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PART ONE: CONCEPT OF SUCCESSION

01:

What is succession?

Manresa: legal mode by virtue of which the property rights & obligations which in life belong to a person is transmitted to his heirs Scaevola: The mode of acquiring ownership by virtue of w/c the inheritance of a person is transmitted to us, either accdg to his express will & words, or, if by some natural or accidental circumstances he has made no will, accdg to his presumed will provided for by law as analogous to what he would have made had he executed one. Gomez: It is a mode of acquisition, by virtue of w/c one succeeds to the universality of the transmissible rights, active & passive, of a person who has died. While Scaevolas definition is detailed, it did not capture one principle w/c was contained in Manresas definition, i.e., w/c in life belongs to a person

When the estate is to be divided. Where the will instituted heirs as well as legatees or devisees, but the estate is not enough to cover these voluntary heirs, the legatee or devisees will be preferred because by stating the particular property to be given to a particular person, the intention to give is more specific. Whereas, in case of the heirs, the intention of the testator is presumed to be to give only what is left of the property. So, if nothing is left, the heirs will also get nothing.

07:

If X in his will provided the ff: I give to Mr. Santos as his legacy 1/2 of my estate, is Mr. Santos an heir or a legatee? Hes an heir, because for there to be a legatee, the property should be specified. Accdg to JBLR, no matter what name the testator gives the recipient, its his characterization in the law or the provision of the law w/c controls. Accdg to Caguioa, he is neither a legatee nor a devisee because no specific personal or real property is given him. Hence, A782 applies & he is considered an heir since hes been called to the succession & is neither legatee not devisee. But remember that in succession it is the will of the testator w/c is the law. So should he not be considered a legatee? No answer is given. DC: Here, the law prevails over testators will, as succession is purely statutory.

02:

What are JBL Reyes observations on the New Civil Code? He observes that, in A782, the distinction bet heir & legatee isnt drawn w/ precision, & yet the distinction is all important, for A854 (preterition) & 918 (disinheritance) provide cases where the institution of heir is void but the legacies & devices remain valid. The Code omits to state the fundamental difference: that heirs are instituted to the whole estate or to an aliquot portion thereof, i.e., to the whole or a fraction of the whole; while a legatee or devisee is given individualized items of prop. As noted by Ferrara, the quality of heir doesnt depend on the appellation given by the testator; it doesnt arise ex voluntate, sed ex re. A782 makes it impossible to differentiate the voluntary heirs instituted by will from the legatees. In limiting legatees & devisees to persons to whom gifts of property are given, it would logically follow that the quality of legatee or devisee results from a donation mortis causa. This isnt a differential criterion, since donations mortis causa must have the formalities of wills. Furthermore, under A782, there would be no justification for a separate regulation of legacies, as is done in 7, ch. 2 of the project, since all testamentary legatees would be heirs under A782. A660, CC of 1889 should be revived in lieu of the present A782.
08:

Can one be both an heir & a legatee (devisee) at the same time? Nothing will prevent the testator from giving him the entire or aliquot portion of the estate & at the same time give him a specific movable or immovable property.

09:

What is the object of succession? The object of succession is inheritance. Not all the properties, rights & obligations of decedent are part of the inheritance. Excluded are those extinguished by death. CC doesnt say w/c rights & obligations extinguished by death of owner. But Tolentino enumerates some & provides general rules. Heirs are no longer personally liable for the debts of the deceased; such must be collected only from estate. If estate insufficient, heirs cant be made to pay. (A1311) But if heirs paid, they cant recover since it has been converted to a nat. obligation. (A1429) A corpse may not be inherited because it is outside the commerce of man (A1347). FC merely provides for whos to give proper burial. Accordingly, a testator may not dispose of his body in his will. But RA 1056 allows for giving away of all or part of the human body after ones death by way of legacy for medical, surgical or scientific purposes. But this is legacy in a loose sense, inasmuch as the legacy is executed by operation of the law, that is, it becomes effective upon the death of the testator (even w/o waiting for probate of the will & even if the will is not probated or is declared invalid for testamentary purposes, to the extent that it was executed in good health) & provided certain requirements are satisfied.

