Printed - Uribe Succession Notes PDF

Succession Atty.
Crisostomo Uribe 1st Term AY14-15
SUCCESSION NOTES
Why is Succession sometimes called Wills and Succession? Why is there a need for a
separate title for wills and succession?
> wills: (a) minimize conflict between heirs; (b) represents intent of the testator
> Succession under the Civil Code only provides for the aliquot portion of the estate
I. GENERAL PROVISIONS
A. Definition and Concept. Arts. 774, 712, 1311
Article 774. Succession is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a person are transmitted through his
death to another or others either by his will or by operation of law. (n)
(T) Succession is a mode of acquiring ownership, by virtue of which the inheritance of a person is
transmitted to us, either according to his express will and words, or, if by some natural or accidental
circumstances he has made no will, according to his presumed will provided for by law as analogous to
what he would have made had he executed one.
(B) Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted
through his death to another or others either by his will or by operation of law.
- what is transmitted are transmissible rights
- GENERAL RULE: If the right or obligation is strictly personal, it is intransmissible; otherwise it is
transmissible.
Does one acquire ownership by succession? – Not necessarily. Basis is Art. 774, “mode of acquisition”
phrase states that the heir may not necessarily own things but may own rights e.g. usufruct.
Article 712. Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are acquired and transmitted by law, by donation, by
testate and intestate succession, and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case
where the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the value of the property he received from
the decedent.
If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment
provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit
or interest of a person is not sufficient. The contracting parties must have clearly and deliberately
conferred a favor upon a third person. (1257a)
BALANE
- CONTRACTUAL RIGHTS AND OBLIGATIONS are transmissible to the

successors.
- EXCEPTIONS:
o By the nature of the contract
o By stipulation of the parties that they are not transmissible
o By provision of law – cases where the law expresses that the
rights and obligations are extinguished by death
Basis of Law of Succession
(1) family relations – law of intestate succession & law of legitimes

Concepts under FC: compulsory heirs, legitimes, legacies and devises,
testamentary disposition,
(2) right of property – law on testamentary succession; permits owner to
give his property by will to total strangers
TDL Andrade/11285982 1
Succession Atty. Crisostomo Uribe 1st Term AY14-15
Legal Philosophy of the Civil Code on Succession
Tolentino:
- happiness may be attained by tempering the concept of extreme individualism with

state guidance
- the philosophy of socialization of ownership constitutes one of the underlying
principles of the present law on succession
o purification of the system of private ownership of its abuses; prohibitions in
donation inter vivos
o surviving spouse is given a better right
o fideicommissary substitutions have been limited to one degree and the free
portion has been increased from one-third to one-half of the estate of the
decedent when children and descendants survive
o emancipation of innocent persons from the bondage of undue conversatism;
illegitimate children, who did not have successional rights under the old Civil
Code, now have successional rights.
(OLD CC)illegitimate children can inherit through legacies and
devises.
o NCC has eliminated provision where a Parent or ascendant may appoint
substitutes for their children or descendants who may die without making a
valid will.
When there are no heirs up to the 5th civil degree, the State shall
inherit the estate which may be used for the advancement of the
state.
Balane:
- rules of succession come from three systems with contrasting philosophies:

o Germanic concept of universal heir – upon the death of the predecessor,
directly and immediately steps into the shoes at one single occasion without
any formalities whatsoever, acquires the universality of all his surviving and
transmissible rights and obligations, in an automatic subjective novation
therein, unless the heir should repudiate and reject the inheritance.
o Franco-Spanish System – there is an acquisition of the estate by
universal title but only upon acceptance by the heir, who may do so when
he chooses, (with retroactive effect) unless required to decide earlier by the
creditors or the Court
o Anglo-American (Common Law) System – upon the death of the
predecessor, the assets marshaled and the debts paid or settled under
judicial supervision
Fundamental changes in the NCC
Tolentino:
1. Greater freedom is given to the testator in the choice of the form for his will or
testament.
2. Greater facility in the probate of wills is provided by the introduction of system of

probate during the lifetime of the testator.
3. The surviving spouse is given a better position in the laws of succession. Her legitime
has been changed from a mere usufruct to full ownership. In the law of intestate
succession, she has been raised to a higher degree in the order of succession.
4. In the legitime of legitimate children and descendants, the betterment consisting of

one-third of the estate of the parents or ascendants, has been abolished.
5. The reservas and reversions, with the exception of reserva troncal, have been
abolished. Reserva troncal was later on reincorporated by Congress.
Reserva troncal, also known as reserva lineal, where: (1) a descendant inherited or
acquired gratuitous title property from an ascendant or from a brother or sister, (2) same
property is inherited by another ascendant or is acquired by him by operation of law from
the said descendant, and (3) the said descendant should reserve the said property for the
benefit of relatives who are within the third degree from the deceased descendant and
who belong to the line form which the said property came.
Other terms used to refer to reserva troncal: 1. Lineal, 2. Familiar, 3. Extraordinaria, 4.

Semi-troncal, 5. Pseudo-troncal
Effectivity of New Rights
- NCC 2253, “If a right should be declared for the first time in this Code, it shall be effective
at once, even though the act or event which gives rise thereto may have been done or may
have occurred under the prior legislation, provided said new right does not prejudice or
impair any vested or acquired right of the same origin.”
- NCC 2263 “rights to the inheritance of a person who died, with or without a will, die after
the beginning of the effectivity of this Code, shall be governed by Civil Code of 1889, by
other previous laws, and by the Rules of Court.”
Old CC Effectivity - 1889

NCC Effectivity – August 30, 1950
FC Effectivity – August 3, 1988
B. Law governing form
1. As to time of execution. Art. 795
Article 795. The validity of a will as to its form depends upon the observance of the law in force at
the time it is made. (n)
The general rule is that given in the present article, that the validity of the execution of a
will is controlled by the statute in force at the time of the execution; and a statute enacted
subsequent to the execution and prior to the death of the testator, changing the rules
respecting the form of the instrument, the capacity of the testator, and the like, has no
retrospective effect.
ON INTRINSIC VALIDITY. Intestate and testamentary successions, both with respect to

the order of succession and to the amount of successional rights and to the intrinsic value
of the testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. The place of the execution
has no effect whatever upon the validity of the provisions of the will.
It is the law at the time when the succession opens which must determine the intrinsic
validity of the provisions of the will, because it is at this time that the rights are
transmitted to the heirs, devisees, or legatees.
Even if decedent is a national of another country what is relevant is his nationality at the
time of his death that shall determine what law shall apply.
National law of the decedent at the time of his death – intrinsic validity of the will
CASE: In re Will of Rev. Abadia – the law governing at the time of the execution shall be
the law applied as to the form of will.
Always two aspects: extrinsic and intrinsic
2. As to place of execution. Arts. 17, 810, 815-819
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic
of the Philippines in a foreign country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
(11a)
Matters connected with the performance of contracts are regulated by the law prevailing at
the place of performance. Remedies, such as the bringing of suit, admissibility of evidence,
and the statute of limitations, depend upon the law of the place where the action is
brought.
In terms of the validity and effect of obligations, the following rules shall be followed. First,
the law designated by the parties shall be applied; if there is no stipulation on the matter,
and the parties of the same nationality, their national law shall be applied; if this is not the
case, the law of the place of perfection of the obligation shall govern its fulfillment; but if
these places are not specified and they cannot be deduced from the nature and
circumstances of the obligation, then the law of the domicile of the passive subjects shall
apply.
Article 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (678, 688a)
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated in the
Philippines. (n)
This article follows the general rule that the law governing the formal validity of wills is the
law of the place where it is executed. Yet a Filipino may make a will in a foreign country in
conformity with our laws and not of the place of execution. Articles 816 and 817 shall
govern.
NOTE:
Extrinsic – the requirements as to the form of the will
Intrinsic – the law that governs the will
Art. 815 to 817 deals with the extrinsic validity of a will executed by a person outside his
state or country.
Art. 16 applies for the intrinsic validity of the will
Lex loci celebrationis – this principle is what makes the Filipino will executed outside the
philippines in accordance with the laws of the Philippines. (Art. 17)
Q: Filipino executed will in Saudi Arabia but permanent resident in Canada. If executed in
Canada, can it be probated (note: this means probated in the Philippines)?
A: YES. If aliens are given the option to elect the law applicable to the extrinsic validity of
the will, then it should also apply to Filipinos executing wills abroad. Quits lang tayo.
Q: X, a French national, executed a will in London, but he is a permanent resident of Canada, the will
may be probated if executed in accordance with?
A: Citizenship, Domicile, Residence, Philippine law
NOTE: ALWAYS apply facts to the law in your answer.
Q: French national, executed in Baguio, not with national law, may be probated?
A: YES. Art. 17 in relation to Article 817.
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes. (n)
Article 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and which
might be proved and allowed by the law of his own country, shall have the same effect as if
executed according to the laws of the Philippines. (n)
If an alien executes a will in the Philippines, not in conformity with our law, but in
conformity with the law of his own state or country, the will can be probated in the
Philippines.
Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person. (669)
Prohibition on joint and mutual wills

GENERAL RULE: Filipinos cannot execute joint will with Filipinos or with other nationals.
Joint will – one where the same instrument is made the will of two or more persons and is
jointly signed by them
Mutual will – separate wills of two persons, which are reciprocal in their provisions.
REASONS FOR PROHIBITION:
1. purely personal and unilateral act
2. contrary to revocable character of wills, of one revokes the will no document is left for
the other to revoke specially in cases where the revocation is done by destroying or tearing
the will.
3. may expose a testator to undue influence
4. may tempt one to kill the other testator
5. against public policy
- Mutual wills separately executed is not prohibited by the NCC.

- What is actually prohibited is the execution of a will in a SINGLE DOCUMENT and by
ONE ACT.
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country
shall not be valid in the Philippines, even though authorized by the laws of the country where
they may have been executed. (733a)
The will may be allowed in other states but it shall not be allowed in the Philippines
In re Will of Rev. Abadia, 50 O.G. #9, p. 4185

To determine the law applicable to a wil, the determining factor shall be at the time or
date it was executed.
Fleumer v. Hix, 54 Phil. 610 (renvoi)

The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the
formalities observed in his country, or in conformity with those which this code provides.
Estate of Giberson, 48 O.G. #7, 2657

If an alien executes a will in the Philippines, not in conformity with our law, but in
conformity with the law of his own state or country, the will can be probated in the
Philippines.
Dela Cerna v. Potot, 12 SCRA 576 – According to Uribe this is still good law. A joint will can still be valid if a
final judgment was made on the part of the death of one of the testators.
In a joint will of husband and wife, the probate decree of the will of the husband could
only affect the share of the deceased husband. The validity of the will in so far as the wife
is concerned must be on her death and adjudicated de novo, since a joint will is
considered a separate will.
Upon the final judgment of a joint will, it shall only affect the right of the person who’s
estate is in consideration.
Estate of Rodriguez, 46 O.G. # 2, p. 584

The law prohibits two or more persons to make a will conjointly or in the
same instrument.
TESTS OF CAPACITY.- Neither old age, physical infirmities feebleness of mind, weakness of
the memory, the appointment of a guardian, nor eccentricities are sufficient singly or
jointly to show testamentary incapacity. The nature and rationality of the will is of some
practical utility in determining capacity. Each case rests on its own facts and must be
decided by its own facts.
C. Law governing content

1. As to time. Art 2263
Article 2263. Rights to the inheritance of a person who died, with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and
by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning
of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their amount shall be reduced if in no other manner can
every compulsory heir be given his full share according to this Code. (Rule 12a)
The controlling factor in this article is the death of the decedent. The
death of the decedent determines the applicable law.
2. As to successional rights, etc. Art 16(2); 1039
Article 16. Real property as well as personal property is subject to the law of the country where it
is stipulated.
However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said property
may be found. (10a)
The distribution of the estate is governed by the law of the nation of the deceased. It may
involve various questions such as:
1. order of succession in intestacy;
2. intrinsic validity of a will;
3. extent of property an heir is entitled;
4. capacity to succeed of heirs;
5. questions of preterition, disinheritance, and collation.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
(B) national law of the decedent governs capacity. It is the national law of the decedent – not that of the
heir – that governs capacity to succeed.
Estate of Christensen, 61 O.G. # 46, p. 7302
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory the law of the
country means the whole of its laws.
Estate of Amos Bellis, 20 SCRA 358
A foreign national who executes a will in the philippines shall follow Art. 16 wherein The
national law of the decedent in intestate and testate proceedings shall be followed.
Cayetano v. Leonides, 129 SCRA 524
It is settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent
must apply.
D. Subjects of Succession. Arts. 775, 782, 887, 1003
Article 775. In this Title, "decedent" is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will. If he left a will, he is also called the
testator. (n)
Decedent – person whose property is transmitted through succession, whether or not he

left a will
Testator – person who left a will
Devisee – to those who, real property is given in a will
Legatee – to those who, personal property is given in a will
Successor – person who succeeds to the property of the decedent
Heir – a successor who succeeds by universal title (whole or fraction of the inheritance);
Art. 782 – a person called to the succession either by the provision of a will or by operation
of law.
Difference of heirs (Art 782) in a general sense; specific heir – instituted by a will; devisee
– an heir in a specific sense
CLASSIFICATION OF HEIRS
1. Compulsory Heirs – those who succeed to a portion determined by law, which cannot be
impaired, reduced or taken away by the decedent, even if there is a will (EXCEPT
DISINHERITANCE)
a. primary compulsory heir – legitimate children and descendants; adopted children

(cannot inherit from grandparents); iron curtain rule
legitimated children – children by subsequent marriage; compulsory heirs
adopted children – both as compulsory heir and intestate heir; adopter is not a compulsory
heir of the adopted. Adoption was for adopter’s benefit
b. secondary compulsory heirs – legitimate parents and ascendants (will inherit only in
default of primary compulsory heirs)
c. concurring compulsory heir – surviving spouse; illegitimate children
surviving spouse – must be shown to have a valid marriage
bigamous marriage – two wives may inherit (basta good faith)
2. Voluntary or Testamentary Heirs – those who succeed according to decedent’s will; may
be juridical persons as well (based on CC 1026 & 782)
3. Legal or Intestate Heirs – those who succeed to the decedent in the absence of a will,
according to the amount or proportion determined by law; e.g. collateral relatives – up to
the 5th civil degree;
Q: Is it important to distinguish bet. heir devisee and legatee?
A: Before, yes. The heir inherited even debts of the decedent, even if it exceed the value of
the property. Devisees or legatees were liable for debts of the decedent only up to the
extent of the value of the prop.
Now: No. Except in one instance, in case of preterition in Art. 854. If read carefully,
institution of heir is annulled while devise and legacy are not, so long as there is no
impairment ofthe legitime.
WHO ARE LEGAL HEIRS? (All compulsory heirs, collateral relatives up to 5th civil degree, the state)
All compulsory heirs are legal heirs.
legal heirs – when a valid will was subsequently invalidated

intestate heir – when the decedent did not leave a will
Why is there a distinction of kinds of heirs?
Distinction of types of heirs in relation to a will.
Compulsory heirs are the heirs who succeed not only by will but by operation of law
Voluntary or testamentary – only succeed by virtue of a will
Legal or intestate heirs – those who succeed when a valid will is invalidated and there is no
will respectively
Are all compulsory heirs blood related? No.
Is there a child who is not blood related to the wife but nonetheless a compulsory heir?
Decedent X and spouse Y, may such a child be not related by blood but have legitimate
child rights and status? Child of your spouse who is not related to you by blood (different
dad/mom) CHECK ADOPTION LAW , CC1026
In the descending line, there is no limitation? No, there is not. Even 10th degree is possible.
Voluntary heirs are instituted heirs.
Q: The following survived X: A, B, C, and D, X is pinoy. All children legitimate children of X.

A was Canadian already, B died three months before X’s death, C is one of the witnesses in
the will of X, D suffering civil interdiction. Who can inherit?
A: A, C and D. Start by general rule with Article 1024, and then Article 1025 for the
capacity and incapacity. C may inherit because he is a compulsory heir and no incapacity.
D can inherit because the civil interdiction does not deprive him of his legitime because
civil interdiction only restricts the administration and disposition of his property; MAINLY
because there is no law providing for the incapacity of D. The law requires the person to
have free disposal of his property. Art. 1027 is applicable. Incapacity is classified into
absolute incapacity and relative incapacity.
Can an heir who is convicted of adultery inherit? Art. 1028 in relation to Article 739. Must
show preponderance of evidence only and not conviction. Article 1032(5) also.
1027 incapacitates the heir in any capacity? No. Art. 1027 dictates capacity
Article 782. An heir is a person called to the succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively
given by virtue of a will. (n)
Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants; (PCH)
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants; (SCH)
(3) The widow or widower; (CCH)
(4) Acknowledged natural children, and natural children by legal fiction; (CCH)
(5) Other illegitimate children referred to in article 287. (CCH)
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and
2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from
them in the manner and to the extent established by this Code. (807a)
See notes under CLASSIFICATION OF HEIRS
Can the legitimate parents and ascendants inherit even if Par 1 CH are present? They are
compulsory heirs but they are excluded when the legitimate children and descendants are
present.
If child is illegitimate child, his parent is not a compulsory heir, correct? Not. Based on last
paragraph of Art. 887.
Can a VH be a CH? Not necessarily.
Is it important to know on what capacity an heir is inheriting? Yes, because the right of
representation does not apply to the free portion, which may be given to voluntary heirs.
Types of compulsory heirs – check classification of Pineda on Succession which is primary

and secondary but Tolentino classification is better.
Can a spouse legally separated from the other spouse inherit still? Yes, because the
marriage bond has not yet been extinguished.
VH OR HEIR na walang civil personality – the SOUL (putang ina!)
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)
Collateral relative (not necessarily legal heirs – must be within the 5th civil
degree)
2nd cousins – NOT HEIRS, 6th degree already.
1st cousins – 4 degrees removed
nieces & nephews, aunts & uncles (from cousins), brother of great
grandfather – 5 degrees removed
the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and
the latter per stirpes. In relation to Article 975 which states
Art. 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.
• Division per capita entails a division of the estate into as many equal parts as there are
persons to succeed. If there are three children, for instance, each will receive, per capita,
one third of the estate. Division per capita is the general rule.
• Division per stirpes is made when a sole descendant or a group of descendants represent a
person in intestate succession. The sole representative or group of representatives are
counted as one head. Thus, should a father be survived by a son and four children of
another son who predeceased him, then, the estate is divided per stirpes. The first half is
given to the surviving son and the other half shall be divided among the four grandchildren.
Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters
of the half blood, the former shall be entitled to a share double that of the latter. (949)
Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the
mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the
origin of the property. (950)
Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per
stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915)
Art. 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)
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship
in the collateral line. (955a)
• When there are no brothers whether the full of half blood, the other collateral relatives
succeed which whom, however, are limited within the 5th degree of relationship. Because
beyond this degree, it is safe to say that, there is hardly any affection to merit succession.
Hence, for succession purposes these persons are no longer considered relatives.
• The following rules shall apply: 1. The nearest relative exclude the farther. 2. Collateral of
the same degree inherit equal parts, there being no right of representation, 3. They succeed
without distinction or lines or preference among them on account of the whole blood
relationship
The State
Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the
preceding Sections, the State shall inherit the whole estate. (956a)
• When a person dies intestate, leaving no compulsory heir, nor any other relatives to
succeed him by law, the natural result would be the complete abandonment of the property.
• The estate becomes subject to appropriation by anyone. This condition would result in
conflicts detrimental to the public and economic order.
• In view of this, the law awards the property to the State, in representation of the people.
Ratio: a) Dictated by public policy and, b) private property is enjoyed only under the
protection of the State, and when no longer used, it should revert back to the State.
• The reversion of the res nullius property can only be done through an Escheat proceedings
instituted by the Solicitor General to the proper court ( the city or municipality where the land
is situated ). The State, therefore does not ipso facto become the owner of the estate left
without heir. Its right to claim must be based on a court’s ruling allowing it to have the estate,
after compliance with the procedure laid down by the Rules of Court. (Rule 91)
Art. 1012. In order that the State may take possession of the property mentioned in the preceding
article, the pertinent provisions of the Rules of Court must be observed. (958a)
Art. 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)
Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim
thereto with the court within five years from the date the property was delivered to the State,
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.
1. Who are the subjects?
2. Relationship Arts 963-969
SUBSECTION 1. Relationship
Article 963. Proximity of relationship is determined by the number of generations. Each
generation forms a degree. (915)
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 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)
3. Capacity to Succeed – Art. 1024

Article 1024. Persons not incapacitated by law may succeed by will or ab intestato.
GENERAL RULE: Every person has capacity to succeed mortis causa. Presumption of law
is always in favor of capacity
Requisites of capacity to succeed:
1. that there be general civil capacity of the person, whether natural or artificial, according
to law
2. There be no incapacity or prohibition to succeed expressly provided by law
a. Determination. Arts. 1034, 1039, Art. 16(2)
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)
Determination of capacity occurs upon the opening of the succession.
When an action to declare an heir unworthy, the determination of capacity should

be suspended until a final determination has been made.
(B) Time to judge the capacity of the heir.
Par. 1.-- Time of death. correlate with par. 1 of Art. 1025. The time succession opens,
no exceptions.
Par. 2.-- Grounds 2, 3 and 5.-- Wait for final judgment when conviction is needed.
Par. 3.-- Conditional.-- Consider both time of compliance and time of death of the
decedent.
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
Article 16. Real property as well as personal property is subject to the law of the country where it
is stipulated.
However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said property
may be found. (10a)
Cayetano v. Leonides, 129 SCRA 522
b. Who may succeed? Arts. 1024-26, 1029-30
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)
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)
Those not existing at the time of death of decedent are incapacitated to succeed except on
conditional wills where succession only opens upon the happening of the condition.
(B) Par. 1.-- Ab intestato refers both to legitime and intestacy.
Par. 2.-- Mistake - not true. Incapacity to succeed by will, 1027, 1028 and 1032, are they
applicable to intestacy? Not all.
a. Applies only to incapacity by will.-- Articles 1027, paragraphs 1 to 5, 1028

(applicable only in testamentary succession.)
b. Applies to both.-- Articles 1027, par. 6, 1032.)
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)
The heir who dies before, as well as he who is not yet conceived at the time of the death
of the testator, cannot succeed because of lack of juridical personality at the precise
moment when the transmission of successional rights take place.
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)
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)
Parish Priest of Victoria v. Rigor, 89 SCRA 493
This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around forty-four hectares. That devise was made in
the will of the late Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his nearest male
relative who would study for the priesthood.
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9,
1935, leaving a will executed on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the
testator's nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-
Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato
Gamalinda.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the
parish priest of Victoria filed in the pending testate proceeding a petition praying for the
appointment of a new administrator (succeeding the deceased administratrix, Florencia Rigor),
who should deliver to the church the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The probate court granted the petition.
A new administrator was appointed. On January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that
the bequest be declared inoperative and that they be adjudged as the persons entitled to the
said ricelands since, as admitted by the parish priest of Victoria, "no nearest male relative of"
the testator "has ever studied for the priesthood" (pp. 25 and 35, Record on Appeal). That
petition was opposed by the parish priest of Victoria.
Judge De Aquino granted the second motion for reconsideration in his order of December 10,
1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit
Fathers in Quezon City. The administrator was directed to deliver the ricelands to the parish
priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father
Rigor had created a testamentary trust for his nearest male relative who would take the holy
orders but that such trust could exist only for twenty years because to enforce it beyond that
period would violate "the rule against perpetuities". It ruled that since no legatee claimed the
ricelands within twenty years after the testator's death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Code.
The will of the testator is the first and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly appear that his intention was
different from that literally expressed (In re Estate of Calderon, 26 Phil. 333
"The intent of the testator is the cardinal rule in the construction of wills." It is "the life
and soul of a will". It is "the first greatest rule, the sovereign guide, the polestar, in giving effect
to a will"
From the foregoing testamentary provisions, it may be deduced that the testator intended to
devise the ricelands to his nearest male relative who would become a priest, who was
forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the
priesthood, or having been ordained a priest, he was excommunicated, and who would be
obligated to say annually twenty masses with prayers for the repose of the souls of the testator
and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands
only in two situations: one, during the interval of time that no nearest male relative of the
testator was studying for the priesthood and two, in case the testator's nephew became a
priest and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario
acondicionado", or how long after the testator's death would it be determined that he had a
nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has
brought about the controversy between the parish priest of Victoria and the testator's legal
heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who would
study for the priesthood should be determined. Did the testator contemplate only his nearest
male relative at the time of his death? Or did he have in mind any of his nearest male relatives
at anytime after his death?
We hold that the said bequest refers to the testator's nearest male relative living at the time of
his death and not to any indefinite time thereafter. "In order to be 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" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe

them as referring to the testator's nearest male relative at anytime after his death would render
the provisions difficult to apply and create uncertainty as to the disposition of his estate. That
could not have been his intention.
In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his nearest male
relative would be his nephew or grandnephews (the sons of his nephew or niece) and so he
had to use the term "nearest male relative".
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in

1961. For that reason, the legal heirs apprised the Court of Appeals that the probate court's
order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p.
84, Appellant's brief).
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la
carrera eclesiastica" would include indefinitely anyone of his nearest male relatives born after
his death, he could have so specified in his will. He must have known that such a broad
provision would suspend for an unlimited period of time the efficaciousness of his bequest.
Following that interpretation of the will, the inquiry would be whether at the time Father Rigor
died in 1935 he had a nephew who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4
of appellant priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally
alleged therein that "no nearest male relative of the late (Father) Pascual Rigor has ever
studied for the priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative.
Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in
the will, was likewise inoperative.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil
Code, now article 956, which provides that if "the bequest for any reason should be
inoperative, it shall be merged into the estate, except in cases of substitution and those in
which the right of accretion exists" ("el legado . . . por qualquier causa, no tenga efecto, se
refundir en la masa de la herencia, fuera de los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960(2), which
provides that legal succession takes place when the will "does not dispose of all that belongs
to the testator." There being no substitution nor accretion as to the said ricelands, the same
should be distributed among the testator's legal heirs. The effect is as if the testator had made
no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or
that there may be mixed succession. The old rule as to the indivisibility of the testator's
will is no longer valid. Thus, if a conditional legacy does not take effect, there will be
intestate succession as to the property covered by the said legacy (Macrohon Ong Ham
vs. Saavedra, 51 Phil. 267).
c. Who are incapable of succeeding? Arts. 1025, 1027-28,1031-33, 990-992
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)
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;
(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752,
753, 754a)
(T) NOTES:
o Pars. 1 to 5 apply to testamentary succession only.
o Par. 6 applies to both.
(B) Numbers 1 to 5 have no application to legitimes.
A. Priest
o Last illness – that of which the testator died, there is danger that the testator may
die of it
o Roman: there is a conclusive presumption that the testamentary disposition is void,
even if the testator survives and recovers, there can be no tacit confirmation from
his mere failure to revoke the will.
o The incapacity does not arise from the mere act of confession
o A priest however, who does not hear the confession of the testator during his last
illness, but acts merely as his adviser, staying by his side during such illness, is not
incapacitated.
o Will made before confession = VALID
o Will made after confession = VOID
o Will contains certain sums = VALID
o If priest is a compulsory heir, he gets his legitimes.
o If the free portion only (intestate heir) = prohibition applies
o
Example 1. A, a priest, is a friend of B. B regularly goes to confession to A. B then becomes
seriously ill. He executes a will instituting A to 1/3 to his estate. Is this testamentary
disposition valid or is A capacitated to inherit from B? Yes.
Example 2. On his deathbed, X makes a will instituting Y, a priest. Thinking he will die, X
calls Y to confess. Is Y capacitated to inherit from X? Yes.
1. When does par. 1 apply, in other words, when is the priest incapacitated to succeed?
a. When the confession is made prior to the making of a will. If simultaneous, the priest is
still disqualified. If the will is made first, the priest can inherit.
b. If the confession was made before the will was made and the priest is the son of the sick
person, can the priest inherit upon the death of the sick person? Yes. He can get the
legitime.
If the priest were a brother? Yes. He can inherit by intestacy.

Disqualification applies only to testamentary dispositions.
2. "Priest or minister of the gospel."-- Despite this apparent restriction to Christian

ministers, this applies to all spiritual ministers, e.g., Buddhist monks.
Why? Because it is conclusively presumed that the spiritual minister used his moral
influence to induce or influence the sick person to make a testamentary disposition in his
favor.
3. Requisites:
a. The will was made during the last illness
b. The spiritual ministration must have been extended during the last illness
c. The will was executed during or after the spiritual ministration.
B. Relatives of the priest of minister of the gospel

This widens the disqualification in A.
Omission was made of the spouse of the minister of the gospel. What do you do? Apply
Art. 1031. To disqualify the spouse, you have to show that the testamentary benefaction
given to the wife was meant to benefit the minister. This is harder to prove.
C. Guardian
General rule: Disqualification applies when the disposition is made:

After the guardianship began (beginning of the guardianship) --- Before termination of
guardianship (approval of final accounts or lifting of guardianship.)
Exception: Disposition is valid when the guardian is an ascendant, descendant, brother,

sister or spouse.
1. This exception is not present in the case of a priest. Why? They were derived different
laws. The omission in the case of the priest was stupid.
2. Seems to refer only to guardian of the property. Commentators agree that this also
covers guardians over the person bec. the latter have more opportunity to influence the
ward.
Q: X donated to A a car. A is the son of B, who is the guardian of X. Is a incapacitated to

succeed?
A: No, there is no law disqualifying the guardian’s son to inherit.
Q: If is possible for the child of this guardian not to inherit from X?

A: Yes, the donation was made to circumvent the prohibition on the incapacity of the
guardian.
D. Attesting witness.
Correlate this w/ Art. 823. – sets the exception
General rule: Witness, spouse are disqualified.
Exception: If there are three (3) other witnesses to the will.
Q: A was given a parcel of land in the will of X. A was one of the attesting witnesses and a
notary public. May A inherit?
A: Yes, A may inherit under NCC1027 pertains to testamentary succession only.
When it comes to witnesses to not rely on 1027 per se, but relate it to Article 823, then the
heir may inherit.
On the part of the notary public, if he is one of the three attesting witnesses, and he was
the notary public also, the will will be void because the three witness rule was not complied
with.
E. Physician, surgeon, nurse, health officer or druggist.
The latter must have taken care of the sick person.
Requisites:
1. The will was made during the last illness
2. The sick person must have been taken cared of during his last illness. Medical
attendance was made.
3. The will was executed during or after he was being taken cared of.
Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall
apply to testamentary provisions. (n)
Applicable only to testamentary succession.
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)
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)
(B) Grounds 1, 2, 3, 5 and 6 are the same as in disinheritance.
Number 4 has no application because there is no obligation to accuse. There is no law

that obligates to accuse. Only a civic or moral duty but not a legal duty.
Numbers 6, 7 and 8 cover six (6) cases of acts relating to a will:

a. Causing the testator to make a will
b. Causing the testator to change an existing will
c. Preventing the decedent from making a will
d. Preventing the testator from revoking his will
e. Supplanting, concealing, or altering the testator's will.
f. Falsifying or forging a supposed will of the decedent.
There is no conflict with disinheritance despite similar grounds.
Illustration: A, son of B, tries to kill B. B may disinherit him or not. If B disinherits him
under Art. 919, then A is disqualified to inherit. However, even if B did not disinherit A, A is
incapacitated to inherit bec. of Art. 1032. If disinherited under Art. 919, there is double
disinheritance. Disinheritance in the will is redundant. In the common grounds, you do not
have to disinherit in Art. 919 since the effect of Articles 919 and 1032 are the same.
Acts of unworthiness can be committed after the death of the decedent.
Forgery & concealment. It doesn’t matter when the forgery was made.
Q: If an act was committed after the opening of the succession, may the heir be incapacitated?
A: This cannot happen because there is no such law referred to under NCC1032(4) which obligates
anyone to make an accusation.
Even if an act was committed after the death of the decedent, he can still be disqualified.
Examples: conceal a will, forges a will,
EXAMPLE 1:
In the will of X, A was given inheritance. In the proceeding, it was proved that A had an adulterous
relationship with the wife of X.
May A inherit? – yes, if he is not convicted of adultery or concubinage.
May A inherit even if he was convicted? – Yes, if X knew of the affair when he made the will – it is
implied that he condoned the acts of his spouse & A.
Is it possible for A to still inherit even if preponderance is proved? – yes, if the adulterous relationship
had long ended before the execution of the will.
EXAMPLE 2:
A & B are half-brothers. B caused the death of A’s child. B was given a house and lot as inheritance by
X, his father. Can B inherit? – Article 1034, not without conviction.
If B is convicted, he cannot inherit? – not necessarily. 1) if the will was made after conviction (implied
condonation); 2) if in the causing o fthe death – there was no intent to kill (by reckless imprudence
resulting to death); 3) if A is not a descendant of X – as when A and B are half brothers by the other
parent; 4) or if the child is adopted – there is no blood relation.
If X was an alien, then the national law of X will determine the right of succession. (if X was a co-
principal of B – Art 739)
TOLENTINO:
o The intention of the Code Commissioners was to to exclude the compulsory heir
who is unworthy from his legitime, but preserving the right of representation in the
descending line.
o Effect of unworthiness is thus an exclusion from the entire inheritance; its causes
constituted impediments to succession
o Hence, an unworthy heir loses everything that he could have otherwise received
mortis causa from the decedent, including his legitime as a compulsory heir.
Q: If the act alleged by the other heirs is the act of unworthiness on the crime attempt against the life,
and a criminal complaint was filed during the pendency of the case, the heir died. Will the heir inherit?
A: No, because he must be living at the time of the succession (NCC 777)
Q: Using the same facts as above, during the pendency of the criminal complaint, the decedent died.
Will the heir inherit?
A: Yes, just because the decedent died that the heir will inherit. On its face, the heir will inherit because
no conviction has been made yet. Therefore if you stick to such rule, he will not be incapacitated. The
rule is clear, you have to await for final judgment to determine the capacity of the heir.
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)
Balane:
1.
a. "Had knowledge at the time he made the will."-- In this case, it is presumed that the
testator had pardoned the offender.
b. "Known subsequently."-- Needs written pardon.
2. Problem: In disinheritance, incapacity to disinherit is lifted by reconciliation. But in Art.

