THIRD EXAM TRANSCRIPT IN heir?
It will be distributed by legal succession but subject to the
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
3RD YEAR – MANRESA 2016
06 OCTOBER 2016
By: Karmela Tongo
CHAPTER 3
Legal or Intestate Succession
SECTION 1
General Provisions
ARTICLE 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose
of all the property belonging to the testator. In such
case, legal succession shall take place only with
respect to the property of which the testator has not
disposed;
(3) If the suspensive condition attached to the institution
of heir does not happen or is not fulfilled, or if the heir
dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion
takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code. (912a)
The New Civil Code does not define legal succession but it gives us an
enumeration of the instances when legal succession shall take place.
(1) If a person dies without a will, or with a void will, or one which
has subsequently lost its validity
1. If a person dies without a will – That is one of the most common
reason why there is legal succession because there is no will; or
with a
2. Void will – There is a will but it is not valid because it has not
been executed in accordance with the formalities prescribed by
law.
3. One which has subsequently lost its validity – Like a revoked will.
Here even If there is a will, even if the will is valid in form, but
because of revocation it now …potential capacity to operate
upon the death of the testator. So you have legal succession.
(2) When the will does not institute an heir to, or dispose of all the
property belonging to the testator. In such case, legal
succession shall take place only with respect to the property of
which the testator has not disposed
1. When the will does not contain an institution of heirs – Like, a will
containing only a disinheritance. Here, we give effect to the will in
so far as inheritance is concern. But how shall the estate be
distributed? By legal succession even if there is a will; or
2. The will does not dispose of all the properties belonging to the
testator – For example your land has 10 hectares and he
disposed only 5 hectares in the will, the rest shall go by legal
succession. Here, we have a case of mixed succession. It is
partly by will, one which was disposed of in the will and by
operation of law, that portion which is not covered by the will.
(3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place
1. If there is suspensive condition attached to the institution and the
condition does not happen or is not fulfilled.
2. If the institution is subject to suspensive condition as we have
discussed, it is not effective until the condition is fulfilled. If the
condition will not be fulfilled then the institution can never be
effective. So what happens to the share intended the instituted
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
order of priority as we have discussed before and also
mentioned in paragraph number 3.
So take note, another reason, if there is predeceased, incapacity or
repudiation, the will becomes ineffective. In all these cases, if the institution
cannot be given effect, consider substitution if it is proper. If there is no
substitute then, representation. If representation is not possible, accretion.
If accretion is also not possible then legal succession, intestacy. That is the
last resort.
(4) When the heir instituted is incapable of succeeding, except in
cases provided in this Code
ARTICLE 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. (913a)
Who are the legal heirs? You already know about the compulsory heirs.
Again, we have the legitimate children and descendants. In their default,
legitimate parents and ascendants, surviving spouse and illegitimate
children.
If there is no will or the will is void, revoked, all these compulsory heirs now
become legal heirs. It is correct to say that all compulsory heirs are legal
heirs. Is it also correct to say that all legal heirs are compulsory heirs are
legal heirs? No, because aside from these people, we also have the other
relatives. Again in legal succession, aside from the compulsory heirs who
now become legal heir, we have relatives in the collateral line up to the fifth
degree of consanguinity and we have the State as the last legal heir. In a
sense the State is also a legal heir.
ARTICLE 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of article 1006 with respect to relatives
of the full and half blood, and of Article 987, paragraph 2,
concerning division between the paternal and maternal lines.
(912a)
The first paragraph gives us the rule on proximity. The nearer relatives
exclude those who are far. If your survivors are your children and you also
have grandchildren, by the rule on proximity, the grandchildren are
excluded by the children. The exception is when the right of representation
applies. An example of that is when some of the children predeceased the
testator and they are survived by their own children. So this grandchildren,
by right of representation, inherit together with the children of the testator.
By the right of representation, the representative is raised to the degree
and status of the person represented. By fiction of law, those who are far
because of the right of representation becomes just as near. This is the
exception to the rule on proximity.
The second paragraph states that GR: relatives in the same degree shall
inherit in equal shares.
For example, the survivors are all children, so they are all related by one
degree to the testator. So they inherit in equal shares. All children they
inherit in equal shares. All brothers and sisters, the same degree also,
second degrees away from the testator. So they shall also inherit in equal
shares because they belong to the same degree.
However, there are exceptions. Two of which are mentioned in the second
paragraph.
1. Article 1006 with respect to the relatives of the full and half
blood.
ARTICLE 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. (949)
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If the survivors are all brothers and sisters, some are half blood brothers
and sisters, some are full blood, under the law on legal succession those
who are full blood brothers and sisters inherit twice as much as half blood.
The law presumes that the affection of the testator for these kinds of
relatives is greater than the halfblood siblings.
2. Concerning division between paternal and maternal lines.
If the testator is survived by grandparents. Diba ang grandparents nimo
naa kay maternal side and naa pud sa paternal side. Halimbawa sa
maternal line, naa pa iyang grandfather and grandmother. Sa iyahang
paternal line, grandfather na lang, isa nalang. How do you divide the
estate? For example the estate is 2 million. Do we divide it by three? No,
we divide it by line, half to the paternal and then half to the maternal. If it is
2 million, by legal succession, so one million goes to the paternal line and
the one million goes to the maternal line. Duha man sa maternal, so each
will get 500,000. Isa nalang man nabilin sa paternal line, then he will get
the entire one million.
Here even if theoretically they are equal in degree. They are both
grandparents and are two degrees away from the decedent but they do not
inherit in equal shares. One will get 500,000 each and the other one gets 1
million. That is the other exception
3. The right of representation.
Because in right of representation, those who are far become just as near.
The representative is elevated in the degree and status of the person
represented.
For example the testator has four children. A, B, C and D. Si A namatay na
and was survived by X and Y. Here X and Y can inherit together with B, C
and D. A predeceased the testator. So iyang mga anak na si X and Y will
take his share by representation. So theoretically si X and Y kalevel lang
sila ni B, C and D, but they do not inherit in equal shares. Si B, C and D will
inherit per capita, in their own right. But X and Y will inherit per stirpes.
So if the estate is 2 million, each group na kay A supposedly, 500,000.
Same goes to B,C and D. But A is already dead so X and Y will get
250,000 each. Even if theoretically they belong to the same degree
because of the right of representation, but the representatives inherit per
stirpes. not really in equal shares as the other heirs.
decedent
B C D
A (+)
500,000 500,000 500,000
X Y
250000 250000
4. Legitimate and illegitimate children
Diba, one degree related lang man sila sa decedent because they are all
children. But, legitimate children inherit twice as much as illegitimate
children. In other words, illegitimate children inherit half of the share of
legitimate children.
One illegitimate child gets one-half of the share of one legitimate child.
Those are the exceptions of the rule that heirs or relatives of the same
degree shall inherit in equal shares.
SUBSECTION 1
Relationship
ARTICLE 963. Proximity of relationship is determined by the
number of generations. Each generation forms a degree.
Now, how do we determine the proximity of the relationship? Did I not
explain to you how do we count the degrees? For example parent to child,
parent to grandchildren,that was already explained to you in first year in
persons and family relations. Ang mag pa explain karon pabalikon nakog
first year.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
ARTICLE 964. A series of degrees forms a line, which may be
either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor. (916a)
ARTICLE 965. The direct line is either descending or ascending.
The former unites the head of the family with those who
descend from him.
The latter binds a person with those from whom he descends.
(917)
ARTICLE 966. In the line, as many degrees are counted as there
are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two from
the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.
(918a)
ARTICLE 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father. (920a)
ARTICLE 968. If there are several relatives of the same degree,
and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same
degree, save the right of representation when it should take
place. (922)
Article 968 refers to the situation that there are several relatives and some
become incapacitated and some repudiate.
For example: A, B, C and D, they are all brothers of the decedent. If for
example A repudiates his share, what happens to the share of A? The
decedent left an estate worth 12 million. So how will we divide? So they will
get 3 million each.
Suppose A repudiates his share. What happens to the share of A? It will
accrue to his co-heirs. B,C and E. So 3 million bahinon na siya ni B, C and
E, so eventually they will get 4 million each. So that is what we call
accretion. We will discuss that later.
If A becomes incapacitated, what happens to the share of A? the law says
it shall accrue to the other heirs. But the law also says ‘save in those cases
where the right of representation applies.’
When A repudiates his share, there is no right of representation because
an heir who repudiates cannot be represented. So even if A has children X
and Y and he repudiates, X and Y will not get the share of A. the share of A
will go to B, C and D by accretion.
But if A becomes incapacitated, then he can be represented. Here, the
share of A which is 3 million will be divided by his representatives X and Y.
Again this illustrates the order of priority, Institution, Substitution,
Representation, Accretion and Intestacy. Although here we do not apply
institution because this is legal succession and also substitution. Didto lang
ta sa R(epresentation). A(ccretion). I(ntestacy). Wala na tong I(nsittution)
and S(ubstition).
ARTILCE 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. (923)
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If an heir repudiates he cannot be represented. So if it is only A who
repudiates, X and Y cannot represent him. So A’s share will go to B, C and
D With respect to X he (decedent) is the grandparent. For example A
D inherit? Is it from the person represented, A? No, X inherits from the
A B C
walay anak
X Y Z M N O
Another example: All of them, A, B, C and D repudiated. They cannot be
represented so who will inherit? Those who are next in line, X, Y, Z, M , N
and O. They can inherit but not by representation because again, an heir
who repudiates cannot be represented. They can inherit in there own right.
So what does it mean? If the estate is 12 million, we divide in equal shares.
This would be different if it is by representation. For example A, B, C and D
are the children of the testator. And then na predeceased si A, na
incapacitated si B, na disinherit si C, tapos na predeceased si D. So, how
do we divide the estate? They can be represented. The one who cannot
be represented is the one who repudiates, the rest, they can be
represented.
If they will be represented by their children how will we divide the estate?
Per stirpes because if it is by representation it is per stirpes. So we divide
according to the groups. But D, wala na siyay apil because he has no
representative. So ma merge iyahang share. Mahimo nana siyang 3. So 12
divided by 3 is 4.
A B C
4M 4M 4M
X Y Z M N O
2M 2M 4M 1.33M 1.33M 1.33M
Estate= 12 Million
SUBSECTION 2
Right of Representation
ARTICLE 970. Representation is a right created by fiction of law,
by virtue of which the representative is raised to the place and
the degree of the person represented, and acquires the rights
which the latter would have if he were living or if he could have
inherited. (942a)
This is the legal definition of the right of the representation. I already
illustrated to you several times how it applies. Representation is actually a
concept which is common both in legal succession and testamentary
succession.
When it comes to legal succession, it applies to entire estate. When it
comes to testamentary succession it covers only the legitime. So there is
no right of representation in the free portion,monly in the legitime.
What are the instances again when there is right of representation? To
better remember, timan-I tung dili puwede, when there is repudiation or
renunciation then the heir cannot represent. In all other cases the heir can
be represented.
ARTICLE 971. The representative is called to the succession by
the law and not by the person represented. The representative
does not succeed the person represented but the one whom the
person represented would have succeeded. (n)
From whom does the representative inherit?
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
For example: Decedent  A(anak)  X (anak)
predeceased the decedent, then the decedent died. So who will inherit
from him? It will be X by right of representation. From whom does X
decedent. As a consequence of that, whether or not X is disqualified to
inherit, you determine based on his relationship with the decedent, not with
A. Because again even if he represents A, he does not inherit from A. He
inherits from the decedent.
That is the meaning of Article 971
Can an adopted child represent?
Decedent (D) A( legitimate child of D)  S (adopted child of A)
A died ahead of D, then D died. Can X represent A? Now, you can say that
the adopted child has the same rights as a legitimate child and a legitimate
child can represent his parents. Can you say S having the rights of the
legitimate child can represent A, his adopter?
NO, X will inherit not from A but from D. S’ right to inherit and his
qualification will be determined based on his relationship with D and not
with A. Adoption only creates a legal relationship between the adopter and
the adopted. It does not extend to the relatives of the adopter. In this
sense, the adopted child cannot represent the adopter. That is actually
decided by the Supreme Court already. He cannot represent.
ARTICLE 972. The right of representation takes place in the
direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full or half
blood. (925)
Just remember this, the right of representation does not apply to the
ascending line. It applies only to the descending line. What goes up and
never goes down? Age. What goes down and never goes up? (Grades)
The right of representation.
ARTICLE 973. In order that representation may take place, it is
necessary that the representative himself be capable of succeeding
the decedent. (n)
This is in relation to what we have discussed, that the representative is not
the heir of the person represented, but the heir of the decedent. So he
should be capable himself to inherit from the decedent.
ARTICLE 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. (926a)
When you inherit by representation, you inherit by stirpes. Meaning, you
will only get what the person represented would have inherited. As a
representative, you cannot get the share more than the person represented
would have gotten from the decedent. Again, per stirpes.
ARTICLE 975. When children of one or more brothers or sisters
of the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions. (927)
Take note of this rule under Article 975, this is inheritance of nephews and
nieces. Remember this one because we will relate this to other provision.
Assuming A, B, C and D are brothers of the decedent. X, Y, Z, M, N, O P
are nephews and nieces of the decedent. So for example, A and B
predeceased the decedent. How will we divide the estate? Per stirpes for
X, Y, Z and in their own right for C and D. We divide the estate of 12 million
by 4, so 3 million each. A will be represented by his children X and Y, so
the nephews and nieces X and Y will get the share of A, which is 3 million,
so tungaon nila, the same thing for Z. M, N, O cannot inherit because they
are excluded by their parents.
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What if A, B, C and D all predeceased the decedent. So X, Y, Z, M, N, O, P
alone survived. How will we divide the estate? Is it still per stirpes?
Meaning divided by four (A, B, C and D) then within the group we divide?
No. The law says ‘they shall inherit in equal portions’ so that is the peculiar
situation of the inheritance of the nephews and nieces, even if
predeceased na ha, dili na repudiation.
ARTICLE 976. A person may represent him whose inheritance
he has renounced. (928a)
ARTICLE 977. Heirs who repudiate their share may not be
represented. (929a)
M  D (anak)  A (anak)  X (anak)
D died, supposedly his heir is A iyang anak, but A repudiated, so who will
be the heir of D now? Can X represent? No, because an heir who
repudiates cannot be represented. So who will inherit? Actually it will be M,
because in default of the descendant, it will be the ascendant. In that case
it will be M.
Now, namatay si M, D predeceased and the survivors are now A and X, so
who will inherit from M? Can A represent D even if he repudiate his
inheritance to the estate of D? Yes! That is what the law says, an heir who
repudiates cannot be represented but he can represent the person whose
inheritance he has repudiated.
A as the one who repudiates cannot be represented by X but he can
represent D the person from whose estate his inheritance he repudiated.
Here, upon the death of M, A can represent D. A is the heir in that
example.
A person who repudiates cannot be represented but can represent.
SECTION 2
Order of Intestate Succession
SUBSECTION 1
Descending Direct Line
ARTICLE 978. Succession pertains, in the first place, to the
descending direct line. (930)
Just like testamentary succession, first is to the descending line. Kung
walay descendants then we will go to the ascendants in default of the
descendants.
ARTICLE 979. Legitimate children and their descendants
succeed the parents and other ascendants, without distinction
as to sex or age, and even if they should come from different
marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child. (931a)
Legitimate children and descendants in the absence of a will are the legal
heirs along with other legal heirs. They are the first in line. An adopted
child, because they have the same rights as a legitimate child, he is also a
legal heir.
ARTICLE 980. The children of the deceased shall always inherit
from him in their own right, dividing the inheritance in equal
shares. (932)
The children of the deceased shall inherit always per capita, in their own
right. As long as they are all children, whether they come from different
marriages, so they inherit in their own right.
ARTICLE 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.
(934a)
We are talking here of the children of decedent, some of whom are alive,
some are those who predeceased the decedent but survived by their own
children. So children inherit by right of representation, the grandchildren
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
who are the children of the deceased children(of the decedent)….
Assuming A, B,C and D are children of the decedent, they inherit in their
own right and some of them died ahead of the testator, their children ( of A,
B, C and D, whoevever died) can inherit by representation.
ARTICLE 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. (933)
‘The grandchildren and other descendants shall inherit by right of
representation…’ What is the meaning of this. Under Art. 975 diba we
illustrated nephews and nieces.
Now, assuming A, B, C and D are children of the decedent and they all
died ahead of the testator. How will we divide the estate? The law says
they inherit by right of representation. So, we divide 12 million by 4, so
they will get 3 million per group. (Estate= 12 million)
A X and Y will get 1. 5 million each
B Z will get 3 million
C M, N, O will get 1 million each.
And so on and so forth. Take note again that this is different from Article
975, the case of nephews and nieces.
If the brothers and sisters of decedent all predeceased him, his nephews
and nieces will inherit in equal shares. But grandchildren, as long as it is
not a case of repudiation, they will always inherit by representation.
And if anyone of them died, so si X dies, naa siyay heirs, the portion
pertaining to him shall be divided by his heirs in equal portions.
ARTICLE 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Article 895. (n)
What is that proportion in Article 895? 2 is to 1. The illegitimate children
inherit half of the share of the legitimate children. So how do we distribute
the estate for example? Assuming the decedent left two legitimate children
and one illegitimate child, the estate is 5 million, how do we divide?
In legal succession, the share of illegitimate child is one-half of the
legitimate child and there is no free portion in legal succession, so we have
to distribute everything. So how do we distribute the 5 million in the sense
that 2 is to one? Twice ang share sa legitimate children kaysa sa
illegitimate children.
So now you can use your skill in algebra. *class laughs* Ngano nikatawa
man mo? Wala moy skill?
Let x=share of illegitimate child.
X + 2X + 2X = 5 million.
5X= 5million
X= 5M/5
X= 1 million.
2(1M)= 2 million. So 1+ 2(1)+ 2(1)= 5 million.
Here we disposed of the entire 5 million.
10 OCTOBER 2016
By: Jennifer Mortejo and Isay Abad
What we illustrated before was if legitimate children survive with illegitimate
children. If illegitimate children also survive with the legitimate children and
the surviving spouse, actually the same ang computation because you treat
the spouse as having the share of one legitimate child.
ARTICLE 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. (n)
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So here, we’re talking of adopted children, the legal succession to the
estate of an adopted child. The law says, his parents and relatives by
consanguinity, but this has already been modified. We have the Civil Code,
the Family Code and then the Domestic Adoption Act (RA 8552).
Under the Domestic Adoption Act, particularly under Article 5, Section 18:
Article 5, Section 18. Succession. – In legal and intestate
succession, the adopter(s) and the adoptee shall have reciprocal
rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parent(s) had left a
will, the law on testamentary succession shall govern.