03:

Who are the subjects of succession? The subjects of succession are the DECEDENT and the HEIRS. The decedent is the person who owns the property (see A775). Note that A775 does not distinguish bet juridical persons & natural persons. So, can a corporation be a decedent? Succession as a mode of acquisition is based (1) on the will of the decedent, & (2) on his presumed will based on his blood relationsif he dies w/o a will, it is presumed that he will prefer his blood relatives over strangers. These 2 foundations of succession do not obtain in the case of a juridical personit has no will of its own, nor any relatives. And so, how can a corporation leave a will after its death commanding how its property should be distributed? Its properties are distributed in accordance with the law. When the reason behind the law ceases, the law ceases. The heir is the person wholl acquire ownership over the property. Again, A782 doesnt distinguish bet juridical & natural persons. But while a juridical person can be an heir, a cat cannot be an heir. Although the code doesnt define what a natural person is, the underlying principle is that a natural person must be a human being. And although heirs are not limited to human beings, in order for one to qualify as a person under A782, the ff. requisites must concur: (1) he must have juridical capacity or civil personality (2) he must have capacity to act. (to accept)

010: Is the sale of future inheritance before death of the decedent

valid? Under A1347(2), it is not. A1461(1), w/c provides that things having a potential existence may be the object of the contract of sale is not the exception contemplated by A1347. What the exception in A1347 refers to are contracts concerning future property w/c are allowed by law. A future inheritance cannot be made an object of sale because the right to the inheritance will be vested only when the testator dies. Until then, the will of the testator may change. Successional rights are mere expectancy until the moment of death w/c makes it immutable. For a contract upon future property to fall within the exception provided in A1347, the following must concur: 1. it is a contract 2. it is a contract on future inheritance, & 3. the law expressly authorizes it. Following this, DC enumerates only 2 exceptions under the New Civil Code: 1. donation propter nuptias in CC A130 2. partition inter vivos under A1080, as held by SC in the case of Sumaya.. For DC, SC erroneously decided this case.
011: Explain

04:

What are the kinds of heirs according to what is inherited? The kinds of heirs according to what is inherited are the instituted heir, & the devisee & legatee. The instituted heir is given the entire inheritance or an aliquot part (a determinate portion of the estate, but as to what properties are included in that portion, we do not know) thereof. The devisee & legatee are persons to whom gifts of real & personal property are respectively given by virtue of a will (A782).

05:

What are the kinds of heirs according to how instituted? The kinds of heirs according to how instituted are the compulsory, voluntary or testamentary, & legal or intestate heirs. The compulsory heir succeeds regardless of decedents will. The voluntary or testamentary heir succeeds by reason of such will. And the legal or intestate heir succeeds in the absence of such will.

how donation propter nuptias of future property is contemplated as an exception under A1347(2). No. FC, A41 is limited to remarriage. Likewise, survivorship rules under ROC do not apply to succession. Conversely, CC A43 applies to succession, not the ROC.

012: Do FC, A41 & the survivorship rules under the ROC apply to

succession? Donation propter nuptias is a conveyance of property by one spouse to another or by a third person to either spouse. Donation propter nuptias relating to future property concerns future inheritance because the conveyance takes place mortise causa. That is the important factorthe date of conveyance. Consequently, donation propter nuptias relating to future property is an exception to A1347(2) inasmuch as it involves future

06:

When does differentiating between an heir & a devisee or legatee become important?

In cases of preterition (854) the institution of an heir is annulled, but the devises & legacies shall be valid insofar as they are not inofficious.

inheritance, it is expressly exepted by law & it is a contract (because it is not revocable except on grounds provided by law). But does this still hold despite the revocation of CC A130 by FC A84? Under FC A84, donation propter nuptias relating to future property is now covered by the laws of succession. Thus it is now revocable at will & is no longer a contract. But FC A86, w/c provides the grounds for the revocation of donations made by reason of marriage, qualifies revocability of donation propter nuptias. Reconciled: The reference to the provision of testamentary succession in FC A84 relates only to the form of executing the donation of future property & does not in any way imply that such a donation takes the character of a will because it still remains irrevocable, except as regards the cases enumerated in FC A86.
013: What are the kinds of succession?