1033, there must be a pardon in writing. This is strange.
In Art. 919 - express will -- reconciliation is enough
In Art. 1033 - presumed will -- needs written pardon.
Problem arises if the testator made a will disinheriting. What rule do you apply if the
reason for disinheriting was a common ground?
a. If you follow the rules of disinheritance.-- Yes.

b. If you follow the rules of unworthiness.-- No.
Commentators.-- Rules of disinheritance should apply. To make the rules of

unworthiness apply would be giving precedence to the presumed will over the
express will.
TOLENTINO:
o PARDON may be EXPRESS or IMPLIED.

o Express pardon – execution of a document or any writing in which the decedent
condones the cause of incapacity.
o Implied pardon if the testator had knowledge at the time he made the will.
o Mere silence of the testator cannot imply a pardon when he made a will with
knowledge of the cause of unworthiness.
o Once the pardon has been recovered it cannot cease except by a new cause.
Q: X executed a first will, giving A a parcel of land and committed an act of unworthiness. X executed
another will giving A a specific car. Will A inherit both land and the car? Was there condonation after the
fact that he executed a subsequent will giving A a car.
A: Yes, because if the testator had knowledge at the time he gave the car, then it shall be considered an
implied condonation. If no knowledge, condonation cannot be presumed.
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)
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)
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)
d. Effect of alienations by the excluded heir. Art. 1036
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)
This applies the doctrine of innocent purchaser for value without prejudice to the right to
damages of the prejudiced heirs against the incapacitated heir.
e. Rights of the excluded heir. Arts. 1035, 1037, 1014
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)
This grants right of representation to children or descendants of incapacitated children or
descendants.
This covers the legitime and intestacy.
It does not mention intestate share only legitime. Why? Because Art. 1035 assumes that
the free portion has been disposed of completely. But if not, then intestate share is
included.
Whatever the incapacitated should have inherited should also go to the children BUT SIR
THINKS TOLENTINO IS WRONG.
There is so much wisdom to this provision, this only pertains to legitimes.
Why can an heir repudiate and kids get nothing but when a kid kills the testator, the kids
of the kid still get legitimes.
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)
Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim
such person shall be entitled to the possession of the same, or if sold, the municipality or city
(n)
(B)
1. Acceptance.-- (a) voluntary; (b) free
2. Basic Rules
a. Rules for acceptance are more liberal than the rules of renunciation because the former
are beneficial to the heir while the latter is prejudicial to the heir.
b. In case an heir is incompetent/ insane or a minor, acceptance or repudiation must be

made by a representative. In case of renunciation, court approval is necessary because of
a.
f. Liabilities of the excluded heir. Art. 1038
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)
g. Prescription of Action. Art. 1040
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)
X died in 1999. A and B filed to declare C incapacitated in 2006 and recover a rice field. May the
case prosper? – it may prosper (Article 1040) – the law provides that action musth be within 5 years
from the time the person took possession of the property.
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A found a deed of sale of a parcel of land with the decedents signature. May the heirs be entitled to
claim the land 0 despite the deed of sale? Yes – if the sale was void (reyes v. CA). but it is subject to
the prescriptive period to have the contract annulled.
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Q: X died in 2007. Today an action was filed to recover the property from an heir of the decedent on the
ground that that heir was incapacitated. Will the action prosper?
A: Based on NCC1040, if they took possession July 2009, then the action would have prospered.
Q: X died intestate with NV of estate 300M and was survived by three legitimate children a b and c.
however, c commited an act of unworthiness. However, C has children, D and E. How will his estate be
divided? Who will receive how much?
A: A and B will inherit
No accretion in intestate, only in testamentary.
E. Object of Succession Arts. 776, 781, 1311, 1429, 1178, 1347
Art. 108, Revised Penal Code
Article 776. The inheritance includes all the property, rights and obligations of a person which
are not extinguished by his death. (659)
T- It is evident from this article that the inheritance does not include everything that belongs to the
deceased at the time of his death. It is limited to the property, rights, and obligations not extinguish by
his death. Including those transmissible rights and property accruing thereto from that time pertain to the
heir.
The following are the rights and obligations extinguished by death:
1. those arising from marriage

2. action for legal separation belonging to the innocent spouse
3. action to annul marriage
4. obligation to give legal support except those expressly provided for by law
5. right to receive support
6. right of patria potestas
7. right of the guardian
8. right of usufruct
9. right of donor to revoke donation due to ingratitude of donee
10. rights arising from agency not the effects already executed
11. criminal responsibility
12. rights from public law such as suffrage and public employment
The following rules are laid down
1. rights which are purely personal are by their nature and purpose intransmissible, ex. Those
relating to civil personality, family rights, and discharge of public office
2. rights which are patrimonial or relating to property are, as ageneral rule, not extinguished by
death except those expressly provided by law or by will of the testator such as usufruct and
personal servitudes.
3. rights of obligation are by nature transmissible and may be part of inheritance, both the right
of the creditor and obligation of the debtor except the following:
a. those which are personal, such as personal qualifications of the debtor have been taken
into account
b. those that are intransmissible by express agreement or will of testator
c. those that are intransmissible by express provision of law like life pensions given under
contract
The heirs of the deceased are no longer liable for the debts he may leave at the time of his death. Such
debts are chargeable against the property or assets left by the deceased. In other words, the heirs are
no longer liable personally for the debts of the deceased ; such debts must be collected only from the
property left upon his death, and if this should not be sufficient to cover all of them, the heirs cannot be
made to pay the uncollectible balance.
Inheritance consists of the mass of property, rights, and obligations adjudicated to the heirs or
transmitted to them after deducting therefrom all the debts left by the deceased.
This should not be understood to mean, however, that obligations are no longer a part of inheritance.
Only the money debts are chargeable against the estate left by the deceased; these are obligations
which do not pass to the heirs, but constitute a charge against the hereditary property.
Are money debts part of the inheritance? – Yes. Obligation is not extinguished by the death of the
decedent. It is chargeable agasint the estate of the decedent
Estate of concept in the rules of court does not have a basis for estate in relation to monetary
obligations UNDER LAST PARAGRAPH OF NCC 1311, wherein the inheritance places all the
inheritance in an estate to pay for the obligations of the decedent.
(Balane)
- Transmissible property, rights and obligations constitute inheritance.
Guidelines on whether rights/ obligations are extinguished by death:
1. Property, rights and obligations that are purely personal are extinguished by the death
of the decedent. They are not part of the inheritance, e.g., membership in the bar or right
of consortium w/ your wife.
2. Those w/c are purely patrimonial.
General rule: They form part of the inheritance, e.g., credits.

Exception: Money debts.-- obligation to pay is not transmissible, although purely
patrimonial bec. the estate pays for it.
3. Those obligations transmitted to the heirs w/c are not monetary, e.g., obligation of a
lessor-- patrimonial.
B leased to C a parcel of land for a term of 3 years. After 2 years, B died.
The heirs of B are bound by the lease contract. Obligation as lessee and bailee are
transmissible.
Article 781. The inheritance of a person includes not only the property and the transmissible
rights and obligations existing at the time of his death, but also those which have accrued
thereto since the opening of the succession. (n)
Since ownership is vested in the heir from the moment of the death of the predecessor, necessarily all
accessions subsequent to that moment must belong to such heir.
The criticism on this article is that the accession to such property is not transmitted by death; it is
acquired already by virtue of the right of ownership which is vested from the moment of the
predecessor’s death in the successor. It is judicially erroneous to say that inheritance includes such
accession. Even without this article, an heir would be entitled to the accession and fruits which accrued
since the death of the decedent by virtue of the right of accession (ownership).
BALANE
It is better to scrap Art. 781. It has no significance. Even w/o it, those w/c accrue after
death will still belong to the heirs.
E.g., A has a son, X. A dies in 1988. Inheritance is a mango plantation. In 1990, there is
a crop. Is it part of the inheritance?
1. According to Art. 781, yes. This is inconsistent w/ Art 777 bec. succession occurs at the moment of
death. Art. 781 implies a second succession.
2. Legal concept.-- No. X owns it through accession and not succession. Fruits are no longer part of the
inheritance. It belongs to the heir bec. of ownership of the land he received at the moment of death. (Art.
777.)
Those w/c have accrued thereto after death do not comprise the inheritance but they accrue by virtue of
ownership (accretion.)
Q: X in his will gave 1 Million which he just deposited with BPI. 10 years after, X died. Money in the
account 1.3M upon death of X the account is 2M. How much does the legatee get?
A: how could they exist at the time of the death of the decedent. Legatee gets one million but the rests
goes to the inheritance.
Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case
where the rights and obligations arising from the contract are not transmissible by their nature,
or by stipulation or by provision of law. The heir is not liable beyond the value of the property he
received from the decedent.
If a contract should contain some stipulation in favor of a third person, he may demand its
fulfillment provided he communicated his acceptance to the obligor before its revocation. A
mere incidental benefit or interest of a person is not sufficient. The contracting parties must have
clearly and deliberately conferred a favor upon a third person.
As a general rule, rights and obligations under a contract are transmitted to the heirs of the parties. The
heirs cannot be considered third parties, because there is privity of interest between them and their
predecessor. A lease contract is transmissible to the heirs of the lessee. The heirs of a party in whose
favor a trust exists, may enforce the trust against the trustee. The heirs of the parties to a contract may
make a valid novation of said contract.
Article 1429. When a testate or intestate heir voluntarily pays a debt of the decedent exceeding
the value of the property which he received by will or by the law of intestacy from the estate of
the deceased, the payment is valid and cannot be rescinded by the payer.
Article 1178. Subject to the laws, all rights acquired in virtue of an obligation are transmissible, if
there has been no stipulation to the contrary. (1112)
As a general rule. Civil rights are transmissible except: 1) expressly provided by law that they are not. 2)
Stipulation of the parties. 3) Personal rights of the debtor. An instrument evidencing a credit may be
transferred or assigned by the creditor to another, and the transferee would be considered in lawful
possession of the same as well as the credit, unless contrary is shown.
Transmissibility is the capability of the rights to be transferred from one person to another.
Article 1347. All things, which are not outside the commerce of men, including future things, may
be the object of a contract. All rights which are not intransmissible may also be the object of
contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by
law.
All services which are not contrary to law, morals, good customs, public order or public policy
may likewise be the object of a contract. (1271a)
It is essential that the object must be in existence at the time of perfection of the contract, or that it has
the possibility or potentiality of coming into existence at some future time. By way of exception, the law
generally does not allow contracts on future inheritance. In order to be future inheritance, the succession
must not have been opened at the time of the contract. A contract to fall within the prohibition of this
article, the following requisites are necessary: 1. that the succession is yet to be opened. 2. the object
forms part of the inheritance. 3. the promissor has an expectant right over the object which is purely
hereditary in nature.
An agreement to partition an estate of a living person by those who inherit from him is void. A contract
renouncing the right to inherit from one who is still alive is void.
After the death of the person, however, the properties and rights left by him by way of inheritance can be
the subject matter of a contract among or by his heirs, even before a partition thereof has been made,
because the rights of the heirs are transmitted to them from the death of the predecessor.
When the object of the contract is not a part of the inheritance, the prohibition does not apply, even if
delivery of such object is dependent upon the death of one of the contracting parties. Thus, life
insurance contracts, and stipulations providing for reversion of property donated in marriage settlements
in the event of the death of the donee, are valid. Likewise, if the right of the party over the thing is not by
virtue of succession, but as creditor, the contract does not fall within the prohibition of this article. It has
been held that in a contract of purchase by co-owners, it is valid to stipulate that in the event of death of
any of them, those who survive will acquire the share of the predeceased.
RPC Article 108. Obligation to make restoration, reparation for damages, or indemnification for
consequential damages and actions to demand the same; Upon whom it devolves. - The
obligation to make restoration or reparation for damages and indemnification for consequential
damages devolves upon the heirs of the person liable.
The action to demand restoration, reparation, and indemnification likewise descends to the heirs
of the person injured.
The heirs of the person liable has no obligation if restoration is not possible and the deceased left no
property.
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1 million is deposited at the bank – at the time the will is made. Upon death of X increased to 2 –
within 10 years the amount increased to 3 million.
Inheritance upon death not after death. Will only be valid if made after the death of the decedent –
future inheritance not subject of .
(de borja vs de borja & bonilla vs. barcena)
Rights and obligations arising from contracts are transmissible to the heir – as a general rule.
Instances when not transmissible – 1) based on nature; 2) stipulated in the contract; 3) by law
Reyes v. CA, S.C. L-5620 July 31, 1954
Facts: Decedent Benedicto de los Reyes, before his death, sold properties to one of the heirs
of the executor. The heirs of the former claimed that the said properties should be part of the
inheritance. Trial Court declared the subject properties having been sold before the death was
no longer part of the inheritance.
Issue: whether the properties sold are part of the inheritance? (Void contract)
Held: Yes, the properties are part of the inheritance, according to the Civil Code, even these
properties sold by the decedent may still be the object of succession and would be part of the
estate and as much, the heirs may still be entitled to the subject properties. Such case may be
considered as a circumvention of the law as the forced heirs may be deprived of their rights to
their legitime.
The appealed decision is reversed and the deed of sale was annulled and the parcel of land
involved merely declared as pertaining to the estate of the decedent Benedicto de los Reyes.
(If the contract is void, the property still forms part of the inheritance in order not to prejudice
the heir)
Another Source:
The natural children of the deceased in this case are questioning the intrinsic validity of the will on the
ground that his compulsory heir cannot be one, as theirs was an illicit relationship. SC held that as a general rule,
courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated.
There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of
the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically
invalid. The intrinsic validity of a will may be passed upon because “practical considerations” demanded it as when
there is preterition of heirs or the testamentary provisions are doubtful legality. In this case however, there was
never an open admission of any illicit relationship. Thus, there was no need to go beyond the face of the will.
Guinto v. Medina, 50 O.G. # 1, p. 199, Oct. 7, 1953.
Facts: on October 3, 1941 Leon Guinto filed an action for forcible entry against Santiago
Medina. Guinto alleged that he has been in possession of the said land since 1934, and that on
1941 by means of force and intimidation, Medina deprived him of his possession. Trial Court
rendered decision in favor of Guinto. While the case was on its original appeal Santiago died.
Issue: whether the liability of heirs may exceed the amount of inheritance?
Held: no, the heirs of the original defendants in this case has been merely substituted in his
place upon his death, their liability for damages (money debt) is only to the extent of the value
of the property that they might have received if any from him.
Q: X filed action against Y. during pendency X died, heirs filed for substitution for the
action. Will the substitution be granted?
A: It depends upon the nature of the action. If it is one of property rights, then it shall
survive with the exception of usufruct.
F. Opening of Succession
Arts. 777, 2263, 2253, 533, 1347, 1461, 130, 132, 390, 391
Arts. 84, 86 Family Code.
Art. 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)
TOLENTINO:
o Once death supervenes, the will of he testator becomes immutable, the law as to the succession
can no longer be changed, disinheritance cannot be effected, and the rights to the succession
acquire a character of marked permanence.
o Succession is opened by the death of the person from whom the inheritance comes.
o Two things to consider:
o Existence of the right
o That which makes the right effective
o Moment of death is the determining point when the heirs acquire a definite right to the
inheritance, whether such right be pure or conditional.
o The right is always deemd to retroact to the moment of death.
o Express or tacit acceptance by the heir, devisee or legatee is necessary to the perfection of the
juridical relation in succession and indispenable to the transmission of successional rights.
o REQUISITES FOR THE TRANSMISSION OF SUCCESSIONAL RIGHTS:
o Express will of the testator or provision of law
o Death of the person whose succession is in question
o Acceptance of the inheritance by the person called to the succession
o Note: That death under this article is not limited to natural or physical death, presumed death by
virtue of prolonged legal absence is included
Q: Spouses X and Y, X died. During the pendency of the settlement of the estate of X, Y donated to Z
her entire share in the inheritance of X. Y also died. Heirs of Y filed to have this donation cancelled or
declared null and void.
1. Will the action prosper?
2. Can Y donate or validly give his share of her inheritance to Z during the pendency of the
proceeding?
A: 1. It depends. If Y has sufficient property aside from the inheritance she received from the estate of X,
then it shall survive.
2. Yes, because the rights are immediately transferred upon the death of the decedent.
Q: Children of X, A and B. B illegitimate child. X was survived by his wife and A and B. A died in 1955. B
died in 1960. In the settlement of the estate of X who died intestate, who will inherit from X?
A: None, because X is still alive.
Two types of death: (1) natural, & (2) presumptive death
Balane:
1. This article literally means that the "decedent has the right to the succession which is
transmitted upon his death." This is illogical bec. the decedent does not have rights to the
succession. To improve the provision, change the words "succession" to "inheritance" (the right
to succeed is an inchoate right) and the verb "transmitted" to "become vested."
2. Four Elements of Succession:
1. Death
2. Will or Operation of law
3. Existence and capacity of the successor
4. Acceptance.
3. This provision is the heart and soul of succession. The most essential provision of the law on
succession.
4. Rights to succession vest at the moment of death, not transmitted. The right should be made effective
from the moment of death. This is so bec. the rights to succession before death are mere inchoate. But
from the moment of death, those inchoate rights become absolute.
Rights to succession are vested from the moment of death, not upon the filing of petition
for testate/ intestate proceedings, not upon the declaration of heirship or upon settlement of the estate.
The rights to succession are automatic. Tradition or delivery is not needed. Fiction of the law is that from
the moment of the death of the decedent, the right passes to the heirs.
During the lifetime of the predecessor, rights to succession are a mere expectancy.
Hence, no contract can be legally entered into regarding the expected inheritance. When a heir receives
his inheritance, he is deemed to have received it at the point of death. this is so by legal fiction to avoid
confusion.
5. CASES:
Uson v. Del Rosario.-- Upon the death of the husband before the NCC, the rights of the
wife to the inheritance were vested. So the rights of the illegitimate children under the NCC to
inherit can not prejudice the vested rights of the wife. We have to apply the OCC bec. at the time of his
death, it is the OCC w/c governed the law on succession. For the determination of
successional rights, the law at the point of death should be the one applied.
Borja v. Borja.-- The right to inherit is vested at the moment of death. Even if she did not know how
much she was going to inherit, she could still dispose of her share in the inheritance. Said right to the
share was hers from the moment of death and she could do whatever she wanted w/ her share, even
sell it.
Bonilla v. Barcena.-- You do not need a declaration of heirship whether testate or intestate, voluntary,
etc. The rights of the heirs to the property vest in them even before judicial declaration of their being
heirs in the testate proceedings.
An action to quiet title is not extinguished by the death of the decedent, it being a patrimonial right.
Hence, the heirs have the right to be substituted to the action even before their having declared as heirs.
Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and
by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning
of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new
body of laws and by the Rules of Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and
bequests shall be respected; however, their amount shall be reduced if in no other manner can
every compulsory heir be given his full share according to this Code. (Rule 12a)
The decisive fact which gives origin to the right of heirs, devisees and legatees is the death of the
decedent. This is the basis of the present article. Thus, the provisions of the new code relaxing the
rigidity of the rules of the old code regarding proof or recognition of natural children, were held
inapplicable to one claiming recognition and a share in the estate of the alleged natural father who died
before the new code went into effect.
Art. 2253. The Civil Code of 1889 and other previous laws shall govern rights originating, under
said laws, from acts done or events which took place under their regime, even though this Code
may regulate them in a different manner, or may not recognize them. But if a right should be
declared for the first time in this Code, it shall be effective at once, even though the act or event
which gives rise thereto may have been done or may have occurred under prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same
origin. (Rule 1)
The second sentence of this article gives a retroactive effect to newly created rights, provided they do
not prejudice or impair any vested or acquired right. Thus, compensation for damages under article 21 of
the new civil code, being a right declared for the first time, shall be effective at once, eventhough the
acts giving rise thereto were done before the effectivity of the new code. But the new successional rights
granted by the new Civil code in favor of illegitimate children cannot be given retroactive effect and be
made to apply to the estate of a deceased who died before the effectivity of the new Civil Code, for the
same would have the effect of impairing the vested rights of another who is deemed to have become the
owner of the deceased’s property upon the latter’s death during the regime of the old Civil Code.
Art. 533. The possession of hereditary property is deemed transmitted to the heir without
interruption and from the moment of the death of the decedent, in case the inheritance is
accepted.
One who validly renounces an inheritance is deemed never to have possessed the same. (440)
The article relates to tacking of possession due to privity to relations. By way of Example, A had been in
possession of a piece of land, which he thought was his, for eight years, when he died. He left a son, B,
who continued to occupy and cultivate the land as administrator, while the settlement of the properties
left by A was pending. The proceedings in court for the settlement of the estate lasted three years; in
these proceedings, B renounces his inheritance from A. The next nearest relative of A, was C, a brother,
who accepted the inheritance. Legally, B has never been in possession although he was materially or
physically holding the property, while C, who had never set foot upon the land, is deemed to have been
in possession from the very moment that A died. So that, if later, a third person appears to claim the
property, C can assert ownership by prescription, because, legally, the possession has not been
interrupted for eleven years, and ten years possession in good faith is sufficient for prescription of
ownership of real property.
Art. 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of
contracts.
law.
may likewise be the object of a contract.
Sale of future inheritance is void except in cases of Donation Propter Nuptias (art. 84, NCC) and
Partition Inter Vivos (art. 1080).
Ratio:
1. What an heir have is merely an inchoate right which does not come to existence after death of
predecessor.
2. The amount or extent of inheritance cannot be exactly determined until death and after settlement
thereof.
Art. 1461. Things having a potential existence may be the object of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the
thing will come into existence.
The sale of a vain hope or expectancy is void.
Art. 130. The future spouses may give each other in their marriage settlements as much as one-
fifth of their present property, and with respect to their future property, only in the event of death,
to the extent laid down by the provisions of this Code referring to testamentary succession.
(1331a)
Art. 131. The donor by reason of marriage shall release the property donated from mortgages
and all other encumbrances upon the same, with the exception of easements, unless in the
marriage settlements or in the contracts the contrary has been stipulated. (1332a)
Art. 132. A donation by reason of marriage is not revocable, save in the following cases:
(1) If it is conditional and the condition is not complied with;
(2) If the marriage is not celebrated;

(3) When the marriage takes place without the consent of the parents or guardian, as
required by law;
(4) When the marriage is annulled, and the donee acted in bad faith; thus, the implication of
this ground is that the donor in bad faith cannot revoke.
(5) Upon legal separation, the donee being the guilty spouse; thus, the implication of this
article is that the guilty donor spouse cannot revoke his donation.
(6) When the donee has committed an act of ingratitude as specified by the provisions of
this Code on donations in general. (1333a)
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened. (n)
Art. 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and his
existence has not been known for four years. (n)
Art. 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-fifth of
their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession

and the formalities of wills. (130a)
These donations, unlike donations of present property which take effect upon the celebration of the
marriage, take effect upon the death of the donor spouse. It cannot be made in the marriage settlement
but in a will or testament. Its limits are governed by the rules of testamentary succession provided by the
Civil Code. Since a will can be revoked by the testator at any time before his death the donation propter
nuptias of future property may be so revoked. Persons other than the affianced parties cannot give
donations propter nuptial of future property.
Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations
made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of
the Civil Code on donations in general. (132a)
Requisites for the transmission of successional rights
1. express will of the testator or provision of law
2. death of the person whose property is the subject of succession- Art. 43;
Survivorship Rule [Rule 131, Sec. 3(ii) par.5] – Art 43 should be in the absence of
prove, both are presumed to have died at the same time. Survivorship Rule is
inapplicable for successional purposes.
3. acceptance of the inheritance – Arts. 1041-1057
Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary
and free. (988)
T: Acceptance is the act by which the person is called to succeed by universal title either by the testator
or by law manifests his will of making his own the universality of the rights and obligations which are
transmitted to him.
Repudiation is the manifestation by such heir of his desire not to succeed to the said universality.
T: Is partial acceptance allowed? Under the old civil code a partial acceptance or repudiation is
prohibited, this prohibition was omitted in the NCC. Hence, it is submitted that in the light of the present
law, inheritance can be accepted or repudiated partially. The argument that the personality of the
decedent cannot be continued in fraction can no longer obtain in this jurisdiction. The heir in our law is
not the continuation of the personality of the deceased. He stands on the same footing as a mere
legatee in the Civil Code. If the latter may accept or repudiate partially, there is no legal reason why the
heir should not be allowed to do so. The greater right always includes the less; if total acceptance or
repudiation can be made, why not partial acceptance or repudiation? The argument that creditors of the
estate would be prejudiced by partial acceptance has no force; because, under our present laws, the
creditors of the estate must first be paid before it can be known whether there is any inheritance left to
be accepted or repudiated.
Q: X was executed a will in 1995 in favor of A. X went to MOA on 1999. He told his
housemates he will go to MOA and he was never heard of. On 2005, an action for the
settlement of the estate of X was filed on that date. May the action prosper?
A: Yes, when X disappeared he was more than 75 years old.
Lets assume he was only 55? Settlement estate was filed on 2011. Final judgment for
distribution of estate 2014. When would A be entitled to the rentals?
2nd question: 1999 – passenger Princess of Stars Vessel. With the sinking of the ship, he
was never heard of. On 2002 the action was filed for the settlement of the estate. May the
action prosper? 2011 action was filed along with declaration for presumptive death? YES.
Effects of reappearance? The fruits shall pertain to the heirs.
Whether a person suffering civil interdiction can accept? Are prohibited by disposing properties inter
vivos. Person accepting must have free disposal of his property.
If A is the heir who is 36 years old and the mother is the one who accepted? No, unless civil interdiction,
insane, incapacitated.
If the heir renounced, may he be deemed to have accepted? In two instances NCC1050
What is the relevance of determination if heir is deemed to have accepted or not deemed to have
accepted? For the purposes of taxation. Acceptance and repudiation has various tax treatments.
Prescription.
Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the
death of the decedent. (989)
The law seeks to insure continuity in the ownership of the property, without hiatus or gap, even for a
moment, from the time of the death of the decedent.
The old civil code prohibited acceptance or repudiation with a term. Is it now allowed under the NCC?
No conditional acceptance and repudiation is still prohibited. To permit this kind of acceptance is and
repudiation will be placing in uncertainty the transmission of rights by succession. The power to impose
conditions on the transmission is inherent only in the testator himself, as a logical consequence of his
freedom to dispose of his property. The person favored cannot subject the transmission to conditions
because he has no right over the property until he accepts the inheritance.
The very Nature of transmission of property by mortis causa argues against the validity of acceptance or
repudiation with a term or condition. The law seeks to insure continuity in the ownership of the property,
without any hiatus or gap from the time of the death of the decedent. Thus, to allow this would be
contrary to the principle of succession that inheritance is transmitted upon death.
Art. 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)
Requisites of acceptance: 1. certain of the death of the decedent, 2. must survive the decedent, 3. must
have capacity to succeed, and 4. certain of his right to the inheritance.
Ratio: the will of man is changeable. Even just before the moment of his death he may change his mind.
A person who accepts from a living person an inheritance accepts or repudiates nothing at all. If a
person is uncertain of his right to inherit then his acceptance or repudiation is ineffective.
Art. 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.
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)
Acceptance presupposes not only rights but sometimes also obligations. Repudiation, on the otherhand,
means alienation. Hence, persons having the capacity to succeed but not having the capacity to dispose
of their property may not, therefore, accept or repudiate. Their legal representatives may do so for them.
Exception to paragraph 2; where the act would be purely beneficial to the minor or incapacitated person,
the intervention of the court is unnecessary. But where the institution, devise or legacy is subject to a
charge or condition to be performed by the minor or incapacitated beneficiary, we believe that the
approval of the court should be obtained. The minor should not be saddled with obligations without the
approval of the guardianship court.
Repudiation amounts to alienation of property; hence, there must always be judicial authorization.
Art. 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)
Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without
the approval of the government. (994)
Refers to organizations which have their own social and public purpose, such as for culture separate
from the mere manifestation of governmental functions of the State.
Approval required by this article must be given by the head of the department to which the public
establishment belong or is subordinated.
Art. 1047. A married woman of age may repudiate an inheritance without the consent of her
husband. (995a)
Art. 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)
Art. 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)
Art. 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, 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)
Other acts of tacit acceptance:
1. heir demands partition
2. alienates some of the inheritance
3. performs such acts which show the clear intent ot accept.
4. Art. 1057, failure to signify to court one’s acceptance or repudiation within 30 days from
distribution
Art. 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)
T: The law considers the act of repudiation more solemn than the act of acceptance; hence, the
requirement of a public or authentic writing or one presented to the judge. The acceptance of an
inheritance confirms the transmission of the right, while repudiation makes this transmission ineffective,
producing thereby more violent and disturbing consequences which the law cannot permit by mere
implications or presumptions.
Public instrument refers to one notarized and duly acknowledged by a notary. Authentic here refers to
one whose genuineness is admitted or clearly proved.
Art. 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)
The law seeks to protect the creditor. By the debtor-heir’s repudiation two are affected thereat. The co-
heir who receives more and the creditor who is prejudiced thereby. The law favors the latter. The
acceptance by the creditor does not revoke the repudiation but only rescinds the same to the extent
sufficient to protect the interest of the creditors.
Requisites to entitle creditor to accept repudiated inheritance:
1. There must be a valid repudiation in accord with law as to from
2. There must be existing credits
3. Judicial authorization must be obtained by creditors to accept
4. The repudiation prejudices the creditors.
Exceptions:
1. Creditors who became such after repudiation
2. inheritance is useless to the heir because the debt of the estate exceeds the inheritance
left
3. the heir-debtor is solvent and has sufficient properties to cover his debt.
Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right
shall be transmitted to his heirs. (1006)
This is on the assumption that the heir of the heir who died accepts his inheritance from the latter. Then
he may accept the inheritance from the original decedent.
Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and
the others may repudiate it. (1007a)
Art. 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)
T: The repudiation of the express will of the testator includes that of the presumed will, but the
repudiation of the latter still leaves the express will open to respect.
Ratio: An heir by will who repudiates the same, manifests his dislike to become an heir in any concept.
By his act reveals the fact that he does not deserve to become his successor even by intestacy.
OTOH, when an heir repudiates as legal heir may later accept by will on the reason that a person may
not desire to succeed by intestacy but is willing to succeed by testamentary capacity in order to follow
the wishes of the dead.
Art. 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)
Other causes or revocation:
1. one who accepts or repudiates who is not entitled to the inheritance has no legal effect.
2. when institution depends upon the fulfillment of a suspensive condition which is not
realized
3. birth of a posthumous child not born or is born dead
Art. 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)
CASES:
5. Uson vs. Del Rosario
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved
in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff
claims that when Faustino Nebreda died in 1945, his common- law wife Maria del Rosario took
possession illegally of said lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her
husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as
husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by
way of alimony and in return she renounced her right to inherit any other property that may be left by her
husband upon his death (Exhibit 1). After trial, at which both parties presented their respective evidence,
the court rendered decision ordering the defendants to restore to the plaintiff the ownership and
possession of the lands in dispute without special pronouncement as to costs. Defendants interposed
the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del
Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda
with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino
Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time
passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).
As this Court aptly said, "The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the
same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the
rights of inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and leave
upon his death in the deed of separation they had entered into on February 21, 1931, cannot be
entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate children of the
late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however,
under the new Civil Code which became in force in June, 1950, they are given the status and rights of
natural children and are entitled to the successional rights which the law accords to the latter (Article
2264 and article 287, new Civil Code), and because these successional rights were declared for the first
time in the new code, they shall be given retroactive effect even though the event which gave rise to
them may have occurred under the prior legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right
should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As
already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late husband and this is so because of the
imperative provision of the law which commands that the rights to succession are transmitted from the
moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor
of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the
vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of
pity or compassion, agreed to assign the lands in question to the minor children for the reason that they
were acquired while the deceased was living with their mother and Maria Uson wanted to assuage
somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is
disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in the same document or in a separate one
(Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that
the alleged assignment or donation has no valid effect. Wherefore, the decision appealed from is
affirmed, without costs.
6. De Borja vs. De Borja
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940,
filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the
Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de
Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-
administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Jose Tangco While a widower Francisco de Borja allegedly took unto himself a
second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the
Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The
validity of Tasiana's marriage to Francisco was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued
with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases
remain pending determination in the courts. The testate estate of Josefa Tangco alone has been
unsettled for more than a quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of
Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the
Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the
Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de
Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva
Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de
Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of
First Instance of Nueva Ecija.
The genuineness and due execution of the compromise agreement of 12 October 1963 is not disputed,
but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot
enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same
involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court
of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's
majority held the view that the presentation of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by
agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs
are all of age, or the minors are represented by their judicial and legal representatives . . ." The will of
Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the
1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that
at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of
the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a
deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties
have already divided the estate in accordance with a decedent's will, the probate of the will is a useless
ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than
useless.
This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases
at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs
thereto before the probate of his will. The clear object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or
legatee And as a hereditary share in a decedent's estate is transmitted or vested immediately from the
moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777)
3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the actual extent of such share is not determined
until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed
limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the
contract does not affect the validity of the transaction; neither does the coetaneous agreement that the
numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of
them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such
stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent
of Francisco de Borja's last will and testament, and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous
cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.
This brings us to the plea that the Court of First In stance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of
Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose
estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in
the estate of her late husband, not the estate itself; and as already shown, that eventual share she
owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As
owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose
Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the
co-heirs may be subrogated to the rights of the purchaser by 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 of the vendor."
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it
amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes
her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of
the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of
Francisco de Borja was only made in consideration of the cession of her hereditary rights.
It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-
mentioned was the compromise agreement of 13 October 1963, which already had been formally signed
and executed by the parties and duly notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended
resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de
Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which
objections have been already discussed.
It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new
settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since
the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach
another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in
pages 35-36 of the brief for appellant Ongsingco in G.R. No. L-28040; and it is more than probable that
the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties'
quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate
the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order
for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days from the finality of the
order, now under appeal. We conclude that in so doing, the Rizal court acted in accordance with law,
and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of
Nueva Ecija should be, and is, reversed.
7. Bonilla vs. Barcena
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife
of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over
certain parcels of land located in Abra. On August 4, 1975, the defendants filed another motion to
dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal
capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the
plaintiff confirmed the death of Fortunata Barcena and asked for substitution by her minor children and
her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on
the ground that a dead person cannot be a real party in interest and has no legal personality to sue.
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for
lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying
that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but
the court denied the counsel's prayer for lack of merit. From the order, counsel for the deceased plaintiff
filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is
in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case
No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true
that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the
case up to its completion. The records of this case show that the death of Fortunata Barcena took place
on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired
jurisdiction over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby
a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of
the Rules of Court "whenever a party to a pending case dies . . . it shall be the duty of his attorney to
inform the court promptly of such death . . . and to give the name and residence of his executor,
administrator, guardian or other legal representatives." This duty was complied with by the counsel for
the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on
July 9, 1975 and asked for the proper substitution of parties in the case.
The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the
ground that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil
Code provides "that the rights to the succession are transmitted from the moment of the death of the
decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the decedent, and they cannot be deprived of their
rights thereto except by the methods provided for by law. 3 The moment of death is the determining
factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent.
4 The right of the heirs to the property of the deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore, died her
claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death
but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties
in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent
Court to allow their substitution as parties in interest for the deceased plaintiff.
8. Bough vs. Modesto
9. Borromeo-Herrera vs. Borromeo
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Parañaque,
Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of
Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate
of a one page document as the last will and testament left by the said deceased, devising all his
properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and
designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R.
The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the
presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held
that the document presented as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed
in Testate Estate of Vito Borromeo, Jose H. Junquera, et al. v. Crispin Borromeo, et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several parties came before the
court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo. On
April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the following,
to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:
1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo 3.Vitaliana Borromeo 4.Patrocinio Borromeo
Herrera 5.Salud Borromeo 6.Asuncion Borromeo 7. Marcial Borromeo 8.Amelinda Borromeo de
Talam, and 9.The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9
and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared
intestate heirs.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his
motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate. He
asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed by
Pilar N. Borromeo, Maria B. Putong. Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo
B. Morales, Remedios Alfonso and Amelinda B. Talam. In the waiver, five of the nine heirs relinquished
to Fortunato their shares in the disputed estate. The motion was opposed on the ground that the trial
court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is void
as it was executed before the declaration of heirs; that the same is void having been executed before
the distribution of the estate and before the acceptance of the inheritance; and that it is void ab initio and
inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who
signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the same
rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December
24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and
the July 7, 1975 order, denying the motion for reconsideration.
It is further argued by the petitioner that the document entitled "Waiver of Hereditary Rights" executed on
July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect because there can be no effective
waiver of hereditary rights before there has been a valid acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of inheritance
valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the
inheritance. Since the petitioner and her co-heirs were not certain of their right to the inheritance until
they were declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is
also supported by Article 1057 of the same Code which directs heirs, devisees, and legatees to signify
their acceptance or repudiation within thirty days after the court has issued an order for the distribution of
the estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code
there is no need for a person to be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the death of the person from whom he is
to inherit and that he must be certain of his right to the inheritance. He points out that at the time of the
signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain
that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver
document itself.
The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing
inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction
of law continue the personality of the former. Nor do such properties have the character of future
property, because the heirs acquire a right to succession from the moment of the death of the deceased,
by principle established in article 657 and applied by article 661 of the Civil Code. according to which the
heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment
of the death of the deceased until the heirs enter into possession of the hereditary property, but the
acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the adjudication of the corresponding hereditary
portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could
waive their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective.
For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22,
p. 8116, 8120). The intention to waive a right or advantage must be shown clearly and convincingly, and
when the only proof of intention rests in what a party does, his act should be so manifestly consistent
with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other
reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil.,
151, 159).
The circumstances of this case show that the signatories to the waiver document did not have the clear
and convincing intention to relinquish their rights. Thus: (1) On October 27, 1967, Fortunato, Tomas, and
Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a proposal for the
amicable settlement of the case. In that Compliance, they proposed to concede to all the eight (8)
intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money
in the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in
any action then pending in the Court of First Instance of Cebu. In turn, the heirs would waive and
concede to them all the 14 contested lots. In this document, the respondent recognizes and concedes
that the petitioner, like the other signatories to the waiver document, is an heir of the deceased Vito
Borromeo, entitled to share in the estate.
This shows that the "Waiver of Hereditary Rights" was never meant to be what the respondent now
purports it to be. Had the intent been otherwise, there would not be any reason for Fortunato, Tomas,
and Amelia Borromeo to mention the heirs in the offer to settle the case amicably, and offer to concede
to them parts of the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they inherited shall be distributed. This Agreement of
Partition was approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner,
among others, signed a document entitled Deed of Assignment" purporting to transfer and assign in
favor of the respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights,
interests, and participation as an intestate heir in the estate of the deceased Vito Borromeo.
The stated consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968,
the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in
turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of
assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and
Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968,
while Fortunato Borromeo signed this document on March 24, 1969. In view of the foregoing, the
questioned order of the trial court dated December 24, 1974, is hereby SET ASIDE.
G. Kinds of Succession. Art. 778