When we say reciprocal rights of succession, then the adopter can also
inherit from the adopted child by legal succession. Because again, the
rights there are already the same as that of legitimate filiation, without
distinction from legitimate filiation. So here, we are talking what if the
adopted child dies. Again, his/her adopter can inherit from him without
distinction from legitimate filiation.
Q: How about if the biological parents of the adopted child die, can
the adopted child still inherit from his/her biological parents?
Under the Domestic Adoption Act, what we are talking about is the
reciprocal succession between the adopter and the adopted child. It does
not mention about when the biological parents die, can the adopted still
inherit. So we can refer, insofar as not inconsistent with the Domestic
Adoption Act, with the provisions under the Family Code. We have Articles
189 and 190.
ARTICLE 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire
the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of
the adopted to use the surname of the adopters;
(2) The parental authority of the parents by nature over the
adopted shall terminate and be vested in the adopters,
except that if the adopter is the spouse of the parent by
nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his parents
and other blood relatives. (39(1)a, (3)a, PD 603)
ARTICLE 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
(1) Legitimate and illegitimate children and descendants
and the surviving spouse of the adopted shall inherit
from the adopted, in accordance with the ordinary rules
of legal or intestate succession;
(2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur with the
adopter, they shall divide the entire estate, one-half to
be inherited by the parents or ascendants and the other
half, by the adopters;
(3) When the surviving spouse or the illegitimate children of
the adopted concur with the adopters, they shall divide
the entire estate in equal shares, one-half to be inherited
by the spouse or the illegitimate children of the adopted
and the other half, by the adopters.
(4) When the adopters concur with the illegitimate children
and the surviving spouse of the adopted, they shall
divide the entire estate in equal shares, one-third to be
inherited by the illegitimate children, one-third by the
surviving spouse, and one-third by the adopters;
(5) When only the adopters survive, they shall inherit the
entire estate; and
(6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply. (39(4)a, PD 603)
So under the Domestic Adoption Act, what you have here is just the rights
of succession between the adopter and the adopted child. It does not
mention if the adopted survives with the surviving spouse or with the
legitimate children. So we use the provisions of the Family Code if not
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
supplied by the provisions of the Domestic Adoption Act with respect to
succession.
SUBSECTION 2
Ascending Direct Line
ARTICLE 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. (935a)
So in legal succession, again the parents only inherit in default of the
legitimate children. But the parents concur with the surviving spouse and
illegitimate children.
But if for example, the parents are the only survivor, then all other collateral
relatives are excluded. Remember, in legal succession, it is only the
surviving spouse who cannot exclude the brothers and sisters of the
decedent. Illegitimate children in legal succession can also exclude
collateral relatives.
ARTICLE 986. The father and mother, if living, shall inherit in
equal shares.
Should one only of them survive, he or she shall succeed to
the entire estate of the child. (936)
If you still remember our discussion before in testamentary succession,
with respect to the inheritance of the ascendants, there is no right of
representation in the ascending line.
Grandparents Grandparents
Father Mother
Decedent
For example, if the mother and the father survive the decedent, we shall
divide by line, maternal line and paternal line. But if for example, the father
predeceased the decedent and there are grandparents, the grandparents
are excluded by the mother. They cannot represent their deceased son
who is the father of the decedent. Although in legal succession, we no
longer divide the estate in 2 but the entire estate shall be inherited by the
parents if the only survivors are the parents (di ko gets but that’s what
Ma’am said ).
ARTICLE 987. In default of the father and mother, the ascendants
nearest in degree shall inherit.
Should there be more than one of equal degree belonging to
the same line they shall divide the inheritance per capita; should
they be of different lines but of equal degree, one-half shall go to
the paternal and the other half to the maternal ascendants. In
each line the division shall be made per capita. (937)
This is just what I have explained before, how to distribute the estate
insofar as the ascending line is concerned. As long as there are relatives of
equal degree belonging to different lines, we divide the estate according to
the number of lines.
SUBSECTION 3
Illegitimate Children
ARTICLE 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased. (939a)
If there are illegitimate children, assuming they survived, they exclude the
collateral relatives of the decedent even the brothers and sisters. They
(brothers and sisters) are excluded by the presence of children, whether
legitimate or illegitimate.
5
ARTICLE 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. (940a)
Take note of this Article because you will relate it to Article 992.
D (Decedent)
A B
X Y Z Gr. No. 183053
For example, D is the decedent. A and B are both illegitimate children. If D
dies, his heirs would be A and B. If one of them predeceased the decedent,
for example A, who will now inherit from the decedent? We have B. Z
cannot inherit because he is excluded by his parent B. A here can be
represented by his children, X and Y.
The inheritance of B is in his own right. X and Y inherit by right of
representation.
ARTICLE 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. (941a)
The same thing, hereditary rights granted to illegitimate children shall be
transmitted to their descendants by right of representation. It does not even
distinguish whether these descendants are legitimate or illegitimate. As
long as the parent who was granted with the hereditary right is an
illegitimate, it transmits his rights to his descendants.
ARTICLE 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. (942-841a)
Here, the survivors are legitimate ascendants and illegitimate children. So
½ to legitimate ascendants and ½ to illegitimate children. Kung pila kabuok
ang illegitimate children, tungaon na nila.
ARTICLE 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child. (943a)
Please remember this Article; this is the principle of absolute separation
between the legitimate family and the illegitimate family. This is what we
call the Iron-Clad Bar Rule.
What is the reason why there is such prohibition?
D (Decedent)
A (legitimate) B (illegitimate)
X (leg) Y(illeg) Z(leg) N(illeg)
For example, D is the decedent. A is the legitimate child of D, B is the
illegitimate child. X is the legitimate child of A while Y is illegitimate. Z is the
legitimate child of B while N is illegitimate. Assuming that both A and B
predeceased D, who can represent them? Who will now inherit from D?
Diba we discussed this before under Articles 989 and 990 that an
illegitimate child transmits his rights to his descendants. So Z and N can
represent B. How about A, can X represent A? Yes, no prohibition. Can Y
represent A? No, by reason of Article 992.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
The reason for this prohibition is that the law presumes that there is an
animosity that exists between the legitimate and illegitimate family.
According to authorities, with respect to the legitimate family, they view the
presence of the illegitimate child as a reminder of sin, a blemish broken in
life. As to the illegitimate family, they also view with envy the resources and
status of the legitimate family of which they are deprived.
That is why, to prevent the animosity from further widening the gap
between the two, the law has just stepped in. They made this barrier, the
Iron Curtain Bar rule.
In the Matter of the Intestate Estate of Cristina Aguinaldo-Suntay;
Emilio A.M. Suntay III vs Isabel Cojuangco-Suntay
June 16, 2010
Q: What is the controversy in this case?
A: Whether or not Article 992 is applicable in this case
Q: Why did such question even arise?
A: Because there was a question of whether or not Emilio III can be an
administrator of the estate of Cristina.
Q: How about Federico, what happened to him?
A: He died pending the petition for administration he has filed.
Q: How about Emilio II? What did he do? What is his contention?
A: He contended that Emilio III cannot be appointed as administrator
because he was an illegitimate child of Federico and Cristina and
therefore barred by Article 992.
Q: What is the ruling?
A: The Supreme Court ruled that Article 992 is inapplicable in this
case. It did not agree with the appellate court’s ruling excluding Emilio
III in the administration of the decedent’s undivided estate. Mistakenly,
the CA glosses over several undisputed facts and circumstances:
1. The underlying philosophy of our law on intestate succession is to
give preference to the wishes and presumed will of the decedent,
absent a valid and effective will;
2. The basis for Article 992 of the Civil Code, referred to as the iron
curtain bar rule, is quite the opposite scenario in the facts obtaining
herein for the actual relationship between Federico and Cristina, on
one hand, and Emilio III, on the other, was akin to the normal
relationship of legitimate relatives;
3. Emilio III was reared from infancy by the decedent, Cristina, and her
husband, Federico, who both acknowledged him as their grandchild;
4. Federico claimed half of the properties included in the estate of the
decedent, Cristina, as forming part of their conjugal partnership of
gains during the subsistence of their marriage;
5. Cristina’s properties forming part of her estate are still commingled
with that of her husband, Federico, because her share in the conjugal
partnership, albeit terminated upon her death, remains undetermined
and unliquidated; and
6. Emilio III is a legally adopted child of Federico, entitled to share in
the distribution of the latter’s estate as a direct heir, one degree from
Federico, not simply representing his deceased illegitimate father,
Emilio I.
From the foregoing, it is patently clear that the CA erred in excluding
Emilio III from the administration of the decedent’s estate. As
Federico’s adopted son, Emilio IIIs interest in the estate of Cristina is
as much apparent to this Court as the interest therein of respondent,
considering that the CA even declared that under the law, [Federico],
being the surviving spouse, would have the right of succession over a
portion of the exclusive property of the decedent, aside from his share
in the conjugal partnership. Thus, we are puzzled why the CA resorted
to a strained legal reasoning Emilio IIIs nomination was subject to a
suspensive condition and rendered inoperative by reason of Federico’s
6
death wholly inapplicable to the case at bar.
Article 992 is not applicable in this case because the factual
antecedents of this case accurately reflect the basis of intestate
succession, i.e., love first descends, for the decedent, Cristina, did not
distinguish between her legitimate and illegitimate grandchildren.
Neither did her husband, Federico, who, in fact, legally raised the
status of Emilio III from an illegitimate grandchild to that of a legitimate
child. The peculiar circumstances of this case, painstakingly pointed
out by counsel for petitioner, overthrow the legal presumption in Article
992 of the Civil Code that there exist animosity and antagonism
between legitimate and illegitimate descendants of a deceased.
Ma’am: So here, the basis for Article 992 is the presumed animosity
that exists between the legitimate and illegitimate family. But said
presumption does not apply in this case because in reality, there was
no such animosity. In fact, Cristina and Federico, took Emilio III and his
sister into their home since infancy. They took care of them and treated
them as their own blood with no distinction from their legitimate
relatives. Here, the reality of the case is different from the presumption
provided under Article 992.
When you want to be appointed as administrator, you do not become an
heir, you just administer. What Article 992 prohibits is inheritance from the
estate of the legitimate relative of the illegitimate child’s father or mother.
Here, Emilio III did not seek to inherit from the estate of Cristina. He
wanted to be appointed merely as an administrator.
ARTICLE 993. If an illegitimate child should die without issue,
either legitimate or illegitimate, his father or mother shall succeed
to his entire estate; and if the child's filiation is duly proved as to
both parents, who are both living, they shall inherit from him
share and share alike. (944)
Take note this is the same as in testamentary succession. If the decedent
is illegitimate, his children whether legitimate or illegitimate will exclude his
parents. Because when you are an illegitimate child, you also have an
illegitimate parent. The presence of legitimate or illegitimate children will
exclude the illegitimate parents. This is in the same sense that legitimate
children exclude legitimate parents.
ARTICLE 994. In default of the father or mother, an illegitimate
child shall be succeeded by his or her surviving spouse who shall
be entitled to the entire estate.
If the widow or widower should survive with brothers and sisters,
nephews and nieces, she or he shall inherit one-half of the estate,
and the latter the other half. (945a)
In default of father and mother, the surviving spouse shall succeed to the
entire estate. The surviving spouse, however, cannot exclude the brothers
and sisters of the decedent. The spouse concurs with them. So ½ to the
spouse, ½ to the brothers and sisters or nephews and nieces.
SUBSECTION 4
Surviving Spouse
ARTICLE 995. In the absence of legitimate descendants and
ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall
inherit the entire estate, without prejudice to the rights of brothers
and sisters, nephews and nieces, should there be any, under
article 1001. (946a)
This would be the case when the spouse gets the entire estate. There are
no legitimate descendants or ascendants; there are no illegitimate children;
there are no brothers and sisters, nephews and nieces. Take note here that
the right of the spouse in legal succession is not the same with the right in
testamentary succession.
*Please refer to the table provided in the Sigma TSN
ARTICLE 996. If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the succession
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
the same share as that of each of the children. (834a)
The spouse has the same share as one legitimate child. This is the same in
testamentary succession except that in testate succession, if there’s only
one legitimate child, said child gets ½ and the spouse gets ¼. But in legal
succession, if there’s one legitimate child and the spouse, they just divide
the estate into half. ½ to child, ½ to the spouse.
ARTICLE 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall be
entitled to one-half of the estate, and the legitimate parents or
ascendants to the other half. (836a)
So 1/2 to surviving spouse, ½ to the legitimate parents and ascendants.
There’s no free portion unlike in testamentary succession.
ARTICLE 998. If a widow or widower survives with illegitimate
children, such widow or widower shall be entitled to one-half of
the inheritance, and the illegitimate children or their descendants,
whether legitimate or illegitimate, to the other half. (n)
ARTICLE 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate children
or their descendants, whether legitimate or illegitimate, such
widow or widower shall be entitled to the same share as that of a
legitimate child. (n)
Assuming the decedent is survived by 2 legitimate children, 2 illegitimate
children, and the spouse. The estate is 1.6 million. We have to dispose of
the entire estate. The share of 1 legitimate child is twice the share of 1
illegitimate child. The spouse has the same share as one legitimate child.
Let x = share of 1 illegitimate child
2x = share of 1 legitimate child and the surviving spouse
2x + 2x + x + x + 2x = 1,600,000
8x = 1,600,000
8
x = 200,000
- Each illegitimate child will get P 200,000
- Each legitimate child will get P 400,000 (2x = 2 (200,000) =
400,000)
- The spouse will get P 400,000 too because his share is the
same as to one legitimate child.
If it is testamentary succession, you have to divide the estate in 2. ½ goes
to the legitimate children and ½ free portion.
So, 1,600,000/2 = 800,000. The legitimate children will divide the 800,000
among themselves equally.
- Each legitimate child will get P 400,000 (kay duha man sila
kabuok)
- The spouse will have the same share as one legitimate child, so
he will get P 400,000 too.
- The illegitimate child’s share is ½ of one legitimate child’s share,
so each illegitimate child will get P 200,000.
Now for example there are 10 illegitimate children, how do we divide
the estate?
2x + 2x + 10x + 2x = 1,600,000
16k = 1,600,000
16
x = 100,000
- Each legitimate child will get P 200,000 (P400,000 total for
both)
- The spouse will also get P 200,000
- Each illegitimate child will get 100,000 (1,000,000/10)
*Remember, even in legal succession, the shares of the legitimate children
and spouse should not be below the legitime. So under this computation,
7
this is not valid because the legitime of the legitimate children and the
spouse are impaired. They should be receiving 400,000 as their legitime.
So what shall we do? We follow the computation under testamentary
succession.
1,600,000/2 = 800,000 ang legitime and also the free portion. The
legitimate children will divide among themselves the 800,000 equally.
- Each legitimate child will get P 400,000 (800,000 divided by 2
kay duha man sila kabuok)
- The spouse will also get P 400,000 (same sa share sa isa ka
legitimate child)
- The 10 illegitimate children will divide among themselves equally
the remaining P 400,000 of the estate, deducted by the legitime
of the spouse and the legitimate children. Thus, each illegitimate
child will get P 40,000 (400,000 divided by 10).
ARTICLE 1000. If legitimate ascendants, the surviving spouse,
and illegitimate children are left, the ascendants shall be entitled
to one-half of the inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate children so that
such widow or widower shall have one-fourth of the estate, and
the illegitimate children the other fourth. (841a)
Here, the survivors are the legitimate parents, spouse and illegitimate
parents with the following divisions:
Legitimate parents = ½
Spouse = ¼
Illegitimate Children = ¼
Sayon lang siya pagcompute because you just have to follow the fractions.
Now what if there is Partial Intestacy - partly by will and partly by legal
succession?
Example 1: Let us say the estate is 10 Million. But the testator executed a
last will and testament and gave a legacy to his best friend, F, for 2 Million
and that is the only provision in his will, therefore, there is partial intestacy.
How do we distribute the estate? Where do get the 2 Million?
- As I have said, the shares of the legitimate children or in their
default, the parents, and the spouse should not be below the
legitimes.
But here, we have a legacy, we could not just deduct the 2 Million from the
10 Million, kay ang result ana, below their legitimes na. What do we do?
We determine if who are the heirs who receive more in legal
succession than in testamentary succession.
Legal Succession Testamentary Succession
Legitimate parents = 1/2 Legitimate parents = 1/2
Spouse = 1/4 Spouse = 1/8
Illegitimate Children = 1/4 Illegitimate Children = 1/4
So, ang spouse actually ang mas dako og share sa legal succession than
in testamentary succession. Therefore, among these heirs, it is the spouse
who still has an allowance over and above his or her legitimes. So we can
deduct from the share of the spouse.
So, 10M divided by 2, there would be 5M legitime and 5M Free portion.
Thus, we have for the Legitimate parents = 5 Million.
Now, illegitimate children:
Sa legal succession, ¼ of 10Million is 2.5Million. For the illegitimate child,
2.5Million jud na siya, it is the legitime. You cannot prejudice the legitime of
the illegitimate child just to give effect to a legacy or a device which is just a
voluntary disposition.
Let us go to the spouse:
Sa spouse, 2.5 Million supposedly siya kung legal succession. Kung
testate succession naman, 1.25M. The legacy here is 2Million. Ang nabilin
nalang is 2.5Million. Can we give the legacy of 2Million? Kung ihatag pod
nato tanan ang legacy na 2Million kay F, ang mabilin sa spouse kay
0.5Million nalang which is also below her legitime of at least 1.25Million.
So here, we give the legitime of the spouse first which is 1.25Million, no
longer ¼ because of the legacy. And then, the legacy can now be
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
respected to the extent of 1.25Million. We cannot also prejudice the
minimum legitime of the spouse which is 1/8. Thus:
Legitimate parents = 5 Million
Spouse = 1.25 Million
Illegitimate Children = 2.5 Million
Legacy to F = 1.25 Million
Example 2: If for example the same situation but the legacy is only
1Million, then we give the legacy of 1Million to F. With this, the spouse gets
more than her minimum legitime, thus the spouse will get 1.5Million.
Legitimate parents = 5 Million
Spouse = 1.5 Million
Illegitimate Children = 2.5 Million
Legacy to F = 1. Million
So, that is how we distribute in case of Partial Intestacy. Again, deduct the
legacy or device from the share of the heir who gets more in legal
succession than in testate succession but without going below the legitime
also of that heir.
ARTICLE 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be entitled to
one-half of the inheritance and the brothers and sisters or their
children to the other half. (953, 837a)
Again, this is what we discussed before, where the brothers and sisters or
their children (nephews and nieces), may concur with the spouse. We
have:
Brothers and sisters and nephews and nieces = ½
Spouse = ½
ARTICLE 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. (n)
The same in testamentary succession, the guilty spouse where there is
already a decree of legal separation is disqualified to inherit from the
innocent spouse.
If there is no decree of legal separation, there is no disqualification. But the
innocent spouse could make it as a ground to disinherit the guilty spouse.
Kung wala na disinherit unya namatay si innocent spouse, makainherit
gihapon si guilty spouse if there is no decree of legal separation.
SUBSECTION 5
Collateral Relatives
ARTICLE 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral relatives
shall succeed to the entire estate of the deceased in accordance
with the following articles. (946a)
This is when the collateral relatives alone succeed to the entire estate.
Take note there should be:
1. No descendants, because the presence of descendants
exclude them. There are
2. No ascendants, because the ascendants exclude them.
3. No illegitimate children, because the latter excludes them
If there is a surviving spouse, ½ sila each sa collateral relatives. Dila sila
maexclude sa presence sa suriving spouse, but the collateral relatives do
not get the entire estate. Kung wala po’y suriving spouse then that is the
time that they could get the entire estate.
ARTICLE 1004. Should the only survivors be brothers and sisters
of the full blood, they shall inherit in equal shares. (947)
So brothers and sisters of the full blood, they shall inherit in equal shares,
just divide the estate among the brothers and sisters. Take note ha, full
blood.
8