020: What about the acknowledgement of an illegitimate child? If in

the affirmative, is the probate of the document acknowledging the illegitimate child necessary? Yes, an acknowledgment of an illegitimate child is an indirect disposition since it entitles the illegitimate child to a share in the estate of his father. Thus, the document acknowledging him partakes of a will. According to Paras & Tolentino, & as held in Guevarra v. Guevarra, no probate of the document is needed. Also, according to DC, there is no practical purpose that would be served by the probate of the will. Its a fait accompli even if the document is not probated. Probate would only be necessary if the instrument of acknowledgement is a forgery. But note that in probate, what is determined is only the solemnities & formalities of the will. So why probate? The will, to be probated, must contain a direct disposition of property. Otherwise, probate is not needed.
021: Is a document appointing an executor a will?

According to A778, succession may be testamentary, legal or intestate, or mixed. However, in reality, there is no mixed succession. There is no set of rules particularly applicable to mixed succession. As to those dispositions mentioned in the will, testamentary rules apply. The rest are governed by the rules on intestate succession. From this, it is evident that mixed succession is not a mode but only a description of what rules apply. It is not a mode of succession as no separate rules therefor apply.
014: Is there a definition of intestate succession in the Civil Code?

According to Tolentino, disposition of a property is not an essential characteristic of a will. Thus, the document is a will. However, no probate is needed. According to Caguioa, the document is not a will because under A783, a will disposes of property. The document above is not a will as there is no disposition of property. According to Paras, if the document doesnt dispose of property, no probate is needed.
022: What if the will says none of my property will ever go to

No, there is none. There was a proposed definition: that intestate succession is that which takes place by operation of law when theres no valid will. But the Code Commission suppressed this definition since it was wrong. There can still be intestate succession even if theres a valid will. So, they just opted to enumerate instances when intestate succession takes place. Even so, A960 isnt exclusive.
015: Is donation propter nuptias a case of contractual succession?

Patricia, is this a will? If in the affirmative, what kind of succession ensues? Yes. There is herein an indirect disposition. Intestate succession ensues (see A960). The grounds therein are not exclusive. Note that there is no designation of heir by implication.
023: What is the difference between a donation mortis causa & a

This is not settled. Contractual succession was allowed in the New Civil Code under A130. But this was amended by FC. Under the strict view, donation propter nuptias is no longer a contract but is a testamentary. But others opine that it is still a contract because it cannot be revoked at the will of the donor. DC: It seems, from the deliberations of the Code Commission, the intent was to make donation propter nuptias a pure case of testamentary succession. Thus, taking it out as a form of contractual succession.
016: What is a donation inter vivos & a donation mortis causa?

contract of agency? In a contract of agency, the revocation is a resolutory condition, while in a donation mortis causa, it is a suspensive condition, hence no rights accrue yet.
024: Now, A had 3 kids. A died. He is survived by his spouse B & his 3

Donation inter vivos is where ownership over the property is vested on the donee at the time of the perfection of the donation. Donation mortis causa is where ownership vests after the death of the donor. Donation mortis causa is actually a will governed by law on testamentary succession (CC A7)
017: A donation stipulates: I transfer my house to C to be delivered to

kids. The 4 then divide the inheritance. Half goes to B as his share in the conjugal property. The other half is divided among the 4 of them. After the division, the oldest child wanted to get his inheritance already from B. B consults a lawyer on whether it was valid to write as a condition that upon her death, the eldest would not share in the inheritance she would leave. The said document was thus executed as described. Is this valid? No. There was here a waiver by B.
025: Is the situation above governed by A828?

him after my death. Is this a donation inter vivos or a donation mortis causa? This is a donation inter vivos, not a donation mortis causa. After death, youll only deliver the property w/c is not essential for perfection of donation.

No. A828 refers to the change of a testators will. The waiver here executed is for a contract of future inheritance.
026: A contract was entered into by A & B whereby A instituted B as

his heir in his will. B gave him a ring on the assurance that A would not revoke said will. Is this valid? No. No such waiver contract is allowed. But A must return the ring to B.
027: What is testamentary capacity and why is it required?

PART TWO: WILLS


018: What are the characteristics of a will?

