.
2. Art. 935 refers to specific legacy because the debt is specified. The remission is upto the part existing at the
time of death of the testator.

Art. 938.

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

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Art. 939.

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

Comments:

1. After a voluntary fulfilment of a natural obligation, what has been voluntarily delivered or rendered by
reason thereof is considered as valid payment and authorized to be retained and cannot be rescinded.
2. Natural obligations, not being based on positive law but on equity and natural law, do not grant a right of
action to enforce their performance, but after voluntary fulfilment by the obligor, they authorize the retention
of what has been delivered or rendered by reason thereof.
3. Art. 1429: When a testate or intestate heir voluntarily pays a debt exceeding the value of the property which
he received by will or by law of intestacy from the estate of the deceased, the payment is valid and cannot be
rescinded by the payer.
4. Art 1430: When a will is declared void because it has not been executed in accordance with the formalities
required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy
in compliance with a clause in the defective will, the payment is effective and irrevocable.

Art. 940.

1. In alternative legacies or devises, the choice is presumed to be left to the

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

Comment:

1. Art. 1199 to 1206 referring to alternative obligations are applicable except when the testator has modified
their effects in his will which is the supreme law in succession.
2. If it is the executor or administrator who died, the right of choice is not transferred to his heirs but rather to
his successor in such office.

Art. 941-943.

1. A legacy of generic personal property - valid even if there be no things of the same kind in the estate.
*** In which case, the estate will get one for the legatee.
2. A devise of indeterminate real property - valid only if there be immovable property of its kind in the
estate.
3. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of superior quality.
a. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or
devisee, the former may give or the latter may choose whichever he may prefer.
b. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall
pass to his heirs; but a choice once made shall be irrevocable.

Comments (Art 941-943):

57
 1. For a thing to be considered a generic legacy, the following must be specified:
a. The genus or specie; and – e.g. I bequeathed to X 3 animals
b. Quantity – e.g. I bequeathed to X dogs
2. Can a testator donate all or parts of his body thru will? (RA 7170)
a. Any individual, atleast 18 years of age, of sound mind, may give by way of legacy, to take effect after
his death, all or part of his body xxx.
b. The following persons may become legatees or donees of human bodies or parts thereof for any of
the purpose stated hereunder:
i. Hospital, physician or surgeon
ii. Accredited medical or dental school, college or university
iii. Organ bank storage facility
iv. Specified individual for therapy or transplant needed by him
c. If the will is not probated, or it is declared invalid for testamentary purposes, the legacy, to the extent
that it was executed in good faith, is nevertheless valid and effective.
3. If it is the executor or administrator who died, the right of choice is not transferred to his heirs but rather to
his successor in such office.

Art. 944.

1. A legacy for education lasts until the legatee is

a. of age, or
b. beyond the age of majority
i. in order that the legatee may finish some professional, vocational or general course,
ii. provided he pursues his course diligently.
2. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.
a. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the
i. social standing and the circumstances of the legatee and
ii. the value of the estate.
b. If the testator or during his lifetime used to give the legatee a certain sum of money or other
things by way of support, the same amount shall be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate.

Comments:

1. Support includes sustenance, dwelling, clothing, medical attendance and transportation expense.

Art. 945.

1. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of the testator, and for the following ones
which shall be due at the beginning of each period;
2. Such payment shall not be returned, even though the legatee should die before the expiration of the period
which has commenced.

Comments:

1. The legatee cannot demand its payment until after the court has issued an order of distribution. The
distribution is done only after the debts and expenses of administration have been paid.
2. There being suspension of the payments of the pensions, until all debts and obligations have been paid by the
estate, the legatee is entitled to recover all the arrears in the pensions when the court finally orders the
payment.

Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right
until it is legally extinguished.

Comments:

58
 1. Ground for extinguishment of usufruct:
a. Death of usufructuary unless a contrary intention clearly appears
b. Expiration of the period for which it was constituted, or by the fulfilment od the resolutory condition
provided in the title creating the usufruct
c. Merger of the usufruct and ownership in the same person
d. Renunciation of usufructuary
e. Total loss of the thing in usufruct
f. Termination of the right of the person constituting the usufruct
g. presciption

Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the
testator, and transmits it to his heirs.

Art. 948.

1. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of the testator, as well as
a. any growing fruits, or
b. unborn offspring of animals, or
c. uncollected income; but not the income which was due and unpaid before the latter's death.
2. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or
devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or
improvement, without prejudice to the responsibility of the executor or administrator.

Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits
and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator
has expressly so ordered.

Comment:

1. Interest on legacy of money shall be due from the time of judicial or extrajudicial demand at the legal rate.

Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in
the following order:

1. Remuneratory legacies or devises;

2. Legacies or devises declared by the testator to be preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific, determinate thing which forms a part of the estate;
6. All others pro rata.

Comments:

1. Remuneratory devises or legacies – moral obligations of the testator. Intended to compensate services of
certain persons which services do not constitute revocable debts. E.g. a friend attends to the needs of the
testator during his sickness without any salary. He may be given by the testator remuneratory devise or
legacy
2. Specific things not part of the estate are not contemplated in the 4 th priority. Though it may be valid under art.
931, it does not enjoy preference.

Art. 951. The thing bequeathed shall be delivered

1. with all its accessories and accessories and

2. in the condition in which it may be upon the death of the testator.

Art. 952.

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 1. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the
very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.
2. Legacies of money must be paid in cash, even though the heir or the estate may not have any.
***personal property may be sold. If still not sufficient, real properties may be sold thereafter.
3. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or
the estate, but without prejudice to the legitime.

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

Art. 954.

1. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter
be onerous.
2. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may
accept and the others may repudiate the share respectively belonging to them in the legacy or devise.

Comments:

1. There is no prohibition in accepting the onerous part and accepting the gratuitous part.
2. 2nd paragraph contemplates death of the devisee or legatee after the death of the testator since heirs of
voluntary heirs don’t have right of representation.

Art. 955.

1. The legatee or devisee of two legacies or devises,

a. one of which is onerous - cannot renounce the onerous one and accept the other.
b. both are onerous or gratuitous - he shall be free to accept or renounce both, or to renounce
either.
i. EXPN: if the testator intended that the two legacies or devises should be inseparable
from each other, the legatee or devisee must either accept or renounce both.
2. Any compulsory heir who is at the same time a legatee or devisee may
a. waive the inheritance and accept the legacy or devise, or
b. renounce the latter and accept the former, or
c. waive or accept both.

Art. 956. If the legatee or devisee (1)cannot or is unwilling to accept the legacy or devise, or (2)if the legacy or
devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of

1. substitution and
2. right of accretion.

Comment:

1. Grounds for ineffectivity of a devise or legacy:

a. Incapacity if devisee or legatee to inherit
b. Incapacity to receive or when unwilling to accept
c. Repudiation
d. Devise or legacy is without effect (Art 957)

Art. 957. The legacy or devise shall be without effect:

1. If the testator transforms the thing bequeathed in such a manner that it does not retain either the
form or the denomination it had;

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 2. If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall be without effect only with respect to the part
thus alienated.
a. If after the alienation the thing should again belong to the testator, even if it be by reason of
nullity of the contract, the legacy or devise shall not thereafter be valid,
i. EXPN: unless the reacquisition shall have been effected by virtue of the exercise of the
right of repurchase;
3. If the thing bequeathed is totally lost
a. during the lifetime of the testator, or
b. after his death without the heir's fault.

Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing
bequeathed should not have been determinate as to its kind, in accordance with the provisions
of Article 928.

Comments:

1. Transformation of the thing

a. Change must be in form and its name; e.g. Riceland excavated to become a fishpond
2. Alienation of the thing
a. If the alienation is not voluntary (e.g. there is vitiation of consent), this Article will not apply.
3. Total loss of the thing
a. If the loss is partial, the devise or legacy remains valid as to the remaining part of the thing
4. Other causes of revocation
a. Nonfulfillment of suspensive condition
b. Sale of the thing to settle debts of the deceased
c. Nullity of the will

Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to
identify the thing which the testator intended to bequeath or devise.

Art. 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in
favor of those nearest in degree.

Comments:

1. Relatives here pertains to that of the testator and not that of the spouse or others. Relationship here is by
blood and not by affinity.
2. Relatives must not go beyond 5th degree. (Art 1010)
3. Rule of proximity applies however, there is no preference between paternal and maternal lines or direct and
collateral lines. What is essential is that the nearest relatives are of equal degree from the testator.
4. The article applies only when the testamentary dispositions are made in general terms in favour of the
testator’s relatives
a. E.g. – I give my properties to all my relatives who bear my family name
b. Not a valid example – I give some of my properties to all who are entitled thereto. (disposition is not
in favour of relatives)
5. Right of representation is not applicable under this article.

Singson vs. Lim

1. Don Vicente Singson Pablo, a lawyer, died without any descend ant or ascendant, his nearest surviving
relatives being his widow, four brothers, and four nieces, the children of a de ceased sister. He left a will
which was duly probated, clause 8 of which provides that "all of my properties not disposed of otherwise in
this testament shall be distributed in equal parts to all who are entitled thereto." Article 751 of the Civil Code,
in turn, provides that "a disposition made in general terms in favor of the testator's relatives shall be
understood as made in favour of those nearest in degree." The authorities differ on the interpretation of

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article 751. Some hold that under said article the nephews and nieces inherit by representation to gether with
the brothers and sisters of the testator, as in legal succession; while others, Manresa among them, hold that
said article excludes nephews and nieces when brothers and sisters survive. Held: That the testator, by
referring to "all who are entitled thereto," instead of referring to his "relatives," precisely meant to avoid the
uncertainty of the interpretation of article 751 and to indicate his wish that the residue of his estate be
distributed in equal parts to all who would have been entitled to inherit from him had he died intestate.

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CHAPTER 3 - LEGAL OR INTESTATE SUCCESSION

SECTION 1. - General Provisions

Art. 960. Legal or intestate succession takes place:

1. If a person dies
a. without a will, or
b. with a void will, or
c. one which has subsequently lost its validity;
2. When the will does not
a. institute an heir to, or
b. dispose of all the property belonging to the testator - legal succession shall take place only with respect
to the property of which the testator has not disposed;
3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled
4. If the heir
a. dies before the testator, or
b. repudiates the inheritance,

there being no (1)substitution, and no (2)right of accretion takes place;

5. When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Comments:

1. Will subsequently lost its validity, example:

a. Repudiation by all instituted heirs
b. Revocation by testator
2. An instituted heir maybe incapacitated by
a. Acts of unworthiness (Art. 1032)
b. Disinheritance (Art 63, FC)
3. Before intestate heirs can inherit on the basis of the invalidity or ineffectivity of a will, there must first be a
declaration that the will is void or there was a positive disallowance thereof by the probate court. The
intestate heirs cannot just file a petition for the declaration as the owners of the estate.

Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set
forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.

Comment:

1. Order of intestate succession cannot be altered by agreement between heirs.

2. Order if intestate succession when the deceased is a legitimate child
a. Legitimate children and their descendants (Art. 985)
b. Legitimate parents and ascendants (Art. 985)
c. Illegitimate children(Art. 988)
d. Surviving spouse (Art. 995) without prejudice to right of brothers and sisters when they concur (Art.
1001)
e. Collateral relatives within 5th degree (Art. 1010)
f. State (Art. 1011)
3. Order of succession is successive and exclusive. However, the primary compulsory heirs (a,c,d) are never
excluded. They are always entitled to their legitimes. The secondary compulsory heirs (b) and collateral
relatives (e) are excluded by the presence of legitimate children and descendants.

Art. 962.

1. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of
representation when it properly takes place.

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 2. Relatives in the same degree shall inherit in equal shares, subject to the
a. provisions of article 1006 with respect to relatives of the full and half blood, and
b. Article 987, paragraph 2, concerning division between the paternal and maternal lines.

Comments:

1. Both under the rule of proximity and rule of equality, there is a superior law to follow – the rule of line
preference that is, the direct line is preferred to the collateral line. Eg. Between the sister of the deceased and
his grandmother, the latter will be the only one to inherit.
2. EXPN: Under Art. 959, a disposition made in general terms in favour of testator’s relatives shall be
understood to be in favour of those nearer in degree regardless of the line where the relatives come from. It is
the rule of proximity which prevails and not the rule of line preference.