ARTICLE 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. (948)
This is the same again in testamentary succession, how do we divide?
- If there are brothers and sisters who all survive, then the
nephews and nieces are excluded.
- But if some of them are deceased, then the nephews and nieces
can inherit ???? (not sure if this is from the dead) brothers and
sisters. The brothers and sisters inherit per capita or in their own
right. The nephews and nieces inherit per stirpes or right of
representation.
ARTICLE 1006. Should brothers 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. (949)
The full blood brothers and sisters inherit twice as much as the half blood in
legal succession.
Again, I have to remind you in Testamentary succession where the testator
instituted his brothers and sisters and some of them full and some half
blood, without specifying their shares, how do we divide?
- Equal shares. For in testamentary succession, the testator could
have specified the share, had he wanted to give them unequal
shares. But he did not, so the presumption is he has equal
affection to both the full and half blood brothers and sisters.
In Intestate, the law presumes that the affection for the full blood brothers
and sisters is twice as much to that of the half blood.
Take note also that even if we say full blood or half blood, the relationship
should be legitimate. Pwede na si testator is married before to A, A died
then testator married B, then B died and then married again C. Naa siyay
mga anak out of his marriages. So there are half-blood brothers and sisters
but they are legitimate.
What about illegitimate?
- They are barred under Article 992. As I said, an illegitimate child
cannot inherit ab intestato from the legitimate relatives of his
father or mother.
- So, kung half blood ka na illegitimate, you cannot inherit from
your brother or sister na legitimate child of your father or mother.
ARTICLE 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. (950)
Here, half-blood of different parents, the father and then the mother, so still
the same shares, equal shares.
ARTICLE 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 brothers and sisters of the full blood. (915)
Just remember for example, the decedent is survived by brothers and
sisters, some full blood and some half blood, so 2 is to 1.
Halimbawa patay na tong half-blood sibling pero survived by nephews and
nieces ni decedent, katong share sa half-blood sibling na namatay na will
just go to his or her children per stirpes.
ARTICLE 1009. Should there be neither brothers nor sisters, nor
children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the whole
blood. (954a)
So, walay brothers or sisters, walay nephews or nieces, walay descendant
or children, spouse, who shall inherit? This is where the other collaterals
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
come in. Just take note of as to what level or as to what degree under
Article 1010.
ARTICLE 1010. The right to inherit ab intestato shall not extend
beyond the fifth degree of relationship in the collateral line. (955a)
So, with respect to the collateral line it is only up to the 5 th degree of
consanguinity. With respect to the direct line, there is no limit. It seldom
happens na sa ascending line or descending line, maabot pa ka og 5th or
6th degree.
Take note, in relation to Article 1009, how do they succeed?
- They shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood. So,
whether it is paternal side or maternal side.
How about the right of representation?
- Here, we apply the rule on proximity, after the nephews and
nieces.
- The right of representation in the collateral line is only up to the
nephews and nieces, after that, wala nay right of representation.
And of course, those who are in the descending are preferred,
than those of the ascending.
SUBSECTION 6
The State
ARTICLE 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate. (956a)
In default of legal heirs, in default of the relatives in the ascending or
descending direct line, and relatives of the collateral line within the 5 th
degree of consanguinity, then that is when the State steps in as also an
heir.
The right of the state to succeed from the estate of the person who died
intestate and without heirs is what we call as the CADUCIARY RIGHT.
How about the procedure? We have Article 1012:
ARTICLE 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. (958a)
How does the State take the estate of the person? That is the procedure
under Rule 191 of the Rules of Court. That is what we call as the
ESCHEAT Proceedings. You will discuss that in your Special
Proceedings.
How shall the estate be distributed when it is escheated in favor of the
State? That is in Article 1013.
ARTICLE 1013. After the payment of debts and charges, the
personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the real
estate to the municipalities or cities, respectively, in which the
same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or cities
where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such municipalities
or cities. The court shall distribute the estate as the respective
needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its own
motion, may order the establishment of a permanent trust, so that
only the income from the property shall be used. (956a)
This is how the estate shall be distributed by escheat proceedings. Take
note, if the decedent resided in the Philippines and if the decedent never
resided in the Philippines, so who shall get his properties.
9
Again, if is personal property and the decedent resided in the Philippines, it
is distributed or assigned to the City or Municipality where he last resided.
With respect to the real estate, it is always escheated in favor of the city or
municipality where it is located.
Take note also for whose benefit shall the property be escheated. So, it is
for public schools, and public charitable institutions and centers.
ARTICLE 1014. If a person legally entitled to the estate of the
deceased appears and files a claim thereto with the court within
five years from the date the property was delivered to the State,
such person shall be entitled to the possession of the same, or if
sold, the municipality or city shall be accountable to him for such
part of the proceeds as may not have been lawfully spent. (n)
When shall the person claiming to have a right after escheat, recover the
properties? The law says 5 years from the date the property was delivered
to the State.
For example na escheat na, na deliver na, then naa diay heirs, so they can
recover within 5 years, not from the date of death but from the time of
delivery.
We have the case of: Republic of the Philippines vs. Court of Appeals (not
assigned)
REPUBLIC OF THE PHILIPPINES vs. CA
G.R. No. 143483
January 31, 2002
Here, for more than 3 decades or 30 years, Solano served as the all-
around personal domestic helper of the late Ms. Hankins. Ms. Hankins
here has no close relatives and it was Solano who served her needs.
According to Solano, during the lifetime of Ms. Hankins, she executed
2 donations involving 2 parcels of land in her favor. Those 2 deeds
were missing. Ms. Hankins died. Upon her death, because she had no
relatives within the 5th degree of consanguinity, the State initiated
Escheat proceedings of her property.
Solano here alleged that the 32 properties should not be escheated
because these were already donated to her. But again, the deeds of
donations could not be found. Therefore after the escheat proceedings,
the court ordered the transfer of name of the 2 parcels of land in favor
of Pasay City.
Sometime in 1997, Solano claimed that she already found the deeds of
donation. She claimed that under Article 1014 for recovery.
According to the State, the claim was already filed belatedly since
under 1014, it should be within 5 years from delivery to the State. Here
it was filed in 1997 which was more or less 7 years from the date of
delivery of these properties.
But according to Solano, because the donations were made by the
decedent during her lifetime and those donations transferred
ownership to her, so legally, these properties did not form part of the
estate. Therefore, the properties that should be escheated would be
those forming part of the estate.
The SC said that the subject properties were owned by the decedent
during the time of the escheat proceedings was conducted. And the
lower court was not divested of jurisdiction to escheat them in favor of
Pasay City, notwithstanding an allegation that they had been
previously donated.
The SC said that the motion for intervention was earlier denied by the
escheat court for failure to show a valid claim or right to the properties
in question. Where a person comes into an escheat proceeding as a
claimant, the burden is on such intervenor to establish his title to the
property and to his right to intervene.
Here, the SC said that we have to follow the period mentioned in
Article 1014. The claim was already filed more than 5 years from the
delivery then that action was already barred.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
13 October 2016
By: Isay Abad
CHAPTER 4
Provisions Common to Testate and Intestate Successions
SECTION 1
Right of Accretion
ARTICLE 1015. Accretion is a right by virtue of which, when two
or more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or cannot
receive his share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees, or co-legatees.
(n)
As we have discussed before, we follow the I-S-R-A-I order. As much as
possible, if there is a will and there is an instituted heir, we give effect to the
wishes of the testator. But if that person defaults (predecease, incapacity or
repudiation), then let us see if there is a substitute. If no substitute, then let
us see if the right of representation would apply, if not, then accretion will
apply before intestacy.
When we say Accretion, the share of the heir who could not inherit
because of predecease, incapacity or repudiation goes to his co-heir in the
same inheritance. So it will not yet go by intestacy, but will accrue to the
other heir. As defined, accretion applies to both legal and intestate
succession.
What are the requisites for accretion? We have Article 1016.
ARTICLE 1016. In order that the right of accretion may take place
in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be
incapacitated to receive it. (982a)
So, based on Article 1016, we have the following requisites:
1. Unity of Object
2. Plurality of Subjects
3. There must be a Vacant Portion.
Example 1: There is a house where the testator devised the house to A
and B. There must be unity of object. So there is only 1 device. And then
plurality of Subjects, there should be at least 2 or more heirs, legatees or
devisees. And there is a vacant portion. So assuming A renounces his
share, what happens to his share?
It will go or accrue to B, the entire house will now go to B.
Example 2: The testator devised to A the second floor of the building and to
B, the first floor. A renounces his share, can there be accretion here? Are
the requisites present. Is there unity of object here?
- None. Because there are different portions being segregated
already. We can see that as to the first floor, B is made the
exclusive owner, and A as to the second floor. There is now
earmarking (segregation, identification, specification, division
whatsoever).
If there is unity of object, you cannot particularly say that this is A’s share or
that is B’s share. Each heir is not made the specific owner of the specific
portion of the property.
Furthermore we have Article 1017 in relation to Unity of Object.
ARTICLE 1017. The words "one-half for each" or "in equal shares"
or any others which, though designating an aliquot part, do not
identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not exclude the
right of accretion.
10
 In case of money or fungible goods, if the share of each heir
is not earmarked, there shall be a right of accretion. (983a)
Even if the testator says, ½ to each or ¼ to A and ¾ to B, or in equal
shares, or 50% to A, 40% to B, 10% to C, there is no unity of object there.
But there can still be accretion because the heir is not made the exclusive
owner of a determinate property.
Example 1: In a parcel of land which is 10 hectares, where the testator
says, ½ to A, ¼ to B, ¼ to C. A could not say na “mao ni akong ½ or B
cannot say na mao ni akong ¼,” because the testator did not specify if
where is the ½. In every inch of the property, A owns ½, B owns ¼ , C
owns ¼.
- No earmarking there, so there could still be accretion.
Example 2: In money or fungible goods, the testator says: I give to A my
cash in Metrobank, to B my cash in BPI, to C my cash in HSBC. And
assuming A renounces his share, can there be accretion?
- No. There is earmarking here because segregated na. If anyone
of them renounces, there can be no accretion by virtue of the
segregation.
ARTICLE 1018. In legal succession the share of the person who
repudiates the inheritance shall always accrue to his co-heirs.
(981)
Take note here, we are talking of the vacant portion.
What vacany will give rise to accretion?
- In legal succession, the law says, the share of the person who
repudiates the inheritance shall always accrue. So in legal
succession, once there is repudiation, always the share of the
co-heir will go to the others by accretion.
ARTICLE 1019. The heirs to whom the portion goes by the right of
accretion take it in the same proportion that they inherit. (n)
So how do we determine?
Example: A, B and C are instituted. The estate is 12 Million, to A ½, to B ¼,
to C ¼ . Assuming C repudiates, we now have a vacant portion, so
accretion is proper. How will C’s share accrue to A and B?
- The law says they will take it to the same proportion as they
inherit.
- So how do we compute?
First, we determine their respective shares: A = 6M, B = 3M, C =
3M. We will now distribute the 3M of C between A and B.
- Are you saying na ½ of it goes to A and ¼ goes to B?
No. because if that is the case dili mahurot ang 3M.
We divide in the same proportion: to A = 2/3 and to B = 1/3, thus
A = 2M and B = 1M
ARTICLE 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. (984)
This is self-explanatory. Whatever obligations imposed on the original heir,
where such share accrues to the others, the latter will be subject to the
same rights, burdens, conditions etc, unless the testator says otherwise.
ARTICLE 1021. Among the compulsory heirs the right of accretion
shall take place only when the free portion is left to two or more
of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs
shall succeed to it in their own right, and not by the right of
accretion. (985)
Remember: In testamentary succession, accretion only applies to the free
portion. In so far as the legitime is concerned, there is no accretion there.
Although the effect will be the same.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
Example: For the Legitime, A,B and C are compulsory heirs. A repudiated
his share, then it will go to the others, but we don’t call that accretion. It will
go to the others in their own right.
But for the free portion, if A, B and C are instituted in the free portion and A
repudiates his share, then his share will go to the others by accretion.
Take note ha, when you say accretion, it only applies to the free portion in
testamentary succession.
Going back to the right of representation, baliktad siya; because the right of
representation applies only to the legitime. In testamentary succession,
there is also no right of representation in the free portion.
REPRESENTATION ACCRETION
In Testamentary Succession: In Testamentary Succession:
Representation can happen only Accretion can happen only in free
to legitime, not in the free portion portion, not in the legitime.
Legitime goes to the co-heirs in
their own right.
ARTICLE 1022. In testamentary succession, when the right of
accretion does not take place, the vacant portion of the instituted
heirs, if no substitute has been designated, shall pass to the legal
heirs of the testator, who shall receive it with the same charges
and obligations. (986)
Let us just summarize. What are the kinds of vacancies in testamentary
succession and legal succession that will give rise to accretion?
I - In testamentary succession, the vacancy that will give rise to accretion
would be:
1. Predecease
2. Incapacity
3. Repudiation
4. The suspensive condition imposed on one of the heirs is not
fulfilled then he cannot inherit, his share will accrue to the others
5. Failure to identify 1 particular heir (because the description is not
particular and we don’t know the person) so his share will accrue
to the others.
II - In legal succession, what vacancies can give rise to accretion?
1. Under 1018, accretion happens always when there is
repudiation.
2. Incapacity but subject to the right of representation.
We cannot apply again the rule on representation if testamentary
succession in so far as the free portion is concerned. Under the rule of I-S-
R-A-I, sa testamentary succession, iskip na ang R na part because there is
no representation, diretso ka sa accretion.
How about predecease? One of the heirs predeceased the decedent? Well
again, the effect will be the same in accretion but the vacant share of the
deceased will go to the others in their own right. It is not by accretion.
Although again, the same effect but the name that we give there is not
accretion, but inheritance in their own right.
ARTICLE 1023. Accretion shall also take place among devisees,
legatees and usufructuaries under the same conditions
established for heirs. (987a)
As I have mentioned already, accretion shall take place even if the
vacancies happen in legatees or devisees, as long as the requisites are
present. Again, you have to remember, what kind of vacancies, in
testamentary succession and in legal succession that will give rise to
accretion.
SECTION 2
Capacity To Succeed By Will or By Intestacy
11
ARTICLE 1024. Persons not incapacitated by law may succeed by
will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)
Some of the provisions of Capacity are applicable both to testate and
intestate succession.
General rule: As long as the person is not incapacitated, then he can
inherit.
Take note, to be qualified to inherit, one does not need capacity to act. One
only needs civil personality or juridical capacity.
- Even if the person is not yet of legal age, he can receive by
succession, testate or intestate.
- Even if the person is still unborn, as long as he is born under the
conditions discussed under Articles 40 and 41.
ARTICLE 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession
opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later under
the conditions prescribed in article 41. (n)
It is very essential, that for a person to be capacitated to inherit, he must
already be living at the time of the death of the decedent or testator,
because the heir should survive the testator.
- But again, even if the person is unborn, provided he is conceived
and that he later on acquires juridical capacity under Articles 41
of the NCC.
The law says 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.
- Take note, actually, even in case of representation, the
representative must already be at least conceived at the time of
death of the decedent and later on acquires civil personality born
under Articles 40 and 41.
ARTICLE 1026. A testamentary disposition may be made to the
State, provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or the
laws of their creation, and always subject to the same. (746a)
Who has capacity to succeed?
- The law says as long as the person is not disqualified by law,
then he is capacitated and is qualified to succeed.
1. Natural persons
2. Juridical persons, but only for Testamentary succession.
They may be instituted as heirs, legatees or devisees,
provided they are not prohibited to succeed under their
charter of creation.
Under Legal succession, can juridical persons inherit?
- No, except for 1 – the State. All others do not succeed by legal or
intestate succession.
Now let us go to Incapacity. In general, there are only 2 classes of
incapacity:
1. Absolute Incapacity - person cannot inherit from anybody under
any circumstance
2. Relative Incapacity - these persons cannot inherit only for
certain persons or certain properties, but they can inherit from
other persons or other properties.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
For Absolute incapacity, dili jud pwede. Are there persons who are
incapacitated absolutely?
1. Article 1026, it says all other corporations or entities may
succeed under a will, unless there is a provision in the contrary in
their charter or the laws of their creation.
- So if their charter of creation prohibits them to succeed, then
they are absolutely incapacitated.
2. Article1027 No. 6 – Individuals, associations and corporations
not prohibited by law to inherit.
- So if they are not permitted absolutely by law to inherit then there
is absolute incapacity.
3. Those who lack juridical personality. Abortive (aborting) infants,
katong for example naay intrauterine life of less than 7 months
and did not live or was not born alive, or even if born alive did not
live for more than 24 hours.
For Relative Incapacity –We have 3 classes.
1. Incapacity by reason of Undue Influence (Article 1027)
2. Incapacity by reason of Public policy and morality (1028)
3. Incapacity by reason of Unworthiness (Article 1032)
Let us discuss Article 1027.
ARTICLE 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts of
the guardianship have been approved, even if the
testator should die after the approval thereof;
nevertheless, any provision made by the ward in favor
of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist
who took care of the testator during his last illness; and
(6) Individuals, associations and corporations not permitted
by law to inherit. (745, 752, 753, 754a)
Here, the incapacity is based on the presumption that there is possibility of
undue influence exerted upon the testator.
What if, we can prove that these persons here who are instituted as heirs,
legatees or devisees in reality did not exert undue influence? Can we
provide evidence to that effect? And after, can they now be allowed to
receive inheritance?
- Take note: Article 1027 lists down a Conclusive presumption.
You cannot present evidence to the contrary.
Let us go to them one by one.
A. The Priest or the Minister of the gospel.
- Priest - one who heard the confession of the testator during his
last illness
- Minister of the gospel - extended spiritual aid to the testator
during also his last illness.
The reason here is to safe guard the rights of the heirs who may
be defrauded by the sinister and undue influence which may be
exercised by some priest or ministers over a dying man. So the
law really recognizes that there are sinister priests,. Ingon si law
na naa daw possibility for undue influence.
12
 Ang possibility siguro ani kay during his last illness, naa siyay
giconfess sa pari, and this person is very wealthy although he is
sinful. Nagconfess siya, and then ana si father na “makasasala
jud diay kang dako no, pero daghan man kag properties, siguro if
imoha na idonate sa poor mabawasbawasan ang imong sala.
And then ofcourse, kung ikaw ang naa ana na lugar, maniguro
jud ka para malangit ka so ihatag nalang nimo sa church. Then
you made the will after the confession, giving substantial
properties to the church or to the priest – the law sees it as
having been given under undue influence. Ana na scenario ang
ginatan-aw sa atong law makers.
Take note:
1. The will must be made during the last illness. It could be the
illness of which the testator died, or close to it, the one of which
he suffered prior to his death.
2. And the will, giving any properties to the priest or to the church,
should be made After the confession.
If he made a will before confession, that would be a valid inheritance.
Because the law presumes that the undue influence was made during the
last confession.
The confession may not even be the last confession, as long as there is a
confession during his last illness and he made a will.
Example 1: What if the person was suffering of cancer, he confessed and
then he made a will, but he did not die of cancer. Because on his way
home from confession and after making the will, he was hit by a truck and
then died. Is the testamentary disposition valid?
Yes. Because what matters is that he made a will during his last illness
after he confessed. It is not really that he should die of that illness, it can be
the illness of which he died, or one which was close to that which he
suffered, it could be because he died of some other reason. (Note: actually
nalibog ko kay Yes ang giingon ni maam, pero iyang reason kay para sa
No.)
Example 2: Again, he was suffering from cancer, confessed, made a will in
favour of the priest in year 2000. Then wala diay siya namatay dayun,
namatay siya mga 2015. Is the testamentary disposition valid?
Yes, because we cannot consider it as his last illness. If there was really
undue influence, there was sufficient opportunity to revoke it. But still, he
did not revoke.
Example 3: The priest is also the son of the testator. Nagconfess siya sa
iyahang son because he has a terminal illness, then made a will in favour
of the son. Is the son disqualified?
- The disqualification here does not extend to the legitime.
Because the testator is still obliged to give the legitime to the
compulsory heir.
- But he forfeits the one given over and above his legitime.
This disqualification does not extend to intestacy. Because there is no will,
there is no possibility of undue influence, your inheritance is mandated by
law.
Also, to dispositions which do not extend testamentary benefit. Like for
example, the priest is appointed executor or administrator of the estate.
Being an administrator does not entail inheriting from the decedent. The
priest is not disqualified to become an executor or administrator.
B. Relatives of the priest or of the minister of the gospel.
Take note, within the 4th degree. When you say within the 4th degree, it is
both consanguinity and affinity because the law does not particularly
distinguish here. Or the church, chapter, community, organization, or
institution to which such priest or minister may belong.
C. Guardian.
Take note here, the will must be made giving any testamentary benefit to
the guardian before the approval of the final accounts of the guardianship.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
In guardianship, before it will be terminated, the guardian will have to
render an accounting of all the properties received, the income, the
expenses of the guardian or the ward, and that will be submitted to the
court for approval.
So, even if nagbuhat na og accounting si guardian, pero wala pa
naapprove sa court ang accounting and then the ward executed a will in
favour of the guardian, the guardian is disqualified because of possibility of
undue influence. However, even if subsequently the accounts were
approved, as long as the will was made before the approval of the account.
Pero kung gibuhat niya ang will after the approval of the final accounts, that
is okay, the guardian is not disqualified.
Take note also, unlike the priest, if the guardian is the ascendant,
descendant, brother or sister or spouse, the institution, legacy or devise is
valid. Because here, the law sees it that the reason for the institution is
affection and not undue influence, if there is relationship between the
guardian or the ward.
But sa priest, even if ascendant or descendant, disqualified gihapon, but
not as to the legitime. Only to the portion given over and above the
legitime.
D. Any attesting witness to the execution of the will.
We discussed before in Article 823: if the person is a witness in a will and
at the same time, an heir, legatee or devisee, or even if he is not himself
the heir, legatee or devisee but it is his wife, ascendant, descendant,
spouse, parent or children, still, although he is qualified to become a
witness, he is disqualified to become an heir legatee or devisee, or his
spouse, parent, ascendant, descendant is disqualified to become an heir,
legatee or devisee.
Unless of course there are more than 3 qualified witnesses. Here, witness
who is also a legatee, for example, is qualified na to receive the legacy.
Because his presence as a witness is no longer material to the validity of
the will. This should be related to 823.
E. Lastly, Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last illness.
The druggist are referred to as the pharmacists or one who dispenses
medicines, according to the authorities.
When you say “took care” this contemplates something which is continuing,
not merely an isolated incident.
Example: Niadto ka didto unya nagpacheck up ka, pagkahuman og
pacheck up naghatag ka didto sa physician og property sa imong will.
- The physician here is not disqualified, because he did not took
care of you as contemplated by the law.
- Dapat took care, dugay nag-alaga jud sa imo for a long time para
naay possibility of undue influence.
The same thing also, even if the physician, nurse, etc is a compulsory heir
of the testator. He or she will not lose the legitime, but disqualified only to
receive that portion which is over and above the legitime.
17 OCTOBER 2016 (1st PART)
By: Karmela Tongo
ARTICLE 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to testamentary
provisions. (n)
ARTICLE 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,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
13
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action. (n)
Those prohibitions in donations are also applicable to institution—
Succession.
Remember Article 1028, it says, ‘to testamentary provisions’. So we are
contemplating that there is a last will and testament and the institution is,
for example: the heir instituted is actually mistress of the testator, or guilty
of the same criminal offense and in consideration of that criminal offense,
the testator gave something to the person instituted as heir. Or by reason
of the public office of the instituted heir.
In Article 1028, again in relation to article 739, the reason there is because
of public policy or morality. We cannot allow these institutions because they
contravene our existing laws.
ARTICLE 1029. Should the testator dispose of the whole or part
of his property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its application, the
executor, with the court's approval shall deliver one-half thereof
or its proceeds to the church or denomination to which the
testator may belong, to be used for such prayers and pious
works, and the other half to the State, for the purposes
mentioned in Article 1013. (747a)
This article is what we call an Institution of the soul. We are referring
here to the soul of the testator. He allocated a certain amount of his estate
for prayers and pious works. Maybe the testator thinks here na if this is
done, mas dako dako siyag chance maadto sa heaven. So kung maghatag
siya ug 1 million, daghan daghan napud na siyag prayers siguro.
So how should we dispose? The law says ‘1/2 to the church or
denomination and the other half to the State.’
Here just take note that the disposition must be for prayers and pious
works and then for the benefit of the soul of the testator without specifying
the application. This is how it should be done, because if the will of the
testator specifies the amount to be applied then we follow that. If it is not
specified, if it is in general terms then we follow Article 1029.
ARTICLE 1030. Testamentary provisions in favor of the poor in
general, without designation of particular persons or of any
community, shall be deemed limited to the poor living in the domicile
of the testator at the time of his death, unless it should clearly appear
that his intention was otherwise.
The designation of the persons who are to be considered as poor
and the distribution of the property shall be made by the person
appointed by the testator for the purpose; in default of such person,
by the executor, and should there be no executor, by the justice of
the peace, the mayor, and the municipal treasurer, who shall decide
by a majority of votes all questions that may arise. In all these cases,
the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite locality.
(749a)
Article 1030 is in favor of the poor in general. So if that is the tenor of the
will of the testator, there is a question now. Who is the poor being referred
to in the will? We follow Article 1030. The standards are here. You cannot
just say ‘ako pud, poor pud ko, apil ko diha.’ You have to fall within the
contemplation of Article 1030.
‘Poor living in the domicile of the testator at the time of his death.’ Who
shall decide kung kinsa man gyud ng poor? Here if there is a person
appointed by the testator then he shall decide. In default of such
substitution, the executor. In default of the executor, the justice of the
peace, the mayor and the principal treasurer. They shall decide by majority.
In all cases, the approval of the RTC is required—the Court of First
Instance.
ARTICLE 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. (755)
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
For example, the testator wanted to give to his mistress but he knows that
it is prohibited. So there is an instruction that the testator will give it to A, a
common friend and then A will give it later on to the mistress. That is also
covered even though it is through an intermediary.
It can also be in the guise of an onerous contract like sale kuno but in
reality there is no consideration. It is still void.
Article 1031 will be referring to disqualification by reason of possible undue
influence and disqualification by reason of public policy or morality. It
cannot apply to incapacity by reason of unworthiness in Article 1032, why?
In Article 1032 the testator can actually forgive the heir. He can give to the
heir, but without any condonation, the heir is disqualified.
In Article 1027 and 1028, it is not for the testator to decide. The law says
‘the person is disqualified’ even if it is the desire of the testator to give to
these persons.
Now, we go to disqualification by reason of unworthiness.
ARTICLE 1032. The following are incapable of succeeding by
reason of unworthiness:
(1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless; 