1. purely statutory 2. free & voluntary act 3. solemn & formal 4. disposition of property 5. essentially revocable 6. testator has testamentary capacity 7. testator has animus testandi 8. unilateral act 9. mortis causa 10. individual act 11. purely personal act
019: Is a document disinheriting a person considered a will?

Testamentary capacity is the ability to discern & deliberate. It is required so that the will would contain the true desire of the owner of the property. The testator, then, must have the capacity to discern the import & effect of a gratuitous disposition.
028: What if a will is dictated to an attorney? Is it valid?

The will is valid as long as the dispositions contained therein are the desires of the testator. The disposition of the testators property must be in accordance with his wishes & not in accordance with the wishes of 3rd persons. Under A784, the making of a will is a strictly personal act & cant be left in whole or in part to the discretion of a 3rd person or accomplished thru the instrumentality of an agent or atty. But the mechanical act of drafting of the desires of the testator by third persons is permissible.
029: The father died without a will. He left behind 3 heirs. A accepts

Yes. Disinheritance is actually a disposition of property since the share of the disinherited heir goes to the other heirs. (Indirect disposition) Hence, the document containing the disinheritance is actually a will.

his inheritance & immediately sells the car which was part of the estate left by the decedent. Is it valid? Yes. Death automatically opens succession. But the transmission of property is not automatic. Acceptance of the inheritance is needed. Upon the death of the testator, all heirs automatically become co-owners of all the properties of the estate. So the 3 heirs are co-owners of the car. But the sale is nevertheless valid (A is to deliver his part of the car) but for the

failure to deliver the entire car, he is liable for damages. Thus, the sale is valid up to As share. This is known as the doctrine of relativity of contract. As to some parties, the contract is valid. As to others, it is void. WON the contract is valid thus depends on whose point of view one is using. Note that the mere fact that a person dies & his heir accepts does not mean that transmission automatically ensues because the document left by the testator may not be a will. The following are the requisites therefor: 1. A will or law, 2. Death of the testator, 3. Acceptance, & 4. Probate of the will. A will not probated does not transmit any property.
030: When does death occur? Why is it important to know when a

as to his intention; & when an uncertainty arises upon the face of the will as to the application of any of its provisions, the testators intention is to be ascertained from the words of the will, taking into consideration the circumstances under w/c it was made, excluding oral declarations.
037: According to A791, no part of the will should be discarded unless

it is in conflict with some other part, in which case, that part which expresses the intention of the testator will be enforced. Why? No.
038: If a property is acquired after the making of a will, is this property

included in the will that should pass to the heirs? No.


039: In case a devise or legacy is given, what is the extent of interest

person died? Death occurs when such fact is proven by the presentation of the death certificate. But in the absence thereof, other evidence may be admitted, since the term death includes presumptive death. It is important to know when a person died to determine who the heirs are. (see CC A40)
031: What are the two types of presumptive death? Why do they

that is given? No.


040: May a testator convey a larger interest?

require different periods? The two types of presumptive death are ordinary presumption (A390) & extraordinary presumption (A391). Under A390, succession opens after 10 yrs. Under A391, it opens after 4 years. The period required in A390 is longer because the reason for the disappearance is unknown. In contrast, under A391, there is a known possibility that a person is already dead because of the danger existing at the time of his disappearance. Thus, the period required by law is shorter. Under A390, the death is considered to have occurred on the lapse of the required period for reappearance. Under A391, he is considered dead on the day he disappeared.
032: If a will does not name heirs, only legatees, is there testamentary

No.
041: If a lot is given, does it include the house built thereon?

No.
042: If a will is valid at the time of its execution but is invalid as to

form at the time of the testators death, is the will void? No.
043: What if a will which is invalid at the time of its execution becomes

succession? Yes. Heir here is used in its general sense.


033: What are the requirements for testamentary succession?

valid at the time of the death of the testator due to some amendment in the law. What is the status of the will? No.
044: If a will is valid at the time of its execution, but years before the

A will & designation of heirs


034: Is a recorded will valid?

death of the testator, the law as to form was amended making the will invalid at that point in time & the testator knowing the amendment in the law did not change his will accordingly until his death. Is the will valid? No.
045: In case of a Filipino citizen who is a resident of the US & who

No. See A804. Note that while A783 says any act, it is qualified by the phrase with the formalities prescribed by law. Thus, wills are limited to written instruments.
035: If a will admits of different interpretations, in case of doubt, how

made a will in the Philippines observing US law, is the will valid? No.
046: If a Filipino citizen abroad executes an act in the presence of

do we interpret it? 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. (A788) This is because there is a presumption that the testator wanted to have a will. So, the interpretation should favor validity.
036: If there is ambiguity in the will, how do we resolve it?

diplomatic & consular officials of the Philippines, what laws shall govern? No.