Heirs of Pascasio Uriarte vs. Court of Appeals

1. A nephew is considered a collateral relative who may inherit if no descendant, ascendant, or spouse survive
the decedent.—Petitioners misappreciate the relationship between Justa and private respondent. As already
stated, private respondent is the son of Justa’s halfsister Agatonica. He is therefore Justa’s nephew. A nephew
is considered a collateral relative who may inherit if no descendant, ascendant, or spouse survive the
decedent. That private respondent is only a halfblood relative is immaterial. This alone does not
disqualify him from being his aunt’s heir. As the Court of Appeals correctly pointed out, “The determination
of whether the relationship is of the full or half blood is important only to determine the extent of the
share of the survivors.” (half blood relationship is not a factor in the determination of heirs)

SUBSECTION 1. - Relationship

Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree.

Comments:

1. If the tie which connects the persons by blood, the relationship is by consanguinity. Relationship by blood
may be legitimate or illegitimate.
2. The relationship is by affinity when it is established by marriage of a relative with another thereby making
the latter an in-law relation.

Art. 964. A series of degrees forms a line, which may be either direct or collateral.

1. A direct line is that constituted by the series of degrees among ascendants and descendants.
2. A collateral line is that constituted by the series of degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.

Art. 965. The direct line is either

1. Descending - unites the head of the family with those who descend from him
2. Ascending - binds a person with those from whom he descends

Comments:

1. 3 lines in succession:
a. Direct descending
b. Direct ascending
c. Collateral lines
2. Rule of Preference between lines in legal succession – those in the direct descending line, exclude those in the
direct ascending and collateral lines. Those in the direct ascending lines exclude those in the collateral lines.

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Art. 966.

1. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.
2. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the great-grandparent.
3. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first cousin, and so forth.

Art. 967.

1. Full blood relationship is that existing between persons who have the same father and the same mother.
2. Half blood relationship is that existing between persons who have the same father, but not the same mother,
or the same mother, but not the same father.

Art. 968. If there are

1. several relatives of the same degree, and

2. one or some of them are unwilling or incapacitated to succeed,

his portion shall accrue to the others of the same degree, save the right of representation when it should take
place.

Comments:

1. Under this article, the consequence of repudiation or incapacity to inherit is the accretion in favour of other
relatives of the same degree except when right of representation is proper. Note, however, that there is no
right of representation in repudiation.

Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in
their own right and cannot represent the person or persons repudiating the inheritance.

Comments:

1. In incapacity, the right of representation is not extinguished. Hence, if there are living representatives, they
will inherit as representatives and not in their own right. If all the nearest relatives are incapacitated to
inherit and they have no representatives, it naturally follows that the relatives in the next degree shall
inherit in their own right.
2. Under Art. 982, when all children are dead or incapacitated, the grandchildren will inherit by right of
representation (when proper) and not in their own right. They inherit per stirpes. By way of exception,
if all children repudiate, the grandchildren shall inherit in their own right as relatives next in degree.
3. Art 969 is an exception to Art 1018. Art. 1018 shall apply if there are several nearest relatives and one or
some but not all repudiate the inheritance.

SUBSECTION 2. - Right of Representation

Art. 970. Representation is a right created by fiction of law, by virtue of which

1. the representative is raised to the place and the degree of the person represented, and
2. acquires the rights which the latter would have if he were living or if he could have inherited.

Comments:

1. When is there right of representation?

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 Testamentary Succession (Compulsory
heir in the direct descending line)
1. Predeceased the testator (Art. 856)
2. Incapacitated to succeed (Art. 856)
3. Unworthiness (Art. 923)
4. Disinheritance
Intestate Succession
1. Predeceased the decedent (Art 981-982)
2. Incapacity (Art. 1035)
3. Unworthiness (Art. 1035)
*** items 1-3 applicable to legal heir in the direct descending line

4. Brothers or sisters (when there is no exclusion) had

predeceased the decedent and they had children or
descendants (Art 981 & 875)
5. Children representing their illegitimate parents, who
predeceased their parents, in the estate of their grandparents.
(Art 989)
6. When nephews and nieces inherit from their deceased uncles
or aunts (together with their surviving uncles and aunts) in
representation of their own deceased parents who are the full
brothers/sisters of the decedent. (Art 1005)

2. The representative can only represent a person immediately higher in degree. A person cannot represent his
grandparent for example.
3. A devisee or legatee maybe represented by his heirs if he died after the testator has died.
4. The adoptee has no right to represent the adopting parent in the inheritance of the latter’s parents or
ascendants. Effect of adoption is exlcusive and personal between the adoptee and adopter.

Sayson vs. Court of Appeals

1. While it is true that the adopted child shall be deemed to be a legitimate child and have the same rights as the
latter, these rights do not include the right of representation.—There is no question that as the legitimate
daughter of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel has a right to represent her
deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, quoted
above, she is entitled to the share her father would have directly inherited had he survived, which shall be
equal to the shares of her grandparents' other children. But a different conclusion must be reached in the case
of Delia and Edmundo, to whom the grandparents were total strangers. While it is true that the adopted child
shall be deemed to be a legitimate child and have the same rights as the latter these rights do not include the
right of representation. The relationship created by the adoption is between only the adopting parents and
the adopted child and does not extend to the blood relatives of either party.

Bagunu vs. Piedad

1. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring
with their uncles or aunts, the rule of proximity, expressed in Article 962 of the Civil Code, is an
absolute rule.—The right of representation does not apply to “other collateral relatives within the fifth civil
degree” (to which group both petitioner and respondent belong) who are sixth in the order of preference
following,
a. firstly, the legitimate children and descendants,
b. secondly, the legitimate parents and ascendants,
c. thirdly, the illegitimate children and descendants,
d. fourthly, the surviving spouse, and
e. fifthly, the brothers and sisters/nephews and nieces, of the decedent.

Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with
their uncles or aunts, the rule of proximity, expressed in Article 962, aforequoted, of the Code, is an
absolute rule. In determining the degree of relationship of the collateral relatives to the decedent, Article
966 of the Civil Code gives direction.

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 2. Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a
relative of the fifth degree, from succeeding ab intestatoto the estate of thedecedent.
3. The law means only that among the other collateral relatives (the sixth in the line of succession), no
preference or distinction shall be observed “by reason of relationship by the whole blood.” In fine, a maternal
aunt can inherit alongside a paternal uncle, and a first cousin of the full blood can inherit equally with a first
cousin of the half blood, but an uncle or an aunt, being a third degree relative, excludes the cousins of the
decedent, being in the fourth degree of relationship the latter, in turn, would have priority in succession to a
fifthdegree relative.

Art. 971.

1. The representative is called to the succession by the law and not by the person represented.
2. The representative does not succeed the person represented but the one whom the person represented
would have succeeded.

Art. 972.

1. The right of representation takes place in

a. the direct descending line, but never in the ascending
b. in the collateral line, only in favor of the children of brothers or sisters, whether they be of the
full or half blood.

Comments:

1. In the direct descending line, representation is unlimited so long as the representative is representing a relative
who is immediately higher in degree.
2. In the collateral line, representation does not go beyonf the nephews and nieces. Consequently, grand nephews
and grandnieces are excluded.
3. The limit of representation in the collateral line is not applicable in testamentary succession since brothers and
sisters are not compulsory heirs.

Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of
succeeding the decedent.

Comments:

1. The representative inherits directly from the decedent and not from the person represented and therefore,
his capacity to succeed is determined in his relation with the decedent and not within the person he
represents. If he is not qualified to inherit from the decedent by reason of unworthiness for instance, he
cannot represent the supposed heir.

Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in
such manner that the representative or representatives shall not inherit more than what the person they represent
would inherit, if he were living or could inherit.

Art. 975.

1. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the
latter by representation, if they survive with their uncles or aunts.
2. But if they alone survive, they shall inherit in equal portions. (division not per stirpes)

Comments:

1. Art. 975 vs. Art. 982 – In the direct descending line, when the grandchildren survive alone without uncles and
aunts, they inherit per stirpes. They inherit by representation and not by their own right.

Art. 976. A person may represent him whose inheritance he has renounced.

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Comments:

1. Renouncer’s right to represent is not lost by his renunciation. A son, for example, who repudiated the
inheritance he is supposed to receive from his father, is not precluded from representing his father in the
estate of the grandfather. The representative does not succeed the person represented but the one whom
the person represented would have succeeded.
2. While the article speaks only of renunciation, the following should be also deemed included applying the
principle discussed above:
a. Incapacity
b. Unworthiness
c. Disinheritance

The representative may be unworthy, incapacitated or disinherited with regard to the person to be
represented, but so long as he is not so with respect to the decedent to whom he succeeds, he retains the
right of representation.

Art. 977. Heirs who repudiate their share may not be represented.

SECTION 2. - Order of Intestate Succession

SUBSECTION 1. - Descending Direct Line

Art. 978. Succession pertains, in the first place, to the descending direct line.

Comments:

Deceased is legitimate child Deceased is illegitimate child

1. Legitimate children and their legitimate 1. Legitimate children and their legitimate
descendants descendants
2. Legitimate parents and other ascendants 2. Illegitimate children and other descendants,
3. Illegitimate children and their descendants, whether legitimate or illegitimate
whether legitimate or illegitimate 3. Illegitimate parents (ascendants of illegitimate
4. Surviving spouse, without prejudice to the parents not included)
rights of brothers and sisters, nephews and 4. Surviving spouse; If the widow or widower
nieces if there be any should survive with brothers and sisters,
5. Collateral relatives upto 5th degree nephews and nieces, she or he shall inherit
6. State one-half of the estate, and the latter the other
half. (art 994 par 2)
5. State

Art. 979.

1. Legitimate children and their descendants succeed the parents and other ascendants, without distinction
as to sex or age, and even if they should come from different marriages.
2. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate
child.

Comments:

1. Adopted children are no longer prohibited from representing the adopting parents in the inheritance of the
latter’s parents or ascendants. And if preterited, the institution of heirs is nullified. If they concur alone with
the parents/ascendants of the deceased adopter, the said parents/ascendants are excluded from the
inheritance.

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Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance
in equal shares.

Comment:

1. EXPN to this article is concurrence of legitimate and illegitimate children wherein the latter will inherit only
half of the share of the former.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former
shall inherit in their own right, and the latter by right of representation.

Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of
them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in
equal portions. (cw art 975)

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the
proportions prescribed by Article 895. (half of the share of the legitimate child)

Comment:

1. The system of legitime also applies to intestate succession in this particular concurrence. However, in no case
will the shares of the illegitimate children when they happened to be many, exceed the imaginary free
portion. Otherwise, the shares of the legitimate children and spouse will be prejudiced.

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs.

Comments:

1. This article is already repealed.

2. Adopters are made intestate or legal heirs of the adopted, if the latter died without any legitimate children.
3. The biological parents have ceased to be intestate heirs of the adopted child as long as the adoption has not
been rescinded by the adopted child.

SUBSECTION 2. - Ascending Direct Line

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall
inherit from him, to the exclusion of collateral relatives.

Comment:

1. Ascendants contemplated are legitimate ascendants the succession of illegitimate ascendants is covered by
Art. 993 and 994.

Art. 986.

1. The father and mother, if living, shall inherit in equal shares.

2. Should one only of them survive, he or she shall succeed to the entire estate of the child.

Art. 987.

1. In default of the father and mother, the ascendants nearest in degree shall inherit.
2. Should there be more than one of equal degree belonging to the same line they shall divide the
inheritance per capita;

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 3. Should they be of different lines but of equal degree, one-half shall go to the paternal and the other half
to the maternal ascendants. In each line the division shall be made per capita.

SUBSECTION 3. - Illegitimate Children

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the
entire estate of the deceased.

Comments:

1. The term illegitimate children covers all children conceived and born outside a valid marriage.
2. This article presupposes that there are no other intestate heirs. For instance, if the surviving spouse concurs
with illegitimate children, the former gets ½ of the estate while the latter gets the other half.