(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of
the law within a month, unless the authorities have
already taken action; this prohibition shall not apply to
cases wherein, according to law, there is no obligation to
make an accusation;
(5) Any person convicted of adultery or concubinage with the
spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
change one already made;
(7) Any person who by the same means prevents another
from making a will, or from revoking one already made, or
who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the
decedent. (756, 673, 674a)
We have the grounds of reason of incapacity by reason of unworthiness.
Take note the qualification here would apply in testamentary succession
and in legal succession.
Going back, incapacity by reason of possible undue influence and
incapacity by reason of public policy or morality, those are applicable only
in testamentary succession, when there is a will. If the person is at the
same time the legal heir and there is no will, that person is not disqualified.
But here, the unworthiness will apply both testamentary and legal
succession, the heir concerned is disqualified.
Take note some of the grounds here are the same with some of the
grounds for disinheritance. Even if the person is actually disinherited, but if
he committed some of the same grounds here, he is also disqualified. In
effect, there is no need to disinherit him because in the first place he is
already disqualified by law.
(1) Parents who have abandoned their children or induced their
daughters to lead a corrupt or immoral life, or attempted against
their virtue
Even if the law says daughters, this also applies to a son being corrupted
by his parents. Here the parent is disqualified to inherit, even without
disinheriting the parent, he is disqualified.
14
(2) Any person who has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or
ascendants;
The same ground also in disinheritance which we discussed before. Here,
there is no need to disinherit. Take note it must be convicted so there is a
final judgment.
(3) Any person who has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
Take note here the imprisonment prescribe by law is six years or more. If it
is malicious mischief, then the heir is not disqualified if the accusation is
found to be groundless.
Remember what kinds of accusations that may be made instead of filing a
case against the testator:
1. By falsely testifying against the testator.
2. By refusing to testify in favor of the testator when such testimony
would have been material for the acquittal of the testator.
(4) Any heir of full of age who, having knowledge of the violent
death of the testator, should fall 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;
Full age here is not 18, it is 21 years old. 18 is legal age but full age is 21.
When you say violent death it should be an intentional crime which is the
reason for the death of the testator.
Important. This prohibition shall not apply to cases wherein, according to
law, there is no obligation to make an accusation, Here in the Philippines
there is still no obligation to report an accusation. For example you
witnessed a crime, it is not a crime for you not to report it. We cannot apply
yet this article, since reporting a crime is still not an obligation.
(5) Any person convicted of adultery or concubinage with the
spouse of the testator;
The same as disinheritance. Any person convicted of adultery or
concubinage with the spouse of the testator is still disqualified even if he is
not disinherited.
(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
The same as our discussion with disinheritance.
Now here, if this is testamentary succession, the disqualified heir is not
allowed to inherit his legitime as well as the free portion. So everything. It is
the same also in legal succession. He is not qualified to receive anything at
all from the testator.
ARTICLE 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at the time he made
the will, or if, having known of them subsequently, he should
condone them in writing. (757a)
For example: there is the parent who induced his daughter to lead a corrupt
and immoral life. That is a ground to disqualify the parent. So the parent by
law is already incapacitated to inherit from the daughter. However despite
that, for example the father who induced his daughter to lead a corrupt and
immoral life, and then the daughter executed a last will and testament and
instituted the father, so what is the effect of that institution? That is an
implied condonation.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
Here, qualified na ang father to inherit because by instituting the father as
an heir in the will, despite knowing that his father had already committed an
offense which is considered as an act of unworthiness therefore
disqualifies him, still he was instituted. So it is an implied condonation.
Another example, wala pa ang offense, the daughter made a will leaving to
his heirs all of his properties including his father, and then the father
committed an act of unworthiness to the daughter, which is one of the
grounds here. Supposedly, the father is now disqualified. So, katong
institution niya sa will as an heir, dili na mahatag because of the incapacity
of the father, when he committed an act which is a ground for incapacity
under 1032. But the daughter would really like to give to the father. What
should she do? The law says ‘she should condone it in writing’ so
magbuhat siya ug document na ‘I forgive my father’ so that is express
condonation. That is in incapacity.
We discussed also before in disinheritance, diba in disinheritance it creates
already a reconciliation between the testator and the disinherited heir, then
what is the effect of that reconciliation? If wala pay disinheritance na
mahitabo, that reconciliation would now prevent the testator from
disinheriting kay na erase na tong ground for disinheritance.
If there is a disinheritance already made in the will and there is already a
reconciliation, still the reconciliation will erase the disinheritance made in
the will. That is in disinheritance.
The question is, a ground for incapacity under article 1032 is also made as
a ground for disinheritance. Again diba, nay common grounds. For
example ‘(2) Any person who has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;’ For
example it is the son, the son attempted against the life of his father.
Convicted siya and it is final. So the father, suko kayo siya sa iyang son, he
made a will disinheriting the son. “I hereby disinherit my son because he
attempted against my life..’ but diba it is also a ground for incapacity. So
even if the father did not disinherit the son, still the son is disqualified under
article 1032, kay kini siya no need to disinherit. By law the heir is already
disqualified, incapacitated to succeed.
So the father already made a will and then, naay nahitabo sa ilaha na
reconciliation. So, under the law on disinheritance, reconciliation between
the testator and the heir erases the ground for disinheritance. So nag
reconcile na si father ug si son. But in incapacity as we discussed under
1033, if there is already a will, he should condoned them in writing. So for
example there is already a will, na institute na si heir and then nahitabo
tung ground for disinheritance, he should condone It in writing.
So let us say year 2000, the testator made a will. He instituted A as one of
the heirs. Then, in the year 2001, A attempted against the life of the
testator. Under the law on incapacity, A is already disqualified even if he
was instituted in the will. Then suko man gyud si testator, in the year 2002
he made another will only disinheriting A. so aside from the law, he really
disinherited A, he made a will. And then, in the year 2003 the testator and
A reconciled.
Question: is A now capacitated to inherit? Take note! Under the law on
disinheritance, mere reconciliation is sufficient and when you say
reconciliation it should be mutual resumption of feelings—relationship, so
nag uli-ay jud silang duha. But as we discussed under the law on
incapacity, if there is a will made and the testator subsequently knew of the
ground, diba, kung gusto niya pasayluon si heir he should condone it in
writing.
So nakabuhat na siyag will, gi institute, and then nahitabo tong incapacity
and gusto niya pasaylu-on, under article 1033, having known it
subsequently he should condone it in writing, then the cause of
unworthiness is without effect. But in year 2003 nag reconcile lang sila.
Walay condonation in writing, so can A now inherit, if for example, the
testator died in year 2005, can A inherit from the testator? Can you say
yes, because they already reconciled and under the law on disinheritance,
reconciliation erases the ground for disinheritance. Or, no because under
article 1033, he should condone the act in writing, so which is which?
Just remember, if a ground for incapacity is also made as a ground for
disinheritance, we follow the law on disinheritance. So if that is the case,
mere reconciliation is sufficient to restore the heir to his inheritance. There
15
is no need for a condonation in writing because again, there was
disinheritance so we follow the law on disinheritance.
But kung walay disinheritance na nahitabo, in year 2001 he attempted
against the testator, then walay will and then nagreconcile sila in year
2003, that reconciliation is not sufficient. Why? Because wala may
disinheritance diba? We cannot apply the law on disinheritance. We follow
the law in incapacity which requires a condonation in writing to render the
causes of unworthiness without effect. There should be a condonation in
writing.
Take note also, .. in reconciliation, condonation is a unilateral act on the
part of the testator. He forgive the son, bahala na si son kung gusto siya
mag forgive basta gi forgive na siya ni testator. So again it should be in
writing.
That is the rule on act of unworthiness which is also made as a ground for
disinheritance.
ARTICLE 1034. In order to judge the capacity of the heir, devisee or
legatee, his qualification at the time of the death of the decedent shall
be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered, and in the case
falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time
of the compliance with the condition shall also be considered. (758a)
How do we know if the heir is incapacitated? It is very clear under article
1034. If it is a simple institution, his qualification at the time of death.
Because it is the time when there is a transfer. So, if he committed an
offense after the death of the testator, for example, No.2 ‘Any person who
has been convicted of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;’ the person whose attempt is being
made is not only against the testator, it can also be an attempt against the
spouse, descendant or ascendant of the testator.
For example the testator died in the year 2000, walay offense si heir. Then
after the death of the testator, the heir attempted against the life of the
spouse of the testator and was convicted. Is he disqualified? No, because
the transfer already happened at the time of death. Subsequent act will no
longer affect the capacity of the heir. So the capacity is measured at the
time of the death of the testator. That is if the institution is simple.
So the law says in cases falling under no. 2, 3 and 5, wait sa ka till final
judgment. And in cases falling under no.4, the expiration of the month
allowed for report.
Take note, the final judgment here may come after the death kay dugay
baya ng kaso. But the offense is committed before the death of the testator.
If conditional, the law says the time of the compliance shall also be
considered. So duha ka time element ang bantayan kung conditional.
1. Is he qualified at the time of death
2. Is he qualified at the time of fulfillment of the condition. So that is
for conditional institution subject to a suspensive condition.
ARTICLE 1035. If the person excluded from the inheritance by reason
of incapacity should be a child or descendant of the decedent and
should have children or descendants, the latter shall acquire his right
to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children. (761a)
We are actually referring here to the legitime in a testamentary succession
or to legal succession. Because again there is no right of representation in
free portion. So the legitime in the testamentary succession and the whole
of the estate in legal succession. So a person is disqualified can be
represented.
The same in disinheritance, a person disinherited can also be represented.
The same also in disinheritance. The heir who is incapacitated shall not
enjoy the usufruct and administration of the property inherited by his
children.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
For example if you are the parent of the minor child, diba under the Family
Code, the parent as a legal guardian has usufruct and administration over
the properties of their minor children. What if katong properties sa ilang
minor children, nadawat nila because in the first place, you are
incapacitated, dapat ikaw unta to, but you are incapacitated they are your
representatives so they inherit. So here, that is now an exemption to the
law. Here even if you are the parent and your children are minors, you do
not have usufruct and administration over their properties.
Who will be their guardian? In that case, another guardian will be
appointed. Or iyang other parent, if dili disqualified. Or kung isa lang gyud
ka parent then appoint a guardian.
ARTICLE 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. (n)
Here for the person to be excluded because he is incapacitated, there must
be a declaration by the court that he is excluded. So judicial order of
exclusion. Because prior to any order of exclusion, any person dealing with
that heir cannot be considered in bad faith because he had no knowledge
because there is still no exclusion.
So valid as to third persons who acted in good faith. So kung nagbaligya
siya, so any acts of administration, disposition xxx So valid siya as a third
persons who acted in good faith. But the heirs can recover from the
disqualified heir. That is with respect to the disqualified heir.
ARTICLE 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate. (n)
Expenses for the preservation. These expenses will really have to be
incurred, whether they are incurred by the disqualified heir or the estate,
these have to be incurred. The disqualified heir, even if he is disqualified,
has the right for the reimbursement or indemnification for these expenses.
ARTICLE 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall be
obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
diligence. (760a)
ARTICLE 1039. Capacity to succeed is governed by the law of
the nation of the decedent. (n)
Remember 1039 in conjunction with Article 16 of the Civil Code. Under
Article 16, the order of succession, the amount of successional rights, the
intrinsic validity of the testamentary dispositions, are governed by the
national law of the decedent. Number four would be capacity to succeed
under 1039. This is a usual bar exam question. So remember the 4 matters
governed by the national law of the decedent: (take note: not the heir, but
the decedent)
1. Order of succession 