According to Caguioa, there are 2 kinds of ambiguities: latent & patent. A latent or intrinsic ambiguity is one w/c cant be seen from a mere perusal or reading of the will but w/c appears only upon consideration of the extrinsic circumstances. For example, T gives a legacy to my cousin Pedro & it turns out that he has 2 cousins named Pedro. A latent ambiguity may arise either: 1. when the will names a person as the heir, devisee or legatee, & there are 2 or more persons that answer to such name or meets the description; 2. where there is a misdescription of the beneficiary or of the thing given gratuitously. On the other hand, a patent or extrinsic ambiguity is one which appears upon the face of the instrument. According to Caguioa, then, if the ambiguity is latent, all kinds of competent evidence is admissible to show the intention of the testator. Hence, parol or evidence aliunde my be admitted. However, excepted to this are declarations of the testator. But if the ambiguity is patent, intrinsic evidence is enough to discover the ambiguity so that only the will itself is needed to resolve it. Extrinsic evidence is not admissible. Accdg to Tolentino & Paras, even if the ambiguity is patent, extrinsic evidence may be admitted, except oral declarations. CC no longer distinguishes bet latent or patent ambiguities except to exclude oral declarations as a means of resolving ambiguity. So, all kinds of evidence may be used to resolve ambiguity, except oral declarations. Under the Code, then (A789), when there is an imperfect description, or when no person or property exactly answers the description, mistakes & omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding oral declarations of the testator

047: If there are no diplomatic officials, can Filipinos choose to execute

a will according to the solemnities of Philippine law? No.


048: If a

PART THREE: TESTAMENTARY CAPACITY AND INTENT


049: Who may make a will?

All persons who are: 1. Qualified, & 2. Not expressly prohibited by law (hence, cant be disqualified by implication). (A796)
050: What is meant by must be qualified?

He must not be less than 18 yrs of age & must be of sound mind. If he is below 18 or of unsound mind, the will is invalid because the testator had no testamentary capacity (no discretion or discernment).
051: When is a person considered 18 yrs old & hence, capable of

making a will? There are two views:

1. Spanish view is that a person is not 18 until after the day marking the last day of his 18th year has lapsed. (he is 18 on the eve of his 18th birthday. DC says follow this) 2. American view is that a person is 18 as soon as the last day preceding his 18th has lapsed & the first day of his 18th years has begun.
052: What is the status of a will executed 5 days before his 18th

birthday but finished after he is already 18 yrs old? Even if the provisions were written before he was 18 yrs old, the will is valid because it is the signing of the will w/c makes a will. The reckoning time is the completion of the will upon signing & dating.
053: Person was born 2/7/60, & made his will 2/4/78. Is the will valid?

Yes. One must count years using 365 days per year, not calendar years. Once a day starts, it is considered to have elapsed.
054: Are spendthrifts, prodigals under guardianship, or persons under

civil interdiction prohibited by law from making a will? Spendthrifts & prodigals under guardianship may make a will because the law does not expressly prohibit them from making one. A person under civil interdiction may also make a will but only for properties disposed by acts inter vivos & not by acts mortis causa.
055: Is the degree of soundness of mind required in making a will the

same as the degree of soundness of mind required in other acts? No. For soundness of mind to execute a will, the testator should know: The nature of the estate to be disposed of (objects under ownership), The proper objects of his bounty (proper people as heirs), & The character of the testamentary act (animus testandi; essentially gratuitous).
056: What is the rule on presumption of soundness of mind?