1. Testamentary art. 779
2. Legal or intestate. Art. 960
3. Mixed Art. 780

4. Contractual Art 130, 1347, 752, 84FC – Basis: cannot stand in the
absence of provisions in the Civil Code. Because of the Family
Code Based on FC84
5. Compulsory – in any kind of succession recognized by law, there
will always be a consideration of the legitimes of the compulsory
heirs.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or

(3) Mixed. (n)
Art. 779. Testamentary succession is that which results from the designation of an heir, made in
a will executed in the form prescribed by law. (n)
B: Legal or Intestate succession is inexplicably not defined. Curiously, the draft code contained a
definition of this kind of succession but for some unknown reasons it was not included. It stated that an
“Intestate succession takes place by operation of law in the absence of a valid will.”
Art. 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)
T: A void will has no legal existence.
A void will and a will that later lost its validity are essentially the same. The only difference between the
two lies in the fact that the first refers to a will that has never been valid, but is null and void ab origine,
ipso facto, while the second refers to a valid will which later lost its validity.
Under Art. 841 a will is valid though there is no institution of heir. In such cases the testamentary
dispositions made in accordance with law shall be carried out, and the remainder of the property shall
pass to legal heirs. Absence of institution includes those institution which are void.
If there is only one bequest – institution of an heir
Other causes of intestacy:
1. happening of a resolutory condition which sets aside the institution of the heir
2. expiration of the resolutory term or period of institution of an heir, legatee or devisee

instituted up to a day certain
3. noncompliance or the impossibility of complying with the will of the testator.
4. Preterition which results to annulment of the institution of an heir
B: There are three instances contained in this paragraph, although, legally, the result is the same in
each instance, i.e., there is no will.
In par. 2 “validity” should read as “efficacy”
Intestacy may be total or partial depending on the extent of the disposition that turns out to be
inoperative
Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n)
Art. 130. The future spouses may give each other in their marriage settlements as much as one-
fifth of their present property, and with respect to their future property, only in the event of death,
to the extent laid down by the provisions of this Code referring to testamentary succession.
Art. 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of
contracts.
law.
may likewise be the object of a contract.
Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of
donation, more than he may give or receive by will. The donation shall be inofficious in all that it
may exceed this limitation. (636)
The limitation imposed by this article applies to persons who have compulsory heirs. The amount that
can be donated depends upon the character of the compulsory heirs and the amount of property at the
time of the death of the donor. The donation itself is not a nullity, but only subject to reduction in so far
as it exceeds what the donor could have given by will to the donee. This amount is determinable only at
the time of the death of donor.
Art. 750. The donations may comprehend all the present property of the donor, or part thereof,
provided he reserves, in full ownership or in usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled
to be supported by the donor. Without such reservation, the donation shall be reduced in petition
of any person affected. (634a)
A donation of all the present property of the donor, without the reservation of a sufficient amount for his
subsistence, is not void, but only susceptible of reduction. It is voidable with respect to the amount
necessary for the support of the donor or his dependent relatives.
Art. 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-fifth of
their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession

and the formalities of wills. (130a)
These donations, unlike donations of present property which take effect upon the celebration of the
marriage, take effect upon the death of the donor spouse. It cannot be made in the marriage settlement
but in a will or testament. Its limits are governed by the rules of testamentary succession. Since a will
can be revoked by the testator at any time before his death the donation propter nuptias of future
property may be so revoked. Persons other than the affianced parties cannot give donations propter
nuptias of future property.
There is no more contractual succession by virtue of the the repeal of Article 130 of the Old Civil Code
which was amended under Article 84 of the Family Code. In mandating the applicability of the rules on
Succession to donation of future property between spouses, the law, therefore, eliminated this kind of
succession. Hence, by implication such type of succession under Article 84 is considered an ordinary
testamentary succession.
TESTAMENTARY SUCCESSION
II. WILLS
A. Definition. Art 783
Better definition:
A will is a personal, solemn, revocable, and free act by which a capacitated person disposes of his
property and rights and declares or complies with the duties to take effect after his death.
T: A will is a specie of conveyance whereby a person is permitted, with the formalities prescribed by law
to control to a certain degree disposition of his property to take effect after his death. However, when
there is no disposition of property, it is submitted that, although the instrument may be considered as a
will, it does not have to be probated. All other relevant legal matters stated in the will may take effect
even without probating such as the acknowledgement of a natural child.
A will is not necessarily an act of liberality or generosity. The inheritance may be so burdened with
legacies that all benefit to the heir is nullified.
B. Characteristics Art 783, 839(3) & (4), 828, 796-798, 777, 818, 784-787
1. purely personal act;

a. Basis: Art. 784-787
b. General Rule: Art. 784 – non-delegability of will-making
c. Cf. Article 787 – prohibits the determination of the operability of a disposition by a third
person
2. free act w/o fraud, violence, etc.
a. Basis: Art. 839; no fraud, violence, intimidation, undue influence, vitiated consent
3. disposition of property – reqs for a will [MORE ON FORMAL VALIDITY]
a. Uribe: This is not a characteristic; this is just a requirement by law
b. basis: Art. 783 “disposition of his estate”
4. essentially revocable
a. another term for revocable: ambulatory – can be changed every time
b. Basis: Art. 777 – removes undue influence from the issue
c. revocation – an act of the mind, terminating the potential capacity of the will to operate
at the death of the testator, manifested by some outward and visible act or sign,
symbolic thereof.
d. Note: read along with mortis causa characteristic
Revocation vs. Nullity
1. act of testator 1. proceeds from law
2. presupposes a valid act 2. inherent from the will
3. inter vivos 3. invoked After death
4. testator cannot renounce 4. can be disregarded by heirs
B: This characteristic is consistent with the principle laid down in Art. 777, successional rights
vest only upon death.
5. Mortis causa
a. Basis: Art. 783 “to take effect after death”
6. testator must have testamentary capacity (not given much importance by Uribe)
a. Basis: Art. 796 – 803
b. Testamentary capacity – the capacity to make a will
7. Unilateral act
a. Basis: Art. 783; the obligation is imposed upon one party only
8. Formal and solemn
Balane:
9. individual (Art. 818)

a. joint wills are prohibited because one testator may be induced to kill the other.
Mutual will, OTOH, may be defined as the separate wills of two persons, which are reciprocal in
their provisions. A will that is both joint and mutual is one executed jointly by teo or more
persons and which shows on its face that the devises are made one in consideration of the
other.
Ratio for prohibition:
1. purely personal and unilateral characteristic of wills are defeated
2. contrary to the revocable character of wills, if one revokes the will no document is left for
the other to revoke specially in cases were the revocation is done by destroying or tearing
the will.
3. may expose a testator to undue influence
4. may tempt one to kill the other testator
5. against public policy
6. Dimunition of Testamentary secrecy
What is actually prohibited, therefore, is the execution of a will in a SINGLE DOCUMENT and by
ONE ACT.
B: if there are separate documents, each serving one independent will, even if they are written
on the same sheet or even back to back, they are not joint wills.
10. executed with animus testandi (Art. 783)

11. Statutory (Art. 783) – no constitutional basis; purely passed by Congress
C. Interpretation of Wills Arts 788, 789, 790-794, 930
Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred.
(Tolentino)
o Substance rather than form must be regarded, and the instrument should receive
the most favorable construction to accomplish the purpose intended by the testator
o INTENTION OF THE TESTATOR = controlling factor in the juridical relations arising
from the will
o Interpret rationally as not to render ineffective the testamentary disposition
o OBJECTIVE OF CONSTRUCTION: sustain the will if legally possible
o FOLLOW: Construction which will sustain the will in ALL parts.
o PRESUMPTION: testator intended a lawful rather than an unlawful thing, court will
not seek an interpretation to nullify the will
(Balane)
o Rationale: The State prefers testate over intestate

o Why? Testamentary disposition is the express will of the decedent; intestate
is presumed will of the decedent
o Statcon: “ut res mages valeat quam pereat” – the thing be valid than perish
Art. 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the context
of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his
intention; and when an uncertainty arises upon the face of the will, as to the application of any of
its provisions, the testator's intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding such oral declarations. (n)
Patent ambiguity | Latent ambiguity
(Tolentino) (Balane)
Two Kinds of Ambiguities:
1. Patent or extrinsic (or apparent) – one which appears upon the face of the instrument
2. Latent or intrinsic (or hidden) – one which cannot be seen from a mere perusal or
reading of the will, but which appears only upon considerations of extrinsic circumstances.
Ambiguity appears when you apply the provisions of the will.
Extrinsic evidence was presented to the court to find out an
Latent ambiguity occurs when: (1) names a person as legatee or devisee and there are
two persons with the same name; (2) misdescription of the thing given.
RESOLVING THE AMBIGUITY
1. PATENT – construction of the will according to legal principles; extrinsic evidence to

prove the facts
2. LATENT – extrinsic evidence as well as long as admissible
Oral declarations cannot be used; a dead man can no longer object, contest or clarify his
own will. It will open the will to fabrication.
I hereby give to my brother all parcels of land. Time of exec 4 lang time of death 16 lang.
Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can be gathered, and that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the context clearly
indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with
such technical sense.
(Tolentino)
- supreme law in succession is the intent of the testator

- intention must always be given effect
- EXCEPTION: if the intention is contrary to law, morals or public policy.
- Words and provisions in the will must be plainly construed to avoid violations of his
intentions
o EXCEPTION: when it clearly appears that it was not his intention
- Will drafted by skilled persons or lawyers are to be construed with strictness;
words in holographic wills in their ordinary acceptation
Art. 791. The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two
modes of interpreting a will, that is to be preferred which will prevent intestacy. (n)
(Tolentino) Where two constructions are possible, the one disregarding a word or clause
of the will and the other giving effect to the will as a whole, the latter interpretation must
be followed.
PRESUMPTION: the testator intends to dispose of all his property
(Balane) relates this to NCC 1373 and 1374 on contractual interpretations.
---properties at the time of death cf Art. 777
Art. 792. The invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have
made such other dispositions if the first invalid disposition had not been made. (n)
(Balane) This article makes applicable to wills the severability or separability principle in
statutory construction frequently expressed in the separability clause.
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it expressly appear by the will that such
was his intention. (n)
(T) This article:
- Contrary to principles expressed in other provisions of the Code.

- Creates a juridical conflict
- Solution: to construe the present article as referring only to devises and legacies
and not to inheritance.
- In conflict with Article 930; irreconcilable.
(B) This article makes the will speak as of the time it is made, rather than at the time of
the decedent’s death
Art. 794. Every devise or legacy shall cover all the interest which the testator could device or
bequeath in the property disposed of, unless it clearly appears from the will that he intended to
convey a less interest. (n)
(T) When testator does not state the extent of the interest, it is understood that his whole
interest passes. But, the testator, under the present article, may manifest his intention to
convey a less interest; and under Article 929, he may expressly convey a larger interest.
(B) should be read together with Article 929.
GENERAL RULE: In a legacy or devise the testator gives exactly the interest he has in the
thing. (Art. 794)
EXCEPTIONS: He can give a lesser interest (Article 794) or a greater interest (Article 929).
In the latter case, if the person owning the interest to be acquired does not wish to part
with it, the solution in Art. 931 can be applied.
Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)
PRESUMPTION: had the testator known the fact that another owns the property, he would not have
made the legacy. The ignorance of the testator is presumed by law.
It must be noted that if the subsequent change of ownership transferred the thing to the very person to
whom it was being given as a devise or legacy, and by lucrative title, or to another third person, the
legacy is void.
Solla v. Ascuenta, 49 Phil. 333 – grandma asked son conditions in her will which he passed on to his
son (testatrix’s grandson) “all orders be complied with” – did not include the distribution but only
the pious works.
Dña. Maria Solla died in June, 1883, in the municipality of Cabugao, Ilocos Sur, leaving a will executed
and recorded in accordance with the laws then in force, but which had not been probated in accordance
with the Code of Civil Procedure.
There were named in said will, as legatees Sergio Solla, Cayetano Solla, Josefa Solla, Jacinto Serna,
Rosenda Lagmay,
Silvestra Sajor and Matias Sevedea, and Leandro Serrano, as universal heir, with their shares given
them by the will above-mentioned.
Said legatees or their descendants or heirs did not judicially claim their legacies during the life-time of
Leandro Serrano, of which he had taken possession, neither was any testamentary proceeding instituted
for the settlement of the estate left by Maria Solla and that Leandro Serrano did not deliver the legacies
in question, which he possessed in his name until his death, having declared the property for taxation as
his own and collected the income therefrom for himself.
As may also be seen Leandro Serrano named his son Simeon Serrano, as executor of his will and that
he directed him to put all of his property in order and to separate that which came from his deceased
grandmother Maria Solla, which he gives to his said son Simeon Serrano and orders that same be
disposed of exclusively in conformity with the wishes of his said grandmother, not forgetting the souls of
all of his grandmother's relatives and of his own for whose repose nine masses were to be said annually
during nine days, with a solemn mass on the first and last days.
In order to determine the testator's intention, the court should place itself as near as possible in his
position, and hence, where the language of the will is ambiguous or doubtful, should take into
consideration the situation of the testator and the facts and circumstances surrounding him at the time
the will was executed. (40 Cyc., 1392.) Where the testator's intention is manifest from the context of the
will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the
language will be subordinated to the intention, and in order to give effect to such intention, as far as
possible, the court may depart from the strict wording and read a word or phrase in a sense different
from that which is ordinarily attributed to it, and for such purpose may mould or change the language of
the will, such as restricting its application or supplying omitted words or phrases. (40 Cyc., 1399.)
In the present case, it clearly appearing that it was Maria Solla's intention, in ordering her universal heir
Leandro Serrano in her will at the hour of his death, to insist upon the compliance of her orders by his
heirs, that the latter should comply with her pious orders and that she did not mean her orders
concerning her legacies, the compliance of which she had entrusted to Leandro Serrano, we are
authorized to restrict the application of the words "all that I have here ordered" used by the said Maria
Solla and the words "all her orders" used by Leandro Serrano in their respective wills limiting them to the
pious orders and substituting the phrase "in regard to the annual masses" after the words used by both
testators, respectively.
The trial court, therefore, committed an error in interpreting the order of Leandro Serrano mentioned in
his will as applicable to the provisions of Maria Solla's will relative to the legacies and not to the pious
bequests exclusively.
III. TESTAMENTARY CAPACITY AND INTENT
A. Who may make a will? Arts. 796-803
Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
(Balane) GENERAL RULE: All persons have the testamentary capacity to make a will.
EXCEPTIONS: Incapacity, when expressly prohibited by law:
(1) disqualified by reason of age (Art. 797);
(2) disqualified by reason of mental incompetence. (Art. 798)
Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)
(T) the required age is reached at the commencement of the day preceding the
anniversary of the birthday
(B) According to the Admin. Code, age is reckoned according to the calendar month.
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution. (n)
(B) Soundness of mind is determined at the time of the execution of the will.
No proof presented by petitioner that testator was of sound mind at the time of execution of the will
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of
the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (n)
(T) Soundness of mind – does not require that the testator be in full possession of
reasoning capacity or that it be wholly unbroken, unimpaired or unshattered.
Neither sickness, old age, deafness, senile debility, blindness, nor poor memory is by itself
sufficient to establish a presumption of lack of testamentary capacity, actual insanity need
not exist in order that a person may be said to lack testamentary capacity. It is enough
that the mental condition be such that there is want of understanding of the nature and
consequences of the disposition by will.
The unsoundness of mind which the law contemplates as incapacitating a testator from
making a will may be the result of many causes. The law, however, does not deal with
these causes. It is the effect of these causes with which the law must deal
regardless of what the actual cause may be, and it is the quantity or degree of the
effect which the law must determine to arrive a decision on the presence or
absence of testamentary capacity.
DEAF, DUMB, & BLIND (OLD RULE – can’t make will)
NEW RULE: Neither blindness, nor deafness and dumbness, nor all of them combined, will
alone incapacitate a person to perform the testamentary act.
BASIS: Article 807 capacity of deaf-mute to make a will
Article 808 capacity of blind testator to make an ordinary or attested will.
READ CIVIL INTERDICTION---
(B) Soundness of mind defined:
A. Negatively:
i. not necessary that testator be in full possession of reasoning faculties;
ii. not necessary that testator’s mind be wholly unbroken, unimpaired,

unshattered by disease, injury, or other cause.
B. Positively (the 3 elements mentioned below)
(B & T) Requisites/Elements of sanity to execute a will:
1. Nature of the estate to be disposed – know what you own. This does not mean
that the testator has to know the description of his property in detail. It is enough
that he has more or less a fairly accurate idea what his properties are. This depends
upon the circumstances. Say Rockefeller. The idea is less if you owned more. the
more a person owns, the more he is apt to forget what he has in detail.
2. Proper objects of his bounty - Know his immediate relatives. Experience of

mankind is that you give to people who are attached to you by blood. Immediate
relatives referred to are spouses, parents, children, brothers, sisters, but not first
cousins. First cousins usually are not known especially if they live abroad. The
nearer the relation, the more you should know. The farther, the less the law expects
of you. If the testator cannot recognize his immediate relatives, then there is
something wrong.
3. Character of the testamentary capacity - Know the essence of making a will.

Know that you are: (1) making a document that disposes (freely, gratuitously) of
your property; (2) to take effect upon your death.
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval. (n)
(Tolentino)
o presumption that the testator is of sound mind
o Person alleging incapacity – must prove the mental incapacity of the testator
o Conclusive proof of the mental capacity and evident lack of reason and judgment
must be shown
o EXCEPTION: (reverse burden of proof) publicly known to be insane within one
month from making the will (Art. 800 (2)). A.k.a. presumption of insanity
(Balane) REBUTTABLE PRESUMPTION OF SANITY
non compose mentis
additional exception: when the testator executed a will after being placed under
guardianship or order committed, in either case, for insanity and before the said order has
been lifted.
Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. (n)
The capacity of the person who leaves a will is to be determined as of the time of execution of such will.
Any prior or subsequent incapacity will not affect the validity of the will. It will, however, in cases of prior
incapacity within 30 days from the making of the will merely shift the burden of proof of capacity on the
person maintaining the validity of the will. (Art. 800)
NO SUCH THING AS RATIFICATION OF WILLS
Art. 802. A married woman may make a will without the consent of her husband, and without the
authority of the court. (n)
Art. 803. A married woman may dispose by will of all her separate property as well as her share
of the conjugal partnership or absolute community property. (n)
B. Supervening incapacity. Art. 801
Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. (n)
The capacity of the person who leaves a will is to be determined as of the time of execution of such will.
Any prior or subsequent incapacity will not affect the validity of the will. It will, however, in cases of prior
incapacity within 30 days from the making of the will merely shift the burden of proof of capacity on the
person maintaining the validity of the will. (Art. 800)
Baltazar v. Laxa, G.R. No. 174489, April 11, 2012
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills. Arts. 804, 810

Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
Common requirements for notarial and holographic will: (1) in writing, and (2) in a
language or dialect know to the testator.
Articles 805-808 – special requirements for attested wills.

Article 810-814 special requirements for holographic wills.
Art. 810. A person may execute a holographic will which must be entirely written, dated, and
Mystic wills in Louisiana???
B. Notarial Wills
1. General requirements. Art. 804
testator. (n)
Common requirements for notarial and holographic will: (1) in writing, and (2) in a
language or dialect know to the testator.
Articles 805-808 – special requirements for attested wills.

Article 810-814 special requirements for holographic wills.
Suroza v. Honrado, 110 SCRA 388
2. Specific requirements. Arts. 805, 806
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and
of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them. (n)
THE RIGHT IS ONLY GRANTED TO TESTATORS THEREFORE THERE IS NO GRANT OF

POWER TO SUB FOR THE WITNESSES OF THE WILL
It is not necessary that the act of signing be done in a single day. It may be
contemplated to be in a simultaneous manner.
The witnesses need not sign at the bottom of the will? The witnesses must also
sign on the attestation clause.
(Tolentino)
o Rationale: to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and authenticity
o Requisites of Ordinary Wills:
1. Must be signed at the end thereof by the testator himself or by the testator’s
name written by another person in his presence and by his express direction
2. It must be attested and subscribed by three or more credible witnesses.
3. Each and every page of the will must be numbered correlatively in letters
placed on the upper part of each page
4. Each and every page must be signed by the testator or by the person
requested by him to write his name, and by the instrumental witnesses, in
the presence of each other, on the left margin.
5. It must contain an attestation clause
6. It must be acknowledged before a notary public by the testator and the
witnesses.
o SIGNED BY THE TESTATOR
Signing – is making a sign, token or emblem; and what that shall be
depends upon the individual. The material thing is that the testator
made the mark to authenticate the writing as his will and whatever he
puts on it for that purpose will suffice.
o SUFFICIENT SIGNATURE
- any complete mark or design made by the testator upon the material on
which the will is written, with the intention that it shall represent the testator
as the written name would do, is as sufficient a signing as is the writing of

the signature in full.
- Cross written by testator between his first and last name = sufficient
- Fictitious name written by testator = sufficient
o PLACE FOR SIGNATURE
The law expressly requires the will to be subscribed “at the end thereof”
by the testator or by his name written by another person in his presence and
by his express direction.
>purpose: to prevent any opportunity for fraud or interpolations between the
testamentary dispositions and the signature
o END OF WILL
Considered to be end of the will when it appears below the disposing
provisions, even if it is in the testimonium clause, and there are some non-
dispositive writings below or following it.
o SIGNATURE OF ANOTHER
- In the absence of evidence that the testator requested the third person to
sign the will for the former, the signing by a third person invalidates the will.
- Subsequent acknowledgment by the testator of the will is presumed at his
direction.
- But where the testator, in a similar case, put, not his thumbmark, but a sign
of a cross after his name, SC held it to be sufficient signature but the failure
to attest that lawyer signed on his behalf invalidates the will.
o WHO MAY SIGN – any person may sign for him

o FORM OF SIGNING – it seems clear that the testator’s name must appear as
a signature.
If the name of the testator is not written as a signature to the will, the
testament is invalid notwithstanding the fact that the third person’s name
appears on the will with the authorization of the testator.
PLACE OF SIGNATURE – third person should write the testator’s name

somewhere between the dispositive portions of the will and the attestation
clause.
o ATTESTED AND SUBSCRIBED BY WITNESSES

Attestation is the act of the senses, subscription is the act of the hand; one
is mental, the other is mechanical. To attest a will is to know that it is
published as such, and to certify the facts required to constitute an actual
legal publication; but to subscribe a paper as a will is only to write on the
paper the names of the witnesses, for the sole purpose of identification. To
attest, as witness to a will is therefore to observe, perceive, discern, and
take notice of what is done in executing a will. The witness subscribes with
his hand, and attests with his eyes and ears.
What if the attestation clause does not contain

Again one of the facts requirements to be stated is not stated in the will
itself. May the will be probated nonetheless? It depends. If extrinsic evidence
is needed to prove such fact, then it cannot be probated but if it discernible
in the face of the will,
Example: the signature of the testator in the presence of the witnesses
There is a difference in the requirement by law and the requirement for the
attestation clause.
A thumbmark appears above the name of the testator in the attestation

clause. Can this will be probated? Its depends. The facts did not state that
the thumb mark belonged to the testator.
o PURPOSE OF REQUIREMENT
1. Identification of the instrument;

2. Protection of the testator from fraud, deception and other vices of consent;
3. To ascertain the testamentary capacity of the testator.
Witnesses need not know the contents of the will because what they attest to is
the due execution and the signing of the testator.
o NUMBER OF WITNESSES
It is presumed that a witness has qualifications prescribed by law, unless the
contrary is established. His credibility depends upon the appreciation of his
testimony and arises from the belief and appreciation of the court that he is
telling the truth. His competency is required to exist at the time of execution
of the will.
o PUBLICATION OF WILL – no such requirement
o SIGNING BY WITNESSES – to be a witness must be able to read and write
o ORDER OF SIGNING
Strict approach; The general rule has been, that everything required to be done by the testator in the
execution of a will shall precede in point of time the subscription by the attesting witness, and if the
signatures of the latter precede the signing by the testator there is no proper attestation, and the will is
void, for until the testator has signed, there is no will and nothing to attest.
Liberal approach; where the witnesses and the testator all sign in the presence of one another, it is not
essential that the testator sign first, if the signing and the attestation be parts of the same transaction; in
such case, where the acts are substantially contemporaneous, it cannot be said that there is any
substantial priority.
The latter view is upheld by most courts. In the absence of proof to the contrary, it will be presumed that
the testator signed first.
o IN THE PRESENCE OF EACH OTHER
Purpose of requiring presence of each other:

1. to prevent another paper being substituted for the will fraudulently;
2. so that each may be a witness of the other and;
3. to render fabrication of testimony more difficult.
o WHEN TESTATOR BLIND
When testator is blind; when witness subscribe his will in the same room or within reasonable
close proximity and within his hearing, they subscribe in his presence. Evidently, the rule is that
they should be within the cognizance of his remaining senses, such that he knows what is being
done.
o SIGNING ON MARGINS
The testator and witnesses must sign on the left margin of every page, the failure of all of them to sign
the left margin is a fatal defect
o NUMBERING OF PAGES
The purpose of numbering of pages is to afford a means for determinig whether any sheet or page of the
will has been removed. Except only when will was written on a single page.
An attestation clause is a memorandum of facts attending the execution of the will and is that part of the
instrument wherein the witnesses certify that the instrument has been executed before them, and the
manner of execution.
The attestation clause duly signed is the best evidence as to date of signing
The law does not require the attestation to be contained in a single clause. Thus, where a will did not
contain a separate independent attestation clause, but the concluding paragraph of the body of the will
was written in the tenor of an attestation, stating the facts required by law to be set forth in an attestation
clause, and the penultimate paragraph of the will stated the number of pages used, it was held to be
sufficient though in the first person and signed by the testator provided it was signed by the witnesses.
Any failure to state a material fact in the attestation clause will render the will null and void. Oral
evidence will not cure any alleged defect because the statute of frauds does not apply to wills. The
statute relates to contracts and agreement only this may be cured by the oral ratification of the parties.
Date- in an ordinary will date is not an essential part. Only HW requires a date. Neither a statement of
the place of execution is required and the absence of both facts does not invalidate the will.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the Office of the Clerk of Court. (n)
T: This article applies only to ordinary or attested wills. It has no application to a holographic will which
does not have to be witnessed. Since acknowledgement before a notary public must be made by the
testator and the witness, it is obvious that the law contemplates only ordinary wills.
The signing of the will by the testator and the witnesses, and the acknowledgement of said will before a
notary public need not be done in a single act unlike the in the old code because his presence is
required due to the fact that he prepares the will. Under the present code, it is enough that the testator
and witnesses acknowledge to him its execution for such acknowledgement is indispensable for the
validity of the will. An interval of time may elapse between the actual signing of the will and the
acknowledgement before the notary public. It is important also that testamentary capacity must exist
also at the time of acknowledgement, because this is an essential part of the execution of the will.
The purpose of acknowledgement is to minimize fraud and undue pressure and this purpose can be
attained whether acknowledgement takes place at the same time at same time as the signing or at
some time thereafter.
The prohibition under this article on the retention of a copy by the notary is grounded on the desire of the
testator to safeguard the secrecy of the contents of the will during the lifetime of the testator so he will
not be the object of importunities or pressure to change his will on the part of designing persons or
relatives, or it may be that the testator wants to keep the secret of the will during his lifetime.
B: Special Requirements of attested wills are as follows
1. subscribed by the testator or his agent in his presence and by his express direction at the
end thereof, in the presence of the witnesses
2. attested and subscribed by at least three credible witnesses in the presence of the testator
and of one another;
3. the testator or his agent must sign every page except the last, on the left margin in the
presence of the witnesses;
4. the witnesses must sign every page except last, on the left margin in the presence of the
testator and of one another;
5. all pages numbered correlatively in letters above page;
6. attestation clause stating:
a. number of pages;
b. testator or his agent under his direction signed the will and every page thereof, in the
presence of the witnesses;
c. the witnesses witnessed and signed evry page in the presence of testator and of one
another;
7. acknowledged before a notary public
Garcia v. Lacuesta, 90 Phil. 489
Balonan v. Abellana, 109 Phil. 358
Nera v. Rimando, 18 Phil. 450
Taboada v. Rosal, 118 SCRA 195
Echavez v. Dozen Construction, G.R. No. 192916, October 11, 2010
In re Enrique Lopez. Lopez v. Lopez, G.R. No. 189984, November 12, 2012
Icasiano v. Icasiano, 11 SCRA 422
Cruz v. Villasor, 54 SCRA, 31
Gabucan v. Manta, 95 SCRA 752
Javellana v. Ledesma, 97 Phil. 258
Witnesses to a will
a. Who are competent? Arts.820, 821,824

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not
bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in Article 805 of this Code. (n)
(T) applicable only to ordinary wills.
(B) Six qualifications of witnesses:
1. of sound mind;
2. at least 18 years of age;
3. not blind, deaf, or dumb;
4. able to read and write;
5. domiciled in the Philippines (Art. 821)
reason of the law: at the time of the probate, there will be a witness, that a person
can attest to the due execution of the will.
Ordinarily at time of execution was disqualified; as long as domiciled at the time of
the probate;
6. must not have been convicted of falsification of a document, perjury, or false
testimony (Art. 821)
Controversy with wills executed abroad

SOLUTION: either execute a holographic will or elect the law of the place of
execution (Art. 17 and 815)
Q: If a will is executed abroad in a place where there is no one domiciled in the Phils.
although there are Filipino citizens not domiciled in the Phils., does domicile requirement still
apply?
A: There are two answers for all theory

1. Yes bec. the law does not distinguish.
2. No, there is an implied qualification.-- The rule applies in wills executed in the Phils.
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false
testimony. (n)
T: The law requires that the witness be domiciled in the Philippines mere residence is not sufficient.
Domicile under Art. 50, Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of their habitual residence. (40a)
Ratio of domicile requirement:
1. availability of witness when will is probated if the same is within the Philippines;
2. witness domiciled in the Philippines more likely to know the testator and be ablr to testify
on his mental condition at the time of execution of the will.
Except of course if the will was executed in a foreign country the domicile requirement does not apply.
There is citizenship requirement only domicile requirement. Even aliens may witness as long as they are
domiciled here.
As to conviction of perjury, falsification, and false testimony, it is presumed that such witness cannot be
relied upon for truthfulness. Conviction for any other crime, however, is not a disqualification
The notary public before whom the will was acknowledged cannot act as witness because he cannot
acknowledge before himself his having signed the will; this cannot be done because it would place him
in an inconsistent position and the very purpose of the acknowledgement, which is to minimize fraud
would be thwarted.
Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of
the testator's death does not prevent his creditors from being competent witnesses to his will.
(n)
Gonzales v. CA, 90 SCRA 183
In the strict sense, the competency of a person to be an instrumental witness to a will is

determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises from the belief and conclusion of
the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: "Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says.
b. Supervening incompetency. Art. 822

Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting,
their becoming subsequently incompetent shall not prevent the allowance of the will. (n)
c. Competency of interested witness. Art. 823

Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will, such devise or legacy shall, so far only as
concerns such person, or spouse, or parent, or child of such person, or any one claiming under
such person or spouse, or parent, or child, be void, unless there are three other competent
witnesses to such will. However, such person so attesting shall be admitted as a witness as if
such devise or legacy had not been made or given. (n)
(T) this article refers to a disqualification to inherit. The devisee or legatee is not disqualified nor his
spouse, parent or child to be witness as long as he is competent and credible under Art. 821 but the
devise or legacy shall be void.
But if the witness is not a devisee or legatee, but an heir, is the institution of such heir void?
Notwithstanding the terminology of the article, we believe that even as instituted heir, or spouse, parent
child is disqualified. The disqualification is intended to to aply to one succeeding by will, and it is not
material in what concept he succeeds. This is proved by Art. 1027 par. 4 on relative incapacity which
makes no distinction between heirs, devisees or legatees.
(B) this article pertains more on the capacity to succeed than the capacity to be a witness. The witness
will remain as such but the legacy or devise shall be void.
The disqualification applies only to testamentary disposition. if the witness is also entitled to legitime or
intestate share this shall not be affected.
3. Special Requirements for deaf, deaf-mute & blind testators.
Arts. 807-808
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof. (n)
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged. (n)
(Tolentino) The purpose for this article is to make the provisions of the will known to the testator,
so that he may be able to object if they are not in accordance with his wishes.
Provision should also be make applicable to an illiterate testator. Why?
Burden of proof of the compliance of this article is upon the proponent. No requirement that such
compliance be stated in the will or attestation clause.
Garcia v. Vasquez, 32 SCRA 489
4. Substantial Compliance. Art. 809
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of Article 805.
C. Holographic Wills
1. General requirements. Art.804
testator. (n)
2. Specific requirements. Art. 810, 812, 813
Art. 810. A person may execute a holographic will which must be entirely written, dated, and
Art. 812. In holographic wills, the dispositions of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and a date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions. (n)
Requirements of a holographic will:

1. entirely written by the hand of the testator – grand characteristic of a
holographic will
2. it must be dated
dated – month, day, & year must be indicated
3. signed by the testator
The fact that there was an insertion in a holographic will, may that be relevant in the probate of a will?
EXTRINSIC - It will only be relevant if it would result to the nullity of the will. But into the intrinsic validity
–
If I did not mention the nature of the insertion, do not assume it is a disposition but a mere insertion.
Printed insertion but will not result in a void will – example: if there was a fraudulent insertion without the
knowledge of the testator.
Roxas v. De Jesus, 134 SCRA 245
(1) Roxas v. de Jesus.-- On the will, the date was written as "Feb./ 61." Is it valid? Yes.
General rule: Day, month and year must be indicated.
Exception: When there is no appearance of fraud, bad faith, undue influence, and pressure and
the authenticity of the will is established, and the only issue is whether or not "Feb./61" is valid,
then it should be allowed under the principle of substantial compliance.
Kalaw v. Relova, 132 SCRA 237
In the case, there were 2 alterations. In the first alteration, the name of Rosa as sole heir was
crossed out and Gregorio's name was inserted. In the second alteration, the name of Rosa as
executor was crossed out and Gregorio's name was inserted. The second alteration was
initialed. Are the alterations valid? No.
Alteration 1: Not signed, thus, not valid.

Alteration 2: Initialed, thus, not valid; it must be full signature.
Gregorio cannot inherit as a sole heir bec. it was not authenticated. Rosa cannot inherit as sole
heir bec. her name was crossed out. This indicated a change of mind on the part of the testator.
The SC held that a change done by cancellation and putting in a new name, w/o the full
signature, is not valid. As such, the probate is denied and they both inherit by intestacy.
A document probably entirely written by the testator wherein he testated that I hereby revoke the
will which I executed in 1995. Can this be considered a will?
Why need to determine if it is a will or not a will? Why is there a relevance in determining if it a
codicil – because WON this document has to be probated in the courts. As a codicil, it has to comply
with the formalities prescribed by law and probated so it may be given legal effect.
Q: How do we make a change in a notarial will?