Castro vs. Court of Appeals

1. For an illegitimate child other than natural to inherit, she must first be recognized voluntarily or by Court
action. - Under the Civil Code, for an illegitimate child other than natural to inherit, she must first be
recognized voluntarily or by court action. This arises from the legal principle that an unrecognized spurious
child like a natural child has no rights from her parents or to their estate because her rights spring not from
the filiation or blood relationship but from the child’s acknowledgment by her parent. In other words, the
rights of an illegitimate child arose not because she was the true or real child of her parents but because
under the law, she had been recognized or acknowledged as such a child.

Gonzales vs. Court of Appeals

1. The presence of illegitimate children of the deceased precludes succession by collateral relatives to his
estate.—With the finding that private respondents are the illegitimate children of Ricardo Abad, petitioners
are precluded from inheriting the estate of their brother. The applicable provisions are: Art. 988. In the
absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of
the deceased. Art. 1003. If there are no . . . illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is
dead, the former shall succeed in their own right and the latter by right of representation.

Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted
upon their death to their descendants, who shall inherit by right of representation from their deceased
grandparent.

Comments:

1. The general rule is that representation takes place only in favour of legitimate descendants. Thus, an
illegitimate child is not allowed to represent his/her father or mother in succession of the latter’s legitimate
parents. This barrier is based on Art. 992.
2. The Code has provided exceptions. An illegitimate child can now represent his father or mother provided said
parents are also illegitimate children of the decedent. Representation is allowed only if the line if totally
illegitimate.
3. However, a legitimate child can always represent a predecessor whether the latter is legitimate or
illegitimate.

Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking
one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

Art. 992.

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 1. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father
or mother;
2. nor shall such children or relatives inherit in the same manner from the illegitimate child.

Diaz vs. Intermediate Appellate Court

1. Right of representation, not available to illegitimate descendants of legitimate children in the inheritance of a
legitimate grandparent.—Articles 902, 989, and 990 clearly speak of successional rights of illegitimate
children, which rights are transmitted to their descendants upon their death. The descendants (of these
illegitimate children) who may inherit by virtue of the right of representation may be legitimate or
illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are
themselves illegitimate. The three named provisions are very clear on this matter. 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 legitimate child is
entitled to represent by virtue of the provisions of Article 982, which provides that “the grand children and
other descendants shall inherit by right of representation.” Such a conclusion is erroneous. It would allow
intestate succession by an illegitimate child to the legitimate parent of his father or mother, 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 children
and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and
Article 992 the exception.
2. The determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be
represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent
him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him
because the law provides that only his legitimate descendants may exercise the right of representation by
reason of the barrier imposed in Article 992.
3. The term “relatives” as used in Art. 992 embraces not only collateral relatives but all the kindred of the
person spoken of.
4. It is therefore clear from Article 992 of the New Civil Codethat the phrase “legitimate children and relatives of
his father or mother” includes Simona Pamuti Vda. de Santero(legitimate mother of the illegitimate father of
the herein petitioners) as the word “relative” is broad enough to comprehend all the kindred of the person
spoken of.

Corpus vs. Corpus

1. No reciprocal succession between legitimate and illegitimate relatives; Reasons for rule.—Since Teodoro R.
Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate
child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action
for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco’s
estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between
legitimate and illegitimate relatives. Article 943 “prohibits all successory reciprocity mortis causa between
legitimate and illegitimate relatives.” The rule in Article 943 is now found in article 992 of the Civil Code
which provides that “an illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother, nor shall such children or relatives inherit in the same manner from the
illegitimate child”. That rule is based on the theory that the illegitimate child is disgracefully looked upon by
the legitimate family while the legitimate family is, in turn, hated by the illegitimate child.
2. Halfbrothers who are legitimate had no right to succeed to the estate of an illegitimate child under the rules of
intestacy; Rule that a legitimate child cannot succeed to the estate of an illegitimate child applicable in other
cases.— Under articles 944 and 945 of the Spanish Civil Code, “if an acknowledged natural or legitimated
child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged
such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from
it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded
by their natural brothers and sisters in accordance with the rules established for legitimate brothers and
sisters”. Hence, Teodoro R. Yangco’s half brothers on the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy. Following the rule in article 992, formerly article 943, it was

71
 held that the legitimate relatives of the mother cannot succeed her illegitimate child. x x x By reason of that
same rule, the natural child cannot represent his natural father in the succession to the estate of the
legitimate grandparent. The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate
brother of her natural mother.

De La Puerta vs. Court of Appeals

1. May Carmelita de la Puerta claim support and successional rights to the estate of Dominga Revuelta? The
answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not
predecease his mother; and the second is that Carmelita is a spurious child.
2. In testamentary succession, the right of representation can take place only in the following cases: first, when
the person represented dies before the testator; second, when the person represented is incapable of
succeeding the testator; and third, when the person represented is disinherited by the testator. In all of these
cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person
represented to succeed by right of representation.
3. Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his
own right. No right of representation was involved, nor could it be invoked by Carmelita upon her father’s
death, which came after his own mother’s death. It would have been different if Vicente was already dead
when Dominga Revuelta died. Carmelita could then have inherited from her in representation of her father
Vicente, assuming the private respondent was a lawful heir.
4. But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from
Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and
illegitimate families.
5. Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for
there would be no natural kindred ties between them and consequently, no legal ties to bind them either.
6. The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the
intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and
inheritance should therefore be filed in the proceedings for the settlement of her own father’s estate24 and
cannot be considered in the probate of Dominga Revuelta’s will.

Pascual vs. PascualBautista

1. Applicability of Article 992 of the Civil Code to acknowledged natural children - Eligio Pascual is a legitimate
child but petitioners are his illegitimate children. IAC did not err in holding that petitioners herein cannot
represent their father Eligio Pascual in the succession of the latter to the intestate estate of the decedent
Andres Pascual, full blood brother of their father.
2. Clearly the term “illegitimate” refers to both natural and spurious. Finally under Article 176 of the Family
Code, all illegitimate children are generally placed under one category, which undoubtedly settles the issue as
to whether or not acknowledged natural children should be treated differently, in the negative.

Manuel vs. Ferrer

1. Art. 992 enunciates what is so commonly referred to in the rules on succession as the “principle of absolute
separation between the legitimate family and the illegitimate family.”—Article 992, a basic postulate,
enunciates what is so commonly referred to in the rules on succession as the “principle of absolute separation
between the legitimate family and the illegitimate family.” The doctrine rejects succession a intestato in the
collateral line between legitimate relatives, on the one hand, and illegitimate relatives, on other hand,
although it does not totally disavow such succession in the direct line. Since the rule is predicated on the
presumed will of the decedent, it has no application, however, on testamentary dispositions.
2. When the law speaks of brothers and sisters, nephews and nieces as legal heirs of an illegitimate child, it
refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such
brothers and sisters
3. Law on succession is animated by a uniform general intent, and no part should be rendered inoperative by,
but must be construed in relation to, any other part as to produce a harmonious whole.—The rule in Article
992 has consistently been applied by the Court in several other cases. Thus, it has ruled that

72
 a. where the illegitimate child had half brothers who were legitimate, the latter had no right to the
former’s inheritance;
b. the legitimate collateral relatives of the mother cannot succeed from her illegitimate child;
c. a natural child cannot represent his natural father in the succession to the estate of the legitimate
grandparent;
d. the natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother
of her natural father; and
e. an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of
his father.

Indeed, the law on succession is animated by a uniform general intent, and thus no part should be
rendered inoperative by, but must always be construed in relation to, any other part as to produce a
harmonious whole.

Art. 993.

1. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; and
2. The mother and father shall inherit from their illegitimate child share and share alike
a. If the child's filiation is duly proved as to both parents,
b. Both are living

Comment:

1. A putative parent who has not recognized his/her illegitimate child has no right to inherit from the latter.
Similarly, in the absence of due recognition, an illegitimate child cannot inherit from the supposed putative
parent.
2. Art. 993 limits the succession to the father or mother. Other ascendants are not entitled to inherit from an
illegitimate child.

Art. 994.

1. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse
who shall be entitled to the entire estate.
2. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall
inherit one-half of the estate, and the latter the other half.

Comment:

1. There is no provision when brothers, sisters, nephews and nieces survive alone. If they survive alone, it is
logical for them to receive the entire estate, otherwise, an absurdity will arise.
2. No other collateral relatives are legal heirs of an illegitimate child because of the barrier in Art. 992

SUBSECTION 4. - Surviving Spouse

Art. 995. The surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters,
nephews and nieces, should there be any, under article 1001, in the absence of

1. legitimate descendants and ascendants, and

2. illegitimate children and their descendants, whether legitimate or illegitimate

Comment:

1. Whether marriage is in articulo mortis or not does not matter in intestate succession.

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Art. 996 - 1001

Legal Heir concurring with Surviving Spouse / Share in the Inheritance Share of the
Surviving Spouse
1. legitimate children or descendants (Art. 996) same share as that of
each of the children
2. legitimate parents or ascendants (Art. 997) ½ of the estate ½ of the estate
3. illegitimate children or their descendants (Art. 998) ½ of the estate ½ of the estate
4. a. legitimate children or their descendants; and same share as that of a
b. illegitimate children or their descendants (Art. 999) legitimate child
5. a. legitimate ascendants; and ½ of the estate ¼ of the estate
b. illegitimate children (Art. 1000)** ¼ of the estate
6. brothers and sisters or their children(nephews/nieces) (Art. ½ of the estate ½ of the estate
1001)***
** if only legitimate ascendants and illegitimate children survive, the former shall take ½ of the estate and the latter
will take the other half. (Art 991)

***applicable also if the decedent is illegitimate survive by spouse and brothers/sisters and/or nephews/nieces (Art.
994 2nd par)

Comments:

1. Art 996
a. also applicable even if there is only one legitimate child concurring with the surviving spouse. In such
case, each will have ½ estate.
b. When there is legacy given and intestacy is effected to the remaining estate, the legacy shall be deducted
from the share of the spouse because her legitime is less than that of legitimate children. Of course, the
legacy will be inofficious to the extent of its impairment to the legitime.
2. Art. 999 is not applicable when there is only one legitimate child because nothing will be left for the
illegitimate children.
3. Art. 1000 – In case of partial intestacy, the legacy or devise shall be deducted from or charged to the share of
the surviving spouse without however impairing his or her legitime of 1/8 of the estate.
4. Art 1001
a. If legitimate parents survive with spouse and brothers and sisters of the decedent, the brothers and
sisters are excluded in succession.
b. Children, whether legitimate or illegitimate, exclude brothers or sisters in succession.
c. In case of partial intestacy, the legacies and devises shall be charged to the brothers or sisters of their
children. The reason is that the surviving spouse is the only compulsory heir mentioned in Art. 1001.

Tison vs. Court of Appeals

1. Where a decedent is survived by the spouse and nephews and nieces, the former shall be entitled to onehalf
of the inheritance and the nephews and nieces to the other half.—Upon the death of Teodora Dezoller
Guerrero, onehalf of the subject property was automatically reserved to the surviving spouse, Martin
Guerrero, as his share in the conjugal partnership. Applying the aforequoted statutory provisions, the
remaining half shall be equally divided between the widower and herein petitioners who are entitled to
jointly inherit in their own right. Hence, Martin Guerrero could only validly alienate his total undivided
threefourths (3/4) share in the entire property to herein private respondent. Resultantly, petitioners and
private respondent are deemed coowners of the property covered by Transfer Certificate of Title No. 374012
in the proportion of an undivided onefourth (1/4) and threefourths (3/4) share thereof, respectively

Verdad vs. Court of Appeals

1. Private respondent, even if a mere relative by affinity, has a right to the property in her capacity as a legal heir
of her husband, part of whose estate is a share in his mother’s inheritance.—We rule that Socorro can. It is
true that Socorro, a daughterinlaw (or, for that matter, a mere relative by affinity), is not an intestate heir of

74
 her parentsinlaw; however, Socorro’s right to the property is not because she rightfully can claim heirship in
Macaria’s estate but that she is a legal heir of her husband, David Rosales, part of whose estate is a share in
his mother’s inheritance.
2. David Rosales, became a coowner of his mother’s estate upon the death of the latter, who later upon his
death, passed on to his widow, private respondent, his own estate including his undivided interest over the
estate of his mother.— David Rosales, incontrovertibly, survived his mother’s death. When Macaria died on
08 March 1956 her estate passed on to her surviving children, among them David Rosales, who thereupon
became coowners of the property. When David Rosales himself later died, his own estate which included his
undivided interest over the property inherited from Macaria, passed on to his widow Socorro and her coheirs
pursuant to the law on succession.

Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not
have any of the rights granted in the preceding articles.

Cacho vs. Udan

1. Collateral relatives excluded by children of intestate.—Collateral relatives of one who died intestate inherit
only in the absence of descendants, ascendants, and illegitimate children. Albeit the brothers and sisters can
concur with the widow or widower under Article 1101 of the Civil Code, they do not concur, but are excluded
by the surviving children, legitimate or illegitimate
2. Legitimate relatives of mother cannot succeed her illegitimate child.
3. The trial court, therefore, committed no error in holding that John and Rustico Udan had no standing to
oppose the probate of the will. For if the will is ultimately probated John and Rustico are excluded by its
terms from participation in the estate; and if probate be denied, both Oppositorsappellants will be excluded
by the illegitimate son, Francisco Udan, as sole intestate heir, by operation of law.
4. 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, as correctly decided by the court below, the
legitimate relatives of the mother cannot succeed her illegitimate child.

Intestate vs. Testate Succession

Intestate Succession Testate Succession

Heir concurring with
Surviving Spouse
legitimate children or
1 of each of the
descendants (Art. 996)
Share of the
Share in the Legitime of the Legitime of the
Surviving Spouse
Inheritance concurring heir Surviving Spouse
in the Inheritance
only one legitimate
child or descendant ¼ of the hereditary
survived - ½ of the estate
same share as that hereditary estate
two or more
equal to the legitime
children legitimate children
of each of the
or descendants
legitimate children
survived - ½ of the
or descendants
hereditary estate

legitimate parents or ½ of the hereditary ¼ of the hereditary

2 ½ of the estate ½ of the estate
ascendants (Art. 997) estate estate

illegitimate children or
1/3 of the 1/3 of the
3 their descendants (Art. ½ of the estate ½ of the estate
hereditary estate hereditary estate
998)

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 a. legitimate children
or their descendants; and same share as that Same as rule 1 above and the illegitmate
4 b. illegitimate children of a legitimate child shall be entitled to 1/2 of the legitime
or their descendants (Art. child of a legitime child
999)

a. legitimate ½ of the hereditary

½ of the estate 1/8 of the
ascendants; and estate
5 ¼ of the estate hereditary
b. illegitimate children ¼ of the hereditary estate
¼ of the estate
(Art. 1000)** estate

brothers and sisters or

their
6 ½ of the estate ½ of the estate -nil- 1/2 of the estate
children(nephews/nieces
) (Art. 1001)***

Share in the inheritance under Share in the legitime under testate

intestate succession succession
a. legitimate ascendants; ½ of the estate ½ of the estate
and
½ of the estate ¼ of the estate
b. illegitimate children

SUBSECTION 5. - Collateral Relatives

Art. 1003. The collateral relatives shall succeed to the entire estate of the deceased in accordance with the following
articles, if there are no

1. descendants,
2. ascendants,
3. illegitimate children, or
4. surviving spouse

Comment:

1. The rule of proximity must be considered in determining who among the collaterals will inherit.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are
the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance
with the rules laid down for the brothers and sisters of the full blood. (CW Art, 975,1005 & 1006)

Art. 1009.

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 1. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
2. The latter shall succeed without distinction of lines or preference among them by reason of relationship
by the whole blood.

Comment:

1. Other collateral relatives are excluded by nephews and nieces, even if they are equally distant in degree to the
deceased (e.g. aunts, uncles, etc.)

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the
collateral line.

SUBSECTION 6. - The State

Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate.

Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be observed.

Comment:

1. Before the state could take possession of the property, there must first be an escheat proceeding. Escheat s
the succession by the state of the ownerless properties due to lack of qualified legal heirs. Being an attribute
of sovereignty, it rests on the principle that ultimately it is the state that owns all the properties within its
territorial jurisdiction.

Art. 1013.

1. After the payment of debts and charges, the

a. personal property shall be assigned to the municipality or city where the deceased last resided in
the Philippines, and
b. real estate to the municipalities or cities, respectively, in which the same is situated.
2. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective
municipalities or cities where the same is located.
3. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in
such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary
may warrant.
4. The court, at the instance of an interested party, or on its own motion, may order the establishment of a
permanent trust, so that only the income from the property shall be used.

Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the
court within five years from the date the property was delivered to the State,

1. such person shall be entitled to the possession of the same, or

2. if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have
been lawfully spent.

Sarita vs. Candia

1. The plaintiff who joins as the representative of his grandfather in a complaint with others, who are brothers
and nephews of the predecessor in interest lacks such right of representation, for it belongs in the collateral
line only to the nephews and not to the grandnephews. Hence, a sister and nephews of the de ceased having

77
 appeared to claim the inheritance, they, as the nearest of kin, exclude such a remoter relative as the
grandnephew.

Government Service Insurance System vs. Custodio

1. Division of estate per stirpes; Right of representation; Distribution of retirement benefits of a deceased GSIS
retiree; Case at bar.—In the case at bar, the deceased GSIS retiree, Simeon Custodio, had one (1) sister,
appellee Susana Custodio, and three (3) brothers, namely, Vicente, Crispin and Jacinto, who had predeceased
him; that the appellants are the children of these brothers; that two (2) among these children are both named
"Macario (Macario A. and Macario C.); that the children, Macario C., Luisa, and David Custodio, did not sign the
deed of extrajudicial settlement; and that Macario C. is the only child of Crispin, while Luisa and David are two
(2) of the six (6) children of Jacinto. From her opposition to the motion for reconsideration dated 20 April
1960, appellee Susana Custodio made clear her nonopposition to the division of the estate where Macario C.,
Luisa and David would share per stirpes. Held: The intestate heirs, Macario C., Luisa and David Custodio, who
did not sign the deed of extrajudicial settlement, cannot be considered as having recognized Susana Custodio
as the only beneficiary of Simeon's retirement money. There is no evidence, the case having been submitted
for decision below solely on a stipulation of facts, that these nonsignatory heirs had agreed, or accepted other
benefits under the deed of partition, as appellee now claims. Susana Custodio did not oppose their separate
motion for reconsideration and, actually, even prayed that said motion be granted, although the court denied
it just the same. These three (3) heirs should inherit per stirpes, in accordance with Article 1005 of the Civil
Code. As Macario C. Custodio (as distinguished from Macario A., who signed the agreement) is the only child
of Crispin, said Macario C. inherits by representation the onefourth (1/4) share pertaining to his father, while
Luisa and David Custodio, being two (2) of six (6) children of Jacinto, are each entitled to a sixth of onefourth
(1/6 x 1/4) equivalent to 1/24 of the hereditary mass.

AbellanaBacayo vs. FerrarisBorromeo

1. Collateral relatives excluded by nephews and nieces.—A decedent’s uncles and aunts may not succeed ab
intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed.
2. When collaterals entitled to succession.—The absence of brothers, sisters, nephews and nieces of the
decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession.
3. Degree of relationship of collateral relatives to the deceased.—An aunt of the deceased is as far distant as the
nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong,
degrees are counted by first ascending to the common ancestor and then descending to the heir
4. When nephews and nieces inherit by right of representation.—Nephews and nieces alone do not inherit by
right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased.

Bicomong vs. Almanza

1. In the absence of descendants, ascendants, illegitimate children or a surviving spouse, collateral relations
succeed to the entire estate of the deceased; Nephews and nieces. —In the absence of descendants,
ascendants, illegitimate children, or a surviving spouse, Article 1003 of the New Civil Code provides that
collateral relatives shall succeed to the entire estate of the deceased. It appearing that the decedent 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 ten (10) children of
her brother and two (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. This Court held that “nephews and nieces alone do not inherit by right of representation (that is per
stirpes) unless concurring with brothers or sisters of the deceased.”

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 2. Nephews and nieces entitled to inherit in their own right; Nephew or niece of full blood entitled to inherit
share double that of the nephew or niece of half blood.—Under Art. 975, which 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 nieces of half blood. The only difference in their right of succession is
provided in Art. 1008, N. C. C, in relation to Article 1006 of the New Civil Code which provisions, in effect,
entitle the sole niece of full blood to a share double that of the nephews and nieces of half blood. Such
distinction between whole and half blood relationships with the deceased has been recognized

Fernandez vs. Fernandez

1. While one’s legitimacy can be questioned only in a direct action seasonably filed by the proper party, this
doctrine has no application in a case where the allegation by one party is that a person claiming to be a child
of the deceased spouses was not born to said deceased persons.—It must be noted that the respondents’
principal action was for the declaration of absolute nullity of two documents, namely: deed of extrajudicial
partition and deed of absolute sale, and not an action to impugn one’s legitimacy. The respondent court ruled
on the filiation of petitioner Rodolfo Fernandez in order to determine Rodolfo’s right to the deed of
extrajudicial partition as the alleged legitimate heir of the spouses Fernandez. While we are aware that one’s
legitimacy can be questioned only in a direct action seasonably filed by the proper party, this doctrine has no
application in the instant case considering that respondents’ claim was that petitioner Rodolfo was not born
to the deceased spouses Jose and Generosa Fernandez; we do not have a situation wherein they
(respondents) deny that Rodolfo was a child of their uncle’s wife.
2. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to
such person.—Considering the foregoing findings, petitioner Rodolfo is not a child by nature of the spouses
Fernandez and not a legal heir of Dr. Jose Fernandez, thus the subject deed of extrajudicial settlement of the
estate of Dr. Jose Fernandez between Generosa vda. de Fernandez and Rodolfo is null and void insofar as
Rodolfo is concerned pursuant to Art. 1105 of the New Civil Code which states: “A partition which includes a
person believed to be an heir, but who is not, shall be void only with respect to such person.”
3. A contract cannot be assailed by one who is not a party obliged principally or subsidiarily under a contract
but when a contract prejudices the rights of a third person, he may exercise an action for nullity of the
contract if he is prejudiced in his rights with respect to one of the contracting parties, and can show detriment
which would positively result to him from the contract in which he had no intervention.—As a rule, a contract
cannot be assailed by one who is not a party obliged principally or subsidiarily under a contract. However,
when a contract prejudices the rights of a third person, he may exercise an action for nullity of the contract if
he is prejudiced in his rights with respect to one of the contracting parties, and can show detriment which
would positively result to him from the contract in which he had no intervention. As we have discussed
above, respondents are entitled to the 1/4 of the entire conjugal property, i.e., lot and building; however
considering that widow Generosa, during her lifetime sold the entire building to petitioner Eddie Fernandez,
respondents had been deprived of their 1/4 share therein, thus the deed of sale was prejudicial to the interest
of respondents as regards their 1/4 share in the building. Respondents therefore, have a cause of action to
seek the annulment of said deed of sale.

City of Manila vs. Archbishop of Manila.

1. Under the provisions of section 750 of Act No. 190 property may be declared escheated when a person dies
intestate, seized of real or personal property, leaving no heir or person by law entitled to the same. In the
present case the deceased disposed of her property by a will and left heirs entitled to inherit the same. The
will clearly, definitely and unequivocally designated what disposition should be made of the property in
question. The property in question is still being administered in accordance with the terms of the will for the
benefit of the real beneficiary as was intended by the original owner.

CHAPTER 4 - PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS

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SECTION 1. - Right of Accretion

Art. 1015. Accretion is a right by virtue of which,

1. when two or more persons are called to the same inheritance, devise or legacy,
2. the part assigned to the one who
a. renounces or
b. cannot receive his share, or
c. who died before the testator,
3. is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.