In general, capacity is presumed & the burden of proof lies on the person contesting capacity. (Std Oil v. Arenas) A person is presumed to be of sound mind, the burden of proof lies on the person claiming otherwise. But if the testator is publicly known to be insane 1 month (30 days) before the will is executed, burden of proof lies on the person claiming will was executed during a lucid interval. (DC: theres a problem with this rule. When is a person considered publicly known to be insane? The law does not say.)
057: Whats the status of a will executed by a person of sound mind

who later becomes insane? The will remains valid. Supervening incapacity doesnt invalidate an effective will. (A801)
058: Suppose if he is incapacitated to make a will but despite this

incapacity, he made a will. Later on, he has recovered & is now capable of making a will, what is the status of the will? The will remains void & isnt validated by the supervening capacity to make a will. (A801)

PART FOUR: SOLEMNITIES OF WILLS


059: J

TESTAMENTARY SUCCESSION

II. WILLS 1. Definition ARHAO ART 783. A will is an act whereby a person is permitted, with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death. Tolentino: 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 duties to take effect after his death. The Civil Code seems to limit the concept of a will to a disposition of property to take effect upon and after death. The Code considers a will as a species of conveyance whereby a person is permitted, with the formalities prescribed by law. to control in a certain degree the disposition of his property, to take effect after his death. It is only when the will disposes of . . property either directly or indirectly, that it has to be probated. Art. 338 provides that "no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." 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; its dispositions which are provided by law. such as the acknowledgment of a natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be given effect even without probating the will. The law permits a testator to disinherit a compulsory heir for any of the causes provided by law, and the disinheritance is expressly required to be made in a .will (art. 916) A valid disinheritance is in effect a disposition of the property in favor of those who would succeed in the absence of the disinherited heir. Unless the will is probated, the disinheritance cannot be given effect. The characteristics of a win are: (a) It is a purely personal act; (b) It is a free act, without violence, fraud or deceit; (c) It disposes of property; (d) It is essentially revocable; (e) It is formally executed; (f) The testator has testamentary capacity; (g) It is a unilateral act; and (h) It is an act mortis causa, or takes effect upon the death of the testator. The fourth characteristic, that of revocability, springs from the fact that the will does not take effect except upon the death of the testator. MAGIC NOTES: Q: What are the characteristics of a will? A: 1. purely statutory 2. free and voluntary act 3. solemn and formal 4. disposition of property 5. essentially revocable 6. testator has testamentary capacity Page 9 of 207 7. testator has animus testandi 8. unilateral act 9. mortis causa, 10. individual act 11. purely personal act 2. Characteristics a. purely statutory ART 783. A will is an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death. MAGIC NOTES: Q: Why is it a purely statutory act? A: Because under Art 783, it is the law which person to make a will. "permits" a Q: May Congress enact a law prohibiting making a will? A: Yes. Anyone can make a will but such will may not be enforced by court action. It becomes obligatory simply because the law makes it one. b. free and voluntary act ART 839. The will shall be disallowed in any of the following cases: (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it is was procured by undue and improper pressure and influence on the part ________of the beneficiary or of some other person. MAGIC NOTES: Q: Why free and voluntary act? A: Because no one is forced to make one. See Art. 839(3) and (4). If it were otherwise, then the will would no longer be the testator's but the will of the one causing fear, etc. c. solemn or formal Solemn- follows certain ceremony. Ex. 3 witness rule Formal- it must be in the required form MAGIC NOTES: Q: What is meant by solemn? A: The law prescribes a ritual. Q: what is meant by formal? A: The law prescribes a form.

Q: Why does the law prescribe solemnities and formalities? A: In order to prevent fraud. When testator is already dead it is hard to ascertain his intention. Q: What is the effect of non-compliance with the solemnities and formalities? A: The will will be invalid. d. disposition of property ART 783. A will_is_an act whereby a person js___\
REVIEWER IN SUCCESSION