A: There is no provision of law dealing on this. The ordinary rules of evidence will apply. To
prove change, the testator should affix either his signature or initials. The best way, however, is
to have the testator and notary public sign.
V. INCORPORATION OF DOCUMENT BY REFERENCE. Art. 827

Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any
document or paper, such document or paper shall not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred
to therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in
case of voluminous books of account or inventories. (n)
(Tolentino)
- an exception to the general rule that if an instrument is not executed with all
the formalities of a will it cannot be admitted to probate.
- To establish a separate writing as part of a will by incorporation, three things
must appear on the face of the will and two others must be shown by
extrinsic proof.
- On the face of the will, there must appear: (1) a distinct reference to such
writing, so explicit, it has been held, as to identify it beyond doubt; but much
less has often been held sufficient, and parol evidence is of necessity
received to identify the writing; (2) reference must indicate that the writing
has already been made before the will; and (3) it can be given effect only in
case, and to the extent that, such appears from the face of the will to have
been the wish of the testator.
- by extrinsic proof: (1) it is the very writing referred to in the will; and (2)
that it was in fact made before the will was executed.
(Balane)
- refers only to such documents as inventories, books of accounts, documents

of title, and papers of similar nature; the document should, under no
circumstances, make testamentary dispositions, for then the formal
requirements for wills would be circumvented.
- HOLOGRAPHIC WILLS CANNOT INCORPORATE documents by reference
because by the wording of Art. 827, there needs to be the signature of the
testator and the subscribed witnesses which the latter is not a requirement
for holographic wills.
VI. CODICILS
A. Definition. Art. 825, 830
Art. 825. A codicil is supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which disposition made in the original will is explained,
added to, or altered. (n)
(Tolentino) A codicil explains, alters or adds to the will while a subsequent will makes dispositions
independent of those in the original will.
(U) an alteration does not totally revoke the codicil. So the instrument consists of a partial revocation.
But a codicil cannot totally revoke a will.
(Balane) Must the codicil conform to the form of the will to which it refers? The law
does not require this. Thus, an attested will may have a holographic codicil;
needless to say, of course, the forms of the will and the codicil may concur.
The distinction between codicl and subsequent will is academic because the execution of such
document reqires the codicil to be in the form of a will anyway.
Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it,
by the testator himself, or by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established, and the estate
distributed in accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established according to the
Rules of Court. (n)
B. Solemnities. Art. 826
Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)
VII. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS
A. Definition of revocation
(Tolentino)
Revocation – is an act of the mind, terminating potential capacity of the will to

operate at the death of the testator, manifested by some outward and visible act or
sign, symbolic thereof.
REVOCATION NULLITY
Act by the testator Proceeds from the law
Presupposes a valid act Inherent in the testament as intrinsic
or extrinsic defect
During the lifetime of the testator Invoked after the death of the
testator by his intestate or
compulsory heirs
Right to revoke cant be renounced Can be disregarded by the heirs
through voluntary compliance
B. When may revocation be effected. Art. 828
Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
Q: X executed a will bequeathing a parcel of land to Y. X, wanting to revoke the

said will, asked his son, A, to retrieve the folder containing his will in another room.
When A got the will, he read the will and discovered that he was greatly favored in
the will. Due to this fact, A swapped the will of X into a deed of sale. X burned the
folder supposedly containing the will without the knowledge that A had swapped the
documents inside:
1. Was there revocation? No. This is based on the discussion of Tolentino that the
fraudulent devices defeat the revocation even without the knowledge of the
testator.
2. Would A inherit from X? No, by committing an act of unworthiness, A is

incapacitated to inherit from X in any such capacity.
3. Would Y inherit from X? Yes, Y can still inherit because the will was not validly
revoke and still intact. The will is still operative.
Q: What are the two scenarios where the first will may be revived?
A: (1) revocation by implication of law – revocation of the 2nd will revives the first
will; (2) 1st will expressly revoked by 2nd will and a 3rd will shall revoke the 2nd will
and revive the first will.
Q: Upon the death of X, his heirs were able to find a deed of sale of a car to Y
during his lifetime. During the death of X, Y was already in possession of the land.
Can the sale be revoked?
A: It depends. If the sale is found out to be void and no action was taken by the
testator within his lifetime, and beyond the 4-year period to rescind the contract,
then it shall be a valid deed of sale and not included in the inheritance.
Q: The will of X bequeathed upon Y a specific car. If the car was lost, is there a
revocation?
A: It depends. No, If the car was lost before the death of X, then there was a
revocation by implication of law. If the car was lost after the death of X, but without
the fault of the executor or heir, then it is a revocation. No, if the car was lost after
the death of X and with the fault of the executor or heir, then the effect of the loss
shall give rise to the liability of such person entrusted to deliver the legacy.
C. Law governing revocation. Art. 829
Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile
in this country, is valid when it is done according to the law of the place where the will was made,
or according to the law of the place in which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in accordance with the provisions of this Code.
(n)
(Balane)
CAVEAT!!!!! This provision departs from the nationality principle and follows the domiciliary
theory.
Rules for revocation:

A. If revocation made in the Philippines – follow Philippine law
B. If revocation made outside the Philippines –
1. If testator not domiciled in the Philippines:
a) follow the law of the place where the will was made, or
b) follow the law of the place where the testator was domiciled at the time of
the revocation.
2. If testator domiciled in the Philippines (not governed by Art. 829)
a) follow PH law (consistently with nationality principle)
b) follow the law of the palce of revocation (Art. 17)
c) follow the law of the place where the will was made.
D. Modes of revocation. Art. 830
Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or obliterated by some other
person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (n)
(Tolentino)
Gago v. Mamuyac, 49 Phil. 902 – carbon copy? YES only if lost or destroyed. Does revocation need
evidence? NO, If revocation has been established, no need. The holographic will needs to be
presented to the court for probate but photostatic copies may be presented to prove that the
holographic will was lost or destroyed.
Casiano v. CA, 158 SCRA 451
E. Effect of revocation. Arts. 831-834
Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul
only such dispositions in the prior wills as are inconsistent with or contrary to those contained in
the latter wills. (n)
Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should
become inoperative by reason of the incapacity of the heirs, devisees or legatees designated
therein, or by their renunciation. (740a)
Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)
Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the
will wherein it was made should be revoked. (714)
F. Doctrine of Dependent Relative Revocation
- Where the act of destruction is connected with the making of another will, so as
fairly to raise the inference that the testator meant the revocation of the old depend
upon the efficacy of the new disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the new disposition; and if,
for any reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remain in full force.
Molo v. Molo, 90 Phil. 37 – discusses the above doctrine. The denial of

probate of a will invalidates and revives the previously revoked will.
Q: X executed a will in 1995 giving to A a parcel of land. On 2000, X executed

another will bequeathing the same parcel of land to B, C and D. May A still be
entitled an an heir in the first will?
A: YES. If that can be shown that B, C and D are incapacitated, then the revocation
fails and A shall inherit based on the first will.
VIII. REPUBLICATION AND REVIVAL OF WILLS - Arts. 835-837

Art. 835. The testator cannot republish, without reproducing in a subsequent will, the
dispositions contained in a previous one which is void as to its form. (n)
Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the
will as modified by the codicil. (n)
Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the
revocation of the second will does not revive the first will, which can be revived only by another
will or codicil. (739a)
IX. ALLOWANCE OF WILLS. Art. 838
A. Concept of probate
Agtarap v. Agtarap, G.R. No. 177099 and 177192, June 8, 2011
Q: Nephew and nieces opposed the probate because wife is heavily favored in the will. Rule on the
opposition.
A: Dismiss opposition due to the following reasons: (1) a probate court’s jurisdiction goes only into
the intrinsic validity of the will. If the will is void on its face, it will annul the institution of heirs; (2)
not a ground for disallowance of wills.
Q: Testator lives in Manila. He has no properties in Manila. He died in Batangas. Heirs in manila
petition for the probate of the will in Zamboanga. What is the issue in this problem? VENUE.
Q: Petition for probate of a will. Will was not attached to the petition. Can the will be probated?
A:
Q: what are the factors to consider for probate: (arranged based on significance)
A: (1) genuineness or authenticity; (2) testamentary capacity; (3) animo testandi; (4) formalities;
and (5) due execution.
B. Necessity of probate
De Borja v. De Borja, 46 SCRA 577
C. Modes of probate
D. Requirements for probate. Art. 811
Gan v. Yap, 104 Phil 509 WILL NOT PROBATED
The execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or
read such will.
Rodelas v. Aranza, 119 SCRA 16 – WILL PROBATED
BRIEF SUMMARY: Petition for probate showed a photocopy of the will but did
not produce the original holographic will. The oppositors cited Gan vs. Yap
doctrine.
HELD: The photostatic or Xerox copy of the lost or destroyed holographic will
may be admitted because then the authenticity of the handwriting of the
deceased can be determined by the probate court.
SYNTHESIS: IN THESE TWO ABOVEMENTIONED CASES, GREAT IMPORTANCE IS GIVEN

TO THE COURTS ABILITY TO DETERMINE THE AUTHENTICITY OF THE
HANDWRITING OF THE TESTATOR.
Azaola v. Singson, 109 Phil. 102 - According to Uribe, this is the proper doctrine to
follow. This is an EN BANC decision.
Codoy v. Calugay, 312 SCRA 333 – According to Uribe, this decision is wrong
and uncalled for and cannot overturn the earlier decision of Azaola v.
Singson for the only reason that a division decision cannot overturn an EN
BANC decision/doctrine.
Pursuant to Article 811, the three-witness requirement in the probate of a

contested holographic will is MANDATORY and witnesses must attest not only
their familiarity with the handwriting of the testator but their actual
knowledge of the testator’s handwriting as in this case, the witnesses must
prove that in several occasions, they saw the decedent in the act of writing
or signing a document.
Uy Kiao Eng v. Nixon Lee, G.R. No. 176831, January 15, 2010
The remedy of mandamus cannot be availed of by a person seeking for the

production of the original copy of a holographic will because there lies another plain,
speedy and adequate remedy in the ordinary course of law by virtue of Rule 76,
Sec. 1 and Rule 75, Secs. 2-5.
Palaganas v. Palaganas, G.R. No. 169144, January 26, 2011
Our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their
execution. Our rules require merely that the petition for the allowance of a will must
show, so far as known to the petitioner: (a) the jurisdictional facts; (b) the names,
ages, and residences of the heirs, legatees, and devisees of the testator or
decedent; (c) the probable value and character of the property of the estate; (d)
the name of the person for whom letters are prayed; and (e) if the will has not
been delivered to the court, the name of the person having custody of it.
E. Effect of allowance of wills
Gallanosa .v. Arcangel, 83 SCRA 676
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore
De la Cerna v. Leonides, 129 SCRA 33 (typo) NOT INCLUDED IN CASES
Roberts v. Leonides, 129 SCRA 33
Nepomuceno v. Ca, 139 SCRA 206
General Rule is that in probate proceedings, the court’s area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. However, given exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do
and pass upon certain provisions of the Will
X. DISALLOWANCE OF WILLS. Arts. 839, 1335, 1337, 1338
Q: Is the list in Art. 839 exclusive?
A: Yes. Questions pertaining to the disallowance of the probate of the will on

jurisdiction and venue refer to the procedural infirmities and not the list under
Article 839.
Pascual v. de la Cruz, 28 SCRA 421
Contradictions and inconsistencies appearing in the testimonies of the witnesses and the
notary, pointed out by the oppositors-appellants, relate to unimportant details of the
impressions of the witnesses about certain details which could have been affected by the
lapse of time and the treachery of human memory, and which inconsistencies, by
themselves, would not alter the probative value of their testimonies on the due execution of
the will.
XI. LEGITIME
A. Concept. Art. 886
Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called compulsory heirs. (806)
(T) The system of legitime is a limitation upon the freedom of the testator to dispose of his
property. Its purpose is to protect the heirs, for whom the testator is presumed to have an
obligation to reserve certain portions of his estate, from his unjust ire or weakness or
thoughtlessness.
Three principal systems of distribution of hereditary property:

1. Absolute freedom of disposition
2. Total reservation
3. Partial reservation
B. Who are entitled to legitimes: Compulsory heirs. Arts. 887, 902
Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner
and to the extent established by this Code. (807a)
Compulsory heirs are those who succeed whether the testator likes it or not and they cannot be deprived
of their legitime except only by disinheritance.
An heir, of whatever class is absolutely free to accept or renounce the inheritance because the law on
legitime is a restriction not on the freedom of the heir to accept or repudiate, but on the freedom of
testator to dispose of his property.
Kinds of Compulsory heirs:
1. Primary – those who exclude other compulsory heirs ex. Legit children & ascendants
2. secondary – succeed only in the absence of the primary. ex. Legit parents & ascenadants
3. Concurring – succeed together with the primary and secondary cannot be excluded by
them. Ex. Widow/er & illegit children
Legitimate children and descendants – in the ordinary course of nature father or mother die ahead of
the child; the law confers preferential legitimary rights upon them. Thus the law intends that property of
the decedent pass not to strangers but to his natural successor.
Although the law names “children and descendants” in reference to their legitimate parents and
ascendants, not all of them succeed concurrently.
It is only in case one or more of the children do not or cannot succeed that his own children and
descendants take his place in succession.
Legitimated Children – the NCC is silent as to this kind of children but the Family code under Art. 272
grant the same rights to legitimated as that of the legitimate. Hence they are included as a compulsory
heir.
Adopted Children – Art. 189 of the FC provides that for civil purposes, the adopted shall be deemed a
legitimate child of the adopters and both shall acquire reciprocal rights and obligations from a parent-
child relationship. Hence, considered as legitimate child of the deceased adopting parent both as CH
and LH. This refers to both legitime and intestate succession.
Parents and Ascendants – secondary compulsory heirs only when there are legitimate children or
descendants.
Illegitimate Parents – they are compulsory heirs only in the absence of legitimate, or illegitimate
children of the decedent as provided under Art. 903.
Adopting parents – they are not compulsory heirs of the adopted child because Art. 190 of the FC only
provides that they shall be legal heirs of the deceased adopted and is silent as to their becoming
compulsory heir. This indicates that the latter was not intended.
Ratio: Adoption is for the benefit of the adopted, and unless the law clearly intends to favor the adopter,
all doubts should be resolved against him. Because of the silence of the law on legitimes, he cannot be
entitiled to the legitime of the legitimate parents; and in the law of testacy, he is not given, in general, the
same rights as a legitimate parent but only such as are specifically provided in Article 190 of the FC.
Legitimes of CH are restrictions on the freedom of the testator and must not be presumed but viewed
strictly.
Illegitimate Children – the FC abolished the distinctions in the old civil code thus merging them to one
group.
Social and humanitarian reasons justify this grant of rights. These children are brought to the world
without their fault and under circumstances beyond their control. To leave illegitimate children w/o
successional rights not only weighs them down with the moral handicap of their status but also denies
them the material assistance which they may need after their parent’s death so as not to become social
burdens.
They are not required to be recognized by putative parents but must only prove their filiation.
In the enforcement of this new right it is the death of the parent which determines the right of the child to
succeed and not the birth of the latter.
Surviving Spouse – there should be a valid marriage between the deceased and the surviving spouse.
Thus, the following marriages have different effects on the capacity of the widow or widower to succeed:
1. null and void marriages such as incestuous or bigamous ones. Except in cases of
bigamous marriages where two wives contract in good faith with the same husband, both are
entitled to inherit equally from the deceased husband.
2. Voidable marriages entitle the widow/er to legitime because there exists a valid
marriage until it is annulled. Thus, once annulled before death of a spouse they are
incapacitated to inherit. However, pending the case of annulment and one spouse dies the
widow/er, nevertheless, inherits the legitime because the marriage can no longer be annulled
after death of one.
3. Legal separation of the spouses before death entitles the widow/er the Legitime if he
/she is the innocent spouse. Unless reconciliation occurred before the death of the spouse, the
survivor will inherit regardless of his guilt. In such case that the decree is pending upon death of
one spouse then the decision should be awaited. The fact that the innocent spouse instituted the
legal separation manifest his desire to not to allow the guilty spouse to benefir fro his estate. The
accident of death should not defeat this purpose.
4. Separation in fact by amicable settlement does not incapacitate the guilty spouse to
inherit though there may be valid grounds for legal separation there being no judicial decree, the
right of legitime is preserved.
GENERAL OBSERVATIONS ON THE SYSTEM OF LEGITIMES:
1. When a compulsory heir or compulsory heirs of the same kind survive alone, without the
concurrence of other kinds of compulsory heirs, the legitime is always one-half of the estate,
except that of the surviving spouse (1/3 of estate) when the deceased spouse dies within
three months after a marriage in articulo mortis. (1/2)
2.legitimes of children are graduated according to their status, so that the illegitimate
children get less than the legitimate child.
3. Legitimes of legitimate children are preferred in character; legitimes of illegitimate children

are always subject to reduction in certain cases but never that of the legitimate children.
4. There is no fixed criterion for the legitime of the surviving spouse.
Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted
upon their death to their descendants, whether legitimate or illegitimate. (843a)
(T) The illegitimate child of an illegitimate child only gains the right to representation
specified in Art. 894, 895, 896, 899 and 901.
This article is not applicable to intestate succession. DEFINITELY NOT TESTATE SUCCESSION
AS WELL.
When a predeceased illegitimate child has legitimate and illegitimate child, they should share
in the same proportion established by Art. 895. When they succeed by operation of law, their
shares are graduated in accordance to the proportions given in Article 895.
The right arises when the predeceased illegitimate child died during the effectivity of the New
Civil code.
Only illegitimate children of an illegitimate child are given the right of representation in this
article.
(B) Grants right of representation to the legitimate and illegitimate descendants of an

illegitimate child.
Unintended consequence of the law: by virtue of art. 992 an illegitimate child of a

predeceased legitimate child cannot inherit by representation but by Art. 902, an illegitimate
child of an illegitimate child can inherit through the right of representation.
Rosales v. Rosales, 148 SCRA 69
DOCTRINE: The Civil Code does not recognize a widow, the surviving spouse of the decedent’s child,
as an intestate heir.
FACTS: On February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was
survived by her husband Fortunate T. Rosales and their two (2) children Magna Rosales Acebes and
Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child,
Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the
dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the
estate of the deceased in the Court of First Instance of Cebu. She was appointed by the court as
administratrix of the estate. The trial court issued an ordr on June 16, 1972, declaring the following
individuals the legal heirs and their respective shares:
Fortunata T. Rosales (husband) – ¼; Magna Acebes (daughter) – ¼; Macikequerox Rosales – ¼ and
Antonio Rosales (son) – ¼.
Irene Rosales insisted in getting a share of the estate in her capacity as surviving spouse of
the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-
in-law together with her son, Macikequerox. The trial court denied her claim. Hence this petition.
ISSUE: Is a widow, the surviving spouse, an intestate heir of her mother-in-law thereby entitling her
to a share in the estate?
RULING: NO. An intestate heir can only inherit either by his own right, as in the order of intestate
succession provided for in the Civil Code, or by the right of representation provided for in Article 981
of the Civil Code. There is no provision in the Civil Code, which states that a widow (surviving
spouse) is an intestate heir of her mother-in-law either by her own right or by the right of
representation. The provisions of the Code, which relate to the order of intestate succession
enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final
intestate heir.
Articles 970 and 971 of the Civil Code explain the essence and nature of the right of representation.
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his
blood relationship. He does not succeed his father Carterio who predeceased his grandmother but
the latter whom his father would have succeeded. A daughter-in-law cannot assert the same right of
representation, as she has no filiation by blood with her mother-in-law.
C. Concurrence of compulsory heirs and their corresponding legitimes.
Arts. 888-890, 892-901, 903, Art. 39, P.D. 603
Article 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the
father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided. (808a)
The concept of “mejora” has been removed in the New Civil Code. It is a concept wherein a part of
the estate of the deceased may be given only in favor of legitimate children and descendants for their
betterment or reward.
The NCC eliminated the mejora for the following reasons:
1. the natural inequalities among children is in many cases imaginary and the parent is merely
rewarding the better qualities of one or few children.
2. Such reward may be effected by the father or mother by disposing of part or all of the free half.
3. The testator should have greater freedom to dispose of his estate by will.
Due to this abolition, the free portion now consists of ½ of the estate which the decedent may
dispose subject to the rights of illegitimate children and the surviving spouse. Only the remainder
thereafter shall be disposable, if there is any left.
Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their
children and descendants.
The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)
Article 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents
should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)
Shares in legitimes – the following rules shall be observed in the distribution:

1. the nearest relatives exclude the more remote.
2. division of lines. If there are ascendants of the same degree, one of them in the paternal and
other maternal line, the legitime is divided equally between the two lines, irrespective of the number
of persons in each line.
3. equal division. Share that goes to each line is distributed equally by the persons in that line who
are entitled to the legitime.
P.D. 603 Article 39. Effects of Adoption. - The adoption shall:

1. Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter:
Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption;
2. Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of
the surviving natural parent;
3. Entitle the adopted person to use the adopter's surname; and
4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by
legitimate parents or ascendants and by an adopted person, the latter shall not have more successional
rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the
adopted from the adopter shall revert to the adopter should the former predecease the latter without
legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That
in the last case, should the adopted leave no property other than that received from the adopter, and he is
survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive
one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former
collectively shall receive one-fourth and the latter also one-fourth, the rest in any case reverting to the
adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil
Code.
The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except
that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of
succession, whether testate or interstate.
D. Restrictions regarding the legitime. Arts. 904, 872, 905-907, 1347

Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified
by law.
Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever.
(813a)
The legitime goes to the heir by operation of law and not by the will of the testator; hence it cannot
be subject to the freedom of the latter to impose encumbrances, conditions and substitutions. Any
encumbrance is simply disregarded and considered as not written. The CH’s right to the legitime is
free, unencumbered, and pure.
The only exception is by disinheritance legally made by the testator. Only this method, directly and
expressly made by the testator in his will, for causes given by law, can be availed of by the testator
to validly deprive his compulsory heirs of their legitimes.
He can forbid the partition of the inheritance, including the legitime, for not more than twenty years.
Article 1083.
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a)
If legitime is the portion of the estate of which a testator cannot dispose because it is reserved by the
law for certain heirs, necessarily he cannot deprive the latter of such legitime or impose any charges,
conditions or substitutions thereon.
Encumberances, conditions or substitutions of any kind, imposed upon the legitime, do not affect the
right of the compulsory heir. They are simply disregarded and considered as not written.
The prohibition imposed by this article upon the testator applies only with respoect to
testamentary dispositions. It has no application to acts inter vivos, even when they are gratuitous
or lucrative title, although they may later be revoked or reduced as inofficious.
The testator is allowed to forbid the partition of the estate for a period not exceeding twenty years;
and this power to prohibit division applies to the legitime.
Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his
compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the renunciation or compromise. (816)
1. The future legitime between is merely an expectancy, and the heir does not acquire any
right over the same until death of testator.
2. The renunciation or compromise does not become valid by the mere failure of the
compulsory heirs to assert its invalidity because the matter of its legal effect cannot be left to
the will of the parties.
3. all renunciations of future legitimes are void. However, a mere statement made by a son
of the properties he has received from his father, still living, for the purpose of taking the
same into account in case of partition in the event the father dies, is not a renunciation or
compromise on future legitime.
4. Since the legitime is a part of the inheritance, and a compromise is contract, it is obvious
that all compromises on future legitimes, by and between the heirs themselves to the
exclusion of the testator, must be held void if not under this article, under the general
prohibition of Art. 1347.
5. the nullity of the renunciation or compromise may be claimed, not only by the CH who
made it, by co-heirs prejudiced thereby.
6. the giving of donations as advance of the legitime is not prohibited by this article nor
1347 but governed by rules on donation and the reduction thereof whenever inofficoius.
Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied. (815)
1. The heir is limited to the completion of his legitime, when the “testator has left” to him “by
any title” some property not sufficient to cover his legitime.
2. This principle only applies when a will has been made by the decedent or left by him.
3. When there is no testamentary disposition in his favor, he cannot ask for the completion of
his legitime, because there is nothing to complete; instead, there is preterition or total
omission, and in such case the forced heir in the direct line is entitled to ask, not merely for
the completion of his legitime, but for the annulment of the institution of heir.
4. A donation inter vivos cannot be considered under this article because it is not a
testamentary disposition. There would still be preterition. The institution must still be
annulled.
5. BUT ACCORDING TO MANRESA: The strict wording of this provision does not preclude or
forbid its extension to other acts of liberality by the testator in favor of the compulsory heir.
6. PURPOSE: to give the compulsory heir only that which has been reserved for him by the
law, nothing less and nothing more. He is only entitled to that which the testator cannot
deprive him of.
7. If it is evident that the testator, for whatever reason, intentionally omits his compulsory heir,
there should be preterition. On the other hand, if he merely remains silent, but by his prior
acts he had shown his intention to give such compulsory heir a share in his property, there
can be no true preterition. Article 906 should apply.
Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced
on petition of the same, insofar as they may be inofficious or excessive. (817)
1. The article gives the compulsory heirs the right to ask for the reduction of inofficious
testamentary dispositions, or those which impair their legitime. This may also be in the form
of a donation inter vivos.
2. Art. 771 allows reduction of inofficious donations. Art. 772 provides that only those who at
the time of the donor’s death have a right to the legitime and their heirs or successors in
interest may ask for the reduction of inofficious donations.
3. The reduction lies only when the testamentary dispositions impairs the legitime.
Santiago v. Santiago, et. al., G.R. 179859, August 9, 2010
DOCTRINE: Restricitons regarding legitimes Note: This case is primarily focused on res judicata, it
barely touched upon restrictions
While the intention of the decedent is clear that the property be owned in common, the condition set
is subject to statutory limitation regarding indivisibility
FACTS: Basilio Santiago (Basilio) contracted three marriages—the first to Bibiana Lopez, the second
to Irene Santiago, and the third to Cecilia Lomotan. Basilio and his first wife bore two offsprings,
Irene and Marta, the mother of herein oppositors Felimon, Leonila, Consolacion, Ananias, Urbano,
and Gertrudes, all surnamed Soco.
Basilio and his second wife had six offsprings, Tomas, Cipriano, Ricardo, respondents Zoilo and
Felicidad, and petitioner Ma. Pilar, all surnamed Santiago.
Basilio and his third wife bore three children, Eugenia herein petitioner Clemente, and Cleotilde, all
surnamed Santiago.
After Basilio died testate on September 16, 1973, his daughter by the second marriage petitioner Ma.
Pilar filed before the RTC of Bulacan a petition for the probate of Basilio’s will, docketed as SP No.
1549-M. The will was admitted to probate by Branch 10 of the RTC and Ma. Pilar was appointed
executrix.
Pertinent Excerpt:
Ang bahay at lupang ito’y walang magmamay-ari bagkus ay gagamitin habang panahon ng
sinomang magnanais sa aking kaapuapuhan na tumuklas ng karunungan sa paaralan sa Maynila at
katabing mga lunsod
The Will contains amongst others that the property in Manila shall be administered by Ma. Pilar and
Clemente and is not part of her nor anyone’s inheritance in order that his other children or
grandchildren may have a place to stay should they wish to study there. More importantly, the clause
stating that the other real and personal properties shall not be partitioned within 20 years from the
date of his death.
After the executrix-petitioner Ma. Pilar filed a “Final Accounting, Partition and Distribution in
Accordance with the Will, the probate court approved the will by Order of August 14, 1978 and
directed the registers of deeds of Bulacan and Manila to register the certificates of title indicated
therein.
The oppositors-heirs of the first marriage thereupon filed a complaint for completion of legitime
before the Bulacan RTC against the other heirs from the second and third marriage
On October 17, 2000, respondent-heirs of the second marriage filed before the probate court (RTC-
Branch 10) a Motion for Termination of Administration, for Accounting, and for Transfer of
Titles in the Names of the Legatees citing that the 20 year period of administration should
have ceased way back on September 16, 1993 and they should have transferred the above said
titles to the named legatees in the Last Will and Testament of the testator by then.
Opposing the motion, petitioners argued that with the approval of the Final Accounting, Partition and
Distribution in Accordance with the Will, and with the subsequent issuance of certificates of title
covering the properties involved, the case had long since been closed and terminated.
Probate court finding that petitioners only hold the property for administration approved the motion
terminating the administration and directing the administratix to transfer the titles to designated
legatees. It reasoned that The principle of res judicata does not apply in the present probate
proceeding which is continuing in character, and terminates only after and until the final
distribution or settlement of the whole estate of the deceased in accordance with the
provision of the will of the testator.
Petitioners object to the inclusion of the house and lot in Manila, covered by TCT No. 131044, among
those to be transferred to the legatees-heirs as it would contravene the testator’s intent that no one
is to own the same.
ISSUE: Whether the transferring of the manila house specifically stated by the will to
remain as ownerless is in contravention with the intent of the testator that no one owns the
same
RULING:
No, The Court is not persuaded. It is clear from Basilio’s will that he intended the house and lot in
Manila to be transferred in petitioners’ names for administration purposes only, and that the property
be owned by the heirs in common. But the condition set by the decedent on the property’s
indivisibility is subject to a statutory limitation. On this point, the Court agrees with the ruling of the
appellate court, viz:
For this Court to sustain without qualification, [petitioners]’s contention, is to go against the provisions
of law, particularly Articles 494, 870, and 1083 of the Civil Code, which provide that the
prohibition to divide a property in a co-ownership can only last for twenty (20) years x x
Although the Civil Code is silent as to the effect of the indivision of a property for more than twenty
years, it would be contrary to public policy to sanction co-ownership beyond the period expressly
mandated by the Civil Code
A, B & C are brothers. agreed to give 10M each. C promised not to claim any inheritance from their
parents. During the settlement of the estate, C claimed that his legitime is 50M, and demanded for
his share in the estate or even more. Is the claim of C valid? Art. 1347. Any agreement as to future
inheritance is void. Answer will depend whether at the time of entering the agreement, the father
was still alive or not.
In the will of X, A, one of the children, was given 1M. Therefore, he cannot validly claim for any other
amount aside from 1M? it depends. He may ask for the full satisfaction of his legitime under Art.
906.
As regards to the computation of the net hereditary estate. The value of the estate will be based on
the one fixed by the government? Zonal value of the properties.
There are different bases for determining the value of the estate. Value of whatever kind: (1)
Collation is only needed to return back the properties
If the decedent died with a compulsory heir, would there now be a need for collation? – YES. The
law did not provide for the inoperation of collation. It shall alaways occur.
Testator in a will was sure of his donation and gave his property to a stranger.
E. Determination or computation. Arts.908-913
Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
CONCEPT OF COLLATION
2 CONCEPTS:
(1) it is a mathematical operation which involves the addition of the value of donations made by the
testator to the value of the hereditary estate; It takes place whenever there is a compulsory heir,
even if he be one only he is not the donee, because its purpose is to determine the distributable
hereditary estate, as a basis for finding out the amount of the legitime of the compulsory heir or
heirs, as a totality apart from the free portion, so that the donation may be reduced if it is excessive
or inofficious, to protect the legitime as a whole from encroachments by strangers.
(2) property donated by the testator during his lifetime must be brought back actually and returned
to the hereditary estate. This takes place when after the happening of the first concept, it is found
that the donation exceeds the disposable portion of the estate The excess must be returned by the
donee and actually added to the assets of the estate because such excess indicates an impairment of
the legitime which must be cured by actually and physically returning to the estate the amount of the
excess.
1. STEPS TO DETERMINE LEGITIME:

a. Determination of the value of the property, which remains at the time of the
testator’s death.
b. Determination of the obligations, debts, and charges which have to be paid out or
deducted from the value of the property thus left;
c. The determination of the difference the assets and the liabilities, giving rise to the net
hereditary estate;
d. Addition to the net value thus found, of the value, at the time they were made, of
donations subject to collation; and
e. 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.
2. Rules of Court entrust the duty of making the determination of the value of the property to
the administrator and tax appraisers.
3. If there is no such judicial proceeding, it is the true value of the property and not merely its
assessed value for taxation purposes that should be taken into consideration neither should
sentimental value be considered.
4. When the debts are declared for the first time in a testamentary disposition, it is not
deductible to the net estate. If it is an acknowledgment of a pre-existing obligation, then it is
deductible. In order to be non-deductible, it must arise for the first time from the will itself as
a unilateral act of the testator.
5. Collation of Donations – The value of the donations by the testator that are subject to
collation must be added to the net remainder of the hereditary estate. This includes
donations made not only in favor of the forced heirs but also those made in favor of
strangers.
6. The amount of the free portion that may result from this theoretical reconstitution of the
estate is not only to be used as a measure or yardstick for determining whether the donation
to a stranger is greater than it, but it must be considered as the limiting container from which
the donation is to be taken.
7. All donations inter vivos, whether to compulsory heirs or to strangers, are subject to
collation.
8. Collation should take place only when there are compulsory heirs, inasmuch as the purpose
of the collation is to determine the legitime and the free portion.
9. Collation of donations is thus only for the benefit of compulsory heirs, and not for the
creditors of the decedent. Once a donation has been made, the property leaves the
patrimony of the donor, and it cannot be liable for debts subsequently contracted; on the
other hand, the value of donation is added to the net hereditary estate to determine the
legitime, because it is made subject to the condition that it does not impair the legitime.
10. The value of the donations subject to collation is determined as of the time when the
donations were made. This is only just, because the donation is a real alienation, which
conveys ownership upon its acceptance.
11. LIFE INSURANCE: it is not the amount of the insurance but the amount of the premiums,
which constitutes the donation, because only the latter leave the patrimony of the insured.
Jurisprudence exempts the beneficiary from collation of the premiums when they
were paid from the income of the insured and they are not excessive.
Q: Can a testator give a sum of money given as a donation through someone else not an heir may be
collated?
A: Yes, regardless of to whom the sum of money was given to, it would be subject to collation.
Q: If the money was given to Y but the heir is A, is it possible that that amount will be charged to the
legitime of A?
A: It can be charged, if Y is the child of A, and Y is the grandchild of X, then it would be charged
against A’s legitime. If not, Y is the creditor of A.
Q: This subject is subject to collation because that act is called? Indirect donation because the true
donee is Y not A.
Expenses subject to collation. What are the expenses which are not subject to collation?
Article 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be
charged to that part of the estate of which the testator could have disposed by his last will.
Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
Article 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall
be charged to his legitime.
Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by
this Code. (847a)
1. THIS ARTICLE IS NOT APPLICABLE AND INTERPRETED SO LITERALLY. Just because the
2. Articles 909 and 910 both refer only to donations made to children, the same rule is
applicable to donations to other compulsory heirs. Thereby creating a distinction between
donations to compulsory heirs and those made in favor of strangers.
3. If a donation inter vivos has been given to a grandchild who represents his father in the
succession of the grandfather, such donation must be imputed to or charged against the
legitime of the father, which goes to the grandchild, by representation. This provision seems
to imply that even if the donation to an illegitimate child exceeds his legitime, it will not be
reduced unless it also exceeds the disposable portion of the estate.
4. When the compulsory heir dies before the testator s incapacitated or is disinherited or
repudiates the inheritance and he has no children or descendants to represent him, it is
obvious that the donation given to him cannot be imputed to his legitime, for he receives
none. In such case, the donation will have to be treated as if it had been given to a stranger.
5. Donations made to strangers, are always chargeable against the free portion.
6. The purpose of the law is not to prevent the stranger from getting more from the
inheritance, but to see to it that the compulsory heirs do not get less than what pertains to
them as legitimes.
Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full to the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater
than that of the disposable portion, the compulsory heirs may choose between complying with the
testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the
testator could freely dispose. (820a)
1. The present article contemplates the concurrence of legitimes, donations inter vivos, and
testamentary dispositions, in which the aggregate of the latter two exceeds the free portion.
2. Although this article seems to refer only to legacies and devises, it should be construed to
include all kinds of testamentary dispositions, such as bequests, donations mortis causa, and
institutions of voluntary heirs.
3. Donations inter vivos are preferred over donations mortis causa. Whenever a
reduction or annulment is necessary to preserve the legitime, the dispositions mortis causa
are the first ones to suffer the reduction or annulment.
a. REASON: Donations inter vivos are by nature irrevocable, save in the cases
expressly provided by law, and to allow their annulment or reduction by the
subsequent making of legacies and bequests in excess of the free portion would be in
effect allowing the revocation of the donation to depend upon the will of the donor-
testator.
4. The reduction of the legacies, devises and other dispositions mortis causa is to be made pro
rata, without any distinction whatsoever, until they are annulled, if necessary.
a.
The only exception made is when the legacy has been declared by the testator as
preferred, in which case, it shall not be reduced or annulled until after all the other
dispositions mortis causa have already been annulled.
5. CONFLICT WITH ARTICLE 950. Article 950 applies only when the question is exclusively
among the legatees and devisees themselves. When the legitime alone, or legitime and
donations inter vivos are involved, Article 911 shall apply.
a. Article 911 shall apply as to the manner of reducing legacies:
i. When such reduction is necessary to preserve the legitime of compulsory
heirs from impairment, whether there are donations inter vivos or not;
ii. When, although the legitime has been preserved by the testator himself, by
giving the compulsory heirs sufficient to cover such legitime, there are
donations inter vivos concurring with the legacies or devises within the free
portion.
6. USUFRUCT OR LIFE ANNUITY. If the value of the annuity or usufruct exceeds the free
portion, the compulsory heirs have the option of delivering the usufruct or pay the amount of
the life annuity.
a. If there are several agreement heirs and no agreement can be reached by them, the
right of option is solidary and may be exercised by any one of them.
7. REDUCTION OF DONATIONS. If after annulling the legacies and devises, the legitimes cannot
yet be fully paid, the donations may be reduced.
a. Art. 773: If, there being two or more donations, the disposable portion is not
sufficient to cover all of them, those of the more recent date shall be suppressed or
reduced with regard to the excess.”
b. Reduction shall be in the inverse order of their dates. If several donations on one
date, reduced pro rata.
c. After a property, which was found donated inofficiously, is sold to a third person, the
property can no longer be recovered.
i. Donee shall be liable for the amount to be returned to the estate as being
excess or inofficious.
d. If donee whose donation is subject to reduction is insolvent and cannot return
anything to the estate to complete the amount needed to pay the legitimes, thr
amount to be returned by the insolvent must be borne and paid by those whose
donations are within the free portion.
A preferred legacy over renumeratory legacy under what circumstances?
Article 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided,
it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the
compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to
them.
The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of
the disposable portion and of the share pertaining to him as legitime. (821)
Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article,
any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property
shall be sold at public auction at the instance of any one of the interested parties. (822)
T: Division under this article means a material division, which is inconvenient, because the the
property is not susceptible of such division, or because it will lose or diminish its value or utitlity
when so divided. Hence, although the law specifically refers only to devise, it should be considered
applicable to all objects whether movable or immovable, of the same nature, such as vessels.
Query: if the reduction should be exactly ½ of the value, does it mean that the hir gets to retain it
not being less than ½? “does not absorb ½”
It is submitted that the thing should be retained by the devisee. The intention of the testaor in
making a devise of a determinate object is clearly so that the legatee may enjoy that particular
property. Out of respect for this intention, and since the will of the testator is the governing law in
the succession, the thing should be given to the devisee in case he is entitled to half its value and the
heirs the other half.
COLLATION. Arts. 1061-1077
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)
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)
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)
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)
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)
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)
Article 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation. (1041)
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 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)
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)
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. (1045a)
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)
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)
Article 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)
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)
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)
Article 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050)
In the will of X states a House in manila will not be inherited by his heirs but any of his children will
be able to use the house when they want to study. Is this provision valid?
WHEN NO NEED TO COLLATE: When the compulsory heirs are the donees themselves as well.
There can be no impairment of legitimes.
If the testator died with creditors, will there be a need for collation?
Donation in favor of a nephew and states that the donation is irrevocable. Not subject to collation?
De Roma vs. CA. property chargeable to free portion.
Grandfather donates Ferrari to father and father was survived by the child. This Ferrari to be
collated shall be chargeable to which part of the estate? It would depend if the father will be entitled
to the legitime.
X has 3 children: A, B, and C. C and B predeceased. D, heir of B and E, heir of C. There was a donation
in favor of B a Lambhorgini, due to this B died, total wreck ang Lambhorgini.
Subject to collation? Yes.
Chargeable to whose legitime? D. The grandchildren cannot take only the advantage but also the
disadvantages. The wrecked Lambhorgini is a part of their legitime.
Q: X and Y parents of A & B. A was about to be married, X and Y donated to A & F, a condo for 14M .
Upon the death of X, is this donation subject to collation? How much will have to be collated?
A: 7M subject to collation because 7M represents ownership of the condominium unit by Y. 3.5 free
disposition. 3.5m 3.5m no designation of shares.
The value of the estate was at the time of the death 50M, survived by 2 legitimate and illegitimate
but there was a donation in favor of C, 50k. Is there a need to give to the estate the exact amount
Arellano v. Pascual, G.R. No. 189776, December 15, 2010
Gregorio v. Madarang, G.R. No. 185226, February 11, 2010
Dizon-Rivera v. Dizon, 33 SCRA 554
De Roma v. CA, 152 SCRA 205
Locsin v. CA, 206 SCRA 383
F. Freedom to dispose free portion. Art. 914

Article 914. The testator may devise and bequeath the free portion as he may deem fit.
Principles Affecting Legitime
XII. PRETERITION. Arts. 854, 906, 855, 918
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)
REQUISITES OF PRETERITION:
1. there is total omission
2. the person omitted is a compulsory heir from the inheritance
3. the compulsory heir omitted survived the testator.
If the heir has received anything from the testator, even by way of donation inter vivos, there is no preterition, but a
case of incomplete legitime. Art. 906 applies.
The omission of heirs born between the execution of the will and the moment of the testator’s death will also
constitute preterition, if such heirs be living at the latter moment.
“heirs in the direct line” – include illegitimate parents and all kinds of illegitimate children, whether natural or
otherwise.
The preterition of the surviving spouse does not annul the institution of heirs; only partial annulment, by reducing the
right s of the instituted heir to the extent necessary to cover the legitime of the omitted surviving spouse.
SUCCESSION RECIT: PRETERITION - DISINHERITANCE

Q: X was survived by spouse, 2 legitimate children, 4 illegitimate children. Who may be preterited?
A: Children and illegitimate children, only those in the compulsory line may be preterited.
Q: A B C children of X, survived X. To A, a house and lot was given. A being the child of X. B, P30M, all
the cash of X. C was not mentioned in the will. Therefore, C was preterited?
A: THERE CAN BE NO PRETERITION. There was no institution of heirs. But there are other cases na
not necessarily. Examples: Just because C was not mentioned in the will, does not mean that he was
preterited. Other reasons: No preterition if he receives something by intestate succession.
Q(Follow up): What if his legitime is not covered? Ang legitime niya ay 5M pero the property may only be
2M. Assuming he was also an heir in relation to that property.
(renunciation, disinheritance, acts of unworthiness)
A:
Q: What is the effect of pretertion?