Comments:

1. Other causes of vacancy:

a. Non-fulfilment of suspensive condition which is tantamount to incapacity
b. Void or ineffective testamentary disposition such as when there is failure to identify one heir, but the
others are identifiable.
2. Elements of accretion (PUVA)
a. Plurality of subjects – 2 or more heirs
b. Unity of object – there is one inheritance where subjects are called to succeed
c. Portion of inheritance is vacated
d. Acceptance of the vacated portion by the co-heirs.
3. Right of Representation vs. Accretion in testamentary and intestate succession

Cause/s Testate Intestate

Legitime Free Portion

1. Predecease Priority rights: Priority rights: Priority rights:
Incapacity 1. Right of 1. Right of substitution 1. Right of
Disinheritance representation 2. Right of accretion** representation
2. If there are no 3. If the 2 preceding rights can’t take 2. Legel heirs will
representatives, the place, the other heirs inherit in inherit in their own
other heirs will inherit their own right** right
in their own right
2. Repudiation Other heirs will inherit in ** the heirs must be instituted to Right of accretion will
their own right. (Note: receive the free portion, otherwise, take place except in case
accretion is not applicable intestacy will result. If the compulsory under Art. 969.
to legitime) heirs are designated only to receive
their legitime, there can be no right of
accretion of free portion in their
favour. (see example on page 468,
pineda)

Note:
1. there can’t be right of
representation with regard to the
free portion since a person
sharing in the free portion is
deemed a voluntary heir
2. however, if the voluntary heir
died after the testator died, he can
be represented

4. There can be no accretion when substitution or representation is proper.

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Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

1. That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso
(without designation of specific parts); and
2. That one of the persons thus called
a. die before the testator, or
b. renounce the inheritance, or
c. be incapacitated to receive it.

Comment:

1. Requisites of accretion:
a. 2 or more persons are called to the same inheritance without designation of specific parts
b. One of them predeceased, renounced or is incapacitated
c. Vacant portion occur in the inheritance
d. There are no substitution or representation
e. Acceptance by other heirs

Art. 1017.

1. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part,
do not identify it by such description as shall make each heir the exclusive owner of determinate
property, shall not exclude the right of accretion.
2. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of
accretion.

Comment:

1. Accretion will not arise only if the heir is not designated to be an exclusive owner of a determinate property.
2. “A” is instituted to receive P5M deposited in BPI. “B” is to receive P10M deposited in BDO. A repudiates. There
will be no accretions since the money is earmarked.

Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his
co-heirs.

Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they
inherit.

Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir
who renounced or could not receive it would have had.

Comment:

1. The exceptions under Art. 862 are applicable in this article namely:
a. Express stipulation of the testator that there will be no transmission of rights and obligations
b. Rights and obligations are personally applicable only to the original heirs.

Art. 1021.

1. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to
a. two or more of them, or
b. to any one of them and to a stranger.
2. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not
by the right of accretion.

Art. 1022. In testamentary succession, the vacant portion of the instituted heirs shall pass to the legal heirs of the
testator, who shall receive it with the same charges and obligations.

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 1. when the right of accretion does not take place; and
2. if no substitute has been designated

Comments:

1. There can be no right of accretion with regard to the legitime portion.

Torres and Lopez de Bueno vs. Lopez

1. When one of two joint heirs called by will to an inheritance without special designation of shares dies before
the testator, the part pertaining to such heir will, upon the subsequent death of the testator, go by accretion to
the coheir; and the additional circumstance that the predeceasing heir was, at the time of the making of the
will, disqualified to take, by reason of his being then the legal guardian of the testator with accounts unsettled,
does not make a case for intestate succession as to his part of the estate.
2. No testamentary provision shall be valid when made by a ward in favor of his guardian before the final
accounts of the latter have been approved. This provision is of undoubted application to the situation before
us; and the provision made in the will of Tomas Rodriguez In favor of Vicente F. Lopez must be considered
invalid, owing to the incapacity of the latter.
3. Accretion takes place in a testamentary succession, first, when two or more persons are called to the same
inheritance or the same portion thereof without special designation of shares; and, secondly, when one of the
persons so called dies before the testator or renounces the inheritance or is disqualified to receive it. In the
case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same
inheritance without special designation of shares. In addition to this, one of the persons named as heir has
predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at
the time of the testator's death. This article (982) is therefore also of exact application to the case in hand;
and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have
received in conjunction with her father if he had been alive and qualified to take, but also the half which
pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez
de Bueno entitled to the whole estate.

Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions
established for heirs.

SECTION 2. - Capacity to Succeed by Will of by Intestacy

Art. 1024.

1. Persons not incapacitated by law may succeed by will or ab intestato.

2. The provisions relating to incapacity by will are equally applicable to intestate succession.

Comments:

4. Persons here may either be a natural or juridical person.

5. Daf-mute, insane and some other handicapped person are limited in their capacity to act but are nevertheless
qualified to inherit.
6. Presumption is in favour of capacity to succeed.

Art. 1025.

1. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper.
2. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be
born later under the conditions prescribed in article 41.

Comment:

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 1. If the heir is a juridical person, it must have a juridical personality at the time of the death of the testator.
2. Heir instituted as heir before he is conceived at the time of the death of testator is incapacitated to succeed.
3. Art 41 FC: For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered
from the mother’s womb. However, if the foetus had an intrauterine life of less than 7 months, it is not
deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

Art. 1026.

1. A testamentary disposition may be made to the

a. State,
b. provinces,
c. municipal corporations,
d. private corporations,
e. organizations, or
f. associations for religious, scientific, cultural, educational, or charitable purposes.
2. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject to the same.

Art. 1027. The following are incapable of succeeding: (PRC GAP N)

1. The priest who heard the confession of the testator during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
2. The relatives of such priest or minister of the gospel within the fourth degree
3. The church, order, chapter, community, organization, or institution to which such priest or minister may
belong;
4. A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
5. Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
6. Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;
7. Individuals, associations and corporations not permitted by law to inherit.

Comments:

1. Confession is different from other sacraments. If what the priest extended is “extreme unction”, the priest is
not disqualified to succeed.
2. Relatives referred to above may either be by affinity or by blood.
3. Guardians referred to may either be guardian of the ward or guardian of the ward’s property.
4. With regard to attesting witnesses, Art.823 is an exception to the rule above.
5. This article, except for the last prohibition, applies only to testamentary succession.
6. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the
deceased spouse.

Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary
provisions.

***Art. 739. The following donations shall be void:

1. Those made between persons who were guilty of adultery or concubinage at the time of the donation;
2. Those made between persons found guilty of the same criminal offense, in consideration thereof;
3. Those made to a public officer or his wife, descedants and ascendants, by reason of his office.

Nepomuceno vs. Court of Appeals

83
 1. A devise given by a married man estranged from his wife for 22 years prior to his death, to a woman with
whom he has been living for said period of time is void.—Moreover, the prohibition in Article 739 of the Civil
Code is against the making of a donation between persons who are living in adultery or concubinage. It is the
donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.

Art. 1029. Should the testator dispose of the whole or part of his property

1. for prayers and pious works for the benefit of his soul,
2. in general terms and without specifying its application,

the executor, with the court's approval shall deliver

1. one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used
for such prayers and pious works, and
2. the other half to the State, for the purposes mentioned in Article 1013.

Comment:

1. This article will not apply if there is specification because the same must be followed for it is the will of the
testator.
2. Pious works and prayers are 2 different things. This article will not apply if the disposition is only for prayers
or pious works.

Art. 1030.

1. Testamentary provisions
a. in favor of the poor in general,
b. without designation of particular persons or of any community,

shall be deemed limited to the poor living in the domicile of the testator at the time of his death,
unless it should clearly appear that his intention was otherwise.

2. The designation of the persons who are to be considered as poor and the distribution of the property shall be
made by the
a. person appointed by the testator for the purpose;
b. in default of such person, by the executor, and
c. should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer,
who shall decide by a majority of votes all questions that may arise.

In all these cases, the approval of the Court of First Instance shall be necessary.

3. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a
definite locality.

Comment:

1. When there are no persons qualified as poor, intestacy will occur for there is failure of institutions of heirs.

Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an
onerous contract, or made through an intermediary, shall be void.

Comments:

1. Disqualified persons refers to

a. Person absolutely incapacitated to inherit (e.g. those not yet conceived)

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 b. Persons Incapacitated under art. 1027
c. Persons incapacitated by reason of public morality under Art. 1028
2. Disqualified persons do not refer to persons incapacitated by reason of unworthiness under Art. 1032
because of Art. 1033.

Art. 1032. The following are incapable of succeeding by reason of unworthiness:

1. Parents who have

a. abandoned their children or
b. induced their daughters to lead a corrupt or immoral life, or
c. attempted against their virtue;
2. Any person who has been convicted of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
3. Any person who has accused the testator of a crime
a. for which the law prescribes imprisonment for six years or more,
b. if the accusation has been found groundless;
4. Any heir
a. of full age
b. who, having knowledge of the violent death of the testator,
c. should fail to report it to an officer of the law within a month,

unless the authorities have already taken action; this prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an accusation;

5. Any person convicted of adultery or concubinage with the spouse of the testator;
6. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a
will or to change one already made;
7. Any person who by the same means prevents another from making a will, or from revoking one already
made, or who supplants, conceals, or alters the latter's will;
8. Any person who falsifies or forges a supposed will of the decedent.

Comments: (refer also to comments on the grounds for disinheritance)

1. This article is equally applicable to testate and intestate succession.

2. Incapacity due to unworthiness is relative(there is no total or absolute disqualification)
3. The unworthy heir forfeits everything he could have receive mortis causa including the legitime.
4. Donation inter vivos, however, are not affected because it could have been revoked during the donor’s
lifetime on grounds of acts of ingratitude.

Art. 1033. The cause of unworthiness shall be without effect

1. if the testator had knowledge thereof at the time he made the will [and yet, the supposed to be unworthy
heir is still instituted] (implied pardon), or
2. if, having known of them subsequently, he should condone them in writing (express pardon).

Comments:

1. if a compulsory heir committed an act of unworthiness and in the will, the testator did not provide anything
for him, there is no implied pardon. Mere silence is not condonation.
2. Unworthiness vs. Disinheritance
a. Some grounds for disinheritance are same grounds for disinheritance. In disinheritance,
reconciliation restores capacity to inherit of the disinherited heir.
b. If the testator did not make an express disinheritance (note that disinheritance must always be
expressed), the rules on unworthiness can be applied. In which case, capacity to inherit can only be
restored through pardon or condonation under Art. 1033. Reconciliation is not enough in case of
unworthiness. It is not deemed an implied pardon.

85
Art. 1034.

1. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the
decedent shall be the criterion.
2. In cases falling under
a. Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and
b. No. 4, the expiration of the month allowed for the report.
3. If the institution, devise or legacy should be conditional, the time of the compliance with the condition
shall also be considered.

Comments:

1. If the institution of the devise or legacy is subject to a suspensive condition, the capacity is determined at the
time of the fulfilment of the condition and at the time of death of the decedent. There must be double
capacity.
2. If the heir died before the happening of the condition, the testamentary disposition does not become effective
and nothing is transmitted to their heirs.
3. If the condition happened after the death of decedent, the heir is likewise incapacitated because capacity
must be present at the time of death of the decedent.

Art. 1035.

1. If the person excluded from the inheritance by reason of incapacity should be a (1)child or descendant of
the decedent and should (2)have children or descendants, the latter shall acquire his right to the
legitime.
2. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by
his children.

Comments:

1. There is no right of representation in favour of ascendants or spouse of decedent.

Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall
have a right to recover damages from the disqualified heir.

Art. 1037. The unworthy heir who is excluded from the succession has a

1. right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and
2. to enforce such credits as he may have against the estate.

Art. 1038.

1. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall be obliged to return it together it its
accessions.
2. He shall be liable for all the fruits and rents he may have received, or could have received through the
exercise of due diligence.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified person took possession thereof. It may be brought by
any one who may have an interest in the succession.

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SECTION 3. - Acceptance and Repudiation of the Inheritance

Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.