2. The amount of successional rights 

3. Intrinsic validity of testamentary dispositions
4. Capacity to succeed
ARTICLE 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. (762a)
Action for declaration of incapacity and action for recovery of inheritance.
We have to file these within 5 years from the time the disqualified heir took
possession of the property because even if there is an heir who is
disqualified and he is given something in the will, but then again after the
16
will was executed, he committed an offense against the decedent, so he is
disqualified, so there is no need to disinherit him.
There is also no pardon by the testator. But as long as he does not take
possession of the property, then the right to bring an action for the
declaration of his disqualification will not commence to run, there is no
adverse possession. It is supposed to be from the time he took adverse
possession. Only interested parties can bring an action. So, one who will
be directly benefited by the avails of the suit. It can be the heirs, other
heirs, or creditors.
nd
17 OCTOBER 2016 (2 PART)
By: Katherina Gumboc
SECTION 3
Acceptance and Repudiation of the Inheritance
In succession, it is not really imposed upon the heir that he has no choice
because he can actually either accept or repudiate the inheritance.
ARTICLE 1041. The acceptance or repudiation of the inheritance is
an act which is purely voluntary and free.
Requisites of valid acceptance or repudiation
1. The acceptance or repudiation must be voluntary and free;
2. The person accepting or repudiating must be certain of the
decedent’s death and of his right to inherit
Voluntary and free acceptance or repudiation
Both act of acceptance and repudiation is voluntary and free. That is
why if the consent is vitiated in accepting and repudiating the inheritance, it
will not constitute as a valid acceptance or repudiation. As a consequence,
the acceptance or repudiation in these cases can be revoked.
ARTICLE 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent. (989)
Retroactive effect of acceptance or repudiation
The effects of acceptance or repudiation will always retroact to the
moment of death of the decedent. This is because it is upon death that the
property, rights and obligations of the decedent are transmitted. Hence,
even if you accepted or repudiated after the death of the decedent, it will
still retroact to the moment of death of the decedent.
ARTICLE 1043. No person may accept or repudiate an inheritance
unless he is certain of the death of the person from whom he is to
inherit, and of his right to the inheritance. (991)
Certain of decedent’s death and of right to inherit
An heir cannot accept during the lifetime of the testator because he
merely has an inchoate right. Hence, aside from the fact that the
acceptance or repudiation must be done after death, the law says that the
heir must be certain of the death of the person from whom he is to inherit,
and of his right to the inheritance.
Otherwise, it would be easy for an heir to say that he doesn’t want to
accept anything from the decedent because he knows that he is not an heir
in the first place. However, it turned out that the decedent executed a will
and he was actually instituted as heir. This is precisely the reason why the
person must be certain of the testator’s death and that he is instituted as
one of the heirs. Only upon such time can the heir validly accept or revoke.
Acceptance, defined
Acceptance is the act by which a person called to the inheritance of the
decedent either by will or by law manifest his assent to the receipt of the
property, rights and obligations which are transmitted to him through
succession.
Repudiation, defined
Repudiation is the act by which a person called to the succession of
inheritance manifest his unwillingness to succeed to the same.
ARTICLE 1044. Any person having the free disposal of his property
may accept or repudiate an inheritance.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
Any inheritance left to minors or incapacitated persons may be
accepted by their parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall belong to
the persons designated by the testator to determine the
beneficiaries and distribute the property, or in their default, to those
mentioned in Article 1030. (992a)
Who can accept or repudiate
GR: Any person having the free disposal of his property may accept or
repudiate an inheritance.
To be an heir, all a natural person needs is juridical capacity. He
doesn’t need the capacity to act in order to inherit nor to be the subject of
donation or succession. However, with respect to acceptance or
repudiation, the law requires that a person must have the free disposal of
his property. This means that a person must have the capacity to act. In
other words, a person cannot accept or repudiate on his own if he is not of
legal age, or if he is suffering from incapacity such as civil interdiction.
Instances when a person may accept or repudiate
In all these instances, it can be observed that it is usual for a person to
accept than to repudiate an inheritance. That is why, in order to ensure that
the repudiation is really his own decision, the law imposed certain
formalities. Also, there are more formalities imposed in repudiation than in
acceptance.
1. Inheritance left to minors or incapacitated persons
a. Acceptance – their inheritance may be accepted by
their parents or guardians. Even if minors can inherit
because they have juridical capacity, they still cannot
accept on their own because they do not have capacity
to act or free disposal.
b. Repudiation – their inheritance may be repudiated by
their parents or guardians but there should be judicial
authorization. The law imposed an additional
requirement that there should be judicial authorization.
2. Inheritance left to the poor
a. Acceptance – by the person designated by the testator
to determine the beneficiaries and distribute the
property, or in their default, to those mentioned in
Article 1030
i. By the executor, and
ii. Should there be no executor, by the justice
of the peace,
iii. The mayor, and
iv. The municipal treasurer
b. Repudiation – there is no mention in the law.
Obviously because he is already poor so he has more
reasons to accept rather than to repudiate. In the first
place, the inheritance is for his benefit.
ARTICLE 1045. The lawful representatives of corporations,
associations, institutions and entities qualified to acquire property
may accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary. (993a)
Corporations, associations, institutions and entities
1. Acceptance – by their lawful representatives
2. Repudiation – by their lawful representatives but with the
approval of the court
ARTICLE 1046. Public official establishments can neither accept
nor repudiate an inheritance without the approval of the
government. (994)
Public official establishments
Both the acceptance and the repudiation of the inheritance of public
official establishments should be with the approval of the government.
ARTICLE 1047. A married woman of age may repudiate an
inheritance without the consent of her husband. (995a)
17
Married woman
A married woman of age can repudiate without the consent of her
husband. Of course, she can also accept.
As to married men, there is no need to mention the rights because this
has always been recognized. This is merely intended to make clear that
married women also have a right.
ARTICLE 1048. Deaf-mutes who can read and write may accept or
repudiate the inheritance personally or through an agent. Should
they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the
same with judicial approval. (996a)
Deaf mutes
1. Deaf-mutes who can read and write – they can accept or
repudiate their inheritance personally or through an agent without
the need for court approval
2. Deaf-mutes who cannot read and write
a. Acceptance – the acceptance should be made by their
guardians
b. Repudiation – also by their guardians but with judicial
approval
As you can observe, there are a lot of formalities required if there is
repudiation than acceptance. Most of the instances of repudiation requires
judicial approval but not in acceptance.
ARTICLE 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one would have
no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not
imply an acceptance of the inheritance if, through such acts, the
title or capacity of an heir has not been assumed. (999a)
Kinds of acceptance
1. Express acceptance
2. Tacit acceptance
3. Presumed acceptance under Article 1057
Express acceptance
An express acceptance must be embodied in a public document. When
you say public, it means that it has been acknowledged by the notary
public.
Tacit acceptance
In tacit acceptance, there is no written document but it results from acts
by which the intention to accept is necessarily implied, or which one would
have no right to do except in the capacity of an heir. These are acts which
are inconsistent with repudiation, or acts which you can only do in the
capacity of an heir.
Illustration:
The testator executed a will and gave a necklace to X as her legacy. X
repudiated the legacy. Nevertheless, she took it, destroyed it and threw it
away after. How should the acts of X be construed?
The acts of X can be construed as tacit acceptance. The act of
destroying and throwing away the necklace is an attribute of ownership,
which therefore shows that X accepted the legacy. Clearly, if there is
repudiation on her part, she would not have destroyed the necklace for it
can only be done by an owner.
Acts of mere preservation or provisional administration
GR: The acts of mere preservation or provisional administration, the
law says it does not imply acceptance.
Although in such acts, the title or capacity of an heir is showed but his
acts merely involve repair, preservation, or cleaning the property, it is only
an act of administration.
ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously,
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve
by virtue of accretion, the inheritance shall not be deemed
as accepted. (1000)
Examples of acceptance
1. If the heirs sells, donates, or assigns his right to a stranger,
or to his co-heirs, or to any of them
This is precisely for the reason that a person cannot accept or donate or
assign what he does not own in the first place. Hence, if a person sold his
inheritance, it is presumed that he has accepted the same.
2. If the heir renounces the same, even though gratuitously, for
the benefit of one or more of his co-heirs
For example, A, B, C, D and E are heirs. A says, “I do not want to accept
my inheritance. I am repudiating it in favor of B and C without any
consideration.”
In this case, there is really repudiation because in repudiation you do not
choose who will receive your share. In repudiation, your share will accrue
to all other heirs. If you just said that you will give it to B and C, that is not
repudiation but an acceptance rather because you just chose to whom your
share will go which is an exercise of the right of dominion.
Take note, it must be for the benefit of one or more heirs but not all
because if it is in favor of all gratuitously, it is really repudiation.
3. If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve by
virtue of accretion, the inheritance shall not be deemed as
accepted
This is different because when you renounce, you do not receive any
benefit from the estate. Hence, if you renounced for the benefit of all but
you demanded for a price then that is not repudiation but you really
accepted. It would really be repudiation if you renounce indiscriminately in
favor of all and gratuitously without receiving anything. That would be the
real repudiation.
ARTICLE 1051. The repudiation of an inheritance shall be made in a
public or authentic instrument, or by petition presented to the court
having jurisdiction over the testamentary or intestate proceedings.
(1008)
How can repudiation be made
1. In a public or authentic instrument, or
2. By petition presented to the court having jurisdiction over the
testamentary or intestate proceedings
FIRST KIND: In a public or authentic instrument
You just declare your repudiation either in a public instrument which
means that it is acknowledged before a notary public or in an authentic
document which is not necessarily acknowledged before a notary public
but thru your real handwritten statement of repudiation.
SECOND KIND: By petition presented to the court
In this kind of repudiation, you file in the court. Although between the
two, you should prefer the first because nganong magkaso-kaso pa man ka
and then you will just repudiate.
IMPERIAL vs. CA
G.R. No. 112483
October 8, 1999
FACTS: Leoncio was the original owner of Lot 45. He donated the lot to
18
his acknowledged natural son Eloy Imperial. Later on, Leoncio filed a
complaint for the annulment of the donation. However, the dispute was
settled thru a compromise agreement where Leoncio recognized the
legality of the rights of Eloy. When Leoncio died, Victor substituted him
and moved for the execution of judgment of the compromise agreement.
When Victor died, his heirs filed for the annulment of the donation in
favor of Eloy alleging that the conveyance impaired the legitime of Victor.
Eloy opposed arguing that Victor already renounced his share when he
moved for the execution of judgment of the compromise agreement
instead of filing an annulment of the donation.
ISSUE: W/N Victor repudiated his share when he moved execution of
judgment of the compromise agreement.
RULING: NO
No renunciation of legitime may be presumed in this case. At the
time of Victor’s substitution, the judgment approving the compromise
agreement has already been rendered. Victor merely participated in the
execution of the compromise agreement. He was not a party to the
compromise agreement.
More importantly, our law on succession does not countenance tacit
repudiation of inheritance. Rather, it requires an express act on the part
of the heir. Thus, when Victor substituted Leoncio upon his death,
Victor’s act of moving for the execution of judgment of the compromise
agreement cannot be considered as act of renunciation of his legitime.
He was therefore, not precluded or estopped from subsequently seeking
the reduction of the donation nor is his heirs precluded from doing so, as
their right to do so is expressly recognized under Article 772 as well as in
Article 1053.
In this case there is no repudiation because the repudiation must be
expressed in a public or authentic instrument, or by petition presented to
the court having jurisdiction over the testamentary or intestate proceedings.
There is no such thing as tacit or implied repudiation. There can only be
express repudiation. Hence, the act of moving for the execution of the
compromise agreement cannot be considered as an act of repudiation.
ARTICLE. 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the court to
authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess, should
there be any, shall in no case pertain to the renouncer, but shall be
adjudicated to the persons to whom, in accordance with the rules
established in this Code, it may belong. (1001)
Repudiation of an instituted heir
We have an heir who has been instituted and then he refuses to accept
his inheritance. However, he has several debts and he has nothing to pay
his creditors except only through the inheritance. Despite such, he still
repudiates the inheritance to the prejudice of his creditors. To the prejudice
means that the creditors have no other resort but to go against the
inheritance of the heir.
Rights of the creditors
The law says the creditors may petition the court to authorize them to
accept it in the name of the heir but only to the extent of their credits.
For example, if the heir owes them P10M and the heir stands to inherit
P20M, they can only petition to accept P10M. Nevertheless, the excess will
not go to the heir since he already repudiated the inheritance.
LEVISTE vs. CA
G.R. No. L-29184
January 30, 1989
FACTS: The lawyer entered into a contingent fee arrangement with his
client for the probate of the will. It was agreed that he will get 35% of the
value of the devise in case of successful probate. However, the lawyer
was terminated by his client and the court also disallowed the will for
failure to comply with the formalities of the law. But the lawyer filed an
appeal. According to him, his personality is based under Article 1052
because allegedly he is a creditor of an heir.
ISSUE: W/N the lawyer has personality to participate in a probate
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
proceeding.
RULING: NO
He is not a creditor because his arrangement with the client was
contingent. He would only get the 35% in case of successful probate but
the contingency did not arise because the will was denied. This also
presupposes that the creditor is accepting in behalf of the heir. The
client is not an heir because she was merely a devisee in the will and
the will was denied probate. Take note that the right of the devisee to
inherit can only be founded on the validity of the will. However, the will
was denied hence the client was not also an heir. Hence, Atty. Leviste
cannot rely on Article 1052
ARTICLE 1053. If the heir should die without having accepted or
repudiated the inheritance his right shall be transmitted to his
heirs. (1006)
Effect of death of an heir
The heir died subsequent to the death of the decedent without having
accepted or repudiated the inheritance. In this case, his heirs can accept or
repudiate in his behalf.
ARTICLE 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it. (1007a)
Several heirs called to the inheritance
When several heirs are called to the inheritance, there is no prohibition
that all of them must accept and all of them must repudiate. In other words,
some of them can accept and some of them can repudiate. If some of them
repudiates, there can be accretion. The share of those who repudiates will
go to the other heirs by accretion.
ARICLE 1055. If a person, who is called to the same inheritance as
an heir by will and ab intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of
his being a testamentary heir, he may still accept it in the latter
capacity. (1009)
A person can be an heir both by testamentary succession, meaning
there is a will, and by legal succession.
1. If he repudiates his inheritance in his capacity as a
testamentary heir – the repudiation carries with it his
repudiation in the capacity as a legal heir.
When you say testamentary heir, you have been instituted in the will, which
pertains to the express wishes of the testator. Legal succession, on the
other hand, is only the presumed wishes or intention of the testator. So if a
person, knowing the express wishes of the testator but still does not want
to accept, then the more reason that he does not want to accept the
presumed wishes of the testator.
2. If he repudiates in his capacity as an intestate heir – he does
not know that he has been instituted in the will, then it will not
amount as a repudiation of his share as a testamentary heir.
He can still accept his institution as a testamentary heir because he might
not want to accept base on legal succession because that is only based on
the presumed intention of the testator. But he might want to respect the
express wishes of the testator.
ARTICLE 1056. The acceptance or repudiation of an inheritance,
once made, is irrevocable, and cannot be impugned, except when
it was made through any of the causes that vitiate consent, or
when an unknown will appears. (997)
Irrevocability of acceptance and repudiation
As we have discussed before, the acceptance or repudiation must be
free and voluntary. Once this is made, it is irrevocable. You cannot say that
19
you changed your mind because it is irrevocable. The only way that the
repudiation may be revoked is, only
1. If there is vitiation consent such as fraud, mistake, intimidation,
undue influence and others.
2. Another is when there is an unknown will. In this case, you can
accept or repudiate again based on the new will.
ARTICLE 1057. Within thirty days after the court has issued an order
for the distribution of the estate in accordance with the Rules of
Court, the heirs, devisees and legatees shall signify to the court
having jurisdiction whether they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have
accepted the inheritance. (n)
Presumed acceptance
Within 30 days after the order of the distribution of the estate is issued,
you should signify as an heir, devisee or legatee whether you accept or
repudiate the inheritance.
If you did not manifest anything, the law says you are deemed to have
accepted the inheritance. This is what we called presumed acceptance.
The presumption is on the acceptance and not on repudiation because it is
more usual to accept than to reject or repudiate.
SECTION 4
Executors and Administrators
This topic will actually be discussed under the Rules of Court, specifically
under Special Proceedings.
ARTICLE 1058. All matters relating to the appointment, powers
and duties of executors and administrators and concerning the
administration of estates of deceased persons shall be governed
by the Rules of Court. (n)
The governing rules in all matters relating to the appointment, powers and
duties of executors and administrators and concerning the administration of
estates of deceased persons is the Rules of Court.
Executor is the person named in the will to administer the estate. If she is
female, she is called executrix.
If the testator left a will but without appointing an executor, the court will
appoint an administrator with a will annexed or administratrix with a will
annexed if female.
If there is no will and there is a need to appoint an administrator probably
because the estate is large, the person who administers that is simply
called as administrator or administratrix as the case may be.
There is also a special administrator when in the meantime a regular
administrator cannot be appointed and there is a need to pay off some
debts immediately.
ARTICLE 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. (n)
This is discussed in your Credit and Transactions. If the estate is insolvent,
which means that it has more obligation than assets,
1. First, determine who are the creditors who are preferred,
2. Second, who are the creditors who concur with each other to
divide among themselves the estate.
If the estate is not insolvent, there is no need to observe the rule on
concurrence and preference of credits.
ARTICLE 1060. A corporation or association authorized to conduct
the business of a trust company in the Philippines may be
appointed as an executor, administrator, guardian of an estate, or
trustee, in like manner as an individual; but it shall not be
appointed guardian of the person of a ward.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
Who can be appointed as executor or administrator
1. Natural person
2. Juridical person authorized to conduct the business of a trust
company in the Philippines
Who cannot be appointed
1. A corporation or association cannot be appointed guardian of the
person of a ward
When you go in your special proceedings in guardianship, there is what we
call guardian over the property of the ward, guardian over the person of the
ward, or guarding over the person and the property of the ward. Only a
natural person can be a guardian over the person and over the property of
a ward.