A: The institution of the heirs are annulled except for devises and legacies and the effect of preterition
depends on the provisions of the will.
Q: A B and C survived X. a – surviving spouse b- grandchild, c-grandparent. Who may be preterited?

A: Emphasize on the legitimacy of the parents and the child. The grandchild and the grandparent may
be preterited.
Q: Spouse claimed to have been preterited on the ground that the will of the wife, she left all the
properties which she inherited from her parents to her sister and nothing was given to the husband.
Does the husband have a valid claim?
A: No, there is no preterition.
A B C D survived X. A is the grandchild of X’s sister. B, illegitimate child of X. C the father

and D the grandfather. Who may be preterited?
B and C may be preterited. A and D cannot be preterited. B and C are compulsory heirs
and therefore may be preterited but A cannot be preterited because A is not an heir in the
direct line and not a compulsory heir. D cannot be preterited because the presence of the
father excludes the grandfather from such inheritance.
Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate
not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken
proportionally from the shares of the other compulsory heirs. (1080a)
The article does not necessarily refer to preterition. It refers to a child or descendant omitted in a will.
The share of the omitted child is to be determined by other provisions of law; once that is determined this article
provides the manner in which that share shall be satisfied.
This article suffers serious defects. The term child or descendant should be construed as compulsory heirs, in much
the same way that the first paragraph of article 909 has been construed by commentators to refer to compulsory
heirs.
There is patent fundamental mistake in the last sentence of the article because it creates a confusion and does not
express the true intent of the law. It should have been reworded in this wise:
“the share of the compulsory heir omitted in a will must first be taken from the part of the estate not diposed of by
will, if any; it that is not sufficient, so much as may be necessary must be taken PROPORTIONALLY FROM THE
SHARES OF THE OTHER HEIRS GIVEN TO THEM BY WILL”
Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied. (815)
If there is no testamentary disposition in his favor, the heir cannot ask for completion of his legitime, because there
is nothing to complete; instead there should be a case preterition or total omission, and in such case the forced heir
in the direct line is entitled to ask, not merely for the completion of his legitime. But for the annulment of the
institution of heir.
Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of
heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)
This article pertains to effects of a disinheritance which does not have one or more of the essential requisites for its
validity. It likewise applies to cases of reconciliation after a disinheritance has been made.
The ineffective disinheritance does not affect the disposition of the testator with respect to the free portion. The
reason is the disinheritance in this case refers only only to the legitime of the heir, and therefore, it is only this
portion that is affected by the nullity or ineffectiveness of such disinheritance.
Where the disinheritance is ineffective in this case, the compulsory heir must be given all that he is entitiled to
receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in
favor of others.
Heirs of Policronio Ureta, Sr. v. Heirs of Liberato Ureta, G.R. No. 165748 and 165930,
September 14, 2011
Aznar v. Duncan, 17 SCRA 590
Nuguid v. Nuguid, 17 SCRA 449
Reyes v. Barreto-Datu, 19 SCRA 85
Escuin v. Escuin, 11 Phil. 332

Balanay v. Martinez, 64 SCRA 452
Solano v. CA, 126 SCRA 122
Acain v. CA, 155 SCRA 100
XIII. RESERVA TRONCAL. Art. 891

Article 891. The ascendant who inherits from his descendant any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from
which said property came.
Congress decided to put back reserva troncal to compensate the non representation of the ascending
line.
What are the various types of reservations?
1. reserva viudal – exclusion of all the properties of the surviving spouse and that it should be preserved
for their children in the first marriage.
2. Reserva Adoptiva –
3. reserva legal
Q: In order for reservation to exist, two persons must die?
A: It is not required that 2 persons should die at the same time because in the first place even if only one
person dies there can be a reservation.
Who must die first? The prepositus. The origin need not die because the descendant brother or sister
need not acquire it by operation of law. There may be a reservation later on.
Once the property is acquired by the descendant or his brother or sister, does the reservation start?
NO. reservation starts upon the death of the descendant.
However, if the descendant bro or sis dies with children or descendant there can be no reservation,
correct?
A: NO. A person gives his property a descendant or brother or sister. The two persons should not die at
the same time because there must be a transmission of successional rights between them.
The Old Civil Code contained provisions for various reservas such as reserva troncal, reserva viudal and
reserva legal but these provisions were taken out when the New Civil Code was drafted due to the
following reasons:
1. creates uncertainty in the pwnership of property, because of the suspended ownership the reservista
has no enthusiasm to preserve or improve the property
2. confinement of property w/in a certain family for generations incompatible with the principle of
socialization of ownership
3. reserve is limited to the legitimate members of the family, and the father or mother of a natural child
who inherits property from this child, and who in turn acquired it from snother progenitor acquires
absolute dominion of the property w/o reservation.
4. in reserve viudal, the surviving spouse is obliged to resrve properties left by deceased spouse to his if
she remarries, but the concubine is not obliged, thus, giving ptotection to illegitimate relation.
PURPOSES OF RESERVA TRONCAL
1. To reserve certain property in favor of certain relatives.

2. It seeks to prevent persons outside a family from securing, by some special accident of life,
property that would otherwise have remained therein.
NATURE
The reserva creates a double resolutory condition to which the right of ownership of the person obliged
to reserve is subjected.
The resolutory conditions are:
First. The death of the ascendant obliged to reserve
Second. Survival at the moment of relatives within the third degree belonging to the line from
which the property came.
No reserva will exist in favor of illegitimate relatives; nor are natural and illegitimate ascendants bound to
reserve. The provisions of Art. 891 apply only to legitimate relatives.
WHO ARE OBLIGED TO RESERVE

Reservista or the person obliged to reserve – the “ascendant who inherits from his descendant” by
operation of law certain property which the latter has acquired by gratuitous title from another ascendant.
Not all ascendants are bound to reserve, but only those who acquired property from a descendant by
operation of law. The property must have been acquired by the descendant from another ascendant of
from a brother or sister by lucrative title.
There is however one case where the ascendant who has received property under the circumstances
mentioned by law should not be obliged to reserve in favor of relatives within the third degree. This case
is when the only relatives are the common descendants of the predeceased ascendant and the
ascendant who would have been obliged to reserve.
The immediate source of the property should be a descendant of the reservista but the mediate source
should be another ascendant or brother or sister of such descendant.
In the term “brother or sister” is included not only those of the full blood but also those of half-blood.
The question of half-blood or full blood is not important in this special reservation, because precisely the
reservation is in favor of a line, whether maternal or paternal.
PERSONS BENEFITED BY RESERVA

The third degree is to be counted form the descendant whose succession is in question, because it is
upon his death that the reserva begins its life.
These relatives must not only be within the third degree from the descendant, but must likewise belong
to the line from which the property came.
Only the lines meeting in the person of the descendant should be considered.
Relation by affinity will not be sufficient to establish one’s right as reservatario; there must be a double
relation of consanguinity, that is, the reservee should be related by blood not only to the descendant but
also to the other ascendant, or brother or sister, from whom the property came.
It is to be noted that when some of the reservees are of the half blood and others of full blood, the rule of
unequal participation in the inheritance does not apply because the basis of succession is not the extent
of the blood tie, but it is the condition of being related to the special line to which the reserva belongs.
Relatives within the third degree:

1st degree: father or mother; only when no descendants
2nd degree: grandparents of the line where the property came, brother of full or half blood
3rd degree: great-grandparents, uncles by consanguinity full or half-blood, and nephews and nieces in
full or half blood.
EXPECTANCY BY ALL
Upon the death of the descendant, the reservation begins and the relatives within the third degree
acquire expectancy, an inchoate or contingent right, and may compel the reservista to secure the
reservation. Upon the death of the ascendant, the rights of the relatives become definite.
It is only upon the moment of the death of the reservista that the right of those living at such moment
becomes definite and perfect.
If relatives within the third degree during the intervening period die, they lose their right unless the right
of representation exists in favor of their descendants within the third degree. If born during the
intervening period, and are alive at the time of the reservista’s death, they are entitled to the reservation.
In other words, ther reservation exists during the life of the reservista, in favor of a class (relatives within
the third degree), and every person who falls within such class acquires an expectancy which, however,
does not become a perfect right except when, upon the death of the reservista, he is called upon as if to
the succession of the descendant.
PREFERENCE AMONG RESERVEES

The rules of legal or intestate succession apply and that there is among the relatives within the third
degree a preference, first between lines, (the ascendant being preferred to the collateral), and within
each line, the nearest degree excludes the more remote.
Nephews and nieces exclude unless and aunts of the prepositus. While all relatives within the third
degree, as a group are called to succeed as reservees, as among themselves the rules of intestatcy will
apply, particularly Articles 1001, 1004, 1005, and 1009 in this case.
REPRESENTATION
Florentino vs. Florentino “In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatarios who are within the third degree of relationship,
nevertheless there is right of representation on the part of reservatarios who are within the third degree
mentioned by law, as in the case of nephews of the deceased person from whom the reservable
property came. These reservatarios have the right to represent their ascendants (fathers and mothers)
who are the brothers of said deceased persons and relatives within the third degree in accordance with
Article 891 of the Civil Code.”
PROPERTY SUBJECT TO RESERVA

The term operation of law applies the transmission of the legitime in case of testamentary succession
and to the entire inheritance in case of intestate succession, because in one or the other the property
passes, not by the will of the deceased but by mandate of the law.
If property has been acquired by the descendant gratuitously from another ascendant, if it passes to the
ascendant supposed to reserve, not by operation of law, but by the will of the descendant, there is no
obligation to reserve.
SUBSTITUTION OF PROPERTY
GENERAL RULE: The reservable property cannot be substituted with others.
EXCEPTION: If it is lost through the fault of the reservista, or alienation of the property or the things are
fungible, substitution may be had with other property or payment of a sum of money.
The relatives within the third degree entitled to the reservation may ask for the sale of sufficient property
until enough cash has been realized to cover the amount of the reservation; or they may elect to accept
property of the inheritance as an equivalent.
INSTITUTION OF ASCENDANT
If an ascendant is instituted as an heir, the principle of reserva minima is more in line with the philosophy
of the present Code of socialization of property. Same rule applies to INSTITUTION OF STRANGERS.
Reserva Maxima – Reserva should apply to the property that has been gratuitously acquired from some
other ascendant, brother or sister, that can be included within the legitime of the reservista, or one-half
of the estate.
Reserva Minima – All property passing to the reservista must be considered as passing partly by
operation of law and partly by will of the descendant, and therefore, one half of the properties acquired
gratuitously by the descendant from another ascendant, or brother or sister, should be reservable, and
the other half should be free.
LEGACIES TO STRANGERS
If the descendant disposes of one-half of his estate in legacies in favor of strangers, then the remaining
half undisposed goes to the ascendant as his legitime. If there are among these remaining any property
acquired gratuitously by the descendant from another ascendant of from a brother or sister, all of them
are reservable, because all of them go to the ascendant by operation of law. If, however, there should be
among the remainder no property of this character, then the ascendant has no obligation to reserve.
When the descendant does not fully dispose of the free portion of his estate, the balance goes to the
ascendant by intestate succession. Properties of reservable character shall be reserved in proportion to
what the ascendant may have received by intestate succession.
PARTITION OF RESERVA
Start on the assumption to the serva minima, and adjudicate to the ascendant one-half of such
properties as part payment of this legitime, and the other half to the voluntary heirs or legatees.
----
The reservable property is not part of the estate of the deceased that may be liable for his debts. Upon
the reservista’s death, his ownership over the property terminates and the rights are vested onto the
relatives of the third degree.
The law is that when the reservable character properly appears, the alienation shall produce effect only
when there are no resrvatarios upon the death of the reservista.
The reservatarios may dispose of their right in its uncertain and conditional form. The disposition made
by the reservatarios may not be by act inter vivos but also by last will or act mortis causa.
Upon the death of the reservista, the reservatarios are entitled, however, only to the original property or
amount which the ascendant inherited by operation of law from the descendant, and not to the profits or
increments which the use of the property may have occasioned.
FRUITS/IMPROVEMENTS – rules on usufruct apply. The natural and industrial fruits pending at the time
of the termination of the reserva belong to the reservatarios who must reimburse the heirs of the
expenses for planting and cultivating.
EXTINGUISHMENT OF RESERVA:
1. death of ascendant.
2. death of all relatives within the third degree belonging to the line from which the property came
3. loss of the things which are reservable
4. renunciation by reservatarios
5. prescription
Edroso v. Sablan, 25 Phil. 295
Upon the death of Victoriano Sablan, he left his son Pedro two parcels of land. Subsequently,
Pedro died without issue and the properties were inherited by his mother, Marcelina. Marcelina
filed a petition to register the said properties under her name. Two legitimate brothers of
Victoriano opposed the registration. The trial court denied the application. Hence, this petition.
Seinnes v. Esparcia, 1 SCRA 750
The reservista has the legal title and dominion to the reservable property but subject to a
resolutory condition; that he is like a life usufructuary of the reservable property; that he may
alienate the same but subject to reservation, said alienation transmitting only the revocable and
conditional ownership of the reservists, the rights acquired by the transferee being revoked or
resolved by the survival of reservatarios at the time of the death of the reservista
Florentino v. Florentino, 40 Phil. 480
Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with
his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful
inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir
receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the
relatives, within the third degree, of the predecessor in interest (prepositus), without prejudicing the right
of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario
(reservees).
- There is right of representation on the part of the reservatorios who are within the third degree
mentioned by law, as in the case of nephews of the deceased persons from whom the
reservable property came.
Padura v. Baldovino, 104 Phil. 1065
While all relatives within the third degree, as a group are called to succeed as reservees, as
among themselves the rules of intestacy will apply, particularly Articles 1001, 1004, 1005, and
1009 in this case. In the case at bar, the Baldovinos being nephews of whole blood are entitled
to a share twice as large of the Paduras, who are nephews of half blood.
Chua v.CFI, 78 SCRA 406
"The essential thing is that the person who transmits it does so gratuitously, from pure generosity, without
requiring from the transferee any prestation."
As long as the transmission of the property to the heirs is free from any condition imposed by the
deceased himself and the property is given out of pure generosity, it is gratuitous.
Gonzales v. CFI 104 SCRA 161
The reservor cannot make a disposition mortis causa of the reservable properties as long as the
reservees survived the reservor.
De Papa v. Camacho, 144 SCRA 281
XIV. RESERVA ADOPTIVA. Art. 39, PD 603
P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:
(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter:
Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption:
(2) Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the
surviving natural parent;
(3) Entitle the adopted person to use the adopter's surname; and
(4) Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate
parents or ascendants and by an adopted person, the latter shall not have more successional rights than an
acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the
adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the
adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the
adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or
a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the
adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive one-fourth and
the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate
issue the proportion provided for in Article 895 of the Civil Code.
The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if
the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession,
whether testate or interstate.
Banawa v. Mirano, 97 SCRA 517

Teotico v. del Val, 13 SCRA 406
XV. DISINHERITANCE. Arts. 915-923
Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by
law. (848a)
Disinheritance is the act by which the testator, for a just cause, deprives a compulsory heir of his right to
the legitime. It is a testamentary disposition by which a person is deprived of, or excluded from, the
inheritance to which he has a right.
It is a means given the testator to punish such of his compulsory heirs who have committed acts, which
render them unworthy of benefit or generosity. The law allows the testator to save himself from the pain
of seeing a portion of his property pass forcibly to an ungrateful heir or to one who may have brought
dishonor to him.
Disinheritance totally excludes the disinherited heir from the inheritance. He is deprived not only of his
legitime but also the free portion that would have passed to him or by operation of the laws of intestacy.
If the testator does not institute any heir, but simply provides that he disinherits the compulsory heir, then
the disinherited heir will lose not only the legitime but also the entire amount that he would have received
as intestate heir.
Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)
Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the
disinherited heir should deny it. (850)
Requisites for disinheritance:
1. That the heir disinherited must be designated by name;

a. Designated in such a manner that there can be no doubt as to his identity.
b. RULES FOR DESIGNATION OF INSTITUTED HEIRS applies to designation of
disinherited heirs
2. That the disinheritance be for a cause designated by law
a. There can be no extension of the causes for disinheritance by analogy.
b. Causes assigned may be graver or more serious than those provided by law
c. Determination of the sufficient cause is left to the courts
3. That it be made in a will
a. Will must have all formal requisites for its validity
b. If will is void, there is no valid disinheritance.
4. That it be made expressly, stating the cause in the will itself

a. ALWAYS EXPRESS
b. It is not essential that the statement of disinheritance and the cause therefor be made in
a single will.
c. There will be a valid disinheritance if the cause for it has been expressed in one
testament, and the disinheritance is made in another, provided that the necessary
connection between the cause and the disinheritance is clearly established.
d. If the connection between the cause and the disinheritance is not shown by the testator,
the disinheritance will not be effective.
e. If the words used are sufficient to show that the testator refers to acts or omissions
qualified by the law as causes for disinheritance, they will be deemed sufficient.
f. If the language used gives rise to doubts as to the sufficiency of the acts as grounds for
disinheritance, the disinheritance made should be considered as void.
5. That the cause must be certain and true, and must be proved by the interested heirs if the
person disinherited should deny it
6. It must be unconditional
a. Cannot be made subject to a suspensive condition which consists in the performance in
the future of some offense or fault by the heir.
b. The law contemplates that a cause has already been realized and is known to the
testator; the penalty of disinheritance cannot be provided for an act that has not yet
occurred.
c. Disinheritance in the form of a conditional pardon is VALID. There is an existing legal
cuase for disinheritance, but the pardon for such cause is made dependent upon some
condition.
7. It must be total
a. There can be no partial disinheritance. There is no middle ground.
Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person
disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the
legitime. (851a)
This article gives the effect of disinheritance which does not have one or more of the essential requisites
for its validity.
APPLICABLE TO: disinheritance lacking the essential requisites, reconciliation after disinheritance
EFFECT: When the testator made dispositions of the entire estate, the NULLITY OF A
DISINHERITANCE produces the ANNULMENT OF TESTAMENTARY DISPOSITIONS only in so far as
they PREJUDICE THE LEGITIME of the PERSON DISNINHERITED.
Disinheritance in this case ONLY REFERS TO THE LEGITIME of the heir.
Where the disinheritance is ineffective in a case where the testator does not dispose the free portion, the
compulsory heir must be given all that he is entitled to receive as if disinheritance has not been made,
without prejudice to lawful dispositions made by the testator in favor of others.
MEMORIZE!!! Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
- includes all the different degrees of commission of the crime (attempted, frustrated,
consummated)
- The principal factor to be considered is the intention of the heir, even if the final conviction
were only for the crime of physical injuries
- Conviction for reckless negligence or imprudence only, accused cannot be disinherited
because there is no intent to kill.
- heir may be disinherited if he was an accomplice provided there is intent to kill.
- heir who is an accessory-after-the-fact cannot be disinherited because the intervention is
already subsequent to the criminal act.
- conviction is necessary; An acquittal means that the heir cannot be disinherited.
- prescription of penalty, pardon, and amnesty, imply final conviction.
(2) When a child or descendant 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;
- Three elements:
a) act of accusing the testator;
b) juducual declaration that the accusation is false;
c) that the offense charged is punishable by imprisonment of six years or more.
- accuse not only means prosecution of a criminal action but every intervention in the criminal
prosecution
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse
of the testator;
- only the testator who is the innocent spouse can disinherit the guilty spouse.
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the
testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such
child or descendant;
- judicial demand is not necessary in this case.
- courts shall determine whether there is an unjustifiable cause; Art. 303 dictates the valid
causes to refuse support.
(6) Maltreatment of the testator by word or deed, by the child or descendant;

- all deeds short of an attempt against the life of the testator whether physical injuries are
produced or not
- in both cases, it is not necessary that there should first be a judgment finding the child or
descendant guilty of these acts.
- the acts should be done intentionally or voluntarily.
(7) When a child or descendant leads a dishonorable or disgraceful life;

- the other heirs or persons interested in the estate will have the burden of proving the particular
acts or conduct of the heir which are claimed to constitute his leading a disgraceful or
dishonorable life.
- dishonorable life – continuing conduct; court opinion shall be basis for disinheritance
(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)
- must be by final judgment
Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or
attempted against their virtue;
- abandonment should be understood in a general sense, so as to include failure to give due care, attention and support.
(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
- means all female descendants
(3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found to be false;
- no final conviction necessary; it is enough that he has committed acts which would have amounted to rape, seduction,
or acts of lasciviousness, against such daughter
(4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will
or to change one already made;
(6) The loss of parental authority for causes specified in this Code;
- this includes the enumeration under Art. 330 and Art. 327 and Art. 292 to 232.
- the parental authority of which the parent is deprived under Art. 332 may be restored by court order, if the parent has
reformed and will no longer perform the acts for which his patria potestas has taken away.
- CONTROLLING VIEW: If the patria potestas is recovered before the death of the disinheriting child, the cause for
disinheritance ceases, and the disinheritances already made is void.
(7) The refusal to support the children or descendants without justifiable cause;
(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.
(756, 854, 674a)
Article 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more,
and the accusation has been found to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change
one already made;
(4) When the spouse has given cause for legal separation;
- legal separation is not a ground for disinheriting but giving cause for the legal separation is the ground.
- it is not necessary that legal separation be obtained.
(5) When the spouse has given grounds for the loss of parental authority;
(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)
Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit,
and renders ineffectual any disinheritance that may have been made. (856)
- the pardon must expressly refer to the heir disinherited and specifically to the acts causing the disinheritance. Such
pardon must furthermore be accepted by the heir.
- Reconciliation deprives the testator of the right to disinherit, and revokes a disinheritance already made.
- The moment the testator uses one of these causes of unworthiness as a ground for disinheritance, among which is that
reconciliation renders the disinheritance ineffective.
- Some causes of unworthiness are also made grounds for disinheritance in order to give the testator the option to himself
and by his will punish the erring compulsory heir.
- Other causes for revocation: (1) subsequent institution of the disinherited heir, (2) nullity of the will containing the
disinheritance.
- NEW DISINHERITANCE = NEW GROUNDS USED
Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of
compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the
property which constitutes the legitime. (857)
- The causes for disinheritance are personal to the disinherited heir; he alone is at fault,
and nobody else should suffer the effects of such culpability.
- Disinherited heir’s children and descendants shall acquire a right of representation of the
inheritance of the disinherited heir.
This representation is only with regards to the disinherited heir’s legitime.
PRINCIPLES AFFECTING THE FREELY DISPOSABLE PORTION
XVI. INSTITUTION OF HEIRS
A. In General
Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and transmissible rights and obligations. (n)
The will of the testator is the supreme law which succession is governed, thus, the beneficiaries under
the will must be designated with clearness so that there can be no doubt as to who are intended by the
testator.
Since the institution of heirs and the designation of legatees and devisees spring exclusively from the
will of the testator, only the portion of the inheritance that is subject to the disposal of the testator would
be affected by such institution or designation. It cannot affect the portion known as the legitime.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be left to
the discretion of a third person. (670a)
T: The matters mentioned in this article are testamentary in nature; they constitute expressions of the will
or disposition of the testator. Hence, pursuant to Art. 784, it cannot be delegated.
B: The ff. constitute the essence of will making or the exercise of the disposing power, and thus, non-
delegable:
1. the designation of heirs, devisees, legatees;
2. the duration or efficacy of such designation including such things as conditions, terms,
substitutions
3. the determination of the portions they are to recieve
Art. 787. The testator may not make a testamentary disposition in such manner that another
person has to determine whether or not it is to be operative. (n)
Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted
should not accept the inheritance or should be incapacitated to succeed.
The heir may be instituted to succeed to the whole or to an aliquot part of the inheritance. The existence
of the institution does not depend upon the designation or name which the testator gives to his
testamentary disposition.
In such cases the testamentary dispositions made in accordance with law shall be complied with
and the remainder of the estate shall pass to the legal heirs. (764)
Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it
in favor of any person having capacity to succeed.
The article pertains to the principle of freedom of distribution by will. The extent of his freedom of
disposition depends upon the existence, knid, and number of compulsory heirs. When there are CH the
law limits this freedom to such extent that legitime is not impaired. Besides the civil law, special laws
also restrict this freedom such as the Public Land Act which vests upon the heirs of the applicant or
grantee the ownership of land in such case that the latter dies. Thus, he does not have free disposal of
the subject land.
The body of the deceased testator will not pass under his will or become part of the estate because it is
not a property. But the testator may be allowed to such extent for scientific or educational purposes.
One who has compulsory heirs may dispose of his estate provided he does not contravene the
provisions of this Code with regard to the legitime of said heirs. (763a)
Art. 843. The testator shall designate the heir by his name and surname, and when there are two
persons having the same names, he shall indicate some circumstance by which the instituted
heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in
such manner that there can be no doubt as to who has been instituted, the institution shall be
valid. (772)
Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in
such a way that, even with the use of the other proof, the person instituted cannot be identified,
none of them shall be an heir. (773a)
Art. 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the context
of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his
intention; and when an uncertainty arises upon the face of the will, as to the application of any of
its provisions, the testator's intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding such oral declarations. (n)
T: The first part of this article pertains to patent or extrinsic ambiguity which appears upon the face of the
instrument such as when the testator gives a devise or legacy to “SOME of the six children of his cousin
Juan”
The second part pertains to latent or intrinsic ambiguity which cannot be seen from a mere perusal or
reading of the will but appears only upon consideration of extrinsic circumstances, such as giving legacy
to “my cousin Pedro”, when I fact he has two cousins named Pedro. Thus. It occurs when:
1. two or more persons or things answer the name or description;
2. misdescription of the beneficiary or the gift
Extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and
circumstances surrounding him at the time of making the will, for the purpose of explaining or resolving
patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is any evidence admissible and relevant
excluding the oral declarations of testator as to his intention.
Ratio for the exclusion: B: can a dead man refute a tale?
T: the testator whose lips have been sealed by death can no longer deny or affirm the truth of what
witnesses may say he declared, would create confusion and give rise to false claims.
Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or
group of persons shall be valid. (750a)
Art. 786. The testator may entrust to a third person the distribution of specific property or sums
of money that he may leave in general to specified classes or causes, and also the designation of
the persons, institutions or establishments to which such property or sums are to be given or
applied. (671a)
T: the third person here does not make any disposition, but simply carries out details in the execution of
the testamentary disposition made by the testator himself in the will.
B: for this article to take effect the testator must determine the ff:
1. the property or amount of money given and;
2. the class or cause to be benefited
and the ff. may be delegated:
1. designation of persons, institutions, or establishments within the class or cause;
2. the manner of distribution.
Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood
and others of half blood, the inheritance shall be distributed equally unless a different intention
appears. (770a)
Art. 847. When the testator institutes some heirs individually and others collectively as when he
says, "I designate as my heirs A and B, and the children of C," those collectively designated shall
be considered as individually instituted, unless it clearly appears that the intention of the testator
was otherwise. (769a)
Art. 849. When the testator calls to the succession a person and his children they are all deemed
to have been instituted simultaneously and not successively. (771)
Art. 850. The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such institution if
he had known the falsity of such cause. (767a)
Austria vs. Reyes
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was
opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and
still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however,
dismissed and the probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents
Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had
been assumed and declared by Basilia as her own legally adopted children.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five
respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law,
in effect rendering these respondents mere strangers to the decedent and without any right to succeed
as heirs.
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several
adoption papers produced and presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau of Investigation for examination
and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary
questioned-document examiner whose views undermine the authenticity of the said documents. The
petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the
Philippine Constabulary for further study. The petitioners likewise located former personnel of the court
which appeared to have granted the questioned adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the respondent
Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had,
however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material
nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious,
the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as
testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article 842 of the Civil
Code which reads:
"One who has no compulsory heirs may dispose of by will all

his estate or any part of it in favor of any person having
capacity to succeed.
"One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs."
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to
them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's
will. They have thus raised squarely the issue of whether or not such institution of heirs would retain
efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
"The statement of a false cause for the institution of an heir

shall be considered as not written, unless it appears from the
will that the testator would not have made such institution if
he had known the falsity of such cause."
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the
respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the
deceased known the adoption to be spurious, she would not have instituted the respondents at all — the
basis of the institution being solely her belief that they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide
to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in
barring the petitioners nephews and niece from registering their claim even to properties adjudicated by
the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the
cause must be shown to be false; and third, it must appear from the face of the will that the testator
would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory
heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed
what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if
she was aware that succession to the legitime takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should very well indicate her complete
agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she executed her will. One fact prevails,
however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause
for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents
perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the
testator may have written in his will for the institution of heirs. Such institution may be annulled only
when one is satisfied, after an examination of the will, that the testator clearly would not have made the
institution if he had known the cause for it to be false. Now, would the late Basilia have caused the
revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as
her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and
uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the
language of the law on succession and were used, respectively, to describe the class of heirs instituted
and the abstract object of the inheritance. They offer no absolute indication that the decedent would
have willed her estate other than the way she did if she had known that she was not bound by law to
make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which
largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent
Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she
thought the law enjoined her to give to them. Compare this with the relatively small devise of land which
the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro
Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto
Cruz, et al, from the inheritance, then the petitioners and the other nephews and nieces would succeed
to the bulk of the estate by intestacy — a result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an interpretation which will give to every expression some
effect, rather than one which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on
the part of the testator to dispose of practically his whole estate, 2 as was done in this case. Moreover,
so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to
prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A probate
court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot be the subject of a collateral attack. 5
Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part
of the inheritance, legal succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot
part, and all the parts do not cover the whole inheritance. (n)
Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to
the whole estate, or the whole free portion, as the case may be, and each of them has been
instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)
Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the whole free portion, as the case may be, each
part shall be reduced proportionally. (n)
Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who
renounces the inheritance, shall transmit no right to his own heirs except in cases expressly
provided for in this Code. (766a)
B. Kinds of Institution
1. Simple or Pure
Art. 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)
2. Conditional
Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.
(790a)
Viuda de Kilayko vs. Tengco
These consolidated cases seek to annul the orders 1 dated September 20, 1978, January 7, 1977 and
January 31, 1977 of the then Court of First Instance of Negros Occidental, Branch IV, respectively,
cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register of Deeds of
Negros Occidental, denying the motion for reconsideration of the order dated September 20, 1976 filed
by Celsa L. Vda. de Kilay ko, et al., and holding in abeyance the resolution of defendants' motion to
dismiss.
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the
possession and custody of her niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a
petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an
order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and
usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and
usufructuaries of the estate; adjudicated to them the properties respectively assigned to each and every
one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the
corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks, and
dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs
and legatees, and the closure of the testate proceedings of Maria Lizares. 7
A year later or on November 23, 1973, Eustaquia Lizares died single without any descendant. 11 In
due time, Rodolfo Lizares and Amelo Lizares were appointed joint administrators of Eustaquia's intestate
estate.
On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria
Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko, Encarnacion
Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa L. Vda. de
Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once again the testate estate
proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed;
that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of
1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33
hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register
at the back of their respective certificates of title, the order of probate and a "declaration" that movants
are the heirs of said properties, and correspondingly issue new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario,
Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid
motion. They alleged that the court had no more jurisdiction to reopen the testate estate proceedings of
Maria Lizares as the order of closure had long become final and that the testamentary provisions sought
to be enforced are null and void. 13
On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition
and/or mandamus with prayer for a writ of preliminary injunction. It was docketed as G.R. No. L-45965.
Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639 as it involves the
interpretation of the will of Maria Lizares, its implementation and/or the adjudication of her properties.
They assert that the matter had been settled in Special Proceedings No. 8452 which had become final
and unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause
of action in the latter case was barred by the principle of res judicata. They aver that the claim of Celsa,
Encarnacion and Remedios, sisters of Maria Lizares, over the properties left by their niece Eustaquia
and which the latter had inherited by will from Maria Lizares, was groundless because paragraphs 10
and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a
fideicommissary substitution of heirs. Petitioners contend that said provisions of the will are not valid
because under Article 863 of the Civil Code, they constitute an invalid fideicommissary substitution of
heirs.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until after the will has been
probated. 30 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. 31 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. 32
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine
the proportion or parts to which each distributee is entitled . . . 37 A project of partition is merely a
proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court
that makes that distribution of the estate and determines the persons entitled thereto. 38
In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the
executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of
land, subject matters of the complaint for reconveyance, were included as property of the estate and
assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of
partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios
Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares
executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to
terminate their co-ownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552 covered by
Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007 and T-65008. These facts taken
altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate
court and in fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of
a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the
fruits of a partition, agreement or judgment and repudiate what does not suit him. 39 Thus, where a
piece of land has been included in a partition and there is no allegation that the inclusion was effected
through improper means or without petitioner's knowledge, the partition barred any further litigation on
said title and operated to bring the property under the control and jurisdiction of the court for its proper
disposition according to the tenor of the partition. 40 The question of private respondents' title over the
lots in question has been concluded by the partition and became a closed matter.
A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in
the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it
becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of
jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has
become final, the validity or invalidity of the project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the risk
of occasional errors, judgments of courts should become final at some definite time fixed by law, interest
rei publicae ut finis sit litum. "The very object of which the courts were constituted was to put an end to
controversies." 42 The only instance where a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is the
opening of the same by proper motion within the reglementary period, instead of an independent action,
the effect of which if successful, would be for another court or judge to throw out a decision or order
already final and executed and reshuffle properties long ago distributed and disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be
permitted to litigate the same issue more than once, that, when a right or fact has been judicially tried
and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the
judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and
those in privity with then in law or estate. 44
Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa
L. Vda. de Kilay ko et al. that they are conditional substitute heirs of Eustaquia in the testate estate of
Maria Lizares 46 is not meritorious. While the allegation of the joint administrators that paragraphs 10
and 11 of Maria Lizares' last will and testament conceives of a fideicommissary substitution under Article
863 of the Civil Code is also baseless as said paragraphs do not impose upon Eustaquia a clear
obligation to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et al., neither may said
paragraphs be considered as providing for a vulgar or simple substitution.
It should be remembered that when a testator merely names an heir and provides that if such heir
should die a second heir also designated shall succeed, there is no fideicommissary substitution. The
substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code
but it shall be effective only if the first heir dies before the testator. 47 In this case, the instituted heir,
Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon
Maria Lizares death, the properties involved unconditionally devolved upon Eustaquia. Under the
circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia by operation of the
law of intestacy
With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit
in the contention of Celsa L. Vda. de Kilay ko, et al., that the lower court acted contrary to law and/or
gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such a
precautionary notice, being a mere incident in an action, may be ordered by the court having jurisdiction
over it at any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may
be cancelled "after proper showing that the notice is for the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of the party who caused it to be recorded" 49 In this case,
the lower court ordered the cancellation of said notice on the principal reason that the administrators of
the properties involved are subject to the supervision of the court and the said properties are under
custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de Kilay
ko, et al. More so in this case where it turned out that their claim to the properties left by Eustaquia is
without any legal basis.
Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be considered as not
imposed. (813a)
Art. 873. Impossible conditions and those contrary to law or good customs shall be considered
as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise
provide. (792a)
Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered
as not written unless such condition has been imposed on the widow or widower by the
deceased spouse, or by the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised
or bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood. (793a)
Art. 1183. Impossible conditions, those contrary to good customs or public policy and those
prohibited by law shall annul the obligation which depends upon them. If the obligation is
divisible, that part thereof which is not affected by the impossible or unlawful condition shall be
valid.
The condition not to do an impossible thing shall be considered as not having been agreed upon.
(1116a)
Art. 875. Any disposition made upon the condition that the heir shall make some provision in his
will in favor of the testator or of any other person shall be void. (794a)
Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon
as he learns of the testator's death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again.
(795a)
Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any
time before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a
nature that it can no longer exist or be complied with again. (796)
Art. 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)
Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing
or not giving something, he shall comply by giving a security that he will not do or give that
which has been prohibited by the testator, and that in case of contravention he will return
whatever he may have received, together with its fruits and interests. (800a)
Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article.
(801a)
Art. 881. The appointment of the administrator of the estate mentioned in the preceding article,
as well as the manner of the administration and the rights and obligations of the administrator
shall be governed by the Rules of Court. (804a)
Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules
established for conditional obligations in all matters not provided for by this Section. (791a)
3. Institution with a Term
Art. 885. The designation of the day or time when the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of
the period or its expiration. But in the first case he shall not enter into possession of the property
until after having given sufficient security, with the intervention of the instituted heir. (805)
Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring
his rights and transmitting them to his heirs even before the arrival of the term. (799a)
Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article.
(801a)
4. Modal Institutions
Art. 882. The statement of the object of the institution, or the application of the property left by
the testator, or the charge imposed by him, shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir
or his heirs give security for compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and interests, if he or they should
disregard this obligation. (797a)
Art. 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.
If the person interested in the condition should prevent its fulfillment, without the fault of the
heir, the condition shall be deemed to have been complied with. (798a)
XVII. SUBSTITUTION OF HEIRS