Comments:

1. Partial acceptance and partial repudiation is allowed unless expressly prohibited by law.
2. Legitimes of compulsory heirs may also be repudiated.
3. Conditional acceptance or repudiation is not allowed for it will violate the principle that rights are
transmitted from the moment of death and that acceptance or repudiation once made is irrevocable.

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the
decedent.

Comment:

1. Reason is to avoid interruption in the continuity in the ownership and possession of property and rights
subject of succession.

Art. 1043. No person may accept or repudiate an inheritance unless he is certain of

1. the death of the person from whom he is to inherit, and

2. his right to the inheritance.

Comments:

1. Acceptance or repudiation before the death of the decedent is void.

2. CW Art. 390 – 392 (presumptive death)

Art. 1044.

1. Any person having the free disposal of his property may accept or repudiate an inheritance.
2. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians.
3. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.
4. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator
to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article
1030.

Comments:

1. Persons with capacity to succeed but without capacity to dispose of their property cannot accept or repudiate
an inheritance.
2. A waiver cannot be established by a consent given under a mistake or misapprehension of facts. Thus, a
person who has not yet established his status as a recognized illegitimate child of the decedent cannot
possibly waive his successional rights.

Art. 1045.

1. The lawful representatives of corporations, associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the
court shall be necessary. (same as inheritance to minor or incapacitated)

Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval
of the government.

Comments:

87
 1. Public official establishments are organizations devoted to public purpose such as for education and charity
supported by public funds.E.g. Philippine National Red Cross
2. It do not refer to administrative organizations of the government such as bureaus and departments of the
government.
3. Approval of the department head, not by the court, is necessary.
4. Governor is not a public official establishment and he may receive inheritance without the approval of the
government.

Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband.

Comment:

1. The reason if that the inheritance, if accepted, pertains to the exclusive property of the wife and not to the
community property unless the donor, testator, or guarantor expressly provided that it becomes part of the
community property. In which case, no repudiation of an inheritance could be made without the consent of
the other spouse.

Art. 1048.

1. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an
agent.
2. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These
guardians may repudiate the same with judicial approval.

Inheritance to Power to Accept Power to Repudiate

Gen. Rule: Any person having the free disposal of his property may accept or repudiate an inheritance.
1. corporations, associations, Lawful representative may accept Lawful representative may repudiate
institutions and entities with the approval of court (2nd mode of
qualified to acquire property repudiation)
2. Minors and incapacitated Parents or guardians may accept Parents or guardians may accept only by
judicial authorization (2nd mode of
repudiation)
3. Deaf-mutes not able to Guardians may accept Guardians may repudiate with judicial
read and write approval (2nd mode of repudiation)
4. Deaf-mutes who can read may accept or repudiate the inheritance personally or through an agent.
and write
5. Public official Can neitheraccept nor repudiate an inheritance without the approval of the
establishments government.
6. Poor persons designated by the testator The designated poor themselves may
to determine the beneficiaries and repudiate the inheritance
distribute the property, or in their
default, to those mentioned in Article
1030 may accept
7. Married woman of age may repudiate an inheritance without
the consent of her husband
Art. 1049.

1. Acceptance may be express or tacit.

2. An express acceptance must be made in a public or private document.
3. A tacit acceptance is one resulting from acts by which
a. the intention to accept is necessarily implied, or
b. one would have no right to do except in the capacity of an heir.
4. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if,
through such acts, the title or capacity of an heir has not been assumed.

Art. 1050. An inheritance is deemed accepted:

88
 1. If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (SAD)
2. If he renounces it for a price in favor of all his co-heirs indiscriminately;
3. If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;
4. If this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the
portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted.

Art. 1051. The repudiation of an inheritance shall be made in

1. a public or authentic instrument, or

2. by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.

Comment:

1. Unlike acceptance, repudiation must be express.

Art. 1052.

1. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the heir.
2. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their
credits.
3. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the
persons to whom, in accordance with the rules established in this Code, it may belong.

Comments:

1. The creditors cannot invoke the benefit under this provision if:
a. If the repudiating heir has sufficient properties of his own to pay the claims
b. He becomes s creditor only after the repudiation.

Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be
transmitted to his heirs.

Comments:

1. What is transmitted here is the right to accept or repudiate.

2. Comparison with right of representation
Right of representation Right to accept/repudiate
1. Right to succeed is derived not from the person 1. Right transmitted is directly derived from the the
represented but from the decedent whose deceased predecessor
succession is in consideration

2. Takes place only in the direct descending line 2. There is no such limitation like in case of right of
and in the collateral line only in favour of representation.
nephews and nieces

Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may
repudiate it.

Comment:

1. Solidary acceptance or repudiation is not authorized by the code.

Art. 1055.

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 1. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both
capacities.
2. Should he repudiate it (1)as an intestate heir, (2)without knowledge of his being a testamentary heir, he
may still accept it in the latter capacity.

Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned,
except when

1. it was made through any of the causes that vitiate consent (mistake, violence, intimidation, undue influence
or fraud), or
2. when an unknown will appears.

Art. 1057.

1. Within thirty days after the court has issued an order for the distribution of the estate in accordance
with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction
whether they accept or repudiate the inheritance.
2. If they do not do so within that time, they are deemed to have accepted the inheritance. (acceptance by
operation of law)

SECTION 4. - Executors and Administrators

Art. 1058. All matters relating to the

1. appointment,
2. powers and duties of executors and administrators and
3. concerning the administration of estates of deceased persons

shall be governed by the Rules of Court.

Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for
that purpose, the provisions of Articles 2239 to 2251 on Preference of Credits shall be observed, provided that the
expenses referred to in Article 2244, No. 8, shall be those involved in the administration of the decedent's estate.

Art. 1060.

1. A corporation or association authorized to conduct the business of a trust company in the Philippines
may be appointed, in like manner as an individual, as an
a. executor,
b. administrator,
c. guardian of an estate, or
d. trustee,
2. However, it shall not be appointed guardian of the person of a ward.

SECTION 5. - Collation

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate
any property or right which he may have received from the decedent, during the lifetime of the latter, by way
of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of
each heir, and in the account of the partition.

Comments:

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 1. Article refers to compulsory heirs except spouse because as a rule, donation between spouses during
marriage is void. If the donations were made before marriage (propter nuptias), the donee is not yet a spouse.
The donation shall be considered as made in favour a stranger and chargeable against the free portion.
2. A son-in-law is not a compulsory or forced heir and therefore, has no duty to collate (Vizconde v. CA)
3. When is collation required?
a. Transmission of property or right
b. By way of donation, or any other gratuitous title
c. From decedent during his lifetime
d. To every compulsory heir, who succeeds with other compulsory heirs

Pastor, Jr. vs. Court of Appeals

1. In case of death of one of the spouses their respective proprietary rights must be liquidated and the debts
paid in the succession proceedings for the deceased spouse.·When PASTOR, SR. died in 1966, he was survived
by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to
liquidate the conjugal partnership and set apart the share of PASTOR, SR.Ês wife in the conjugal partnership
preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among
others, the determination of the extent of the statutory usufructuary right of his wife until her death. When
the disputed Probate Order was issued on December 5, 1972, there had been no liquidation of the community
properties of PASTOR, SR. and his wife.
2. Legacy made in a will cannot be distributed without a prior liquidation of the decedentÊs estate and payment
of debts and taxes.·The ordered payment of legacy would be violative of the rule requiring prior liquidation of
the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and
expenses, before apportionment and distribution of the residue among the heirs and legatees. Neither has the
estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide
with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to
any beneficiary of his distributive share of the estate

Sanchez vs. Court of Appeals

1. A probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine
title to properties claimed to be a part of the estate and which are claimed to belong to outside parties.·In the
instant case, the trial court rendered a decision declaring as simulated and fictitious all the deeds of absolute
sale which, on July 26, 1963 and June 26, 1967, Juan C. Sanchez and Maria Villafranca executed in favor of
their daughter, Rosalia Sanchez Lugod; and grandchildren, namely, Arturo S. Lugod, Evelyn S. Lugod and
Roberto S. Lugod. The trial court ruled further that the properties covered by the said sales must be subject to
collation. Citing Article 1409 (2) of the Civil Code, the lower court nullified said deeds of sale and determined
with finality the ownership of the properties subject thereof. In doing so, it clearly overstepped its jurisdiction
as a probate court. All that the said court could do as regards said properties is to determine whether they
should or should not be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so.
2. A court commits grave abuse of discretion when it renders a decision in disregard of the parties compromise
agreement merely on the ground that such compromise agreement was not approved by the court.
Furthermore, the trial court committed grave abuse of discretion when it rendered its decision in disregard of
the parties compromise agreement. Such disregard, on the ground that the compromise agreement „was not
approved by the court, is tantamount to „an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act in contemplation and within the bounds of law
3. Being a consensual contract, a compromise agreement is perfected upon the meeting of the minds of the
parties·judicial approval is not required for its perfection
4. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to
be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.·In
opposing the validity and enforcement of the compromise agreement, petitioners harp on the minority of

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 Florida Mierly, Alfredo and Myrna. Citing Article 2032 of the Civil Code, they contend that the court’s approval
is necessary in compromises entered into by guardians and parents in behalf of their wards or children.
However, we observe that although denominated a compromise agreement, the document in this case is
essentially a deed of partition, pursuant to Article 1082 of the Civil Code which provides that „[e]very act
which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.
5. Requisites for a Valid Partition.· For a partition to be valid, Section 1, Rule 74 of the Rules of Court, requires
the concurrence of the following conditions:
a. the decedent left no will;
b. the decedent left no debts, or if there were debts left, all had been paid;
c. the heirs and liquidators are all of age, or if they are minors, the latter are represented by their
judicial guardians or legal representatives; and
d. the partition was made by means of a public instrument or affidavit duly filed with the Register of
Deeds.

We find that all the foregoing requisites are present in this case. We therefore affirm the validity of the
partiesÊ compromise agreement/partition in this case.

6. There is no legal obstacle to an heirÊs waiver of his/her hereditary share „even if the actual extent of such
share is not determined until the subsequent liquidation of the estate. - The waiver is valid because, contrary
to petitionersÊ protestation, the parties waived a known and existing interest·their hereditary right which
was already vested in them by reason of the death of their father. Article 777 of the Civil Code provides that
(t)he rights to the succession are transmitted from the moment of death of the decedent. Hence, there is no
legal obstacle to an heirÊs waiver of his/her hereditary share „even if the actual extent of such share is not
determined until the subsequent liquidation of the estate. At any rate, such waiver is consistent with the
intent and letter of the law advocating compromise as a vehicle for the settlement of civil disputes.
7. Collation mandated under Article 1061 of the Civil Code contemplates properties conveyed inter vivos by the
decedent to an heir by way of donation or other gratuitous title.· Similarly, petitionersÊ allegations of fraud in
the execution of the questioned deeds of sale are bereft of substance, in view of the palpable absence of
evidence to support them. The legal presumption of validity of the questioned deeds of absolute sale, being
duly notarized public documents, has not been overcome. On the other hand, fraud is not presumed. It must
be proved by clear and convincing evidence, and not by mere conjectures or speculations. We stress that
these deeds of sale did not involve gratuitous transfers of future inheritance; these were contracts of sale
perfected by the decedents during their lifetime. Hence, the properties conveyed thereby are not collationable
because, essentially, collation mandated under Article 1061 of the Civil Code contemplates properties
conveyed inter vivos by the decedent to an heir by way of donation or other gratuitous title.