A juridical person cannot be a guardian over the person of the ward
because a juridical person has no living personality of its own. When you
say guardian over the person mao na ang mag atiman sa ward. Otherwise,
if a corporation will be allowed, it would be the Board of Directors who will
look after the ward. So a corporation can only be appointed as guardian of
the property of a ward.
SECTION 5
Collation
Three concepts of collation
1. Collation as a mathematical process – this is the imaginary
addition or fictitious union of the property donated by the testator
inter vivos with the properties left at the time of his death.
2. Collation as an imputation – donations inter vivos made to
compulsory heirs are considered as advances to their legitimes.
3. Actual reduction or abatement – it is the actual reduction or
bringing back of the property donated by the testator during his
lifetime to the hereditary estate if the donations are found to be
inofficious.
Illustration 1:
The testator has three children named A, B and C. During the lifetime of
the testator, he donated to B one of his properties valued at P300k. Also,
he donated to his friend D a property valued at P200k. At the time of his
death, his remaining estate is P2.5M. How do we compute the value of the
estate?
The value of the estate at the time of death is P2.5M. We first deduct the
obligations or expenses if there are any. If none, we add back the
donations made during the lifetime of the testator. So we have P300k made
to B and P200k made to D which totals to P500k then added back to
P2.5M. The net hereditary estate is P3M. Adding back the P300k and
P200k is what we call collation as mathematical process. We add back
only the imaginary value at the time of the donation but we do not really
bring back the property in the estate.
Q: What are the legitimes?
The P3M will be divided two. The legitime is P1.5M while the free portion is
P1.5M. There are three children A, B and C so the P1.5M will be divided
among them. Each of the legitimate children will get P500k. In the
distribution, because B already received P300k by way of donation, it
would be considered as an advance to his legitime. This is now what we
call collation by imputation. The P300k will be imputed as an advance to
B’s legitime. As a result, B can only receive P200k as an addition to what
he already received in order to complete his legitime.
Q: How about the donation made to the friend D?
As to the friend D, the donation is not inofficious since the free portion
comprised of P1.5M. The P500k will be charged to the free portion and
there still remains P1M.
Illustration 2:
Assuming the donation to the friend D was P2M and the remaining estate
at the time of death is P700k. How do we distribute the properties?
20
P700k value existing at the time of death less expenses, obligations and
other obligations and then add back all donations. So here, the value of the
estate is again P3M. This again collation as a mathematical process.
The same thing, legitime is P1.5M while the free portion is P1.5M.
As to the friend D, the donation of P2M cannot be respected in its entirety
because the remaining free portion is only P1.5M. D will have to return the
excess of P500k to the estate. This is the concept of collation of actual
reduction or abatement. The friend D has to return the P500k in order to
complete the legitime of the compulsory heirs. Take note, the value of the
estate at the time of death is P700k plus P300k, which is considered as
advance to the legitime of B, so P200k nalang ang idungag sa iyaha. So
actual cash is P700k. Kulang og P500k because actually P1M to siya tanan
so kelangan dungagan og P500k which will come from the excess of the
donation made to D because the donation is inofficious.
ARELLANO vs. PASCUAL
G.R. No. 189776
December 15, 2010
FACTS: Angel Pascual Jr died intestate leaving as heirs his siblings
Amelia Arellano and Francisco Pascual and Miguel. Francisco and
Miguel filed a petition of intestate settlement. They alleged that that the
property donated inter vivos in favor of Amelia should be considered as
advance to her legitime and therefore should be subject to collation.
ISSUE: W/N the donation inter vivos in favor of Amelia should be
subject to collation.
RULING: NO
The purposes of collation are to secure equality among the compulsory
heirs in so far as is possible, and to determine the free portion, after
finding the legitime, so that inofficious donations may be reduced. If
there is no compulsory heir, there is no legitime to be safeguarded.
The records do not show that the decedent left any primary, secondary,
or concurring compulsory heirs. He was only survived by his siblings,
who are his collateral relatives and, therefore, are not entitled to any
legitime. The decedent not having left any compulsory heir who is
entitled to any legitime, he was at liberty to donate all his properties,
even if nothing was left for his siblings-collateral relatives to inherit. His
donation to petitioner, assuming that it was valid, is deemed as donation
made to a "stranger," chargeable against the free portion of the estate.
There being no compulsory heir, however, the donated property is not
subject to collation.
Q: How do we distribute the estate?
In this case, the property will be divided among the three siblings. In
other words, the estate will be divided to three portions. Since Amelia
already died, her share will pertain to her daughters Agnes and Nona by
right of representation. The daughters will inherit per stirpes while the
two brothers will inherit per capita. Whatever is left at the time of death,
that will be distributed.
The survivors in this case were the three siblings of the decedent. They are
not compulsory heirs but they are just legal heirs. Collation is only required
if the decedent leaves compulsory heirs. If there are no compulsory heirs,
even if you made donations inter vivos, those donations will not be
computed back or brought back to the estate. The purpose of collation is to
preserve the legitimes of the compulsory heirs. If there are no compulsory
heirs, there is no legitimes which must be protected.
ARTICLE 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. (1035a)
GR: Donations made to compulsory heirs during the lifetime of the testator
shall be considered as advances to their legitimes. Again, you add back the
donations and then charge it to their respective legitimes.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
TUPAS vs. RTC OF NEGROS
G.R. No. L-65800
October 3, 1986
FACTS: Epifanio Tupas died leaving his widow Partenza as his only
surviving compulsory heir. His will was probated. However, the lots listed
therein were no longer owned by him at the time of his death because he
already donated the lots in favor of Tupas Foundation Inc.. The widow
Partenza sought to declare the donation inofficious insofar as it
prejudiced her legitime. The trial court denied it and ruled that the Tupas
Foundation is a stranger and not a compulsory heir. Hence, the donation
inter vivos in its favor is not subject to collation.
ISSUE: W/N the donation inter vivos in favor of a stranger is subject to
collation.
RULING: YES
A person's prerogative to make donations is subject to certain limitations,
one of which is that he cannot give by donation more than he can give by
will. If he does, so much of what is donated as exceeds what he can give
by will is deemed inofficious and the donation is reducible to the extent of
such excess. Such a donation is, moreover, collationable that is, its value
is imputable into the hereditary estate of the donor at the tune of his
death for the purpose of determining the legitime of the forced or
compulsory heirs and the freely disposable portion of the estate. This is
true as well of donations to strangers as of gifts to compulsory heirs.
The fact, therefore, that the donated property no longer actually formed
part of the estate of the donor at the time of his death cannot be asserted
to prevent its being brought to collation. Indeed, it is an obvious
proposition that collation contemplates and particularly applies to gifts
inter vivos. Since it is clear that the questioned donation is collationable
and that, having been made to a stranger (to the donor) it is, by law
chargeable to the freely disposable portion of the donor's estate, to be
reduced insofar as inofficious.
A donation made to compulsory heirs during the lifetime of the testator is
subject to collation. However, it does not follow that the donation made to
strangers cannot be subject to collation. All donations made by the
decedent shall be subject to donation if he left compulsory heirs. A
donation made to strangers is subject of collation charged to the free
portion. But if the decedent did not leave any compulsory heirs, a donation
made to compulsory heirs or a stranger is not subject to collation.
Q: How do we determine if a donation is inofficious?
The rules are set forth in in Articles 908, 909 and 910 of the New Civil
Code as discussed in the case of Tupas vs. RTC.
TUPAS vs. RTC OF NEGROS
G.R. No. L-65800
October 3, 1986
These rules are set forth in Articles 908, 909 and 910 of the Code, on
the basis of which the following step-by-step procedure has been
correctly outlined:
(1) Determination of the value of the property which remains at
the time of the testator's death;
(2) Determination of the obligations, debts, and charges which
have to be paid out or deducted from the value of the property
thus left;
(3) The determination of the difference between the assets and
the liabilities, giving rise to the hereditary estate;
(4) The addition to the net value thus found, of the value, at the
time they were made, of donations subject to collation; and
(5) The determination of the amount of the legitimes by getting
from the total thus found the portion that the law provides as
the legitime of each respective compulsory heir.
Deducting the legitimes from the net value of the hereditary estate
leaves the freely disposable portion by which the donation in question
here must be measured. If the value of the donation at the time it was
made does not exceed that difference, then it must be allowed to stand.
21
But if it does, the donation is inofficious as to the excess and must be
reduced by the amount of said excess.
Donations made to strangers will be charged to the free portion. Simply
stated, a donation is inofficious if it exceeds the free portion. Hence, the
excess has to be returned by the donee.
It is important to determine first the net hereditary estate because even if
you memorized the respective legitimes of the compulsory heirs but the net
hereditary is wrong, the computation will still be wrong.
ARTICLE 1062. Collation shall not take place among
compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious. (1036)
When collation shall not take place
What happens if the testator made several donations then he provided
in his will or deed of donation that the donation he made to his son in 1992
valued at P10M shall not be subject to collation?
1. If the donor should have so expressly provided
Article 1062 says the collation shall not take place among compulsory heirs
if the donor should have so expressly provided. What will happen here is
that the said donation made to the compulsory heir will not be considered
as advance to his legitime. It will be charge to the free which means that it
was given to him over and above his legitime. If it is inofficious, the
compulsory heir will have to return the excess because if it will be allowed,
surely it will prejudice the legitimes of the other compulsory heirs.
2. If the donee should repudiate the inheritance
The testator made a donation to C, one of his children, worth P300k. Then
the testator died. But C repudiated his inheritance. Does it follow that he
has to return the donation?
No, he only repudiated his inheritance or the donation inter vivos. However,
he will not receive his legitime anymore because he already repudiates.
The donation will now be charged to the free portion.
BUHAY DE ROMA vs. CA
G.R. No. L-46903
July 23, 1987
FACTS: Candelaria de Roma died intestate and was survived by her
two legally adopted daughters Buhay and Rosalinda. Buhay, as the
appointed as administratrix, filed an inventory of the estate. Rosalinda
opposed alleging that certain properties earlier donated to Buhay were
not included in the inventory. Buhay countered that she has no
obligation to collate the properties because the decedent expressly
provided in the deed of donation the phrase, “sa pamamagitan ng
pagbibigay na di mababawing muli.” By virtue of the said phrase, the
donations are irrevocable and are not subject to collation.
ISSUE: W/N there was an express prohibition to collate.
RULING: NO
The phrase merely described the donation as irrevocable and shold
not be construed as an express prohibition against collation. The fact
that a donation is irrevocable does not necessarily exempt the subject
therof from the collation required under Article 1061.
Anything less than such express prohibition will not siffice under the
clear language of Article 1062. The intention to exempt from collation
should be expressed plainly and unequivocally as an exception to the
general rule under Article 1062. Absent sh clear indication of intention,
we apply not the exception but the rule that it should be collated.
When you say that the donation is irrevocable, that does not mean that the
donation is not subject to collation. Otherwise, it would be very easy to
circumvent the law on legitimes by saying that the donation is irrevocable.
Q: What if there is express prohibition to collate? what will happen to
the properties?
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
In such case, the properties donated inter vivos should not be collated to
form part of the decedent’s net hereditary estate specifically the legitime. It
shall be treated as charged from the free portion.
Again, the testator may provide that the donation is irrevocable but it does
not mean that it will be added back to the net hereditary estate. Remember
the three processes of collation. It will still be added back to the estate as a
mathematical process but it will not be imputed to the legitime of the
compulsory heir. It will be charged to the free portion. That is the
consequence if there is an express prohibition to collate.
ARTICLE 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. (1037)
Property left by will
We have for example a devise or legacy, of course, they are not
subject to collation because in the first place they are not deducted from
the estate. They are part of the estate and they will be taken from the free
portion. But, in any case, the legitime will remain unimpaired. If the legacy
or devise exceeds the free portion, we reduce it because we cannot
prejudice the legitime.
ARTICLE 1064. When the grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been obliged to
bring, even though such grandchildren have not inherited the
property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the testator
has provided otherwise, in which case his wishes must be
respected, if the legitime of the co-heirs is not prejudiced. (1038)
This refers to grandchildren who will inherit by right of representation. Take
note, they will bring to collation:
1. All that their parents, if alive, would have been obliged to bring,
and
2. All that they may have received from the decedent during his
lifetime
Because again, they are just representing their parents but they will inherit.
Once they inherit, they have to bring it to collation.
Q: How about the parents?
ARTICLE 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. (1039)
Here the parents inherit. They exclude the children.
For example the decedent has a child named X. X also has a child named
Y. During the lifetime of the decedent, Y received certain properties worth
P200k. Then the decedent died. His heir is X because he excludes Y. So X
will inherit. Will X bring to collation that which is received by Y? Will this be
considered as an advance to X’s legitime and he will just receive only an
additional to complete his legitime?
NO, because X is not representing anyone but he inherited in his own right.
Whatever Y received, he received that as an heir in his own right during the
lifetime of the decedent. Y is excluded so there is no need to bring the
donation to collation.
Q: What will happen to this donation?
If it will be added back to the estate because all donations will be added
back to the estate, then it will be charged to the free portion. X will have his
own legitime.
However, if it is Y who inherits by right of representation by reason of X
predeceased, and during X’s lifetime he received a donation worth P400k,
Y will bring into collation the P200k he received and the P400k which X
22
received. These will be deducted from Y’s share of legitime because it will
be considered as an advance receipt.
This is the difference between Article 1064 and Article 1065.
ARTICLE 1066. Neither shall donations to the spouse of the
child be brought to collation; but if they have been given by
the parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated. (1040)
Donation made to the spouse
For example, your parents made a donation in favor of your wife and
then you died, that is different. That will not be considered as part of her
legitime.
Illustration:
A is the father of X who is married to Y. if A donated to Y, that donation to
Y shall not be charged to the legitime of X. That is considered as donation
not charged to the legitime because Y is not an heir of A.
But if it was given jointly by A to X and Y, ½ of the value of the donation
is to Y and ½ of the value is to X, then X will have to collate only ½, the
portion which pertains to the donation made to the heir by the parent.
ARTICLE 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)
Expenses for support, education, medical attendance, even in
extraordinary illness, apprenticeship, ordinary equipment are not subject to
collation. The values of these expenses are not added back to the estate.
They are not charged or considered as advances to the legitime because
they are considered as obligation of the parents to incur these expenses.
These are not gratuitous grants but these are obligations; they are not
donations.
Take note of the last sentence which says that customary gifts are not also
subject to collation. How do we know if the gift is customary? It really
depends on the status of the family. If it is only ordinary but not customary,
then it does not fall under Article 1067.
ARTICLE 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the sum
which the child would have spent if he had lived in the house and
company of his parents shall be deducted therefrom. (1042a)
Article 1068 mentions of professional, vocational or other career while
Article 1067 mentions about support and education.
Optional collation
The education being referred in Article 1067 shall only mean up to high
school. Article1068 refers to college at least equivalent to professional,
vocational or other career. It shall not be brought to collation unless the
parents so provide, or unless they impair the legitime. This is what we call
optional collation.
GR: They are not subject to collation so they shall not be added or
considered advances to the legitime unless the parents to provide.
EXC:
1. Unless the parents so provide
2. Unless they impair the legitime
If the parents would provide that your education expenses in law school
shall be subject to collation and considered as advances to your legitime
then that can be done. You cannot say that it is unfair. You studied for
more than ten years how can that be unfair? So it is subject to collation
Or even if the parents did not so provide but it will impair the legitime. So
nahurot na ang resources sa inyong family kay tungod sa law school so
unfair pud sa imong mga igsuon kay tanang kayamanan ninyo naadto
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
nalang didto. So that will be subject to collation and thus considered as
advances to your legitime.
But the law says whenever collation is required, whatever amount that your
parents would nevertheless spend if you did not study law school so you
just stay home nag puyo raka didto makagasto man gihapon sila sa imo
kay pakanon man ka, hatagan kag clothing, mugamit kag kuryente, so
kana siya pwede na siya ibawas or be collated sa imuha.
ARTICLE 1069. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses, fines, and similar
expenses shall be brought to collation. (1043a)
Expenses paid for the debts of the children or any amount, naa kay utang
gibayaran nila, or nag election na unya nag campaign ka nag contribute
sila sa imong election campaign so subject to collation. Or fine like na
preso ka nag bail ka subject na to collation so considered as advances to
your legitime.
ARTICLE 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be reduced
as inofficious except insofar as they may exceed one-tenth of
the sum which is disposable by will. (1044)
GR: Wedding gifts, jewelry, clothing and outfit are not subject to collation.
EXC: When the value exceeds one-tenth of the free portion.
For example the free portion is P1M. Your wedding gown is worth P500k.
One-tenth of the P1M free portion is P100k. It is clear that the wedding is
gown is more that one-tenth of the free portion. The excess of P400k will,
therefore, be imputed to your legitime.
Take note that the law says jewelry, clothing, and outfit. How about if you
were given a house and lot or a car? Will this be subject to collation? If they
fall within the concept of customary gifts, they will not be subject to
collation. Conversely, if they are treated as customary gifts, they will be
considered as simple donations, which are subject to collation.
ARTICLE 1071. The same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation, even though their just value may not then have been
assessed.
Their subsequent increase or deterioration and even their total
loss or destruction, be it accidental or culpable, shall be for the
benefit or account and risk of the donee.
As mentioned, collation is just a mathematical process which means that
you don’t bring back the very same property donated but only the just
value. But if the donation is proved to be inofficious, that is the time that the
donee will have to return only that portion which is inofficious. But if the
entire donation is inofficious, then he has to return everything.
What value will be the basis? It is the value at the time of the donation. The
increase or decrease in the value of the property pertains to the benefit or
risk of the donee.
ARTICLE 1072. In the collation of a donation made by both
parents, one-half shall be brought to the inheritance of the father,
and the other half, to that of the mother. That given by one alone
shall be brought to collation in his or her inheritance. (1046a)
Both parents donated to the child P10M ang value when the father died,
the child shall bring to collation only half of that which is P5M because that
is the donation pertaining to the father. Katong sa mother lahi pud to siya. It
will pertain to the mother’s estate.
ARTICLE 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. (1047)
This contemplates that the donee is the compulsory heir. Again, the
donation given to him will be charged to his legitime and will be considered
as advance. So whatever amount he will received is just a completion to
his legitime.
23