A. Concept of substitution
Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance
in default of the heir originally instituted. (n)
B. Kinds of substitution
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;

(3) Reciprocal; or
(4) Fideicommissary. (n)
Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted
in case such heir or heirs should die before him, or should not wish, or should be incapacitated
to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise the
three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)
Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs.
(778)
Art. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly
appears that the intention of the testator was otherwise. If there are more than one substitute,
they shall have the same share in the substitution as in the institution. (779a)
Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the
instituted heir, unless and testator has expressly provided the contrary, or the charges or
conditions are personally applicable only to the heir instituted. (780)
Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect, provided such substitution does not go beyond
one degree from the heir originally instituted, and provided further, that the fiduciary or first heir
and the second heir are living at the time of the death of the testator. (781a)
Art. 864. A fideicommissary substitution can never burden the legitime. (782a)
Art. 865. Every fideicommissary substitution must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other
deductions than those which arise from legitimate expenses, credits and improvements, save in
the case where the testator has provided otherwise. (783)
Art. 866. The second heir shall acquire a right to the succession from the time of the testator's
death, even though he should die before the fiduciary. The right of the second heir shall pass to
his heirs. (784)
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an express manner, either by
giving them this name, or imposing upon the fiduciary the absolute obligation to deliver
the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary
one, beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to various persons
successively, beyond the limit prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole part of the hereditary property in order that
he may apply or invest the same according to secret instructions communicated to him
by the testator. (785a)
Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the
institution of the heirs first designated; the fideicommissary clause shall simply be considered
as not written. (786)
Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance,
and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not
simultaneously, but successively, the provisions of Article 863 shall apply. (787a)
Palacios vs. Ramirez
The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez
among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as
compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on
July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. On June 23, 1966, the
administratrix submitted a project of partition as follows: the property of the deceased is to be divided
into two parts. One part shall go to the widow "en pleno dominio" in satisfaction of her legitime; the other
part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one
third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-third (2/3) with a
usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because of the
first heirs (Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over
real property in the Philippines in favor of Wanda de Wrobleski, who is an alien, violates Section 5,
Article XIII of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants, violates the testator's
express will to give this property to them. Nonetheless, the lower court approved the project of partition
in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.
The widow's legitime.
It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament provides
for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to
one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under
the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime
will run counter to the testator's intention for as stated above his dispositions even impaired her legitime
and tended to favor Wanda.
The substitutions.
It may be useful to recall that "Substitution is the appointment of another heir so that he may enter into
the inheritance in default of the heir originally instituted." (Art. 857, Civil Code.) And that there are
several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and
fideicommissary. (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four
classes, there are really only two principal classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (III Civil Code, p. 185 [1973]).
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
"ART. 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
"A simple substitution, without a statement of the cases to which it refers, shall comprise the
three mentioned in the preceding paragraph, unless the testator has otherwise provided."
The fideicommissary substitution is described in the Civil Code as follows:
"ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole
or part of inheritance, shall be valid and shall take effect, provided such substitution does not go
beyond one degree from the heir originally instituted, and provided further that the fiduciary or
first heir and the second heir are living at time of the death of the testator."
It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto
and Jorge Ramirez, the appellants,
The appellants also question the "sustitucion vulgar y fideicomisaria" in connection with Wanda's
usufruct over two-thirds of the estate in favor of Juan Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not the
only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is
void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."
"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or transmission.

The Supreme Court of Spain has decidedly adopted this construction. From this point of view,
there can be only one transmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell, and Sanchez Roman, however, construe the word 'degree' as
generation, and the present Code has obviously followed this interpretation, by providing that the
substitution shall not go beyond one degree 'from the heir originally instituted.' The Code thus
clearly indicates that the second heir must be related to and be one generation from the first
heir.
"From this, it follows that the fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or degree from the fiduciary." (Op. cit.,
pp. 193-194.).
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts
the establishment of a fideicommissary substitution when he permits the properties subject of the
usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26).
The usufruct of Wanda.
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution
covers not only succession by operation of law but also testamentary succession. We are of the opinion
that the Constitutional provision which enables aliens to acquire private lands does not extend to
testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien
would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a
devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real
right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of
aliens which is proscribed by the Constitution.
Crisologo vs. Singson
Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against
Manuel Singson in connection with a residential lot located at Plaridel St., Vigan, Ilocos Sur, with an area
of approximately 193 square meters, and the improvements existing thereon, covered by Tax No.
10765-C. Their complaint alleged that Singson owned one half proindiviso of said property and that
Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of
Doña Leona Singson, the original owner, and the project of partition submitted to, and approved by the
Court of First Instance of Ilocos Sur in Special Proceeding No. 453; that plaintiffs had made demands for
the partition of said property, but defendant refused to accede thereto, thus compelling them to bring
action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one
half proindiviso of the property in question, and that, therefore, she was not entitled to demand partition
thereof.
It is admitted that Doña Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by
the Court of Appeals in G. R. No. 3605-R. At the time of the execution of the will her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, and her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolacion, all surnamed Florentino.
The issue to be decided is whether the testamentary disposition above-quoted provided for what is
called sustitución vulgar or for a sustitución fideicomisaria. This issue is, we believe, controlled by the
pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil
Code, in view of the fact that the testatrix died on January 13, 1948. They are the following:
"ART. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or should not wish or should be unable to accept the
inheritance.
"A simple substitution, without a statement of the cases to which it is to apply, shall include the three
mentioned in the next preceding paragraph, unless the testator has otherwise provided."
"ART. 781. Fidei-comissary substitutions by virtue of which the heir is charged to preserve and
transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they
do not go beyond the second degree, or that they are made in favor of persons living at the time of the
death of the testator."
"ART. 785. The following shall be inoperative:
1. Fiduciary substitutions not made expressly, either by giving them this name or by
imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." *
* *.
In accordance with the first legal provision quoted above, the testator may not only designate the heirs
who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not
accept or are in no position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part of
the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular
event.
It is clear that the particular testamentary clause under consideration provides for a substitution of the
heir named therein in this manner: that upon the death of Consolacion Florentino-whether this occurs
before or after that of the testatrix-the property bequeathed to her shall be delivered ("se dará") or shall
belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs,
should anyone of them the ahead of Consolacion Florentino. If this clause created what is known as
sustitución vulgar, the necessary result would be that Consolacion Florentino, upon the death of the
testatrix, became the owner of one undivided half of the property, but if it provided for a sustitución
fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the
former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the
fiduciary did not acquire full ownership of the property bequeathed, by will, but mere usufructuary rights
thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the
nude ownership over the property, upon the death of the testatrix, passed to and was acquired by
another person, and that person cannot be other than the fideicomisarrio. (6 Manreza, p. 145)
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed

upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him,
upon his death or upon the happening of a particular event. For this reason Art. 785 of the old Civil Code
provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una
manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation
("obligación terminante") to deliver the inheritance to a substitute or second heir.
A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death-whether this happens before or after that of
the testatrix-her share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona
Singson established a mere sustitución vulgar, the substitution of Consolacion Florentino by the brothers
of the testatrix: to be effective or to take place upon the death of the former, whether it happens before
or after that of the testatrix.
In view of the foregoing, the appealed judgment is affirmed, with costs.
C. Time-limitation on inalienability
Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more
than twenty years are void. (n)
XVII. LEGACIES AND DEVISEES
Art. 924. All things and rights which are within the commerce of man be bequeathed or devised.
(865a)
Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but also
the legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy or the devise
received by them. The compulsory heirs shall not be liable for the charge beyond the amount of
the free portion given them. (858a)
Art. 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be
bound.
Should he not charge anyone in particular, all shall be liable in the same proportion in which they
may inherit. (859)
Art. 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the
loss or destruction of a thing devised or bequeathed, even though only one of them should have
been negligent. (n)
Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction,
if the thing is indeterminate and is indicated only by its kind. (860)
Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety. (864a)
Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)
Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must
acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price therefor, the heir or the estate shall only be
obliged to give the just value of the thing. (861a)
Art. 932. The legacy or devise of a thing which at the time of the execution of the will already
belonged to the legatee or devisee shall be ineffective, even though another person may have
some interest therein.
If the testator expressly orders that the thing be freed from such interest or encumbrance, the
legacy or devise shall be valid to that extent. (866a)
Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution
of the will, the legacy or devise shall be without effect, even though it may have subsequently
alienated by him.
If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of
the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement
from the heir or the estate. (878a)
Art. 934. If the testator should bequeath or devise something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the
contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes
with it to the legatee or devisee. (867a)
Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of
the legatee shall be effective only as regards that part of the credit or debt existing at the time of
the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of
action it may have against the debtor. In the second case, by giving the legatee an acquittance,
should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which may be due the
testator at the time of his death. (870a)
Art. 936. The legacy referred to in the preceding article shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his debt, even if such
payment should not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is understood to discharge only the right of
pledge. (871)
Art. 937. A generic legacy of release or remission of debts comprises those existing at the time
of the execution of the will, but not subsequent ones. (872)
Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the
testator so expressly declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of
the legacy or devise. (837a)
Art. 939. If the testator orders the payment of what he believes he owes but does not in fact owe,
the disposition shall be considered as not written. If as regards a specified debt more than the
amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)
Art. 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon
whom the obligation to give the legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before making it, this
right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the provisions of this Code
regulating obligations of the same kind shall be observed, save such modifications as may
appear from the intention expressed by the testator. (874a)
Art. 941. A legacy of generic personal property shall be valid even if there be no things of the
same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable property of its
kind in the estate.
The right of choice shall belong to the executor or administrator who shall comply with the
legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)
Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee
or devisee, the former may give or the latter may choose whichever he may prefer. (876a)
Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him,
his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)
Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in
order that the legatee may finish some professional, vocational or general course, provided he
pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise
provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the
social standing and the circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of money or other
things by way of support, the same amount shall be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate. (879a)
Art. 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed,
the legatee may petition the court for the first installment upon the death of the testator, and for
the following ones which shall be due at the beginning of each period; such payment shall not be
returned, even though the legatee should die before the expiration of the period which has
commenced. (880a)
Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall
respect such right until it is legally extinguished. (868a)
Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from
the death of the testator, and transmits it to his heirs. (881a)
Art. 948. If the legacy or device is of a specific and determinate thing pertaining to the testator,
the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as
any growing fruits, or unborn offspring of animals, or uncollected income; but not the income
which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee
or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its
increase or improvement, without prejudice to the responsibility of the executor or administrator.
(882a)
Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of
quantity, its fruits and interests from the time of the death of the testator shall pertain to the
legatee or devisee if the testator has expressly so ordered. (884a)
Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment
shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be preferential;

(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;
(6) All others pro rata. (887a)
Art. 951. The thing bequeathed shall be delivered with all its accessories and accessories and in
the condition in which it may be upon the death of the testator. (883a)
Art. 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate,
must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation
by paying its value.
Legacies of money must be paid in cash, even though the heir or the estate may not have any.
The expenses necessary for the delivery of the thing bequeathed shall be for the account of the
heir or the estate, but without prejudice to the legitime. (886a)
Art. 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own
authority, but shall request its delivery and possession of the heir charged with the legacy or
devise, or of the executor or administrator of the estate should he be authorized by the court to
deliver it. (885a)
Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the
other, if the latter be onerous.
Should he die before having accepted the legacy or devise, leaving several heirs, some of the
latter may accept and the others may repudiate the share respectively belonging to them in the
legacy or devise. (889a)
Art. 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot
renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be
free to accept or renounce both, or to renounce either. But if the testator intended that the two
legacies or devises should be inseparable from each other, the legatee or devisee must either
accept or renounce both.
Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and
accept the legacy or devise, or renounce the latter and accept the former, or waive or accept
both. (890a)
Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the
legacy or devise for any reason should become ineffective, it shall be merged into the mass of
the estate, except in cases of substitution and of the right of accretion. (888a)
Art. 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a manner that it does not retain
either the form or the denomination it had;
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part
thereof, it being understood that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after the alienation the thing should
again belong to the testator, even if it be by reason of nullity of the contract, the legacy or
devise shall not thereafter be valid, unless the reacquisition shall have been effected by
virtue of the exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his
death without the heir's fault. Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed should not have been
determinate as to its kind, in accordance with the provisions of Article 928. (869a)
Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it
is possible to identify the thing which the testator intended to bequeath or devise. (n)
Art. 959. A disposition made in general terms in favor of the testator's relatives shall be
understood to be in favor of those nearest in degree. (751)
Fernandez vs. Dimagiba
It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to
the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los
Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as
the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio
Fernandez, Eusebio Reyes and Luisa Reyes, and one month later, Mariano, Cesar, Leonor and
Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the
probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix,
estoppel by laches of the proponent, and revocation of the will by two deeds of conveyance of the major
portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which
conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954,
in cases G.R. Nos. L-5618 and L-5620 (unpublished).
Oppositors Fernandez and Reyes petitioned for reconsideration and/or new trial, insisting that the issues
of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto
the parties the right to raise the issue of implied revocation at the opportune time."
On February 27, 1962, after receiving further evidence on the issue whether the execution by the
testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in
1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article
957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the
oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds
of sale." Whereupon, the oppositors elevated the case to the Court of Appeals.
In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree
of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether
or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-
appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had
been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26,
1943 and April 3, 1944.
There being no controversy that the probate decree of the Court below was not appealed on time, the
same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree
nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the
decree was correctly dismissed.
The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the testament was
duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of
revocation becomes superfluous: in law, there is no such will and hence there would be nothing to
revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but
merely implied from subsequent acts of the- testatrix allegedly evidencing an abandonment of the
original intention to bequeath or devise the properties concerned. As such, the revocation would not
affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can
preclude probate of the revoked testament (Trillana vs. Crisostomo, supra).
As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the
presentation and probate of a will are requirements of public policy, being primarily designed to protect
the testator's expressed wishes, which are entitled to respect as a consequence of the decedent's
ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of
a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation
(Revised Rule 75) It would be non-sequitur to allow public policy to be evaded on the pretext of estoppel.
Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is
patently unmeritorious and the Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1
As observed by the Court of Appeals, the existence of any such change or departure from the original
intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that
the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee
Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed
in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620,
promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on
account of the transfers, thereby rendering it even more doubtful whether in conveying the property to
her legatee, the testatrix merely intended to comply in advance with what she had ordained in her
testament, rather than an alteration or departure therefrom. 1 Revocation being an exception, we
believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil
Code of the Philippines does not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily
result in the revocation of the legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that
If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not
expressing her own free will and intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to abandon the original legacy. True it
is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by
reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo
Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense.
2 Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were
voided because the testator was mentally deranged at the time, the revocatory effect ordained by the
article should still ensue. And the same thing could be said if the alienation (posterior to the will) were
avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way
differs from one made through violence or intimidation. In either case, the transferor is not expressing his
real intent, 3 and it can not held that there was in fact an alienation that could produce a revocation of
the anterior bequest.
Belen vs. BPI
Benigno Diaz executed a codicil on September 29, 1944 On November 7, 1944, Benigno Diaz died; and
the aforesaid codicil, together with the will, was admitted to probate in Special Proceedings No. 894 of
the same Court of First Instance of Manila. The proceedings for the administration of the estate of
Benigno Diaz were closed in 1950 and the estate was thereafter put under the administration of the
appellee Bank of the Philippine Islands, as trustee for the benefit of the legatees.
Filomena Diaz died on February 8, 1954, leaving two legitimate children, Milagros Belen de Olaguera,
married, with seven (7) legitimate children, and Onesima D. Belen, single.
On March 19, 1958, Onesima D. Belen filed a petition in Special Proceedings No. 9226, contending that
the amount that would have appertained to Filomena Diaz under the codicil should now be divided
(equally) only between herself and Milagros Belen de Olaguera, as the surviving children of the said
deceased, to the exclusion, in other words, of the seven (7) legitimate children of Milagros Belen de
Olaguera. The court, in its order of May 23, 1958, denied, as we initially pointed out, Onesima's petition.
From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was in
error in holding that its former resolution of September 16, 1955 had been affirmed by our decision of
February 28, 1958 in the case of Arguelles vs. Belen de Olaguera, G. R. No. L-10164 Feb. 28, 1958;
and (2) that the term "sus descendientes legitimos," as used in the codicil, should be interpreted to mean
descendants nearest in degree to the original legatee Filomena Diaz. In the present case, they are her
two daughters (Milagros and Onesima Belen), thereby excluding the seven grandchildren of said
legatee.
As to the actual meaning of the provision —
"El resto se distribuira a las siguientes personas que aun viven, o a sus descendientes legitimos",
it is undeniable that by this clause the testator ordained a simple substitution (sustitucion vulgar) with a
plurality of substitutes for each legatee. This form of substitution is authorized by the first part of Article
860 of the Civil Code (Art. 778 of the Code of 1889):
"Two or more persons may be substituted for one; and one person for two or more heirs."
The issue is now squarely before us: do the words "sus descendientes legitimos" refer conjointly to all
living descendants (children and grandchildren) of the legatee, as a class; or do they refer to the
descendants nearest in degree?
Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in
degree to Filomena Diaz; and that the legacy should be therefore divided equally between her and her
sister Milagros Belen de Olaguera, to the exclusion of the latter's sons and daughters, grandchildren of
the original legatee, Filomena Diaz. As authority in support of her thesis, appellant invokes Article 959 of
the Civil Code of the Philippines (reproducing ne varietur Article 751 of the Code of 1889):
"A distribution made in general terms in favor of the testator's relatives shall be understood as made in favor of
those nearest in degree."
The argument fails to note that this article is specifically limited in its application to the case where the
beneficiaries are relatives of the testator, not those of the legatee. In such an event, the law assumes
that the testator intended to refer to the rules of intestacy, in order to benefit the relatives closest to him,
because, as Manresa observes, —
But the ratio legis (that among a testator's relatives the closest are dearest) obviously does not apply
where the beneficiaries are relatives of another person (the legatee) and not of the testator. There is no
logical reason in this case to presume that the testator intended to refer to the rules of intestacy, for he
precisely made a testament and provided substitutes for each legatee; nor can it be said that his
affections would prefer the nearest relatives of the legatee to those more distant, since he envisages all
of them in a group, and only as mere substitutes for a preferred beneficiary.
Should Article 959 (old Art. 751) be applied by analogy? There are various reasons against this. The
most important one is that under this article, as recognized by the principal commentators on the Code
of 1889, the nearest exclude all the farther relatives and the right of representation does not operate.
The result would be that by applying to the descendants of Filomena Diaz the "nearest relatives" rule of
Article 959, the inheritance would be limited to her children, or anyone of them, excluding the
grandchildren altogether. This could hardly be the intention of the testator who, in the selfsame clause
10 of his codicil (ante), speaks of "cuatro hijos de mi difunto hermano Fabian" and of "los hijos de
Domingo Legarda," as well as of "descendientes legitimos" of the other legatees, to us indicating clearly
that he understood well that hijos and descendientes are not synonymous terms. Observe that, in
referring to the substitutes of Filomena Diaz, Nestor Santiago and Isabel M. de Santiago, the testator,
does not even use the description "sus hijos o descendientes," but only "descendientes".
There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of
compulsory (forced) heirs, he could have rendered inoperative all the articles mentioned, if he had so
desired. But without any other supporting circumstances, we deem it extremely conjectural to hold that
by the simple expression "o a sus descendientes legitimos," the testator Benigno Diaz did intend to
circumvent all the legal provisions heretofore quoted. It was incumbent upon appellant to prove such
intention on the part of the testator; yet she has not done so.
It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the question
whether a bequest to "relatives" or "issue," made in general terms, gives rise to a succession per capita
or per stirpes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme Court of Illinois said:
"The meaning of the word 'descendants', when used in a will or deed to designate a class to take property passing
by the will or deed, has been frequently considered and decided by the courts of England and the United States.
The established rule in England from an early date was that the word 'descendants' or the word 'issue', unexplained
by anything in the context of the instrument, means all persons descending lineally from another, to the remotest
degree, and includes persons so descended, even though their parents are living, and that such descendants take per
capita and not per stirpes."
"The courts of this country are divided on the question of whether in case of a gift or conveyance to
'descendants' or 'issue', children take concurrently with their parents. The so-called English rule has
been adhered to in New York, New Jersey, and Tennessee. . . . On the other hand, the courts of
Massachusetts, Maine, Rhode Island and South Carolina have held that, in case of a gift or conveyance
to descendants or issue, unexplained by anything in the context of the instrument, children do not take
concurrently with their parents."
We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the
instant case is that the testator, by designating a class or group of legatees, intended all members
thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena
Diaz should be equally divided among her surviving children and grandchildren.
LEGAL OR INTESTATE SUCCESSION
XIX. GENERAL PROVISIONS
A. In General
Art. 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)
Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the
rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the
surviving spouse, and in the State. (913a)
Rosales vs. Rosales

In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is
whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-
law.
In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring
the following individuals the legal heirs of the deceased and prescribing their respective share of the
estate — Fortunato T. Rosales (husband) 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox
Rosales, 1/4; and Antonio Rosales (son), 1/4.
This declaration was reiterated by the trial court in its Order dated February 4, 1975. These Orders
notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving
spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her
mother-in-law together with her son, Macikequerox Rosales.
In sum, the petitioner poses two (2) questions for Our resolution. First — is a widow (surviving spouse)
an intestate heir of her mother-in-law? Second — are the Orders of the trial court which excluded the
widow from getting a share of the estate in question final as against the said widow?
Our answer to the first question is in the negative. Intestate or legal heirs are classified into two (2)
groups, namely, those who inherit by their own right, and those who inherit by the right of representation.
1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate
succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981
of the same law.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an
intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to
inherit from her mother-in-law either by her own right or by the right of representation. The provisions of
the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with
meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all
the more confirms Our observation. If the legislature intended to make the surviving spouse an intestate
heir of the parent-in-law, it would have so provided in the Code.
The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law
By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's
claim. A careful examination of the said Article confirms that the estate contemplated therein is the
estate of the deceased spouse. The estate which is the subject matter of the intestate estate
proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It
is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by
the right of representation as provided by Article 981 of the Code.
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of
his blood relationship. He does not succeed his father, Carterio Rosales (the person represented)
who predeceased his grandmother, Petra Rosales, but the latter whom his father would have
succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood
with her mother-in-law.
Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may,
said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales
who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased
father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the
second question posed by the petitioner. Accordingly, it is Our considered opinion, and We so hold,
that a surviving spouse is not an intestate heir of his or her parent-in-law. WHEREFORE, in view
of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner.
Let this case be remanded to the trial court for further proceedings.
Art. 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)
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los
Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others,
that on August 24, 1963, she and several co-heirs, including the defendant, executed an extrajudicial
partition agreement (a copy of which was attached to the complaint) over a certain portion of land with
an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the
defendant, in addition to his corresponding share, on condition that the latter would undertake the
development and subdivision of the estate which was the subject matter of the agreement, all expenses
in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3)
lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the
subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the
aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under
the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs.
In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set
up the affirmative defenses that the plaintiff had no cause of action against him because the said
agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la
Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the
proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The
answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her
share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as
the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of
reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition
agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be
ordered to pay him the sum of P2,500.00.
In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the
extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit
from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court
ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as
described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant
should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose),
and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees,
and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for
New Trial' but the same was denied. Hence, this appeal.
In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate,
subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on
October 16, 1962 that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a
grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de
la Cruz; that plaintiff-appellee's mother died on September 22, 1935, thus pre-deceasing Pelagia de la
Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate
among the heirs of Pelagia de la Cruz.

The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent. We are
convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could
not inherit from the latter by right of representation.
"ART. 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."
Much less could plaintiff-appellee inherit in her own right.
"ART. 962. In every inheritance, the relative nearest in degree excludes the more distant
ones, saving the right of representation when it properly takes place . . ."
In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces,
one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law
from the inheritance.
But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition
agreement insofar as her right to bring the present action is concerned? They did not confer upon her
the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted
by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz.
Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation
of her deceased mother.
It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the
erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee
not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code,
which reads:
"ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall
be void only with respect to such person."
Partition of property affected between a person entitled to inherit from the deceased owner thereof and
another person who thought he was an heir, when he was not really and lawfully such, to the prejudice
of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs.
De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the
right to have its terms enforced.
The extrajudicial partition agreement being void with respect to plaintiff-appellee, she may not be heard
to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17
Am. Jur. 605), or on acts which are prohibited by law or are against public policy
The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion
we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article
2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided
on a stipulation of facts and no evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently correct in his contention that the lower court
erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to
him his corresponding share of said portion received by appellee under the void partition. Remote
relatives or unrelated persons who unduly received and took possession of the property of a deceased
person without any right, by virtue of a null and void partition, must restore it to the legitimate successor
in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been
disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations
of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant
as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this
aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been
supported by evidence which appellant should have presented in the lower court but did not.

C. Right Representation
Art. 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)
Art. 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)
Art. 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)
Art. 973. In order that representation may take place, it is necessary that the representative
himself be capable of succeeding the decedent. (n)
Art. 974. Whenever there is succession by representation, the division of the estate shall be
made per stirpes, in such manner that the representative or representatives shall not inherit
more than what the person they represent would inherit, if he were living or could inherit. (926a)
Art. 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)
Art. 976. A person may represent him whose inheritance he has renounced. (928a)
Art. 977. Heirs who repudiate their share may not be represented. (929a)
Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if
any one of them should have died, leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal portions. (933)
Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate. (843a)
Art. 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)
Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the
children of the descendant's brothers and sisters of the full blood, the former shall inherit per
capita, and the latter per stirpes. (948)
Teotica vs. Del Val Chan
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving properties
worth P600,000.00. She left a will written in Spanish which she executed at her residence in No. 2
Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the will and on the left margin of
each and every page thereof in the presence of Pilar Borja, Pilar G. Sanchez, and Modesto Formilleza,
who in turn affixed their signatures below the attestation clause and on the left margin of each and every
page of the will in the presence of the testatrix and of each other. Said will was acknowledged before
Notary Public Niceforo S. Agaton by the testatrix and her witnesses.
Among the many legacies and devises made in the will was one of P20,000.00 to Rene A. Teotico,
married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix left the usufruct of
her interest in the Calvo building, while the naked ownership thereof she left in equal parts to her
grandchildren who are the legitimate children of said spouses. The testatrix also instituted Josefina
Mortera as her sole and universal heir to all the remainder of her properties not otherwise disposed of in
the will.
Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the
testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the same
testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the following
grounds: (1) said will was not executed as required by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and (3) the will was executed under duress,
threat or influence of fear.
After the parties had presented their evidence, the probate court rendered its decision on November 10,
1960 admitting the will to probate but declaring the disposition made in favor of Dr. Rene Teotico void
with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by
way of intestate succession.
The motions for reconsideration above adverted to having been denied, both petitioner and oppositor
appealed from the decision, the former from that portion which nullifies the legacy in favor of Dr. Rene
Teotico and declares the vacated portion as subject of succession in favor of the legal heirs, and the
latter from that portion which admits the will to probate. And in this instance both petitioner and oppositor
assign several error which, stripped of non-essentials, may be boiled down to the following: (1) Has
oppositor Ana del Val Chan the right to intervene in this proceeding?; (2) Has the will in question been
duly admitted to probate?; and (3) Did the probate court commit an error in passing on the intrinsic
validity of the provisions of the will and in determining who should inherit the portion to be vacated by the
nullification of the legacy made in favor of Dr. Rene Teotico?
It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he
must have an interest in the estate, or in the will, or in the property to be affected by it either as executor
or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963);
and an interested party has been defined as one who would be benefitted by the estate such as an heir
or one who has a claim against the estate like a creditor (Idem.). On the other hand, in Saguinsin vs.
Lindayag, et al., L-17750, December 17, 1962, this Court said:
"According to Section 2, Rule 80 of the Rules of Court, a petition for letters of administration must be filed by an
'interested person.' An interested party has been defined in this connection as one who would be benefitted by the
estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction that in civil actions as well as special
proceedings, the interest required in order that a person may be a party thereto must be material and direct, and not
merely indirect or contingent. (Trillana vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Barrion,
70 Phil. 311)."
The question now may be asked: Has oppositor any interest in any of the provisions of the will, and, in
the negative, would she acquire any right to the estate in the event that the will is denied probate?
Under the terms of the will, oppositor has no right to intervene because she has no interest in the estate
either as heir, executor, or administrator, nor does she have any claim to any property affected by the
will, because it nowhere appears therein any provision designating her as heir, legatee or devisee of any
portion of the estate. She has also no interest in the will either as administratrix or executrix. Neither has
she any claim against any portion of the estate because she is not a co-owner thereof, and while she
previously had an interest in the Calvo building located in Escolta, she had already disposed of it long
before the execution of the will.
"'Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code
denies any right of succession. They cannot be called relatives and they have no right to inherit. Of course, there is
a blood tie, but the law does not recognize it. In this, article 943 is based upon the reality of the facts and upon the
presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate
family; the legitimate family is, in turn, hated by the natural child; the latter considers the privileged condition of
the former and the resources of which it is thereby deprived; the former, in turn, sees in the natural child nothing
but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life;
the law does no more them recognize this truth, by avoiding further grounds of resentment.' (7 Manresa, 3d ed., p.
110.)"
The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera
because under our law the relationship established by adoption is limited solely to the adopter and the
adopted does not extend to the relatives of the adopting parents or of the adopted child except only as
expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals
of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives
of the adopter.