Nazareno vs. Court of Appeals

1. There is an implied trust when a donation is made to a person but it appears that though the legal estate is
transmitted to the donee, he nevertheless is either to have no beneficial interest or only a part thereof.
Property received by compulsory heirs from the decedent under an implied trust is subject to collation.·It
cannot be denied that Maximino, Sr. intended to give the six Quezon City lots to Natividad. As Romeo testified,
their parents executed the Deed of Sale in favor of Natividad because the latter was the only „female and the
only unmarried member of the family. She was thus entrusted with the real properties in behalf of her
siblings. As she herself admitted, she intended to convey Lots 10 and 11 to Jose in the event the latter
returned from abroad. There was thus an implied trust constituted in her favor. Art. 1449 of the Civil Code
states: There, is also an implied trust when a donation is made to a person but it appears that although the
legal estate is transmitted to the donee, he nevertheless is either to have no beneficial interest or only a part
thereof. There being an implied trust, the lots in question are therefore subject to collation in accordance with
Art. 1061

Zaragoza vs. Court of Appeals

1. It is basic in the law of succession that a partition inter vivos may be done for as long as legitimes are not
prejudiced. The legitime of compulsory heirs is determined after collation, as provided for in Article 1061

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 2. Collation cannot be done where the original petition for delivery of inheritance share only impleaded one of
the compulsory heirs·the petition must therefore be dismissed without prejudice to the institution of a new
proceeding where all the indispensable parties are present. ·Unfortunately, collation cannot be done in this
case where the original petition for delivery of inheritance share only impleaded one of the other compulsory
heirs. The petition must therefore be dismissed without prejudice to the institution of a new proceeding
where all the indispensable parties are present for the rightful determination of their respective legitime and
if the legitimes were prejudiced by the partitioning inter vivos.

Art. 1062. Collation shall not take place among compulsory heirs

1. if the donor should have so expressly provided, or

2. if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.

Comment:

1. It is the duty of the plaintiff to allege and prove that the donations received by the defendants were inofficious
and had prejudiced the legitime or hereditary portion to which they are entitled.

Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but
the legitime shall in any case remain unimpaired.

Comment:

1. Rationale: Collation covers only donation or transfers of property by gratuitous title during the lifetime of the
testator or decedent. Donations mortis causa are effective only after the death of the testator.
2. It may be subject to collation when expressly provided for by the testator. The order to collate simply means
that the property be charged to the legitime of the compulsory heir. However, in no case shall there be
impairment of legitime.

Art. 1064.

1. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents
in representation of their father or mother, they shall bring to collation
a. all that their parents, if alive, would have been obliged to bring, even though such grandchildren
have not inherited the property.
b. all that they may have received from the decedent during his lifetime, unless the testator has
provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is
not prejudiced.

Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which
may have been donated by the latter to their children.

Art. 1066.

1. Neither shall donations to the spouse of the child be brought to collation;

2. but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to
collation one-half of the thing donated.

Art. 1067. The following expenses are not subject to collation: (MESA CO)

1. medical attendance, even in extraordinary illness

2. education
3. support,
4. apprenticeship
5. customary gifts
6. ordinary equipment

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Comment:

1. Allowances given to heirs during the liquidation of the estate are not embraced under this article. They are
advances on the inheritance.

Art. 1068.

1. Expenses incurred by the parents in giving their children a professional, vocational or other career shall
not be brought to collation unless
a. the parents so provide, or
b. they impair the legitime
2. When their collation is required, the sum which the child would have spent if he had lived in the house and
company of his parents shall be deducted therefrom.

Comment:

1. If after the child had finished the course or profession which he had pursued, his parents subsequently gave
him a property in the pursuit or exercise of that profession, the property donated is subject to collation
considering that it was not given to finish the course or profession.

Art. 1069. Any sums paid by a parent in satisfaction of the following shall be brought to collation: (DEFS)

1. debts of his children,

2. election expenses,
3. fines, and
4. similar expenses.

Comment:

1. if the parent acted as guarantor for a child and the parent was compelled to pay for the child’s debt, what had
been paid by the parent to the creditor is not collationable. The reason for this is that the payment is not a
donation but a performance of an obligation subject to reimbursement. However, if the parent waive his right
to collect from the child, it becomes donation.
2. Monthly allowances given to a child on whom the management or administration of the properties of the
parents had been entrusted, will not be chargeable to the child’s legitime.

Art. 1070. Wedding gifts by parents and ascendants consisting of

1. jewelry,
2. clothing, and
3. outfit,

shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by
will.

Art. 1071.

1. The same things donated are not to be brought to collation and partition, but only their value at the
time of the donation, even though their just value may not then have been assessed.
2. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or
culpable, shall be for the benefit or account and risk of the donee.

Art. 1072.

1. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the
father, and the other half, to that of the mother.
2. That given by one alone shall be brought to collation in his or her inheritance.

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Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him;
and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality.

Art. 1074.

1. Should the provisions of the preceding article be impracticable, if the property donated was immovable,
the co-heirs shall be entitled
a. to receive its equivalent in cash or securities, at the rate of quotation; and
b. should there be neither cash or marketable securities in the estate, so much of the other property as
may be necessary shall be sold at public auction.
2. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other
personal property of the inheritance at its just price.

Art. 1075.

1. The fruits and interest of the property subject to collation shall not pertain to the estate except from the
day on which the succession is opened.
2. For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same
kind and quality as that subject to collation shall be made the standard of assessment.

Art. 1076.

1. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the
preservation of the property donated to him, though they may not have augmented its value.
2. The donee who collates in kind an (1)immovable which has been given to him must be reimbursed by his co-
heirs for the improvements which have (2)increased the value of the property, and which (3)exist at the
time the partition if effected.
3. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for
them; he has, however,
a. the right to remove them,
b. if he can do so without injuring the estate.

Comments:

1. Under Art. 1071, things donated are not to be brought to collation and partition, but only their value at the
time of donation. Under Art. 1076, the done must collate “in kind an immovable, which has been given to
him”, thus providing for the physical return of the immovable property and not just the imaginary return of
the value of the property. To reconcile the 2 articles, Art. 1076 must be considered exception to Art. 1071. In
which case, the present article recognizes the actual return of property donated in the following cases:
a. When donation of property is found inofficious and reducible and the done opted to return the
“excess part” of the property which is still in his possession.
b. When the donation of property (still intact) is revoked in its entirety for being totally inofficious.
2. Necessary expenses extended by the done for the preservation of the property should be reimbursed to him
by the co-heirs only if the property was delivered back to the hereditary estate

Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate
security is given.

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SECTION 6. - Partition and Distribution of the Estate

SUBSECTION 1. - Partition

Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the deceased.

Art. 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those
to whom it may belong. The thing itself may be divided, or its value.

Comments:

1. Classes of partition:
a. Judicial partition –partition approved by court in testate or intestate proceedings or in ordinary
action for partition to divide hereditary property
b. Extrajudicial partition – done outside the court and effected either
i. By the heirs themselves
ii. By the testator thru will
iii. By the decedent thru an act inter vivos
iv. By a 3rd person entrusted by the testator or decedent to make physical division of the estate
for the benefit of the heirs entitled thereto.
2. Heirs who did not participate in the judicial partition are not bound thereby. The partition is not valid and not
binding on them. Their remedy is an accion reinvindicatoria within the proper prescriptive period.
3. In case of extrajudicial partition executed by some heirs without knowledge and consent of other co-heirs, the
latter have the right to vindicate their inheritance, regardless of the lapse of time. Those who got hold of the
properties due to the other co-heirs were possessing the same merely as trustees.
4. Extra judicial partition can be effected by the heirs when there are no debts and every heir is of age or
represented by guardians. This kind of partition can be made orally and is valid if freely entered into by the
heirs.
5. To register the partition agreement to bind 3 rd persons, a public document is necessary. An oral partition is
not binding on 3rd persons.

Art. 1080.

1. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory heirs.
2. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that
the legitime of the other children to whom the property is not assigned, be paid in cash.

Balanay, Jr. vs. Martinez

1. Invalidity of one testamentary disposition does not necessarily invalidate all other dispositions made therein.
- The rule is that the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such
other dispositions if the first invalid disposition had not been made.
2. Statement that testator owns, southern half of conjugal state is contrary to law because spouses are
proindiviso owners thereof. Her share was inchoate and proindiviso (Art. 143, Civil Code). But that illegal
declaration does not nullify the entire will. It may be disregarded.
3. Provision in a will that testator’s estate be kept intact and legitimes of heirs be paid in cash is contrary to Art.
1080 of Civil Code where whole estate was not assigned to one or more heirs. - The provision of the will that
the properties of the testatrix should not be divided among her heirs during her husbands lifetime but should
be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code.

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 a. The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash.
b. On the other hand, her estate may remain undivided only for a period of 20 years.
4. Renunciation of inheritance by widower subject to limitation for his support and maintenance and
preservation of his legitime. - Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half
share of the conjugal partnership but insofar as said renunciation partakes of a donation of his hereditary
rights and his one-half share in the conjugal estate, it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his
support and maintenance. Or at least his legitime should be respected.
5. Husband’s renunciation of hereditary rights and share in conjugal estate make these assets part of testator’s
estate, but without prejudice to creditors and other heirs. - It should be stressed that by reason of the
surviving husband’s conformity to his wife’s will and his renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased wife’s estate. His conformity had the effect of validating the
partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
6. Preterition of surviving spouse who conformed thereto does not produce intestacy.·In the instant case, the
preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his
conformity to his wife’s will and renounced his hereditary rights.

Art. 1081.

1. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
2. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs
a minor or a person subject to guardianship; but the mandatary, in such case, shall
a. make an inventory of the property of the estate,
b. after notifying the co-heirs, the creditors, and the legatees or devisees.

Comments:

1. The power delegated refers only to the implementation of the physical division of the estate based on the
dispositions already made by the decedent or testator.
2. A co-heor cannot be trusted with such power to make physical division of the estate because of possible
weakness on his part to yield temptations to favour himself.

Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other
transaction.

Comments:

1. When a co-owner sells his inchoate right in the co-ownership, he expresses his intention to “put an end ti
indivision among his coheirs.

Art. 1083.

1. Every co-heir has a right to demand the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to prohibit division applies to the legitime.
2. Even though forbidden by the testator, the co-ownership terminates when
a. any of the causes for which partnership is dissolved takes place, or
b. when the court finds for compelling reasons that division should be ordered, upon petition of one
of the co-heirs.

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Art. 1084.

1. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the
condition has been fulfilled;
2. But the other co-heirs may demand it by giving sufficient security for the rights which the former may
have in case the condition should be complied with.
3. The partition shall be understood to be provisional.
a. until it is known that the condition has not been fulfilled or
b. it can never be complied with,

Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots,
or assigning to each of the co-heirs things of the same nature, quality and kind.

Art. 1086.

1. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to
one of the heirs, provided he shall pay the others the excess in cash.
2. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers
be allowed to bid, this must be done.

Art. 1087. In the partition the co-heirs shall reimburse one another for the

1. income and fruits which each one of them may have received from any property of the estate,
2. any useful and necessary expenses made upon such property, and
3. any damage thereto through malice or neglect.

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the
co-heirs may be subrogated to the rights of the purchaser by

1. reimbursing him for the price of the sale,

2. provided they do so within the period of one month from the time they were notified in writing of the
sale by the vendor.

Comment:

1. Once the property is subdivided and distributed among the co-owners, the community has terminated and
there is no reason to sustain any right of legal redemption.
2. The transaction involved under this provision is sale. Transactions like mortgage and pledge are excluded.
3. The seller must be a co-heir. The buyer must be a stranger. A devisee or legatee is considered as a stranger if
he is not a compulsory heir. A disinherited heir is also considered a stranger.
4. The subject matter of the sale must be only hereditary rights and not specific object/s. The sale must be
before partition.
5. Verbal notice or notice by registration is not sufficient. Written notice is indispensable.
6. Transactions not covered by law:
a. Sale of hereditary rights to co-heir/s
b. Sale after partition has been approved
c. Sale of hereditary property of an executor or administrator with authority of the court.