If he received a land, under the principle of equality, as much as possible
katong ubang heirs dapat tagaan pud sila og land of the same nature,
class and quality.
Art. 1074. Should the provisions of the preceding article be
impracticable, if the property donated was immovable, the co-heirs
shall be entitled to receive its equivalent in cash or securities, at the
rate of quotation; and should there be neither cash or marketable
securities in the estate, so much of the other property as may be
necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall only
have a right to select an equivalent of other personal property of the
inheritance at its just price. (1048)
For example, wala the same property. Halimbawa land ang gi donate and
walay nay laing land, this is the rule. If the property donated was
immovable and there is no other immovable property in the estate, the co-
heirs shall be entitled to receive its equivalent in cash or securities. If there
are no cash or securities, other properties as may be necessary shall be
sold at public auction and the proceeds will be given to the respective
heirs.
If movable property was given to the heir as donation, like car, and no other
same kind of property in the estate, the co-heirs shall only have a right to
select an equivalent of other personal property of the inheritance at its just
price. There is no right to receive in cash or securities and no right to
demand that some properties be sold at public auction.
ARTICLE 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on
which the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and quality
as that subject to collation shall be made the standard of
assessment. (1049)
This refers to donations when there is really an obligation to return because
the donation is inofficious so the donee has to return either the whole or in
part of the property donated to him.
The fruits and interest from the time of the donation until the death of the
decedent are not included to be accounted. Only those fruits and interest
from the time of death shall be accounted because that is when the
obligation to return will arise. That is collation by reduction or actual
abatement.
24 OCTOBER 2016 (1ST PART)
By: Jose Gerfel Geralde
ARTICLE 1076. The co-heirs are bound to reimburse to the donee
the necessary expenses which he has incurred for the preservation
of the property donated to him, though they may not have
augmented its value.
The donee who collates in kind an immovable which has been
given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property, and
which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; he has, however, the
right to remove them, if he can do so without injuring the estate. (n)
Now take not that article 1076 applies only if it is collation by way of
reduction or abatement. Meaning the donee would have to return the whole
or portion of the property donated. So what will happen?
First there is an obligation on the part of the heirs to reimburse the donee
for the necessary expenses as well as the value of the improvements
which increased the value and which exists at the time the partition is
effected.
For expenses for the mere pleasure there is no reimbursement provided
there is right of removal.
ARTICLE 1077. Should any question arise among the co-heirs upon
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
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.
(1050)
So can there be distribution of the estate pending issues on collation? Yes,
so even if this has not yet been settled this cannot prohibit the distribution
but there should be security given by the heir. Supposedly they should not
yet distribute prior to the resolution of the issues. But the law allows if
security is given. Actually this is same in partition, the other heirs cannot
prohibit to partition the estate as long as there is security.
So when a decedent dies, there will be transfer or properties, rights and
obligations at the time of death, and if the testator did not yet identify the
property to be given to A, B, C this property inherited are owned by in
common. Eventually, the estate will have to be divided, actually co-
ownership is frowned by the law.
SECTION 6
Partition and Distribution of the Estate
SUBSECTION 1
Partition
ARTICLE 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. (n)
So when there are two or more heir, so when there is only one heir no
more need of partition. So what happens if there is only one heir?
The will shall pass probate first, then after probate then the property can be
transferred to the heir in the will. If there is only one heir and no will, then
the heir has to only execute the affidavit of self-adjudication, no need of
partition. If there are two or more heirs and a will, they hold property in
common.
The same thing in intestate proceeding, 2 or more heir, they can enter into
an extra judicial settlement, no need for court order and only requires
publication, that will be allowed if the decedent left no will, the debts have
all been paid, heirs are of age and if not on age they have represented.
There is a requirement under rule 74 sec 1, that an extrajudicial settlement
must be published for 3 consecutive weeks and must be in a public
document and must be registered under registry of deeds.
ARTICLE 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. (n)
As we mentioned before the heirs will have to partition, it can be done
judicially and extrajudicially. So when you say partition, it is the separation,
division, assignment of a thing held in common it can be physical partition
or its value. Because there are instances that physical partition is not
possible, like a house. Then the heir can divide the proceeds of the house.
HEIRS OF JOAQUIN TEVES vs. CA
Q: what are the requirements of extrajudicial settlement?
Answer: 1.) decedent left no will
2.) decedent left no debt
3.) children are all of legal age, and if some are minors they
should have be legally represented.
4.) it must be duly executed in public document
Q: what is the form of partition in this case?
A: Oral Partition
Held: the SC held, while it may be true that it was executed in oral
partition the requirement under the rules of court is intended to protect
the creditors of the estate by registration of the properties as well as it
has to be made in public document.
Q: how will the registration of the property protect the creditors?
A: Publication, the extrajudicial partition itself must be published once a
week for 3 consecutive weeks. Registration it is recorded in register of
24
deeds.
Q: so how will you protect the creditors?
A: the registration will serve as the constructive notice to the creditors.
Q: how can the heirs be protected?
A: from the time of register, there is a period in which the creditor can
file a claim (2 years). So if a creditor will not file within 2 years then their
action is already barred. So that is how the heirs are protected.
In Rule 74, for the validity of the Extrajudicial Settlement the following
requisites must be complied with:
(1) The decedent died without a will,
(2) There are no debts and if there are debts it should have been
paid,
(3) The heirs are already of age and if they are minors they
should be represented by legal guardians and
(4) The extrajudicial partition settlement must be made in a public
instrument and must be registered in the Registry of Deeds.
The heirs of Crescenciano Teves questions the validity of the
extrajudicial settlement for failure to comply with the requirement for
Section 1 Rule 74 of ROC. The SC upheld the validity of the 2
extrajudicial settlement, first, the grounds alleged by Crescenciano
Teves is fraud however the action for reconveyance must be made
within 10 years from the cause of action, therefore, it is already barred
by prescription. On the second ground, the SC held that the requisites
need not be all complied with if the extrajudicial settlement has no
creditors. In this case, there are no creditors to the testator.
So if there are no creditors affected then there is really no need to strictly
comply with rule 74 sec 1. The extrajudicial partition can be oral, private
and public document and if again if there are creditors affected it must be
registered.
ARTICLE 1080. Should a person make partition of his estate by an
act inter vivos, or by will, such partition shall be respected, insofar
as it does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this article, by
ordering that the legitime of the other children to whom the
property is not assigned, be paid in cash. (1056a)
Ok so its not only the heirs who can make a partition, the testator may
make a partition a partition intervivos by an act intervivos or by will. When
you say intervivos not necessarily comply with the formalities of a will.
JLT AGRO vs. BALANSAG
ISSUE: W/N the future legitime can be determined can be determined,
adjudicated and reserved prior to the death of don Julian?
RULING: As a general rule, No. Well-entrenched is the rule that all
things, even future ones, which are not outside the commerce of man
may be the object of a contract. The exception is that no contract may
be entered into with respect to future inheritance, and the exception to
the exception is partition inter vivos referred to in Article 1080.
The partition inter vivos of the properties of Don Julian is undoubtedly
valid pursuant to Article 1347. However, considering that it would
become legally operative only upon the death of Don Julian, the right of
his heirs from the second marriage to the properties adjudicated to him
under the compromise agreement was but a mere expectancy. It was a
bare hope of succession to the property of their father. Being the
prospect of a future acquisition, the interest by its nature was inchoate.
Evidently, at the time of the execution of the supplemental deed in favor
of petitioner, Don Julian remained the owner of the property since
ownership over the subject lot would only pass to his heirs from the
second marriage at the time of his death.
Q: What are the elements of future inheritance.
A: 1.) succession must not been opened
2.) object forms part of inheritance
3.) promissory with respect to the object has expectancy of a right which
is pure? (di marinig)
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
Q: what is the exception to the exception?
A: partition intervivos
Q: what is a partition intervivos?
A: partition intervivos authorizes a testator to partition his property and
to distribute a property. However it is not a donation nor a testatment, it
a special instrument which is special in character which is revocable at
anytime during the lifetime of the testator. It does not operate to convey
title to the heirs, it only legally operative only upon the death of the
testator.
Q:What is the relationship to that in this case?
A: Don Julian executed a deed of assignment at that time the heirs only
have inchoate right or expectany. When Don Julian executed a deed of
assignment he is still the owner of the property.
Q: so what is the effect of deed of assignment to the compromise
agreement?
A: the subject property will no longer form part of the property of the
estate of Don Julian.
Q: what are the formalities of partition intervivos?
A: the SC said that there are no formalities for paritition intervivos
because it is not a conveyance of property.
ZARAGOSA vs. CA
Partition inter vivos is allowed as long as the legitimes are not
prejudiced and you have to include all the other compulsory heirs for
the delivery of the inheritance because you have to compute.
ARTICLE 1081. A person may, by an act inter vivos or mortis
causa, intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or a
person subject to guardianship; but the mandatary, in such
case, shall make an inventory of the property of the estate, after
notifying the co-heirs, the creditors, and the legatees or
devisees. (1057a)
Ok so 1081 simply states that the decedent can also pass the power to
make a partition to any person who is not a heir by an act of mortis causa
or intervivos. He can designate who can partition after his death.
ARTICLE 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.
It does not have to be captioned partition to be treated as partition it may
be as any act to put an end to indivision. There is no particular form, it may
be oral, private document and a public document.
CRUCILLO vs. IAC
317 SCRA 351
FACTS: Balbino A. Crucillo was married to Juana Aure. They had eight
(8) children, namely, Elena, Maximino, Perpetua, Santiago, Adelaida,
Miguel, Rafael, and Vicente, all surnamed Crucillo. Balbino A. Crucillo
died intestate in 1909. Juana Aure died on November 19, 1949. Balbino
A. Crucillo left, among other things, two(2) parcels of unregistered land
situated at General Luna Street, Mendez-Nunez,Cavite. He was survived
by his heirs, who became co-owners of the aforesaid lots and thereafter,
entered into the possession thereof with each one of them possessing
their respective shares and exercising acts of ownership. Rafael had sold
two other lots belonging to the estate. Nicasio Sarmiento (son of
Perpetua Crucillo) has caused a residential lot situated at Gen. Trias St.,
Mendez, Cavite to be registered in his name alone, Miguel Crucillo is in
exclusive possession ofa residential lot located at General Trias St.,
Mendez, Cavite. An agriculturalland located at Sitio Niko, Mendez,
Cavite, covered by Tax Declaration No. 1179 is owned in common by
Vicente Crucillo, Buenaventurada Sarmiento (daughter of the deceased
Perpetua Crucillo), Adelaida Crucillo, and Atty. Conrado Crucillo (son of
25
the deceased Santiago Crucillo). Another agricultural land situated at
Pulong Munti, is owned in common by the Heirs of Elena Crucillo,
Adelaida Crucillo,and Nicasio Sarmiento. Still another property covered
by Tax Declaration No. 653is owned in common by Buenaventurada
Sarmiento and Vicente Crucillo, whose share was acquired by Miguel
Crucillo. Additionally, Primitiva Mendoza is in possession of an
agricultural land in Pulong Munti and also in Niko, Mendez, Cavite, while
Carlomagno Crucillo possesses an agricultural land at Sitio Maykiling,
Mendez, Cavite, Miguel Crucillo is exclusively occupying an agricultural
land at Pulong Munti and Ulo ng Bukal, and the remaining portion
another agricultural land after the other portion thereof had been sold by
Rafael Crucillo.
ISSUE: W/N there was a partition of the disputed property.
RULING: YES
From the foregoing facts, it can be gleaned unerringly that the heirs of
Balbino A. Crucillo agreed to orally partition subject estate among
themselves, as evinced by their possession of the inherited premises,
their construction of improvements thereon, and their having declared in
their names for taxation purposes their respective shares. These are
indications that the heirs of Balbino A. Crucillo agreed to divide subject
estate among themselves, for why should they construct improvements
thereon, pay the taxes therefor, and exercise other acts of ownership, if
they did not firmly believe that the property was theirs. It is certainly
foolhardy for petitioners to claim that no oral partition was made when
their acts showed otherwise. Moreover, it is unbelievable that the
possession of the heirs was by mere tolerance, judging from the
introduction of improvements thereon and the length of time that such
improvements have been in existence. Then too, after exercising acts of
ownership over their respective portions of the contested estate,
petitioners are estopped from denying or contesting the existence of an
oral partition. The oral agreement for the partition of the property owned
in common is valid, binding and enforceable on the parties.
HILARIO vs. CA
Actually, this is the same in the case of heirs of Teves vs CA. do you
remember in your oblicon? Article 1358, relating to real rights in
immovable property must appear in public document. So can we not
include here partition? Because here the subject was a real right over
immovable property and included an act which is intented to modify an
act over immovable property. So is it required that it be in public
document? If you remember 1358 is not intended for validty,
enforceability but only for convenience. If you like to register the partition
in the ROD, then you have to make the document public but is is only for
convenience.
How bout in statutes of fraud in article 1403? Is partition required to be in
writing to be enforceable? SC said, partition upon heirs is NOT deemed a
conveyance of property but rather a confirmation or ratification of title of
right over a property in favor of another heir. Therefore statutes of fraud
does not apply in partition.
ARTICLE 1083. Every co-heir has a right to demand the division of
the estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator to
prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one of the
co-heirs. (1051a)
As we have said before, co ownership is frowned upon by the law. The
heirs can demand the partition anytime, there is no prescriptive period to
demand the partition unless the testator has expressly prohibit the partition
which is also applicable in the legitime. So the testator can even prohibit
the partition the legitime as long as it cannot go beyond 20 years. Also if
there are any grounds for dissolution of the partnership like death of one
partner co ownership also terminates.
IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT
OF BASILIO SANTIAGO
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
G.R. No. 179859
August 9, 2010
The prohibition to partition can only be valid up to 20 years. Take note,
that even though there is a prohibition by the testator to partition
assuming wala pa naglapseang 20 years when any of the causes for
which partnership is dissolved takes place. The grounds for the
dissolution of the partnership, there can also be a partition or when the
court finds compelling reason that division should be ordered, upon
petition of one of the co-heirs. Now when can partition be demanded? Is
there a prescriptive period for a partition to be demanded?
SANTOS vs. SANTOS
In this case the possession was merely tolerated. The right to demand
partition does not prescribe and it cannot also be barred by laches. It is
imprescriptible and cannot be barred by laches. However, if there has
been a prior repudiation of the co-ownership, then acquisitive
prescription may set in on the part of the person repudiated.
24 OCTOBER 2016
By: Jennifer Lim
ARTICLE 1084. Voluntary heirs upon whom some condition has
been imposed cannot demand a partition until the condition has
been fulfilled; but the other co-heirs may demand it by giving
sufficient security for the rights which the former may have in case
the condition should be complied with, and until it is known that the
condition has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional. (1054a)
Can there be partition even if there are some unsettled issues?
Example:
One heir is a voluntary heir and subject to a condition like “ I give A part of
the land if he passes the bar exam.”. Then ni-take siyag bar exam pero
wala siya kapasa and wala man pud niingon si testator na kailangan within
one year. He has his entire lifetime to pass the bar exam.
Q: Should we wait for him to pass the bar exam before we can
partition?
The law says there can be a partition but there has to be a sufficient
security. Eventually, A would pass and it is to protect him also. That’s the
same with collation as we have discussed before. There can be a collation
but the other heirs have to give sufficient security.
ARTICLE 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. (1061)
Remember in partition and we have also discussed that in collation, as
much as possible, there must be equality. ‘Pag cash, cash ang ihatag. Ug
kotse, kotse. As much as possible, the same kind or quality.
ARTICLE 1086. Should a thing be indivisible, or would be much
impaired by its being divided, it may be adjudicated to one of the
heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing
be sold at public auction and that strangers be allowed to bid, this
must be done. (1062)
ARTICLE 1087. In the partition the co-heirs shall reimburse one
another for the income and fruits which each one of them may have
received from any property of the estate, for any useful and
necessary expenses made upon such property, and for any damage
thereto through malice or neglect. (1063)
Q: What if the property is indivisible?
Example:
A house or car then lima kabuok ga claim, you cannot divide the car
physically. Even if it is dividisble physically but it is impaired.
26
Example:
A 32m parcel of land along the highway and then there are four heirs. The
most equitable way must be made. Like possible nay agihanan diri then i-
divide by four. Ang naa sa atubangan gamay iyaha kay mas mahal, sa
likod dako-dako.
D before. There was no stranger brought into the co-ownership.
C
B Q: When can the co-owners redeem?
A
PUBLIC HIGHWAY
What if mupabida jud tanan, gusto nay front. Can we use that? Pwede man
pero unsaon man na siya? Kanang garden or bowling? Dili gihapon siya
magamit jud.
A B C D
The most efficient way is to divide it like this (first illustration). Then A will
pay B, C, and D para sa value na makuha niya. The property may also be
sold and divide the proceeds.
In 1087 on mutual reimbursement, if you should receive income so the
others pay. If you cause damage, you should also indemnify others. In your
expenses, you should also be indemnified by the others.
ARTICLE 1088. Should any of the heirs sell his hereditary rights
to a stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale
by the vendor. (1067a)
This article is very important, the rights of legal redemption insofar as co-
heirs are concerned.
Example:
Kaning co-heirs A,B, C and D inherited a parcel of land. Article 1088
presupposes that there is no partition. They are co-owners. Then one of
the co-heirs A sells his rights to a stranger X.
Q: Can A sell his share to X (meaning ¼ of the land)?
That can be so because he is already the owner of his ¼ share. But he
cannot sell a part of the land which belong sa uban saying na entitled bitaw
siya to ¼.
Prior to partition, you cannot just point a part of the land as you do not
exclusively own such specific portion of the property. A sale of a portion of
the land prior to partition is void.
Assuming that the sale of the land prior to partition is void, but there was
already a division and A in fact sold a part of the land which was intended
for him. Then that will stand notwithstanding that was void. Void siya kay
gibaligya nimo before pa nadivide and share but nadivide then it was the
share intended for you. So the other heirs are estopped already.
Again, his hereditary share is sold to a stranger. It has to be a stranger
because again the reason for this legal redemption is preserve the
harmony between the co-owners. As I said before, co-ownerships are very
burdensome. You have to secure the consent of co-heirs because you can
do anything.
Example:
Mag igsoon then co-owners. Then A sold his share to X na stranger. So we
now have a situation na sila B, C, and D are forced to become co-owners
ni X. That is why the law has given the right of legal redemption meaning,
they can terminate the co-ownership of X by redeeming the share of X sold
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
by A. If D says na he will redeem the share of A then X has to resell to D in
such a way na preserve ang co-ownership among themselves.
If A sells his land to B na co-owners sila. Will Article 1088 still apply?
Can the other co-heirs redeem?
No, because B is not a stranger. They are all the same co-owners as
The law says within 30 days or 1 month from the date of notification in
writing, NOT from the date of the sale. The usual cases that reached the
Supreme Court deal with when will the 30 day period start.
Some cases, kanang may notification in writing kana klaro na siya. Katong
uban cases, walang notification in writing, but other heirs actually knew. Gi-
ingnan sila or nay substantial notice like nay registration before the register
of deeds.
Q: Will they be barred?
GARCIA vs. CALALIMAN
April 7, 1989
ISSUE: Whether or not petitioners took all the necessary steps to
effectuate their exercise of the right of legal redemption within the
period fixed by Art. 1088 of the Civil Code.
RULING: YES
Written notice is indispensable, actual knowledge of the sale
acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty as to the sale, its
terms and its validity, and to quiet any doubt that the alienation is not
definitive. The law not having provided for any alternative, the
method of notifications remains exclusive, though the Code does not
prescribe any particular form of written notice nor any distinctive
method for written notification of redemption.
Q: What kind of notice did the co-heirs have?
A: Actual notice only.
Q: How did they learn?
A: They went to the register of deeds.
Q: What kind of written notice?
A: The Code does not prescribe any particular form.
Actual notice was not sufficient because it must be written notice. No
particular form basta in writing. Actually this is the general rule. Most of the
cases say that there has to be written notice. Any alternative kind of notice
would not be sufficient because the law says written. It would render the
provision of 1088 useless if we allow any other kind of notice.
BAYLON vs. AMADOR
GR. No. 160701
FEBUARY 9, 2004
RULING: The requirement of a written notice is mandatory. The SC
has long established the rule that, notwithstanding actual knowledge
of a co-owner, the latter is still entitled to a written notice from the
selling co-owner in order to remove all uncertainties about the sale,
its terms and conditions as wells as its efficacy and status. Private
respondent was never given such written notice. He thus still has the
right to redeem said 1/3 portion of the subject property. On account
of the lack of written notice of the sale by the other co-heirs, the 30-
day period never commenced. Exception (case where the SC held
otherwise)
ARTICLE 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said property
has been adjudicated. (1065a)
Take note that the Court decided that the prescriptive period should be
counted from the receipt of written notice.
27
 ALONZO vs. IAC
159 SCRA 259
ISSUE: W/N actual knowledge satisfied the requirement of Art. 1088
of the New Civil Code.
RULING: YES. The co-heirs in this case were undeniably informed
of the sales although no notice in writing was given them. And there
is no doubt either that the 30-day period began and ended during the
14 years between the sales in question and the filing of the complaint
for redemption in 1977, without the co-heirs exercising their right of
redemption. These are the justifications for this exception.
In this case, there was actual knowledge and period for redemption had
already lapsed. Actual knowledge here was considered to written notice.
More than 13 years, imagine you did not act at all. You already know of the
sale and you did not file any action. Again, aside from the time of 13 years,
there was actual knowledge.
It would have been different siguro if it was constructive notice na the sale
was registered with the ROD and the other heirs did not know (because of
the principle of constructive notice by registration).
CABALES vs. CA
G.R. No. 162421
August 31, 2007
FACTS: A property was the subject of co-ownership. The co-owners
sold their undivided shares in 1978 and informed the others, like
Nelson, a minor of the same in 1993. He signified his intention to
redeem the subject property during a barangay conciliation process
but filed an action for legal redemption only in 1995.
ISSUE: Can he still exercise the right of redemption?
RULING: No, because he did it beyond the 30-day period from the
time he learned about the sale. To require strict proof of written
notice of the sale would be to countenance an obvious false claim of
lack of knowledge thereof, thus commending the letter of the law
over its purpose, i.e., the notification of redemptioners.
There was sufficient notice of the sale to Nelson. The thirty-day
redemption period commenced in 1993, after Nelson sought the
barangay conciliation process to redeem his property. By January 12,
1995, when he filed a complaint for legal redemption and damages, it
is clear that the thirty-day period had already expired.
Q: Was there written notice?
A: There was only constructive notice. However, the 30 day period was
reckoned from the conciliation process.
Q: What was the ruling of the Supreme Court on the notice of sale?
A: The Court ruled that the purpose of the notice is to notify the co-heirs of
the sale in order to redeem the property. In this case, Nelson already knew
of the sale in 1998 and in 1993. So he can no longer raise ignorance over
the sale. Because to use such would be an obvious alibi or lack of
knowledge of the sale.
Here, the Supreme Court again made an exception. If we still allow Nelson
to redeem the property, it would be commending the law over the purpose
which was the nullification of the sale. He actually had knowledge but the
Court did not really count until he had learned (conciliation) and he was
already of legal age at that time.
The period was counted from the time he participated in the conciliation
process in the baranggay. But he did not pursue it and therefore, the 30
day period lapsed.
ARTICLE 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said property
has been adjudicated. (1065a)
Once the property is already partitioned, it will be divided. For example,
there is a mother title existing of 10 hectares and there are 5 heirs. So
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
there will be 5 titles in the name of each of the heirs. Each heir is entitled to
a certificate of title over his share.
ARTICLE 1090. When the title comprises two or more pieces of
land which have been assigned to two or more co-heirs, or
when it covers one piece of land which has been divided
between two or more co-heirs, the title shall be delivered to the
one having the largest interest, and authentic copies of the title
shall be furnished to the other co-heirs at the expense of the
estate. If the interest of each co-heir should be the same, the
oldest shall have the title. (1066a)
EXAMPLE:
We have a 7 hectare parcel of land although there is a partition, possible
gihapon na siya nga kay A ¼ , B ¾. So dili gihapon nato maidentify
specifically asa ang share ni A ug asa ang share ni B. Isa lang jud ka title
ang mugawas pero pwede man na ipa-survey kanang nay metes and
bounds para nay separate title. Pero kung ana nga kay A ¼ and B ¾ , isa
ra ka title mugawas.
Who will hold the title?
Isa ra man jud ka title ang i-produce, the original and to the owner’s copy.
The law says it shall be given to the one with the largest share. Others will
be given certified true copies.
Halimbawa, parehas ra silag share pero walay metes and bounds. The law
says the oldest shall have the title. Katong pinaka-old nga heir mugunit sa
title. Kanang title, kung mawala na siya kailangan pa i-petition sa court. It is
very important to take care of that certificate of title.
SUBSECTION 2
Effects of Partition
ARTICLE 1091. A partition legally made confers upon each heir
the exclusive ownership of the property adjudicated to him.
(1068)
When there is already partition and the example nga of metes and bound
of the survey, you are already the exclusive owner of the property
adjudicated.
If there is a will, can there be a partition before probate of the will?
UNION BANK vs. SANTIBANEZ
GR. No. 149926
FEBRUARY 23, 2005
FROM FULL TEXT: The Court is posed to resolve the following
issues: a) whether or not the partition in the Agreement executed by
the heirs is valid
b) whether or not the heirs’ assumption of the indebtedness of the
deceased is valid
c) whether the petitioner can hold the heirs liable on the obligation of
the deceased.
In testate succession, there can be no valid partition among the heirs
until after the will has been probated. The law enjoins the probate of
a will and the public requires it, because unless a will is probated and
notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory.
The authentication of a will decides no other question than such as
touch upon the capacity of the testator and the compliance with those
requirements or solemnities which the law prescribes for the validity
of a will.[22]
This, of course, presupposes that the properties to be partitioned are
the same properties embraced in the will.[23] In the present case, the
deceased, Efraim Santibañez, left a holographic will[24] which
contained, inter alia, the provision which reads as follows: (e) All
other properties, real or personal, which I own and may be
discovered later after my demise, shall be distributed in the
28
proportion indicated in the immediately preceding paragraph in favor
of Edmund and Florence, my children.
The question that now comes to fore is whether the heirs’
assumption of the indebtedness of the decedent is binding. We rule
in the negative. The partition being invalid as earlier discussed, the
heirs in effect did not receive any such tractor. It follows then that the
assumption of liability cannot be given any force and effect.
Pending partition proceeding, it is illegal for the heirs to resort to extra-
judicial partition because the distribution will have to be in accordance with
the will. However, in reality, there are really heirs na who will not follow.
EXAMPLE:
There is a person who left a will. When you probate the will, mahal kayo na
siya like docket fees and proceeding. So the heirs would rather na settle
and mag extra-judicial partition.
That would be okay kung walay mag reklamo na heir. Pero kung naa and
participated in the probate. Diba as we discussed, there is no estoppel in
probate. So that will can still be probated.
In some cases, ang extra-judicial partition can be approved even if nay will,
if the extra-judicial partition also disposes of the properties in accordance
with the will. Kanang parehas jud siya and gipa-approve lang later sa court.
That is the only exceptional circumstance where extra-judicial partition was
allowed because it was also in accordance with the provisions of the will.
And, the heirs are the same heirs indicated in the will.
ARTICLE 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. (1069a)
There is a reciprocal warranty of title and quality. Again, this only refers to
that situation when the heir is instituted to a share na hindi siya legatee or
devise. Because if legatee or devise, you have no choice but to follow the
specific property indicated in the will because it is the testator who
identified such.
But kung partition, there is a reciprocal obligation. Like kung nay property
then nahugno ang yuta and nawala siya sa surface of the earth, so ang
mahitabo, nay recripocal warranty and mag compensate na mo sa isa’t-isa.
Halimbawa, 10 hectares ang property and ang nahugno kay A. So mag
contribute mo tanan para si A, naa gihapon na siyay iyahang share.
ARTICLE 1093. The reciprocal obligation of warranty referred to
in the preceding article shall be proportionate to the respective
hereditary shares of the co-heirs, but if any one of them should
be insolvent, the other co-heirs shall be liable for his part in the
same proportion, deducting the part corresponding to the one
who should be indemnified. Those who pay for the insolvent
heir shall have a right of action against him for reimbursement,
should his financial condition improve. (1071)
So depende ang reciprocal warranty sa proportionate share. Kung A, B, C,
and D equal shares lang then, equal ang obligation sa warranty. Kung si A
1/8, B 1/8, C ¼, and D ½, so in respective also of their respective share.
In insolvency, if one of the heirs is insolvent, i-shoulder pud sa uban ang
share para pud ma-less ang burden sa heir na nawad-an ang share.
ARTICLE 1094. An action to enforce the warranty among heirs
must be brought within ten years from the date the right of
action accrues. (n)
So ten years from the right of action accrues. For example, in eviction, it
must be reckoned from the time the heir was evicted from the land.
ARTICLE 1095. If a credit should be assigned as collectible, the
co-heirs shall not be liable for the subsequent insolvency of the
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
debtor of the estate, but only for his insolvency at the time the
partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition. Co-heirs
do not warrant bad debts, if so known to, and accepted by, the
distributee. But if such debts are not assigned to a co-heir, and
should be collected, in whole or in part, the amount collected
shall be distributed proportionately among the heirs. (1072a)
Warranty as to insolvency of debtor.
EXAMPLE:
A debtor has an estate of 12 million and nay upat ka heirs A, B, C and D.
Each is entitled to 3 million. Then sa ilang partition si A, B and C, yuta ang
gipili amounting to 3 million each. Kaning si D, gipili ang credit na nay
accounts receivable from X who becomes insolvent. So wala nay share si
D. The law says “co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the time the
partition is made.”.
Pero kung si X insolvent na diay at the time nag partition sila, then diha nay
warranty. So, si A, B and C mag contribute sila para matagaan si D. In that
case, mahimo nang 9 million kay bawas tung dili ma collect, so
mabawasan kay A, B, and C para madungagan ang kay D. It shall be
enforced 5 years following the partition.
As to bad debts (you have discussed this in your Tax 1), diba naa siyay
allowance for bad debts kay feel nimo dili na siya maka-collect. For
example, kabalo na sila nga si X gahi jud kayo ug ulo and dili mubayad,
daghan kayo ug kaso – ayaw na pag expect mabayran mo. So the estate
na lang is 9 million na lang jud.
Kung mi ingon gihapon si D na sige lang makacollect gihapon siya, unya
wala na diay to. So the other heirs will not be liable kay si D gidawat
gihapon ni ya bisan kabalo na siya nga bad debt.
ARTICLE. 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 is due to a cause subsequent to the
partition, or has been caused by the fault of the
distributee of the property. (1070a)
Here, walay warranty among the co-heirs.
1. The testator himself made the partition. The heirs have no
choice but to follow the will of the testator. The only relief here is
if the legitimes of other co-heirs are impaired.
2. When it is expressedly stipulated in the partition na walay
warranty.
3. When the eviction is due to a cause subsequent to partition.
At the time of the partition wala pay problema. So it is no longer
the responsibility of other co-heirs to warrant the obligation or if
the heir mismo may sala sa distribution then dili na liable ang
other co-heirs.
SUBSECTION 3
Rescission and Nullity of Partition
ARTICLE 1097. A partition may be rescinded or annulled for the
same causes as contracts. (1073a)
It is for the same causes as contracts. Recission may be because of lesion.
Annulment because of vitiated consent.
29
ARTICLE 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.
In lesion, you receive a share and it is less than ¼. For example, 8 million
and ¼ is 2 million each dapat. A, B, C and D, A received only 1 million so
there is lesion. So a value of less than ¼. Sa 2 million, ¼ ana is 500
thousand. 1 million, 1.2 million, 1.4 million, nay lesion. If 1.6 million, walay
lesion. The remedy there is definitely not recission.
ARTICLE 1099. The partition made by the testator cannot be
impugned on the ground of lesion, except when the legitime of
the compulsory heirs is thereby prejudiced, or when it appears
or may reasonably be presumed, that the intention of the
testator was otherwise. (1075)
When the partition is made by the testator, then it should be respected.
There is no warranty or quality. The limitation there is only when the
legitime of the compulsory heirs are prejudiced or the intention is
otherwise. That is the reason why it is intended that we can impugn. But,
as a general rule, dili and the partition made by the testator must be
respected.
ARTICLE 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition was
made. (1076)
Four years on account of lesion. It is the same as lesion under the law on
obligations and contracts.
ARTICLE 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition. Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that awarded
to the plaintiff. If a new partition is made, it shall affect neither
those who have not been prejudiced nor those have not
received more than their just share. (1077a)
GENERAL RULE: When there is no lesion, the partition will not be
rescinded.
EXAMPLE:
A is entitled to 2 million but he received only 1.6, there is no lesion but not
more than his share. The heirs who received more than his share will give
to the heirs who received less than his share. But definitely, the partition
will stand.
ARTICLE 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. (1078a)
Here, the heir suffered lesion. Nakareceive siya pero kulang. But then he
already sold those properties, so what will happen? You cannot maintain
an action for rescission.
In rescission, you have to return everything. Here, you cannot return as you
already sold your share. What you can do is to demand na lang again to
receive the balance of your share. You have the right to be indemnified in
cash.
ARTICLE 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. (1079a)
Preterition of objects in the partition. So we have properties not included in
the partition. Like naa diay isa ka land dira sa COMVAL nga wala naapil sa
partition.
ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO
So will that be a ground?
No. the law says it cannot cause recission of the partition. The distribution
of the objects or securities which have been omitted So katong land sa
COMVAL mag partition mo utro, kamo upat A., B, C and D.
ARTICLE 1104. A partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other persons
interested; but the latter shall be proportionately obliged to pay
to the person omitted the share which belongs to him. (1080)
Sa 1103, preterition of object partition. Sa 1104, preterition of compulsory
heirs in the partition.
How is it different from preterition in Article 854?
ARTICLE 854 ARTICLE 1104
Preterition of compulsory heir in Not necessarily in the direct line
the direct line
Made in a will No will involved
What is the consequence if an illegitimate child is not included in the
partition?
GR: NO. We just give to him his share unless there has been bad faith or
fraud.
What are the instances when partition can be rescinded?
1. Lesion
2. Vitiated consent
3. Preterition of compulsory heirs AND there is bad faith or fraud.
NON VS. CA
325 SCRA 652
FACTS: Petitioners contended that the late Nilo employed forgery
and undue influence to coerce Julian to execute the deed of
donation. Petitioner Rebecca averred that her brother Nilo employed
fraud to procure her signature to the deed of extrajudicial settlement.
She added that the exclusion of her retardate sister, Delia Viado, in
the extrajudicial settlement, resulted in the latter's preterition that
should warrant its annulment.
ISSUE: Was preterition present that would warrant annulment?
RULING: When Virginia died intestate, her part of the conjugal
property, the Isarog property included, was transmitted to her heirs
— her husband Julian and their children. The inheritance, which
vested from the moment of death of the decedent, remained under a
co-ownership regime among the heirs until partition.
Petitioners are vague on how and in what manner fraud, forgery and
undue influence occurred.
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 the TCT
issued. The relief 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.
The remedy here is just give to the omitted or preterited heir his or her
share that is supposed to be due to her had she been included in the
partition.
REILLO VS. SAN JOSE
GR. No. 166393
(JUNE 18, 1989)
30
RULING: 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 deed of settlement made by
petitioners was invalid because it excluded respondents who were
entitled to equal shares in the subject property. Under the rule, no
extrajudicial settlement shall be binding upon any person who has
not participated therein or had no notice thereof. Thus, the RTC
correctly annulled the Deed of Extrajudicial Settlement of Estate
Among Heirs with Waiver of Rights dated January 23, 1998 and TCT
No. M-94400 in the name of Ma. Teresa S.J. Fernando issued
pursuant to such deed.