"The relationship established by the adoption, however, is limited to the adopting parent, and does not
extend to his other relatives, except as expressly provided by law. Thus, the adopted child cannot be
considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate
children which they may have after the adoption, except that the law imposes certain impediments to
marriage by reason of adoption. Neither are the children of the adopted considered as descendants of
the adopter. The relationship created is exclusively between, the adopter and the adopted, and does not
extend to the relatives of either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652)
We have examined the evidence on the matter and we are fully in accord with the foregoing observation.
Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had the opportunity to
exert pressure on the testatrix simply because she lived in their house several years prior to the
execution of the will and that she was old and suffering from hypertension in that she was virtually
isolated from her friends for several years prior to her death is insufficient to disprove what the
instrumental witnesses had testified that the testatrix freely and voluntarily and with full consciousness of
the solemnity of the occasion executed the will under consideration. The exercise of improper pressure
and undue influence must be supported by substantial evidence and must be of a kind that would
overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express
the will of another rather than her own (Coso vs. Deza, 42 Phil., 596). The burden is on the person
challenging the will that such influence was exerted at the time of its execution, a matter which here was
not done, for the evidence presented not only is sufficient but was disproved by the testimony the
instrumental witnesses.
The question of whether the probate court could determine the intrinsic validity of the provisions of a will
has been decided by this Court in a long line of decisions among which the following may be cited:
"Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained in probate
proceeding because its only purpose is merely to determine if the will has been executed in accordance
with the requirements of the law."
"To establish conclusively as against everyone, and once for all, the facts that a will was executed with
the formalities required by law and that the testator was in a condition to make a will, is the only purpose
of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in such
proceedings determines and can determine nothing more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void
and another one valid."
Diaz vs. IAC
Private respondent filed a Petition dated January 23, 1976 with the Court of First Instance of Cavite in
Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate of the late Simona Pamuti Vda. de
Santero," praying among other things, that the corresponding letters of Administration be issued in her
favor and that she be appointed as special administratrix of the properties of the deceased Simona
Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together
with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila
Asuncion; 2) that Juliana married Simon Jardin and out of their union were born Felisa Pamuti and
another child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual
Santero and the mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his
parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970;
Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of his death was
survived by his mother Simona Santero and his six minor natural children to wit: four minor children with
Anselma Diaz and two minor children with Felixberta Pacursa.
Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and Motion to Exclude
Felisa Pamuti-Jardin dated March 13, 1980, from further taking part or intervening in the settlement of
the intestate estate of Simona Pamuti Vda. de Santero, as well as in the intestate estate of Pascual
Santero and Pablo Santero.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from further taking
part or intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero, as well as
in the intestate estates of Pascual Santero and Pablo Santero and declared her to be, not an heir of the
deceased Simona Pamuti Vda. de Santero." 3

After her Motion for Reconsideration was denied by the trial court in its order dated November 1, 1980,
Felisa P. Jardin filed her appeal to the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision
4 was rendered by the Intermediate Appellate Court on December 14, 1983 (reversing the decision of
the trial court) the dispositive portion of which reads — "WHEREFORE, finding the Order appealed from
not consistent with the facts and law applicable, the same is hereby set aside and another one entered
sustaining the Orders of December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona
Pamuti Vda. de Santero and ordering oppositors-appellees not to interfere in the proceeding for the
declaration of heirship in the estate of Simona Pamuti Vda. de Santero."
The real issue in this case may be briefly stated as follows — who are the legal heirs of Simona Pamuti
Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo
Santero)?
The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de Santero and the issue
here is whether oppositors-appellees (petitioners herein) as illegitimate children of Pablo Santero could
inherit from Simona Pamuti Vda. de Santero, by right of representation of their father Pablo Santero who
is a legitimate child of Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the matter? Petitioners contend in their pleadings that Art. 990
of the New Civil Code is the applicable law on the case. They contend that said provision of the New
Civil Code modifies the rule in Article 941 (Old Civil Code) and recognizes the right of representation
(Art. 970) to descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil Code denied
illegitimate children the right to represent their deceased parents and inherit from their deceased
grandparents, but that Rule was expressly changed and/or amended by Art. 990 New Civil Code which
expressly grants the illegitimate children the right to represent their deceased father (Pablo Santero) in
the estate of their grandmother (Simona Pamuti)" 5
Petitioners' contention holds no water. Since the hereditary conflict refers solely to the intestate estate of
Simona Pamuti Vda. de Santero, who is the legitimate mother of Pablo Santero, the applicable law is the
provision of Art. 992 of the Civil Code which reads as follows:
ART. 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).
Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the oppositors
(petitioners herein) are the illegitimate children of Pablo Santero.
Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized
by law for the purposes of Art. 992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully
looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child; the latter
considers the privileged condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. 6
Thus, petitioners herein cannot represent their father Pablo Santero in the succession of the letter to the
intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of the barrier
provided for under Art. 992 of the New Civil Code.
"In the Spanish Civil Code of 1889 the right of representation was admitted only within the
legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child
can not inherit ab intestato from the legitimate children and relatives of his father and mother.
The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article
943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles
(990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his
own descendants, whether legitimate or illegitimate. So that while Art, 992 prevents the
illegitimate issue of a legitimate child from representing him in the intestate succession of the
grandparent, the illegitimates of an illegitimate child can now do so. This difference being

indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a
choice and decide either that the illegitimate issue enjoys in all cases the right of representation,
in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify
Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis-
a-vis illegitimate children. (Reflections on the Reform of Hereditary Succession, JOURNAL of
the Integrated Bar of the Philippines, First Quater, 1976, Volume 4, Number 1, pp. 40-41).
It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and
relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" includes
all the kindred of the person spoken of. 7 The record shows that from the commencement of this case
the only parties who claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are
Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners
herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not
commit any error in holding Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of
the late Simona Pamuti Vda. de Santero.
WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby AFFIRMED
Debacayo vs. Feraris
Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She
was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22,
1960 of the petition for the summary settlement of her estate, she has not been heard of and her
whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was
known to be alive, she was declared presumptively dead for purposes of opening her succession and
distributing her estate among her heirs.
Melodia Ferraris left properties in Cebu City, consisting of one third (1/3) share in the estate of her aunt,
Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special
Proceeding No. 13-V of the same court.
The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was
survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt, and half- sister of
decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed
Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo
Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be the nearest
intestate heirs and seek to participate in the estate of said Melodia Ferraris.
The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased
person when he or she is survived only by collateral relatives, to wit: an aunt and the children of a
brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's
brother in the inheritance or will the former be excluded by the latter?
Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or
equal degree of relationship as the oppositors-appellees, three degrees removed from the decedent;
and that under article 975 of the New Civil Code no right or representation could take place when the
nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather
the former succeed in their own right.
We agree with appellants that as an aunt of the deceased, she is as far distant as the nephews from the
decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are
counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art.
966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of
representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased, as provided
expressly by Article 975:
"ART. 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."
Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of
the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This

is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that
provided as follows:
Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a
precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also
and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil
Code now in force (R. A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:
"ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the
former, whether of the whole blood or not, the surviving spouse, if not separated by a final
decree of divorce shall succeed to the entire estate of the deceased."
"ART. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters,
nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased.
The latter shall succeed without distinction of lines or preference among them by reason of the
whole blood."
It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited
ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or
widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews
and nieces and brothers and sisters of the deceased, but without altering the preferred position of the
latter vis a vis the other collaterals.
Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as
declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals",
since preference among them is according to their proximity to the decedent, as established by Article
962, paragraph 1.
"ART. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place."
But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On
the contrary, in the first paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which counsel for
appellants had unethically omitted to quote), Tolentino expressly states:
"Other Collaterals.— The last of the relatives of the decedent to succeed in intestate
succession are the collaterals other than brothers or sisters or children of brothers or
sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we
can safely say, there is hardly any affection to merit the succession of collaterals. Under
the law, therefore, persons beyond the fifth degree are no longer considered as relatives,
for successional purposes.
"Article 1009 does not state any order of preference. However, this article should be
understood in connection with the general rule that the nearest relatives exclude the
farther. Collaterals of the same degree inherit in equal parts, there being no right of
representation. They succeed without distinction of lines or preference among them on
account of the whole blood relationship." (Italics supplied)
We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may
not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and
qualified to succeed.
Corpus vs. Corpus
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated
August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863.
The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527.
The complete text of the will is quoted in that decision.
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas
Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas
Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus.

Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted
by the administrator and the legatees named in the will. That project of partition was opposed by the
estate of Luis R. Yangco whose counsel contended that an intestacy should be declared because the
will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented
Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty.
Cruz appeared as her counsel.
The probate court in its order of December 26, 1946 approved the project of partition. It held that in
certain clauses of the will the testator intended to conserve his properties not in the sense of disposing
of them after his death but for the purpose of preventing that "tales bienes fuesen malgastados o
desfilpar rados por los legatarios" and that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded "como no puesta o no existente". It concluded that "no hay
motivos legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada."
On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of
the Yangco estate. The probate court approved that agreement and noted that the 1945 project of
partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and
laches. It held that the intrinsic validity of Yangco's will was passed upon in its order dated December 26,
1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate.
Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco
was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res
judicata and laches.
In the disposition of this appeal, it is not necessary to resolve whether Yangco's will had been duly
legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may
be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal
heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share
in Yangco's estate?
To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco
"a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos
por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco
was an acknowledged natural child and not a legitimate child was the statement in the will of his father,
Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his
acknowledged natural children.
On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate.
A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro
matrimonio. It is disputably presumed "That a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no
divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the
ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of
Court).
Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita
Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita
Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in
dismissing the complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would
have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate
child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same manner from the illegitimate child".

That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate
family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize
the blood tie and seeks to avoid further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp.
185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an acknowledged natural or legitimated child
should die without issue, either legitimate or acknowledged, the father or mother who acknowledged
such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit
from it share and share alike. In default of natural ascendants, natural and legitimated children shall be
succeeded by their natural brothers and sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were
legitimate, had no right to succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the
mother cannot succeed her illegitimate child. By reason of that same rule, the natural child cannot
represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs.
Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The
natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural
mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29).
XX. ORDER OF INTESTATE SUCCESSION
A. Descending Direct Line
1. Estate of legitimate decedent

d. Illegitimate children
Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be
in the proportions prescribed by Article 895. (n)
Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased. (939a)
Art. 989. If, together with illegitimate children, there should survive descendants of another
illegitimate child who is dead, the former shall succeed in their own right and the latter by right of
representation. (940a)
Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall
be transmitted upon their death to their descendants, who shall inherit by right of representation
from their deceased grandparent. (941a)
Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with
them, taking one-half of the estate, whatever be the number of the ascendants or of the
illegitimate children. (942-841a)
Corpus vs. Corpus
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated
August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863.
The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527.
The complete text of the will is quoted in that decision.

Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas
Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas
Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus.
Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted
by the administrator and the legatees named in the will. That project of partition was opposed by the
estate of Luis R. Yangco whose counsel contended that an intestacy should be declared because the
will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented
Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty.
Cruz appeared as her counsel.
The probate court in its order of December 26, 1946 approved the project of partition. It held that in
certain clauses of the will the testator intended to conserve his properties not in the sense of disposing
of them after his death but for the purpose of preventing that "tales bienes fuesen malgastados o
desfilpar rados por los legatarios" and that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded "como no puesta o no existente". It concluded that "no hay
motivos legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada."
On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of
the Yangco estate. The probate court approved that agreement and noted that the 1945 project of
partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and
laches. It held that the intrinsic validity of Yangco's will was passed upon in its order dated December 26,
1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate.
Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco
was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res
judicata and laches.
In the disposition of this appeal, it is not necessary to resolve whether Yangco's will had been duly
legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may
be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal
heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share
in Yangco's estate?
To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco
"a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos
por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco
was an acknowledged natural child and not a legitimate child was the statement in the will of his father,
Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his
acknowledged natural children.
On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate.
A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro
matrimonio. It is disputably presumed "That a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no
divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the

ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of
Court).
Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita
Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita
Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in
dismissing the complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would
have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate
child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate
family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize
the blood tie and seeks to avoid further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp.
185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an acknowledged natural or legitimated child
should die without issue, either legitimate or acknowledged, the father or mother who acknowledged
such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit
from it share and share alike. In default of natural ascendants, natural and legitimated children shall be
succeeded by their natural brothers and sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were
legitimate, had no right to succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the
mother cannot succeed her illegitimate child. By reason of that same rule, the natural child cannot
represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs.
Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The
natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural
mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29).
Leonardo vs. CA
From the record, it appears that Francisca Reyes who died intestate on July 12, 1942 was survived by
two (2) daughters, Maria and Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her
daughter, Pascuala Cailles who predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles
died in 1949 without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of the late Sotero
Leonardo, filed a complaint for ownership of properties, sum of money and accounting in the Court of
First Instance of Rizal seeking judgment (1) to be declared one of the lawful heirs of the deceased
Francisca Reyes, entitled to one-half share in the estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties left by said Francisca Reyes, described in

the complaint, partitioned between him and defendant Maria Cailles, and (3) to have an accounting of all
the income derived from said properties from the time defendants took possession thereof until said
accounting shall have been made, delivering to him his share therein with legal interest.
Answering the complaint, private respondent Maria Cailles asserted exclusive ownership over the
subject properties and alleged that petitioner is an illegitimate child who cannot succeed by right of
representation. For his part, the other defendant, private respondent James Bracewell, claimed that said
properties are now his by virtue of a valid and legal deed of sale which Maria Cailles had subsequently
executed in his favor. These properties were allegedly mortgaged to respondent Rural Bank of
Parañaque, Inc. sometime in September 1963.
"RESPONDENT COURT ERRED IN HOLDING THAT THE PROPERTIES IN QUESTION ARE

THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS.
II
"RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT ESTABLISHED

HIS FILIATION.
III
"RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT

GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY
REPRESENTATION."
To begin with, the Court of Appeals found the subject properties to be the exclusive properties of
the private respondents.
"After declaring it in her name, Maria Cailles paid the realty taxes starting from 1918 up to 1948.
Thereafter as she and her son Narciso Bracewell, left for Nueva Ecija, Francisca Reyes
managed the property and paid the realty tax of the land. However, for unexplained reasons,
she paid and declared the same in her own name. Because of this, plaintiff decided to run after
this property, erroneously thinking that as the great grandson of Francisca Reyes, he had some
proprietary right over the same.
"After declaring it in her name, Maria Cailles likewise paid the realty tax in 1917 and continued paying
the same up to 1948. Thereafter when she and her son, Narciso Bracewell, established their residence
in Nueva Ecija, Francisca Reyes administered the property and like in the first case, declared in 1949
the property in her own name. Thinking that the property is the property of Francisca Reyes, plaintiff filed
the instant complaint, claiming a portion thereof as the same allegedly represents the share of his father.
"Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son of
one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since Pascuala
predeceased Francisca Reyes, and that his father, Sotero, who subsequently died in 1944,
survived Francisca Reyes, plaintiff can consequently succeed to the estate of Francisca Reyes
by right of representation.
"Since his supposed right will either rise or fall on the proper evaluation of this vital evidence,
We have minutely scrutinized the same, looking for that vital link connecting him to the family
tree of the deceased Francisca Reyes. However, this piece of evidence does not in any way
lend credence to his tale.

"This is because the name of the child described in the birth certificate is not that of the plaintiff
but a certain 'Alfredo Leonardo' who was born on September 13, 1938 to Sotero Leonardo and
Socorro Timbol. Other than his bare allegation, plaintiff did not submit any durable evidence
showing that the 'Alfredo Leonardo' mentioned in the birth certificate is no other than he himself.
Thus, even without taking time and space to go into further details, We may safely conclude that
plaintiff failed to prove his filiation which is a fundamental requisite in this action where he is
claiming to be an heir in the inheritance in question." 4
That is likewise a factual finding which may not be disturbed in this petition for review in the absence of a
clear showing that said finding is not supported by substantial evidence, or that there was a grave abuse
of discretion on the part of the court making the finding of fact.
Referring to the third assignment of error, even if it is true that petitioner is the child of Sotero Leonardo,
still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca
Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown
by the fact that when he was born on September 13, 1938, his alleged putative father and mother were
not yet married, and what is more, his alleged father's first marriage was still subsisting. At most,
petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate
children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil Code of the
Philippines.)
2. Estate of Illegitimate decedent

a. Legitimate children and descendant
Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of
the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left,
the parents are not entitled to any legitime whatsoever. If only the widow or widower survives
with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary
estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)
Art. 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)
SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased. (939a)
Art. 989. If, together with illegitimate children, there should survive descendants of another
illegitimate child who is dead, the former shall succeed in their own right and the latter by right of
representation. (940a)
Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with
them, taking one-half of the estate, whatever be the number of the ascendants or of the
illegitimate children. (942-841a)
Art. 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)
Art. 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)
b. Illegitimate children and descendant
B. Surviving Spouse
Art. 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)
Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of each of the children. (834a)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he
or she shall not have any of the rights granted in the preceding articles. (n)
Santillon vs. Miranda
On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving
one son Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of
land located in that province.
About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to
said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and
Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all
conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that
Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the
properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the
estate was not necessary, there being a case for partition pending; and (d) that if administration was
necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It
appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate.

On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims
of the parties with respect to their respective rights in the estate. Invoking Art. 892 of the New Civil Code,
he insisted that after deducting 1/2 from the conjugal properties as the conjugal share of Perfecta, the
remaining 1/2 must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the other
hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the New Civil Code, to
another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while
Perfecta claimed 1/2.
From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved.
The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the lower court is
appealable. And the second, raised in appellant's lone assignment of error, is: How shall the estate of a
person who dies intestate be divided when the only survivors are the spouse and one legitimate child?
The Second Issue:— Petitioner rests his claim to 3/4 of his father's estate on Art. 892, of the New Civil
Code which provides that:
"If only the legitimate child or descendant of the deceased survives, the widow or
widower shall be entitled to one-fourth of the hereditary estate. . . .'
As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which
provides:
"If a widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of each of the children."
Replying to Perfecta's claim, Claro says the article is unjust and inequitable to the extent that it grants
the widow the same share as that of the children in intestate succession, whereas in testate, she is
given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its
alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a
legitimate child, inasmuch as in statutory construction, the plural word "children" includes the singular,
"child".
Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996
comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro
cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art. 892 merely fixes the legitime
of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may
indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when
they concur with each other, it does not fix the amount of shares that such child and spouse are entitled
to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession
shall apply; i. e. Art. 996.
This is, remember, intestate proceedings. In the New Civil Code's chapter in legal or intestate
succession, the only article applicable is Art. 996. Our colleague Mr. Justice J. B. L. Reyes, professor of
Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives
with only one legitimate child, they share the estate in equal parts. 1 Senator Tolentino in his
commentaries writes as follows:
"One child Surviving. — If there is only one legitimate child surviving with the spouse,
since they share equally, one-half of the estate goes to the child and the other half goes
to the surviving spouse. Although the law refers to "children or descendants," the rule in
statutory construction that the plural can be understood to include the singular is
applicable in his case." (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)
The theory of those holding otherwise, seems to be premised on these propositions: (a) Art. 996 speaks
of "children," therefore it does not apply when there is only one "child"; consequently Art. 892 (and Art.
888) should be applied, thru a process of judicial construction and analogy; (b) Art. 996 is unjust or
unfair because whereas in testate succession, the widow is assigned one-fourth only (Art. 892), she
would get 1/2 in intestate. Children:— It is a maxim of statutory construction that words in plural include
the singular. 2 So Art. 996 could or should be read (and so applied): "if the widow or widower and a
legitimate child are left, the surviving spouse has the same share as that of the child." Indeed, if we
refuse to apply the article to this case on the ground that "child" is not included in "children", the
consequences would be tremendous, because "children" will not include "child"
In fact, those who say, "children" in Art. 996 does not include "child" seem to be inconsistent when they
argue from the premise that "in testate succession the only legitimate child gets one-half and the widow,
one-fourth." The inconsistency is clear, because the only legitimate child gets one-half under Art. 888,
which speaks of "children", not "child". So if "children" in Art. 888 includes "child", the same meaning
should be given to Art. 996.
Unfairness of Art. 996. — Such position, more clearly stated is this: In testate succession, where there is
only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in
intestate, if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or
inequitable, they insist.
On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-
fourth." She or he may get one-half — if the testator so wishes. So, the law virtually leaves it to each of
the spouses to decide (by testament) whether his or her only child shall get more than his or her
survivor.
C. Ascending Direct line
1. Legitimate parents and ascendants
Art. 985. In default of legitimate children and descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)
Art. 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)
Art. 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)
2. Illegitimate parents
Art. 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)
D. Collateral Line

Art. 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)
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in
equal shares. (947)
Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the
children of the descendant's brothers and sisters of the full blood, the former shall inherit per
capita, and the latter per stirpes. (948)
Art. 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)
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship
in the collateral line. (955a)
E. The State
Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the
preceding Sections, the State shall inherit the whole estate. (956a)
Art. 1012. In order that the State may take possession of the property mentioned in the preceding
article, the pertinent provisions of the Rules of Court must be observed. (958a)
Art. 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)
Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim
such person shall be entitled to the possession of the same, or if sold the municipality or city
(n)
PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION
XXI. Right of Accretion
Art. 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)
Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall
be necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso; and

(2) That one of the persons thus called die before the testator, or renounce the
inheritance, or be incapacitated to receive it. (928a)
Art. 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.
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a
right of accretion. (983a)
Art. 1018. In legal succession the share of the person who repudiates the inheritance shall
always accrue to his co-heirs. (981)
Art. 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)
Art. 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)
Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the
same conditions established for heirs. (987a)
XXII. Partition and Distribution of Estate
A. Partition
Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its
partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)
Art. 1079. Partition, in general, is the separation, division and assignment of a thing held in
common among those to whom it may belong. The thing itself may be divided, or its value. (n)
Art. 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)
Art. 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)
Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a
compromise, or any other transaction. (n)
Art. 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)
Art. 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)
Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the
property into lots, or assigning to each of the co-heirs things of the same nature, quality and
kind. (1061)
Art. 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)

Art. 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)
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to the rights of the purchaser by 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)
Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir
to whom said property has been adjudicated. (1065a)
Art. 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)
Alsua-Betts vs. CA
Sps. Doromal vs. CA, Javellana
Lot 3504 of the cadastral survey of Iloilo, situated in the poblacion of La Paz, one of its districts, with an area of a
little more than 2-1/2 hectares was originally decreed in the name of the late Justice Antonio Horilleno, in 1916,
under Original Certificate of Title No. 1314, Exh. A; but before he died, on a date not particularized in the record,
he executed a last will and testament attesting to the fact that it was a co-ownership between himself and his
brothers and sisters, Exh. C; so that the truth was that the owners or better stated, the co-owners were; beside
Justice Horilleno, 'Luis, Soledad, Fe, Rosita, Carlos and Esperanza,'
all surnamed Horilleno, and since Esperanza had already died, she was succeeded by her only
daughter and heir herein plaintiff. Filomena Javellana, in the proportion of 1/7 undivided ownership
each; now then, even though their right had not as yet been annotated in the title, the co-owners led by
Carlos, and as to deceased Justice Antonio Horilleno, his daughter Mary, sometime since early 1967,
had wanted to sell their shares, or if possible if Filomena Javellana were agreeable, to sell the entire
property, and they hired an acquaintance Cresencia Harder, to look for buyers, and the latter came to
interest defendants, the father and son, named Ramon Doromal, Sr. and Jr., and in preparation for the
execution of the sale, since the brothers and sisters Horilleno were scattered in various parts of the
country, Carlos in Ilocos Sur, Mary in Baguio, Soledad and Fe, in Mandaluyong, Rizal, and Rosita in
Basilan City, they all executed various powers of attorney in favor of their niece, Mary H. Jimenez Exh.
1-8, they also caused preparation of a power of attorney of identical tenor for signature by plaintiff,
Filomena Javellana, Exh. M, and sent it with a letter of Carlos, Exh. 7 dated 18 January, 1968 unto her
thru Mrs. Harder, and here, Carlos informed her that the price was P4.00 a square meter, — although it
now turns out according to Exh. 3 that as early as 22 October, 1967, Carlos had received in check as
earnest money from defendant Ramon Doromal, Jr., the sum of P5,000.00 and the price therein agreed
upon was five (P5.00) pesos a square meter, — as indeed in another letter also of Carlos to Plaintiff in 5
November, 1967, Exh. 6, he had told her that the Doromals had given the earnest money of P5,000.00
at P5.00 a square meter, — at any rate, plaintiff not being agreeable, did not sign the power of attorney,
and the rest of the co-owners went ahead with their sale of their 6/7, Carlos first seeing to it that the
deed of sale by their common attorney in fact, Mary H. Jimenez be signed and ratified as it was signed
and ratified in Candon, Ilocos Sur, on 15 January, 1968, Exh. 2, then brought to Iloilo by Carlos in the
same month, and because the Register of Deeds of Iloilo refused to register right away, since the
original registered owner, Justice Antonio Horilleno was already dead, Carlos had to ask as he did, hire
Atty. Teotimo Arandela to file a petition within the cadastral case, on 26 February, 1968, for the purpose,
Exh. C, after which Carlos returned to Luzon, and after compliance with the requisites of publication,
hearing and notice, the petition was approved, and we now see that on 29 April, 1968, Carlos already
back in Iloilo went to the Register of Deeds and caused the registration of the order of the cadastral
court approving the issuance of a new title in the name of the co-owners, as well as of the deed of sale
to the Doromals, as a result of which on that same date, a new title was issued TCT No. 23152, in the
name of the Horillenos to 6/7 and plaintiff Filomena Javellana to 1/7, Exh. D, only to be cancelled on the
same day under TCT No. 23153, Exh. 2, already in the names of the vendees Doromals for 6/7 and to
herein plaintiff, Filomena Javellana, 1/7, and the next day 30 April, 1968, the Doromals paid unto Carlos
by check, the sum of P97,000.00 Exh. 1, of Chartered Bank which was later substituted by check of
Phil. National Bank, because there was no Chartered Bank Branch in Ilocos Sur, but besides this
amount paid in check, the Doromals according to their evidence still paid an additional amount in cash
of P18,250.00 since the agreed price was P5.00 a square meter; and thus was consummated the
transaction, but it is here where complications set in.
plaintiff's lawyer, Atty. Arturo H. Villanueva, bringing with him her letter of that date and then and there
said lawyer manifested to the Doromals that he had the P30,000.00 with him in cash, and tendered it to
them, for the exercise of the legal redemption, the Doromals were aghast, and refused, and the very
next day, as has been said, 11 June, 1968, plaintiff filed this case, and in the trial, thru oral and
documentary proofs, sought to show that as co-owner, she had the right to redeem at the price stated in
the deed of sale, Exh. 2, namely P30,000.00 of the same; but defendants in answer, and in their
evidence, oral and documentary sought to show that plaintiff had no more right to redeem, and that if
ever she should have, that it should be at the true and real price by them paid, namely, the total sum of
P115,250.00, and trial judge, after hearing the evidence, believed defendants, that plaintiff had no more
right, to redeem, because, 'Plaintiff was informed of the intended sale of the 6/7 share belonging to the
Horillenos.'
Upon these facts, the Court of Appeals reversed the trial court's decision and held that although
respondent Javellana was informed of her co-owners' proposal to sell the land in question to petitioners
she was, however, "never notified . . . least of all, in writing", of the actual execution and registration of
the corresponding deed of sale, hence, said respondent's right to redeem had not yet expired at the time
she made her offer for that purpose thru her letter of June 10, 1968 delivered to petitioners on even
date. The intermediate court further held that the redemption price to be paid by respondent should be
that stated in the deed of sale which is P30,000 notwithstanding that the preponderance of the evidence
proves that the actual price paid by petitioners was P115,250.
We cannot agree with petitioners Petitioners do not question respondent's right to redeem, she being
admittedly a 1/7 co-owner of the property in dispute. The thrust of their first assignment of error is that for
purposes of Article 1623 of the Civil Code which provides that:"ART. 1623.The right of legal pre-emption
or redemption shall not be exercised except within thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the
Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice
thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining
owners."
the letters sent by Carlos Horilleno to respondent and dated January 18, 1968, Exhibit 7, and November
5, 1967, Exhibit 6, constituted the required notice in writing from which the 30-day period fixed in said
provision should be computed. But to start with, there is no showing that said letters were in fact
received by respondent and when they were actually received. Besides, petitioners do not pinpoint
which of these two letters, their dates being more than two months apart, is the required notice. In any
event, as found by the appellate court, neither of said letters referred to a consummated sale.
The fact alone that in the later letter of January 18, 1968 the price indicated was P4.00 per square meter
while in that of November 5, 1967, what was stated was P5.00 per square meter negatives the
possibility that a "price definite" had already been agreed upon. While P5,000 might have indeed been
paid to Carlos in October, 1967, there is nothing to show that the same was in the concept of the earnest
money contemplated in Article 1482 of the Civil Code, invoked by petitioner, as signifying perfection of
the sale. Viewed in the backdrop of the factual milieu thereof extant in the record, We are more inclined
to believe that the said P5,000 were paid in the concept of earnest money as the term was understood
under the Old Civil Code, that is, as a guarantee that the buyer would not back out, considering that it is
not clear that there was already a definite agreement as to the price then and that petitioners were
decided to buy 6/7 only of the property should respondent Javellana refuse to agree to part with her 1/7
share.

We are of the considered opinion and so hold that for purposes of the co-owner's right of redemption
granted by Article 1620 of the Civil Code, the notice in writing which Article 1623 requires to be made to
the other co-owners and from receipt of which the 30-day period to redeem should be counted is a
notice not only of a perfected sale but of the actual execution and delivery of the deed of sale. This is
implied from the latter portion of Article 1623 which requires that before a register of deeds can record a
sale by a co-owner, there must be presented to him, an affidavit to the effect that the notice of the sale
had been sent in writing to the other co-owners.
The only other pivotal issue raised by petitioners relates to the price which respondent offered for the
redemption in question. In this connection, from the decision of the Court of Appeals, We gather that
there is "decisive preponderance of evidence" establishing "that the price paid by defendants was not
that stated in the document, Exhibit 2, of P30,000 but much more, at least P97,000, according to the
check, Exhibit 1, if not a total of P115,250.00 because another amount in cash of P18,250 was paid
afterwards." It is, therefore, the contention of petitioners here that considering said finding of fact of the
intermediate court, it erred in holding nevertheless that "the redemption price should be that stated in the
deed of sale."
Again, petitioners' contention cannot be sustained. As stated in the decision under review, the trial court
found that "the consideration of P30,000 only was placed in the deed of sale to minimize the payment of
the registration fees, stamps and sales tax." With this undisputed fact in mind, it is impossible for the
Supreme Court to sanction petitioners' pragmatic but immoral posture. Being patently violative of public
policy and injurious to public interest, the seemingly wide practice of understating considerations of
transactions for the purpose of evading taxes and fees due to the government must be condemned and
all parties guilty thereof must be made to suffer the consequences of their ill-advised agreement to
defraud the state. Verily, the trial court fell short of its devotion and loyalty to the Republic in officially
giving its stamp of approval to the stand of petitioners and even berating respondent Javellana as
wanting to enrich herself "at the expense of her own blood relatives who are her aunts, uncles and
cousins." On the contrary, said "blood relatives" should have been sternly told, as We here hold, that
they are in pari-delicto with petitioners in committing tax evasion and should not receive any
consideration from any court in respect to the money paid for the sale in dispute. Their situation is similar
to that of parties to an illegal contract. 1
1st — According to Art. 1619'Legal redemption is the right to be subrogated, upon the same terms and conditions
stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any
other transaction whereby ownership is transmitted by onerous title.' pp. 471-472, New Civil Code, If it be argued
that foregoing solution would mean unjust enrichment for plaintiff, it need only be remembered that plaintiff's
right is not contractual, but a mere legal one, the exercise of a right granted by the law, and the law is definite that
she can subrogate herself in place of the buyer,'upon the same terms and conditions stipulated in the contract,' in
the words of Art. 1619, and here the price. 'stipulated in the contract' was P30,000.00, in other words, if this be
possible enrichment on the part of Filomena, it was not unjust but just enrichment because permitted by the law; if
it still be argued that plaintiff would thus be enabled to abuse her right, the answer simply is that what she is
seeking to enforce is not an abuse but a mere exercise of a right; if it he stated that just the same, the effect of
sustaining plaintiff would be to promote not justice but injustice, the answer again simply is that this solution is not
unjust because it only binds the parties to make good their solemn representation to possible redemptioners on the
price of the sale, to what they had solemnly averred in a public document required by the law to be the only basis
for that exercise of redemption;" (Pp. 24-27, Record.) WHEREFORE, the decision of the Court of Appeals is
affirmed, with costs against petitioners.
Alonzo vs. CA
The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of
law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against
the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court
both of law and of justice. We apply the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.

Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in the mane of
their deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1
On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein
petitioners for the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964,
Eustaquia Padua, his sister, sold her own share to the same vendees, in an instrument denominated
"Con Pacto de Retro Sale," for the sum of P440.00. 3
By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to
two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the
same with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-
concrete house on a part of the enclosed area. 4
On February 25, 1976, Mariano Padua, one of the five co-heirs, sought to redeem the area sold to the
spouses Alonzo, but his complaint was dismissed when it appeared that he was an American citizen. 5
On May 27, 1977, however, Tecla Padua, another co-heir, filed her own complaint invoking the same
right of redemption claimed by her brother. 6
The only real question in this case, therefore, is the correct interpretation and application of the pertinent
law as invoked, interestingly enough, by both the petitioners and the private respondents. This is Article
1088 of the Civil Code, providing as follows:
"Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by 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."
Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with
a copy of the deed of sale of the property subject to redemption would satisfy the requirement for written
notice. "So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale and the
particulars thereof," he declared, "the thirty days for redemption start running."
As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular
method of giving notice, and that notice must be deemed exclusive," the Court held that notice given by
the vendees and not the vendor would not toll the running of the 30-day period.
The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad
laws" as the petitioners obviously cannot argue against the fact that there was really no written notice
given by the vendors to their co-heirs. Strictly applied and interpreted, Article 1088 can lead to only one
conclusion, to wit, that in view of such deficiency, the 30-day period for redemption had not begun to run,
much less expired in 1977.
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where
these words import a policy that goes beyond them." 13 While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature.
While we may not read into the law a purpose that is not there, we nevertheless have the right to read
out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit
that vivifieth," to give effect to the lawmaker's will.
In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of the
sale and to indicate the date of such notice as the starting time of the 30-day period of redemption.
Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise
date it is supposed to begin, to obviate any problem of alleged delays, sometimes consisting of only a
day or two.
Was there a valid notice? Granting that the law requires the notice to be written, would such notice be
necessary in this case? Assuming there was a valid notice although it was not in writing, would there be
any question that the 30-day period for redemption had expired long before the complaint was filed in
1977?
In the face of the established facts, we cannot accept the private respondents' pretense that they were
unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of
such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of
ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure
that the redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters
were actually informed, although not in writing, of the sales made in 1963 and 1964, and that such notice
was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we
do say that sometime between those years and 1976, when the first complaint for redemption was filed,
the other co-heirs were actually informed of the sale and that thereafter the 30-day period started
running and ultimately expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when
Tecla Padua filed her complaint, the right of redemption had already been extinguished because the
period for its exercise had already expired.
"While the general rule is, that to charge a party with laches in the assertion of an
alleged right it is essential that he should have knowledge of the facts upon which he
bases his claim, yet if the circumstances were such as should have induced inquiry, and
the means of ascertaining the truth were readily available upon inquiry, but the party
neglects to make it, he will be chargeable with laches, the same as if he had known the
facts." 15
It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not
among them, should enclose a portion of the inherited lot and build thereon a house of strong materials.
This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like
an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of
them chose to claim the right of redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which
the respondent court understandably applied pursuant to existing jurisprudence. The said court acted
properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited
cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero
and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of
the peculiar circumstances of this case.
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. WHEREFORE, the
petition is granted. The decision of the respondent court is REVERSED
Bautista vs. Grino-Aquino
Can the property of the surviving husband be the subject of an extrajudicial partition of the estate of the
deceased wife? This is the singular issue in this petition.
In Civil Case No. 4033-P, petitioners instituted an action in the Court of First Instance of Rizal to declare
the deed of extrajudicial partition, deed of absolute sale, Transfer Certificates of Title Nos. 14182, 14186
and 15665 all of Registry of Deeds of Pasay City and Tax Declaration No. 5147, null and void.
That both parties admit that the land in question was registered in the name of petitioner Manuel
Bautista under T.C.T No. 2210, and the latter inherited this land from his father, Mariano Bautista;
Both petitioners and private respondents admit that on Dec. 22, 1966, a Deed of Extrajudicial Partition
was executed. Private respondents were signatories to the deed, and the signature of petitioner Manuel
Bautista was supposed to appear in that document, although petitioner Manuel Bautista denied having
signed that Extrajudicial Partition;
Both parties admit that upon registration of the Deed of Extrajudicial Partition, T.C.T. No. 2210 was
cancelled and in lieu thereof, T.C.T.-T-14182 was issued; The parties admit that the private
respondents, with the exception of Manolito Bautista, executed a Deed of Absolute Sale in favor of
Manolito Bautista of that property;Upon registration of the Deed of Sale, T.C.T.-T-14182 was cancelled
and in lieu thereof, T.C.T. No. T-14186 was issued to Manolito Bautista; n August 7, 1969, Manolito
Bautista executed a Deed of Sale in favor of the other private respondents and upon registration of said
Deed of Sale, T.C.T. Nos. T-15665, T-15666, T-15667, T-15668, T-15669, T-15670, T-15671, were
issued to private respondents;
Parties admit that petitioner Manuel Bautista married his second wife Emiliana Tamayo;
Parties admit that Manuel Bautista and his second wife, Emiliana Tamayo, had only a child, Evangeline
Bautista, born on April 29, 1949;
That the property in question was the subject matter of extrajudicial partition of property on December
22, 1966, among the heirs of the late Juliana Nojadera, the first wife of Manuel Bautista;
Manuel Bautista denied participation in the Extrajudicial Partition of Property;
On August 1, 1974, all the parties agreed to submit to the NBI the questioned signature of Manuel
Bautista;
That the NBI concluded that the questioned document was authentic. (Pp. 37-38, rollo; pp. 2-3
of decision of respondent court).
In a decision of January 14, 1983, the trial court dismissed the complaint with costs against plaintiffs. On
appeal, a decision was rendered in due course by the Court of Appeals on August 3, 1987, affirming the
decision of the trial court.
PUBLIC RESPONDENTS AUTHORIZED THE EXTRAJUDICIAL PARTITION OF FUTURE

INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347 OF THE NEW CIVIL CODE;
PUBLIC RESPONDENTS AUTHORIZED THE PRETERITION OF PETITIONER EVANGELINE

BAUTISTA IN VIOLATION OF THE LAW ON SUCCESSION." (P. 7, petition for review; p. 8,
rollo)
The petition is impressed with merit.
The findings of facts of both the trial court and the respondent Appellate Court that the signature of
Manuel Bautista in the questioned Deed of Extrajudicial Partition is authentic, as examined by the NBI,
can no longer be questioned in this proceeding. Nevertheless, even granting that the signature of
Manuel Bautista in the questioned Extrajudicial Deed of Partition is genuine, an examination of the
document based on admitted and proven facts renders the document fatally defective. The extrajudicial
partition was supposed to be a partition without court intervention of the estate of the late Juliana
Nojadera, first wife of Manuel Bautista, constituting the subject property. In the same document Manuel
Bautista appears to have waived his right or share in the property in favor of private respondents.
However, the property subject matter of said extrajudicial partition does not belong to the estate of
Juliana Nojadera. It is the exclusive property of Manuel Bautista who inherited the same from his father
Mariano Bautista, which was registered in his name under T.C.T. No. 2210.
Under Section 1, Rule 74 of the Rules of Court an extrajudicial settlement of the Estate applies only to
the estate left by the decedent who died without a will, and with no creditors, and the heirs are all of age
or the minors are represented by their judicial or legal representatives. If the property does not belong to
the estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition.
As the subject property does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial
Partition, is void ab initio being contrary to law. To include in an extrajudicial partition property which
does not pertain to the estate of the deceased would be to deprive the lawful owner thereof of his
property without due process of law. Only property of the estate of the decedent which is transmitted by
succession can be the lawful subject matter of an extrajudicial partition. In this case, the said partition
obviously prejudices the right of Manuel Bautista as exclusive owner of the property.
The said partition also effectively resulted in the preterition of the right of Evangeline Bautista as a
compulsory heir of Manuel Bautista, daughter of the latter by his second marriage. It is difficult to believe
that Manuel Bautista would wittingly overlook and ignore the right of her daughter Evangeline to share in
the said property. It is not surprising that he denied signing the said document. Moreover, private
respondents knew Evangeline Bautista who is their half-sister to be a compulsory heir. The court finds
that her preterition was attended with bad faith hence the said partition must be rescinded.
The Court observes that after the execution of said extrajudicial partition and issuance of the title in their
names, private respondents except Manolito Bautista in turn executed a deed of absolute sale of the

property in favor of the latter in whose name the title was also issued. And yet soon thereafter another
deed of sale was executed this time by Manolito Bautista selling back the same property to private
respondents in whose names the respective titles were thus subsequently issued. This series of
transactions between and among private respondents is an indication of a clever scheme to place the
property beyond the reach of those lawfully entitled thereto.
Moreover, such extrajudicial partition cannot constitute a partition of the property during the lifetime of its
owner, Manuel Bautista. Partition of future inheritance is prohibited by law.
As said Extrajudicial Partition dated December 22, 1966, of property belonging exclusively to petitioner
Manuel Bautista, is null and void ab initio it follows that all subsequent transactions involving the same
property between and among the private respondents are also null and void.
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los
Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others,
that on August 24, 1963, she and several co-heirs, including the defendant, executed an extrajudicial
partition agreement (a copy of which was attached to the complaint) over a certain portion of land with
an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the
defendant, in addition to his corresponding share, on condition that the latter would undertake the
development and subdivision of the estate which was the subject matter of the agreement, all expenses
in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3)
lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the
subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the
aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under
the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs.
In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set
up the affirmative defenses that the plaintiff had no cause of action against him because the said
agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la
Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the
proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The
answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her
share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as
the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of
reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition
agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be
ordered to pay him the sum of P2,500.00.
In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the
extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit
from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court
ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as
described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant
should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose),
and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees,
and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for
New Trial' but the same was denied. Hence, this appeal.