Mendoza I vs. Court of Appeals

1. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs.- In this case, the source of co-ownership among the heirs was intestate succession.
Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common
by such heirs (Article 1078 of the Civil Code). Petitioners co-ownership over Lot 3 was extinguished when it
was subdivided into Lot 3-A and Lot 3-B, which portions were concretely determined and technically

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 described. Against the impetuous denial of petitioners that Lot 3 has been partitioned is Exhibit A which is
the Subdivision Plan of Lot 3, (LRC), duly approved by the Commissioner of Land Registration.
2. If the property has been partitioned or an identified share has been sold, then there is no longer any right of
legal redemption. - We resolve the second issue based on the previous discussion that the co-ownership has
been extinguished. Article 1620 of the Civil Code applies only if the co ownership still exists. There is no
longer any right of legal redemption, if the property has been
a. partitioned or
b. an identified share has been sold

Plan vs. Intermediate Appellate Court

1. No legal redemption in the sale of property for payment of debts of a deceased person; Art 1088 of the
Civil Code does not justify legal redemption, as it refers to sale of hereditary rights, not to specific
properties, for payment of debts of the decedent’s estate. - Article 1088 of the Civil Code does not justify
legal redemption in this case because it refers to sale of hereditary rights, and not to specific properties, for
the payment of the debts of the decedent’s estate as to which there is no legal redemption. In the
administration and liquidation of the estate of a deceased person, sales ordered by the probate court for
payment of debts are final and not subject to legal redemption.
2. Remedy of co-owner(legal heir) of property to nullify a sale of lots made by his mother as administratrix with
the approval of the probate court allegedly without his consent is in the intestate proceeding; Purchaser of
disputed property becomes a forced intervenor. - In the instant case, we agree with Judges Fule, Catolico and
Vallejos that Federico’s remedy is in the intestate proceeding where his petition for relief has been pending
for nearly twenty years. He should amend it by impleading the present administratrix and Plan himself and
serving copies of the petition upon them. Plan, as the purchaser of the disputed property, is a forced
intervenor in the intestate proceeding, He should answer the amended petition for the annulment of the sale
The probate court has jurisdiction over him.

Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said
property has been adjudicated.

Art. 1090.

1. The title shall be delivered to the one having the largest interest, and authentic copies of the title shall be
furnished to the other co-heirs at the expense of the estate.
a. When the title comprises two or more pieces of land which have been assigned to two or more co-
heirs, or
b. when it covers one piece of land which has been divided between two or more co-heirs,
2. If the interest of each co-heir should be the same, the oldest shall have the title.

SUBSECTION 2. - Effects of Partition

Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to
him.

Art. 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated.

Art. 1093.

1. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the
respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs
shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be
indemnified.

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 2. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his
financial condition improve.

Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the
right of action accrues.

Art. 1095.

1. If a credit should be assigned as collectible, the co-heirs

a. Shall not be liable for the subsequent insolvency of the debtor of the estate,
b. Shall be liable only for his insolvency at the time the partition is made.
2. The warranty of the solvency of the debtor can only be enforced during the five years following the
partition.
3. Co-heirs do not warrant bad debts,
a. if so known to, and
b. accepted by, the distributee.
4. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount
collected shall be distributed proportionately among the heirs.

Art. 1096. The obligation of warranty among co-heirs shall cease in the following cases:

1. When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that
his intention was otherwise, but the legitime shall always remain unimpaired;
2. When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;
3. When the eviction
a. Is due to a cause subsequent to the partition, or
b. has been caused by the fault of the distributee of the property.

SUBSECTION 3. - Rescission and Nullity of Partition

Art. 1097. A partition may be rescinded or annulled for the same causes as contracts.

Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-
heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled,
considering the value of the things at the time they were adjudicated.

Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except

1. when the legitime of the compulsory heirs is thereby prejudiced, or

2. when it appears or may reasonably be presumed, that the intention of the testator was otherwise.

Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time the
partition was made.

Art. 1101.

1. The heir who is sued shall have the option of

a. indemnifying the plaintiff for the loss, or
b. consenting to a new partition.
2. Indemnity may be made by
a. payment in cash or
b. delivery of a thing of the same kind and quality as that awarded to the plaintiff.
3. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not
received more than their just share.

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Art. 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in
cash.

Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or
securities which have been omitted.

Comment:

1. Omission of objects in a will distinguished from omission of objects in partition

a. If in the will of the testator there are properties omitted or not mentioned, these properties will be
distributed in accordance with the law on intestacy.
b. Omission in partition will simply authorize the completion of the incomplete shares of the heirs.

Art. 1104.

1. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of the other persons interested;
2. but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him.

Comment:

Preterition in the Partition Preterition in the Institution

1. Compulsory 1. Compulsory heir need not be in the 1. Compulsory heir must be in the direct line
heir direct line (therefore it includes (therefore, it excludes spouse)
included spouse)

2. Effect 2. Partition will be maintained unless 2. Annul the institution of heir. However, if the
there was bad faith or fraud in its preterited compulsory heir had predeceased,
execution the institution shall be effectual without
prejudice to the right of representation.

Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect
to such person.

Comment:

1. If the non-heir intentionally assumes the status of an heir to defraud the estate, he is guilty of the crime of
“usurpation of civil status.”

Aznar Brothers Realty Company vs. Court of Appeals

1. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to
such person - the participation of non-heirs does not render the partition void in its entirety but only to
the extent corresponding to them. - First, private respondents claim that not all the known heirs of Crisanta
Maloloyon participated in the extrajudicial partition, and that two persons who participated and were made
parties thereto were not heirs of Crisanta. This claim, even if true, would not warrant rescission of the
deed. Under Article 1104 of the Civil Code,[a] partition made with preterition of any of the compulsory heirs
shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the persons
interested; but the latter shall be proportionately obliged to pay to the person omitted the share which
belongs to him. In the present case, no evidence of bad faith or fraud is extant from the records. As to the two
parties to the deed who were allegedly not heirs, Article 1105 is in point; it provides: A partition which
includes a person believed to be an heir, but who is not, shall be void only with respect to such person. In

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 other words, the participation of non-heirs does not render the partition void in its entirety but only to the
extent corresponding to them.
2. The act of registering a document is never necessary to give the conveyance legal effect as between the
parties and the vendor’s heirs - as between the parties, registration is not an indispensable requirement
to make it valid and binding. - Anent the non-annotation of the Extrajudicial Partition with Deed of Absolute
Sale in the reconstituted Original Certificate of Title No. RO-2856, the same does not render the deed legally
defective. It must be borne in mind that the act of registering a document is never necessary to give the
conveyance legal effect as between the parties and the vendor’s heirs. As between the parties to a sale,
registration is not indispensable to make it valid and effective. The peculiar force of a title is exhibited only
when the purchaser has sold to innocent third parties the land described in the conveyance. The purpose of
registration is merely to notify and protect the interests of strangers to a given transaction, who may be
ignorant thereof, and the non-registration of the deed evidencing said transaction does not relieve the parties
thereto of their obligations thereunder. Here, no right of innocent third persons or subsequent
transferees of the subject lot is involved; thus, the conveyance executed in favor of AZNAR by private
respondents and their predecessors is valid and binding upon them, and is equally binding and
effective against their heirs.
3. The principle that registration is the operative fact that gives validity to the transfer or creates a lien upon the
land refers to cases involving conflicting rights over registered property and those of innocent transferees
who relied on the clean title of the properties. - The principle that registration is the operative act that gives
validity to the transfer or creates a lien upon the land refers to cases involving conflicting rights over
registered property and those of innocent transferees who relied on the clean title of the properties. This
principle has no bearing on the present case, as no subsequent transfer of the subject lot to other persons has
been made either by private respondents or their predecessors-in interest.

Ralla vs. Untalan

1. There can be no valid partition among the heirs until after the will has been probated, but this rule
presupposes that the properties to be partitioned are the same properties embraced in the will.·–Verily,
the rule is that there can be no valid partition among the heirs till after the will has been probated. This, of
course, presupposes that the properties to be partitioned are the same properties embraced in the will. Thus,
the rule invoked is inapplicable in this instance where there are two separate cases (Civil Case No. 2023
for partition, and Special Proceedings No. 564 originally for the probate of a will), each involving the
estate of a different person (Paz Escarella and Rosendo Ralla, respectively) comprising dissimilar
properties.
2. After a partition has become a judgment of the court, and distribution thereof fully carried out, with the
heirs receiving the properties assigned to them, the latter are precluded from attacking the validity of said
partition or any part thereof.·–Furthermore, the Court had occasion to rule that: Where a partition had not
only been approved and thus become a judgment of the court, but distribution of the estate in pursuance of
such partition had fully been carried out, and the heirs had received the property assigned to them, they are
precluded from subsequently attacking its validity or any part of it. Likewise: Where a piece of land has been
included in a partition, and there is no allegation that the inclusion was effected through improper means or
without the petitioners’ knowledge, the partition barred any further litigation on said title.

Pedrosa vs. Court of Appeals

1. Petitioner’s action against the respondents on the basis of fraud has not yet prescribed.—Considering that
the complaint of the petitioner was filed on January 28, 1987, or three years and ten months after the
questioned extrajudicial settlement dated March 11, 1983, was executed, we hold that her action against the
respondents on the basis of fraud has not yet prescribed.
a. The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman, 11
SCRA 153 (1964), which held that: [The action to annul] a deed of “extrajudicial settlement” upon the
ground of fraud . . . may be filed within four years from the discovery of the fraud. Such discovery is
deemed to have taken place when said instrument was filed with the Register of Deeds and new
certificates of title were issued in the name of respondents exclusively.

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 2. Without the participation of all persons involved in the proceedings, the extrajudical settlement cannot
be binding on said persons.—Under the provision of Section 1 of Rule 74 of the Rules of Court, without the
participation of all persons involved in the proceedings, the extrajudicial settlement cannot be binding on
said persons. The rule contemplates a notice which must be sent out or issued before the Deed of Settlement
and/or Partition is agreed upon, i.e., a notice calling all interested parties to participate in the said deed of
extrajudicial settlement and partition, not after, which was when publication was done in the instant case.
Following Rule 74 and the ruling in Beltran vs. Ayson, since Maria Elena did not participate in the said
partition, the settlement is not binding on her.
3. A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and
consent to the same, is fraudulent and vicious.—The provision of Section 4, Rule 74 will also not apply when
the deed of extrajudicial partition is sought to be annulled on the ground of fraud. A deed of extrajudicial
partition executed without including some of the heirs, who had no knowledge of and consent to the same, is
fraudulent and vicious.

Opulencia vs. Court of Appeals

1. Section 7 of Rule 89 of the Rules of Court is not applicable where a party enters into a Contract to Sell in his
capacity as an heir, not as an executor or administrator of the estate. - As correctly ruled by the Court of
Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the
Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the
contract, she represented herself as the „lawful owner and seller of the subject parcel of land. She also
explained the reason for the sale to be „difficulties in her living‰ conditions and consequent need of cash.‰
These representations clearly evince that she was not acting on behalf of the estate under probate when she
entered into the Contract to Sell.
2. An heir becomes owner of his hereditary share the moment the decedent dies, thus, the lack of judicial
approval does not invalidate the Contract to Sell, because the heir has the substantive right to sell the
whole or a part of his share in the estate of the decedent. - We emphasize that hereditary rights are vested
in the heir or heirs from the moment of the decedent’s death. Petitioner, therefore, became the owner of her
hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the
Contract to Sell, because the petitioner has the substantive right to sell the whole or a part of her share in the
estate of her late father.
3. The sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise
stands in the way of such administration. - The Contract to Sell stipulates that petitioner’s offer to sell is
contingent on the complete clearance of the court on the Last Will and Testament of her father. Consequently,
although the Contract to Sell was perfected between the petitioner and private respondents during the
pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the
parcel of land to the private respondents is subject to the full payment of the purchase price and to the
termination and outcome of the testate proceedings. Therefore, there is no basis for petitioner’s
apprehension that the Contract to Sell may result in a premature partition and distribution of the properties
of the estate. Indeed, it is settled that „the sale made by an heir of his share in an inheritance, subject to the
pending administration, in no wise stands in the way of such administration.
4. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or
undesirable contract he or she entered into with all the required formalities and with full awareness of its
consequences. - Petitioner is estopped from backing out of her representations in her valid Contract to Sell
with private respondents, from whom she had already received P300,000 as initial payment of the purchase
price. Petitioner may not renege on her own acts and representations, to the prejudice of the private
respondents who have relied on them. Jurisprudence teaches us that neither the law nor the courts will
extricate a party from an unwise or undesirable contract he or she entered into with all the required
formalities and with full awareness of its consequences.

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