Here, the ruling was different because there was fraud and bad faith. The
Court annulled the deed of extra-judicial partition.

ARTICLE 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. (1081a)

ARTICLE 1105 ARTICLE 1104

Not an heir but included in the Heir but not included
partition
Void but should not be annuled Must be given their share

What is the remedy?

The law says it shall be void but only with respect to such person. As to the
rest, the partition is done.

AZNAR VS. CA
(MARCH 7, 2000)

RULING: Respondents anchored their action for reconveyance in the

trial court on the nullity of the Deed of Sale between petitioner Aznar
and the supposed owners of the property. Respondents impugned
the validity of the document because the sellers were not the true
owners of the land. Respondents sought the declaration of
nullity(inexistence) of the Deed of Sale because of the absence of
their consent as the true and law fulowners of the land. They argued
that the sale to petitioner Aznar was void since the purported
"owners" who signed the Deed of Sale as vendors were not even
heirs of Aniceto Augusto and Petrona Calipan.

They pointed out that the 1945 Tax Declaration in the name of
Petrona Calipan indicated that the property was undivided as of the
time Aniceto Augusto died in 1932. The "owners" who sold the land
to petitioner Aznar Realty could not have been the true owners of the
land since there was no showing how they acquired the land in the
first place. Thus, the trial courts hould not have dismissed the
complaint without looking into the validity of the sale of land to
petitioner Aznar Realty.

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 other words, the participation of non-heirs does
not render the partition void in its entirety but only to the extent
corresponding to them.

What should be done for persons who are included in the partition
but is not an heir?

It is not a ground for recission unless there is bad faith or fraud. Only the
inclusion of persons who are not heirs will be annulled.

- END -

“For I know the plans I have for you”, says the Lord,
“plans to prosper you and not to harm you,
plans to give you hope and a future.”
Jeremiah 29:11

ABAD-ACOSTA-GERALDE-GUMBOC-LIM-MORTEJO-TONGO 31