In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate,
subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on
October 16, 1962 that defendant-appellant is a nephew of the said decedent; that plaintiff-appellee is a
grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de
la Cruz; that plaintiff-appellee's mother died on September 22, 1935, thus pre-deceasing Pelagia de la
Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate
among the heirs of Pelagia de la Cruz.
The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent. We are
convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could
not inherit from the latter by right of representation.
"ART. 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."
Much less could plaintiff-appellee inherit in her own right.
"ART. 962. In every inheritance, the relative nearest in degree excludes the more distant
ones, saving the right of representation when it properly takes place . . ."
In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces,
one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law
from the inheritance.
But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition
agreement insofar as her right to bring the present action is concerned? They did not confer upon her
the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted
by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz.
Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation
of her deceased mother.
It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the
erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee
not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code,
which reads:
"ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall
be void only with respect to such person."
Partition of property affected between a person entitled to inherit from the deceased owner thereof and
another person who thought he was an heir, when he was not really and lawfully such, to the prejudice
of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs.

De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the
right to have its terms enforced.
The extrajudicial partition agreement being void with respect to plaintiff-appellee, she may not be heard
to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17
Am. Jur. 605), or on acts which are prohibited by law or are against public policy
The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion
we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article
2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided
on a stipulation of facts and no evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently correct in his contention that the lower court
erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to
him his corresponding share of said portion received by appellee under the void partition. Remote
relatives or unrelated persons who unduly received and took possession of the property of a deceased
person without any right, by virtue of a null and void partition, must restore it to the legitimate successor
in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been
disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations
of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant
as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this
aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been
supported by evidence which appellant should have presented in the lower court but did not.
B. Effects of Partition
Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the
property adjudicated to him. (1068)
Art. 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant
the title to, and the quality of, each property adjudicated. (1069a)
Art. 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)
Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from
the date the right of action accrues. (n)
Art. 1095. If a credit should be assigned as collectible, the 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.
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)
Art. 1096. The obligation of warranty among co-heirs shall cease in the following cases:
(1) When the testator himself has made the partition, unless it appears, or it may be
reasonably presumed, that his intention was otherwise, but the legitime shall always
remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of partition, unless there
has been bad faith;

(3) When the eviction is due to a cause subsequent to the partition, or has been caused
by the fault of the distributee of the property. (1070a)
Guilas vs. CFI of Pampanga
It appears from the records that Jacinta Limson de Lopez, of Guagua, Pampanga was married to
Alejandro Lopez y Siongco. They had no children.
On April 28, 1936, Jacinta executed a will instituting her husband Alejandro as her sole heir and
executor (pp. 20-21, rec.).
In a Resolution dated October 26, 1953 in Sp. Proc. No. 894 entitled "En el Asunto de la Adopcion de la
Menor Juanita Lopez y Limson" (pp. 92-94, 103, rec.), herein petitioner Juanita Lopez, then single and
now married to Federico Guilas, was declared legally adopted daughter and legal heir of the spouses
Jacinta and Alejandro. After adopting legally herein petitioner Juanita Lopez, the testatrix Doña Jacinta
did not execute another will or codicil so as to include Juanita Lopez as one of her heirs.
Nevertheless, in a project of partition dated March 19, 1960 executed by both Alejandro Lopez and
Juanita Lopez-Guilas, the right of Juanita Lopez to inherit from Jacinta was recognized and Lots Nos.
3368 and 3441 (Jacinta's paraphernal property), described and embraced in Original Certificate of Title
No. 13092, both situated in Bacolor, Pampanga —
In an order dated April 23, 1960, the lower court approved the said project of partition and directed that
the records of the case be sent to the archieves, upon payment of the estate and inheritance taxes (
On April 10, 1964, herein petitioner Juanita Lopez-Guilas filed a separate ordinary action to set aside
and annul the project of partition, which case was docketed as Civil Case 2539 entitled "Juanita Lopez-
Guilas vs. Alejandro Lopez" in the Court of First Instance of Pampanga, on the ground of lesion,
preterition and fraud, and pray further that Alejandro Lopez be ordered to submit a statement of
accounts of all the crops and to deliver immediately to Juanita lots nos. 3368 and 3441 of the Bacolor
Cadastre, which were allocated to her under the project of partition (p. 132, rec.).
In an order dated April 27, 1966, the lower court denied Juanita's motion to set aside the order of
October 2, 1964 on the ground that the parties themselves agreed to suspend resolution of her petition
for the delivery of her shares until after the civil action for annulment of the project of partition has been
finally settled and decided (Annex "O", p. 72, rec.).
Juanita filed a motion dated May 9, 1966 for the reconsideration of the order dated April 27, 1966
(Annex "P", pp. 73-77, rec.), to which Alejandro filed an opposition dated June 8, 1966 (Annex "Q", pp.
112-113, rec.).
Subsequently, Alejandro filed a motion dated July 25, 1966; praying that the palay deposited with
Fericsons and Ideal Rice Mill by the ten (10) tenants of the two parcels in question be delivered to him
(Annex "R", pp. 114-116, rec.), to which Juanita filed an opposition dated July 26, 1966 (Annex "S", pp.
117-121, rec.).
In an order dated September 8, 1966, the lower court denied the motion for reconsideration of the order
dated April 27, 1966, and directed Fericsons Inc. and the Ideal Rice Mills to deliver to Alejandro or his
representative the 229 cavans and 46 kilos and 325 and 1/2 cavans and 23 kilos of palay respectively

deposited with the said rice mills upon the filing by Alejandro of a bond in the amount of P12,000.00 duly
approved by the court (Annex "T", pp. 122-127 rec.).
Hence, this petition for certiorari and mandamus.
The position of petitioner Juanita Lopez-Guilas should be sustained and the writs prayed for granted.
The probate court loses jurisdiction of an estate under administration only after the payment of all the
debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the
approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol vs.
Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30). As long
as the order of the distribution of the estate has not been complied with, the probate proceedings cannot
be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final
and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the
prescriptive period therefor has not elapsed (Mari vs. Bonilla, 83 Phil., 137). The better practice,
however, for the heir who has not received his share, is to demand his share through a proper motion in
the same probate or administration proceedings, or for reopening of the probate or administrative
proceedings if it had already been closed, and not through an independent action, which would be tried
by another court or Judge which may thus reverse a decision or order of the probate on intestate court
already final and executed and re-shuffle properties long ago distributed and disposed of (Ramos vs.
Ortuzar, 89 Phil., 730, 741-742; Timbol vs. Cano, supra.; Jingco vs. Daluz, L-5107, April 24, 1953, 92
Phil. 1082; Roman Catholic vs Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).
Section 1 of Rule 90 of the Revised Rules of Court of 1964 as worded, which secures for the heirs or
legatees the right to "demand and recover their respective shares from the executor or administrator, or
any other person having the same in his possession", re-states the aforecited doctrines.
The case of Austria vs. Heirs of Ventenilla (99 Phil. 1068) does not control the present controversy;
because the motion filed therein for the removal of the administratrix and the appointment of a new
administrator in her place was rejected by the court on the ground of laches as it was filed after the lapse
of about 38 years from October 5, 1910 when the court issued an order settling and deciding the issues
raised by the motion (L-10018, September 19, 1956, 99 Phil., 1069-1070). In the case at bar, the motion
filed by petitioner for the delivery of her share was filed on July 20, 1964, which is just more than 3 years
from August 28, 1961 when the amended project of partition was approved and within 5 years from April
23, 1960 when the original project of partition was approved. Clearly, her right to claim the two lots
allocated to her under the project of partition had not yet expired. And in the light of Section 1 of Rule 90
of the Revised Rules of Court of 1964 and the jurisprudence above cited, the order dated December 15,
1960 of the probate court closing and terminating the probate case did not legally terminate the testate
proceedings, for her share under the project of partition has not been delivered to her.
While it is true that the order dated October 2, 1964 by agreement of the parties suspended resolution of
her petition for the delivery of her shares until after the decision in the civil action for the annulment of
the project of partition (Civil Case 2539) she filed on April 10, 1964; the said order lost its validity and
efficacy when the herein petitioner filed on June 11, 1965 an amended complaint in said Civil Case 2539
wherein she recognized the partial legality and validity of the said project of partition insofar as the
allocation in her favor of lots Nos. 3368 and 3441 in the delivery of which she has been insisting all
along
Agutines vs. CFI
A nine-hectare land in Marilao, Bulacan, is the subject of a three-cornered dispute between Severo
Valenzuela on one side and the relatives of his deceased wife Generosa Agustines on the other, with
the Archbishop of Manila as intervenor.

In August, 1934, Generosa Agustines died leaving a will which was subsequently submitted for probate
in the Court of First Instance of Bulacan in special proceedings No. 4944. Having no children, she
named her surviving husband Severo Valenzuela the universal heir, but she specified some bequests.
There was opposition to the approval of the will; however, after some negotiations, the sister (Josefa)
and the nephews and nieces of the decedent (the other petitioners in this special civil action) executed
on February 8, 1935, an extrajudicial partition with the respondent Severo Valenzuela, expressing
conformity with the probate of the testament and dividing the properties of the deceased. They promised
specifically to respect the wishes of the testatrix,
Other items of the estate were apportioned among the signers of the deed of partition, which, submitted
for approval, was confirmed by the probate court on October 31, 1936, in an order directing the
administrator to deliver the respective shares to the heirs or legatees after paying the corresponding
inheritance taxes. No appeal was ever taken from such order.
Years passed. Severo Valenzuela failed to transmit the lot or part thereof to the parish church of Polo or
to the Roman Catholic Archbishop of Manila. Wherefore, in May, 1944, the Agustines connections,
petitioners herein, filed a complaint against Severo Valenzuela (civil case No. 158) seeking the return to
them of that nine-hectare lot in Quiririt, alleging his breach of trust, plus renunciation on the part of the
church of Polo that had reportedly neglected to demand compliance with the beneficial legacy.
After the liberation and after they had become aware of Valenzuela's act that tended to frustrate their
civil action No. 158, the petitioners herein submitted motions for reconsideration, the main theme of
which was that the said last order amended the decree of distribution of October 31, 1936, which had
become final long ago. All was to no avail. Hence they started this special civil action to annul the order
of December 2, 1944, on the concrete proposition that the court had no jurisdiction to issue it, the order
of October 31, 1936, having become final and executory eight years before. They contend, first, that
under the will, and in accordance with the partition approved by the court in 1936, the Polo church was
entitled to nine hectares in the Quiririt farm of Generosa. They argue next that when that church
repudiated the nine-hectare lot, it again became a part of the whole Quiririt property which, under the
partition, had been adjudicated to them.
On the other hand, Severo Valenzuela's position is that the whole nine-hectare realty was awarded to
him, subject to his obligation to donate to the Polo church such portion thereof as he may designate in
his discretion.
The intervenor, the Archbishop of Manila, representing the Polo church, shares the petitioner's opinion
that a nine-hectare lot had been granted to said church. He maintains, however, that no voluntary
renunciation of the legacy ever took place.
It will be recalled that the will of Generosa Agustines contained a provision directing her
husband to donate a portion of her Quiririt farm not exceeding nine hectares to the Polo church.
What was the share of the church of Polo under the will and the extrajudicial partition?
After examining and analyzing the circumstances of this litigation, we reach the conclusion that, as
contended by petitioners and the intervenor, the extrajudicial partition definitely allotted a nine-hectare
parcel to the Polo church. Supposing, that under the will Valenzuela's discretion included the
determination of the area to be transferred — and not merely the selection of the site where the nine-
hectare portion is to be segregated — still it seems clear that in the partition he elected or agreed that a
nine-hectare portion shall be conveyed to the Polo church for masses.
It is markworthy that, in addition to the nine-hectare portion, the deed mentions another parcel of three
hectares exclusively given to Valenzuela. If the parties had not contemplated a nine-hectare donation to
the Polo church, but empowered Valenzuela to fix the area subsequently, they would have assigned to
him 12 hectares, with the provision that he will separate therefrom such portion as he may desire to
convey to the parish of Polo. They did not say so. Instead they clearly stipulated that nine hectares were
destined for "misas" (to the Church), and that three hectares would be reserved for him.
It is quite probable that if Generosa's kin had known, in the course of bargaining, that Valenzuela would
not deliver all the nine hectares to the Polo church but would retain eight hectares thereof, they would
not have ceded to him an additional lot of three hectares.

Proof positive that he had no choice as to the number of hectares is the fact that for eight years he never
exercised it, keeping for himself in breach of trust the fruits of all the land. He might have ideas
repugnant to the religious beliefs of his wife in regard to the celebration of masses for the dead. But as a
man of honor, as the surviving partner, he had no excuse to set his own notions against those of his
departed spouse, especially on a subject that concerned the disposition of her own properties. The will
of the testatrix is law 1 . And his action in fixing one hectare, when his wife bequeathed a portion not
exceeding nine hectares is surely such abuse of discretion (if he had any) that will not easily commend
itself to judicial approbation.
To make ourselves clear, we must state at the risk of repetition that although under the provisions of the
will Severo Valenzuela might have elected to transfer to the Polo church a portion less than nine
hectares, however, in the deed of partition he agreed — exercising his discretion — to assign nine
hectares for masses (to the Polo church). It must be emphasized that in the distribution of the decedent's
assets, we must face the deed of partition which bears the court's fiat. The last will becomes secondary
in value. Important to bear this distinction in mind, because both in Valenzuela's motion and in the
court's order approving the assignment of one hectare, only the will was quoted, and not the extrajudicial
partition. Valenzuela's motion invoking the will exclusively induced the court into error.
A third reason to hold that the document of partition deeded nine hectares to the Polo church is the fact
that the court and the parties considered it a final settlement of all the rights of all concerned, the court
approving it in toto and ordering the administrator to deliver to the beneficiaries their respective portions
or legacies. The court's order even wrote finish to the expediente. And the parties, including Severo
Valenzuela regarded it as final for eight years, until he found it necessary, for his own interests, to make
another move indirectly amending the final settlement of October, 1936. Now then, if that partition
avowedly settled the estate and accomplished its distribution, the implication is unavoidable that it left
nothing to future judicial action or determination. Consequently it did not contemplate any subsequent
fixing by Valenzuela, and approval by the court, of the portion to be transmitted to the Church of Polo.
The parties deemed it final — because the rights of all beneficiaries were therein defined with certainty.
Therefore, the attempt by the surviving husband to modify it eight years thereafter was completely
beyond the pale of the law.
C. Recission and Nullity of Partition
Art. 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a)
Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when
any one of the co-heirs received things whose value is less, by at least one-fourth, than the share
to which he is entitled, considering the value of the things at the time they were adjudicated.
(1074a)
Art. 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)
Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the
time the partition was made. (1076)
Art. 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)
Art. 1102. An heir who has alienated the whole or a considerable part of the real property
adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall
have a right to be indemnified in cash. (1078a)
Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause
the rescission of the partition on the ground of lesion, but the partition shall be completed by the
distribution of the objects or securities which have been omitted. (1079a)
Art. 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)

Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void
only with respect to such person. (1081a)
Revised Rules of Court
RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
SECTION 1. When order for distribution of residue made.—When the debts, funeral charges, and
expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the
estate in accordance with law, have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the
residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to
which each is entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been made or
provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within such time as the court directs.
SEC. 2. Questions as to advancement to be determined.—Questions as to advancement made, or

alleged to have been made, by the deceased to any heir may be heard and determined by the court
having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on
the person raising the questions and on the heir.
SEC. 3. By whom expenses of partition paid.—If at the time of the distribution the executor or
administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses
of partition of the properties distributed, such expenses of partition may be paid by such executor or
administrator when it appears equitable to the court and not inconsistent with the intention of the
testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in
the premises, and the apportionment shall be settled and allowed by the court, and, if any person
interested in the partition does not pay his proportion or share, the court may issue an execution in the
name of the executor or administrator against the party not paying for the sum assessed.
SEC. 4. Recording the order of partition of estate.—Certified copies of final orders and judgments of the
court relating to the real estate or the partition thereof shall be recorded in the registry of deeds of the
province where the property is situated.
XXIII. EXECUTORS AND ADMINISTRATORS
Art. 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)
Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of debts
are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of
Credits shall be observed, provided that the expenses referred to in Article 2244, No. 8, shall be
those involved in the administration of the decedent's estate. (n)
Art. 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. (n)

Relevant provisions from the Rules of Court
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION, WHEN AND TO WHOM ISSUED
SECTION 1. Who are incompetent to serve as a executors or administrators.—No person is competent

to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or by reason of conviction of an offense
involving moral turpitude.
SEC. 2. Executor of executor not to administer estate.—The executor of an executor shall not, as such,
administer the estate of the first testator.
SEC. 3. Married women may serve.—A married woman may serve as executrix or administratrix, and
the marriage of a single woman shall not affect her authority so to serve under a previous appointment
SEC 4 Letters testamentary issued when will allowed.—When a will has been proved and allowed, the
court shall issue letters testamentary thereon to the person named as executor therein, if he is
competent, accepts the trust, and gives bond as required by these rules
SEC. 5. Where some coexecutors disqualified others may act.—When all of the executors named in a
will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on the part
of one or more of them, letters testamentary may issue to such of them as are competent, accept and
give bond, and they may perform the duties and discharge the trust required by the will.
SEC. 6. When and to whom letters of administration granted.—If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of
the court, or to such person as such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30)
days after the death of the person to apply for administration or to request that administration be
granted to some other person, it may be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such other
person as the court may select.
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
SECTION 1. Bond to be given before issuance of letters. Amount. Conditions.—Before an executor or

administrator enters upon the execution of his trust, and letters testamentary or of administration issue,
he shall give a bond, in such sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true and complete inventory of all
goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or
knowledge or to the possession of any other person for him;
(b) To administer according to these rules, and, if an executor, according to the will of the testator,
all goods, chattels, rights, credits, and estate which shall at any time come to his possession or to
the possession of any other person for him, and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;
(c) To render a true and just account of his administration to the court within one (1) year, and at
any other time when required by the court;
(d) To perform all orders of the court by him to be performed.
SEC. 2. Bond of executor where directed in will. When further bond required.—If the testator in his will
directs that the executor serve without bond, or with only his Individual bond, he may be allowed by the
court to give bond in such sum and with such surety as the court approves conditioned only to pay the
debts of the testator; but the court may require of the executor a further bond in case of a change in his
circumstances, or for other sufficient cause, with the conditions named in the last preceding section.
SEC. 3. Bonds of joint executors and administrators.—When two or more persons are appointed
executors or administrators the court may take a separate bond from each, or a joint bond from all.
SEC. 4. Bond of special administrator.—A special administrator before entering upon the duties of his
trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true
inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his
possession or knowledge, and that he will truly account for such as are received by him when required
by the court, and will deliver the same to the person appointed executor or administrator, or to such
other person as may be authorized to receive them.
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS
SECTION 1. Executor or administrator to have access to partnership books and property. How right
enforced.—The executor or administrator of the estate of a deceased partner shall at all times have
access to, and may examine and take copies of, books and papers relating to the partnership business,
and may examine and make invoices of the property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or
control. On the written application of such executor or administrator, the Court having jurisdiction of the
estate may order any such surviving partner or partners to freely permit the exercise of the rights, and to
exhibit the books, papers, and property, as in this section provided, and may punish any partner failing
to do so for contempt.
SEC. 2. Executor or administrator to keep buildings in repair.—An executor or administrator shall

maintain in tenantable repair the houses and other structures and fences belonging to the estate, and
deliver the same in such repair to the heirs or devisees when directed so to do by the court.
SEC. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not
willed.—An executor or administrator shall have the right to the possession and management of the real
as well as the personal estate of the deceased so long as it is necessary for the payment of the debts
and the expenses of administration.
RULE 86
CLAIMS AGAINST ESTATE
SECTION 1. Notice to creditors to be issued by court.— Immediately after granting letters testamentary
or of administration, the court shall issue a notice requiring all persons having money claims against the
decedent to file them in the office of the clerk of said court.
SEC. 2. Time within which claims shall be filed.—In the notice provided in the preceding section, the
court shall state the time for the filing of claims against the estate, which shall not be more than twelve
(12) nor less than six (6) months after the date of the first publication of the notice. However, at any time
before an order of distribution is entered, on application of a creditor who has failed to file his claim
within the time previously limited, the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one (1) month.
SEC. 3. Publication of notice to creditors.—Every executor or administrator shall, immediately alter the
notice to creditors is issued, cause the same to be published three (3) weeks successively in a
newspaper of general circulation in the province, and to be posted for the same period in four public
places in the province, and in two public places in the municipality where the decedent last resided
SEC. 4. Filing copy of printed notice.—Within ten (10) days after the notice has been published and
posted n accordance with the preceding section, the executor or administrator shall file or cause to be
filed in the court a printed copy of the notice accompanied with an affidavit setting forth the dates of the
first and last publication thereof and the name of the newspaper in which the same is printed.
SEC. 5. Claims which must be filed under the notice. If not filed, barred; exceptions.—All claims for
money against the decedent, arising from contract, express or implied, whether the same be due, not
due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent,
and judgment for money against the decedent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set forth as counterclaims in any action that
the executor or administrator may bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may be set off against each other in
such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall
be considered the true balance against the estate, as though the claim had been presented directly
before the court in the administration proceedings. Claims not yet due, or contingent, may be approved
at their present value.
SEC. 6. Solidary obligation of decedent.—Where the obligation of the decedent is solidary with another
debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to
the right of the estate to recover contribution from the other debtor. In a joint obligation of the decedent,
the claim shall be confined to the portion belonging to him.
SEC. 7. Mortgage debt due from estate.—A creditor holding a claim against the deceased secured by
mortgage or other collateral security, may abandon the security and prosecute his claim in the manner
provided in this rule, and share in the general distribution of the assets of the estate; or he may foreclose
his mortgage or realize upon his security, by action in court, making the executor or administrator a party
defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the
property pledged, in the foreclosure or other proceedings to realize upon the security, he may claim his
deficiency judgment in the manner provided in the preceding section; or he may rely upon his mortgage
or other security alone, and foreclose the same at any time within the period of the statute of limitations,
and in that event he shall not be admitted as a creditor, and shall receive no share in the distribution of
the other assets of the estate; but nothing herein contained shall prohibit the executor or administrator
from redeeming the property mortgaged or pledged, by paying the debt for which it is held as security,
under the direction of the court, if the court shall adjudge it to be for the best interest of the estate that
such redemption shall be made.
SEC. 8. Claim of executor or administrator against an estate.—If the executor or administrator has a
claim against the estate he represents, he shall give notice thereof, in writing, to the court, and the court
shall appoint a special administrator, who shall, in the adjustment of such claim, have the same power
and be subject to the same liability as the general administrator or executor in the settlement of other
claims. The court may order the executor or administrator to pay to the special administrator necessary
funds to defend such claim.
SEC. 9. How to file a claim. Contents thereof Notice to executor or administrator.—A claim may be filed
by delivering the same with the necessary vouchers to the clerk of court and by serving a copy thereof
on the executor or administrator. If the claim be founded on a bond, bill, note, or any other instrument,
the original need not be filed, but a copy thereof with all indorsements shall be attached to the claim and
filed therewith. On demand, however, of the executor or administrator, or by order of the court or judge,
the original shall be exhibited, unless it be lost or destroyed, in which case the claimant must accompany
his claim with affidavit or affidavits containing a copy or particular description of the instrument and
stating its loss or destruction. When the claim is due, it must be supported by affidavit stating the amount
justly due, that no payments have been made thereon which are not credited, and that there are no
offsets to the same, to the knowledge of the affiant. If the claim is not due, or is contingent, when filed, it
must also be supported by affidavit stating the particulars thereof. When the affidavit is made by a
person other than the claimant, he must set forth therein the reason why it is not made by the claimant.
The claim once filed shall be attached to the record of the case in which the letters testamentary or of
administration were issued, although the court, in its discretion, and as a matter of convenience, may
order all the claims to be collected in a separate folder.
SEC. 10. Answer of executor or administrator. Offsets.—Within fifteen (15) days after service of a copy
of the claim on the executor or administrator, he shall file his answer admitting or denying the claim
specifically, and setting forth the substance of the matters which are relied upon to support the
admission or denial. If he has no knowledge sufficient to enable him to admit or deny specifically, he
shall state such want of knowledge. The executor or administrator in his answer shall allege in offset any
claim which the decedent before death had against the claimant, and his failure to do so shall bar the
claim forever. A copy of the answer shall be served by the executor or administrator on the claimant. The
court in its discretion may extend the time for filing such answer.
SEC. 11. Disposition of admitted claim.—Any claim admitted entirely by the executor or administrator
shall immediately be submitted by the clerk to the court who may approve the same without hearing; but
the court, in its discretion, before approving the claim, may order that known heirs, legatees, or devisees
be notified and heard. If upon hearing, an heir, legatee, or devisee opposes the claim, the court may, in
its discretion, allow him fifteen (15) days to file an answer to the claim in the manner prescribed in the
preceding section.
SEC. 12. Trial of contested claim.—Upon the filing of an answer to a claim, or upon the expiration of the
time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may
refer the claim to a commissioner.
SEC. 13. Judgment appealable.—The judgment of the court approving or disapproving a claim, shall be
filed with the record of the administration proceedings with notice to both parties, and is appealable as in
ordinary cases. A judgment against the executor or administrator shall be that he pay, in due course of
administration, the amount ascertained to be due, and it shall not create any lien upon the property of
the estate, or give to the judgment creditor any priority of payment.
SEC. 14. Costs.—When the executor or administrator, in his answer, admits and offers to pay part of a
claim, and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to
obtain a more favorable judgment, he cannot recover costs, but must pay to the executor or
administrator costs from the time of the offer. Where an action commenced against the deceased for
money has been discontinued and the claim embraced therein presented as in this rule provided, the
prevailing party shall be allowed the costs of his action up to the time of its discontinuance.
RULE 87
ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
SECTION 1. Actions which may and which may not be brought against executor or administrator.—No
action upon a claim for the recovery of money or debt or interest thereon shall be commenced against
the executor or administrator; but actions to recover real or personal property, or an interest therein, from
the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or
property, real or personal, may be commenced against him.
SEC. 2. Executor or administrator may bring or defend actions which survive.—For the recovery or
protection of the property or rights of the deceased, an executor or administrator may bring or defend, in
the right of the deceased, actions for causes which survive.
SEC. 3. Heir may not sue until share assigned.—When an executor or administrator is appointed and
assumes the trust, no action to recover the title or possession of lands or for damages done to such
lands shall be maintained against him by an heir or devisee until there is an order of the court assigning
such lands to such heir or devisee or until the time allowed for paying debts has expired.
SEC. 4. Executor or administrator may compound with debtor.—With the approval of the court, an
executor or administrator may compound with the debtor of the deceased for a debt due, and may give a
discharge of such debt on receiving a just dividend of the estate of the debtor.
SEC. 5. Mortgage due estate may be foreclosed.—A mortgage belonging to the estate of a deceased
person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or
administrator.
SEC. 6. Proceedings when property concealed, embezzled, or fraudulently conveyed.—If an executor or

administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased,
complains to the court having jurisdiction of the estate that a person is suspected of having concealed,
embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such
person has in his possession or has knowledge of any deed, conveyance, bond, contracts, or other
writing which contains evidence of or tends to disclose the right, title, interest, or claim of the deceased
to real or personal estate, or the last will and testament of the deceased, the court may cite such
suspected person to appear before it and may examine him on oath on the matter of such complaint;
and if the person so cited refuses to appear, or to answer on such examination such interrogatories as
are put to him, the court may punish him for contempt, and may commit him to prison until he submits to
the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in
writing and shall be filed in the clerk’s office.
SEC. 7. Person entrusted with estate compelled to render account.—The court, on complaint of an
executor or administrator, may cite a person entrusted by an executor or administrator with any part of
the estate of the deceased to appear before it, and may require such person to render a full account, on
oath, of the money, goods, chattels, bonds, accounts, or other papers belonging to such estate as came
to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the
person so cited refuses to appear to render such account, the court may punish him for contempt as
having disobeyed a lawful order of the court.
SEC. 8. Embezzlement before letters issued.—If a person, before the granting of letters testamentary or
of administration on the estate of the deceased, embezzles or alienates any of the money, goods,
chattels, or effect of such deceased, such person shall be liable to an action in favor of the executor or
administrator of the estate for double the value of the property sold, embezzled, or alienated, to be
recovered for the benefit of such estate.
SEC. 9. Property fraudulent conveyed by deceased may be recovered. When executor or administrator
must bring action.—When there is a deficiency of assets in the hands of an executor or administrator for
the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed
real or personal property, or a right or interest therein, or debt or credit, with intent to defraud his
creditors or to avoid any right debt, or duty; or had so conveyed such property, right, interest, debt, or
creditors, and the subject of the attempted conveyance would be liable to attachment by any of them in
his lifetime, the executor or administrator may commence and prosecute to final judgment an action for
the recovery of such property, right, interest, debts, or credit for the benefit of the creditors; but he shall
not be bound to commence the action unless the creditors making the application pay such part of the
costs and expenses, or give security therefor to the executor or administrator, as the court deems
equitable.
SEC. 10. When creditor may bring action. Lien for cost.—When there is such a deficiency of assets, and
the deceased in his lifetime had made or attempted such a conveyance, as is stated in the last
preceding section, and the executor and administrator has not commenced the action therein provided
for, any creditor of the estate may, with the permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the
conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be
commenced until the creditor has filed in a court a bond executed to the executor or administrator, in an
amount approved by the judge, conditioned to indemnify the executor or administrator against the costs
and expenses incurred by reason of such action. Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and other expenses incurred therein as the court deems
equitable. Where the conveyance or attempted conveyance has been made by the deceased in his
lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the
name of all the creditors, and permission of the court and filing of bond as above prescribed, are not
necessary.

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Succession Atty.

Crisostomo Uribe 1st Term AY14-15

A. Definition and Concept. Arts. 774, 712, 1311

Article 712. Ownership is acquired by occupation and by intellectual creation.

- CONTRACTUAL RIGHTS AND OBLIGATIONS are transmissible to the

Basis of Law of Succession

(1) family relations – law of intestate succession & law of legitimes

Legal Philosophy of the Civil Code on Succession

- happiness may be attained by tempering the concept of extreme individualism with

- rules of succession come from three systems with contrasting philosophies:

Fundamental changes in the NCC

2. Greater facility in the probate of wills is provided by the introduction of system of

4. In the legitime of legitimate children and descendants, the betterment consisting of

Other terms used to refer to reserva troncal: 1. Lineal, 2. Familiar, 3. Extraordinaria, 4.

Effectivity of New Rights

Old CC Effectivity - 1889

B. Law governing form

1. As to time of execution. Art. 795

ON INTRINSIC VALIDITY. Intestate and testamentary successions, both with respect to

Always two aspects: extrinsic and intrinsic

2. As to place of execution. Arts. 17, 810, 815-819

Prohibition on joint and mutual wills

- Mutual wills separately executed is not prohibited by the NCC.

In re Will of Rev. Abadia, 50 O.G. #9, p. 4185

Fleumer v. Hix, 54 Phil. 610 (renvoi)

Estate of Giberson, 48 O.G. #7, 2657

Estate of Rodriguez, 46 O.G. # 2, p. 584

C. Law governing content

2. As to successional rights, etc. Art 16(2); 1039

1. order of succession in intestacy;

2. intrinsic validity of a will;

3. extent of property an heir is entitled;

4. capacity to succeed of heirs;

5. questions of preterition, disinheritance, and collation.

Estate of Christensen, 61 O.G. # 46, p. 7302

Estate of Amos Bellis, 20 SCRA 358

Cayetano v. Leonides, 129 SCRA 524

D. Subjects of Succession. Arts. 775, 782, 887, 1003

Decedent – person whose property is transmitted through succession, whether or not he

a. primary compulsory heir – legitimate children and descendants; adopted children

legitimated children – children by subsequent marriage; compulsory heirs

c. concurring compulsory heir – surviving spouse; illegitimate children

surviving spouse – must be shown to have a valid marriage

bigamous marriage – two wives may inherit (basta good faith)

Q: Is it important to distinguish bet. heir devisee and legatee?

All compulsory heirs are legal heirs.

legal heirs – when a valid will was subsequently invalidated

Why is there a distinction of kinds of heirs?

Distinction of types of heirs in relation to a will.

Voluntary or testamentary – only succeed by virtue of a will

Are all compulsory heirs blood related? No.

Voluntary heirs are instituted heirs.

Q: The following survived X: A, B, C, and D, X is pinoy. All children legitimate children of X.

Article 887. The following are compulsory heirs:

Can a VH be a CH? Not necessarily.

Types of compulsory heirs – check classification of Pineda on Succession which is primary

VH OR HEIR na walang civil personality – the SOUL (putang ina!)

Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving

2nd cousins – NOT HEIRS, 6th degree already.

1st cousins – 4 degrees removed

1. Who are the subjects?

2. Relationship Arts 963-969