2007A permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death.___ __ The testator, through a will, disposes of the property in accordance with the law. MAGIC NOTES: Q: Is a document disinheriting a person considered a will? A: Yes. Disinheritance is actually a disposition of property since the share of the disinherited heir goes to other heirs. (Indirect disposition) Hence, the document containing the disinheritance is actually a will. Q: What about the acknowledgment of an illegitimate child? A: This is an indirect disposition since it entitles the illegitimate child to a share in the estate of his father. The document acknowledging him therefore partakes the nature of a will. Q: In the instance above, is the probate of the document acknowledging the legitimate child necessary? A: According to Paras and Tolentino and as held in the case of Guevarra v. Gucvarra, no probate of the document is needed. Also, Danny Con stated that there is no practical purpose that would be served by the probate of the will. It's a fait accompli even if the document is not O probated. Probate would only be necessary if the XC instrument of acknowledgement is a forgery. But note V- that in probate, what is determined is only the Q solemnities and formalities of the will. So why probate? .<: The will, to be probated, must contain a direct disposition of property. Otherwise, probate is not needed. Q: Is a document appointing an executor a will? A: According to Tolentino, disposition of a property is not an essential characteristic of a will. Therefore, the document is a will. However, nc probate is needed. According to Caguioa, the document is not a will because under Art. 783, a will disposes of property. The document above is not a will as there is no disposition of property. According to Paras, if the document does not dispose of property, no probate is needed. Q: What if the will says "none of my property will ever go to 'Patricia', is this a will? A: Yes. There is herein an indirect disposition. Q: What Kind of succession ensues? A: Intestate. See Art. 960. The grounds therein are not exclusive. Note that there is no designation of heir by implication. e. essentially revocable ART 828. A will may be revoked by the testator at anytime before his death. Any waiver or ___restriction of this right is void.____ __ TOLENTINO: Revocability is an inseparable quality of every will. Wills by their very nature are ambulatory and inoperative till the death at the testator. Revocation is 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. Revocation and Nullity - Both revocation and nullity of will have the common purpose of depriving a last will of legal effect. But they differ in the following respects: (a) Revocation is by act of the testator, while nullity proceeds from the law. (b) Revocation presupposes a valid act, while nullity is inherent in the testament, be it an intrinsic or extrinsic defects. (c) Revocation takes place during the lifetime of the testator, while nullity is invoked after his death by his intestate or compulsory heirs. (d) The testator cannot renounce the right to revoke, while the nullity of a will can be disregarded by the heirs through voluntary compliance therewith. MAGIC NOTES: Q: When may a will be revoked? A will may be revoked for whatever reasons before the death of the testator. Q: Why is revocation allowed? A: Revocability is the essence of a will. A will is not a contract; heirs do not pay a consideration. The provisions in a will are pure liberalities which the testator may change at any time without third parties acquiring vested right thereto before the death of the testator. Q: What is the difference between & donation mortis causa and a contract of agency? A: In a contract of agency, the revocation is a resolutory condition whiie in a donation mortis causa, it is a suspensive condition, hence, no rights accrue yet.

Q: Note Art 828. Now. A had three children. A died. He is survived by his spouse B and his three children. The four then divide the inheritance. Half goes to B as his share in the conjugal property. The other half is divided among the four of them. After the division, the oldest child wanted to get his inheritance already from B. B consults a lawyer on whether the request by B is possible. B wanted to write as a condition that upon her death, the eldest would not share in the inheritance she would leave. The said document was thus executed as described. Valid? A: INVALID. There was here a waiver by B. Q: 'Is the situation above governed by Art. 828? A: No. Art. S28 refers to the change of a testator's will. The waiver here executed is for a contract of future inheritance. Q: A contract was entered into by A and B whereby A instituted B as his heir in his will. B gave him a ring on the assurance that A would not revoke said will. Valid? A: No. No such waiver contract is allowed. But A must return to B the ring. Page 10 of 207
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other words, there can be no joint will (where a single


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2007A f. testator has testamentary capacity ART 796. All persons who are not expressly prohibited by law may make a will._________ ART 797. Persons of either sex under eighteen years of age cannot make a will.______________ TOLENTINO: The law requires the testator to be 18 years of age or over. The most important question that arises in this 'connection is the method of computing the age. Authors on the Roman Law generally consider that it is sufficient that the last day of the required year shall have begun, because the computation is made, not from day to day, but from year to year. The more accepted rule, among Spanish authors, however, is to the effect that the las! day of the required year should have passed, before the person can be considered as having the requisite age for making a will. Anglo-American jurisprudence, in the absence of statutory provisions on the manner of computation sustains the view that the required age is reached at the commencement of the day preceding the anniversary of the birthday: that is, it is sufficient that the last day of the eighteenth year shall have commenced. The law does not recognise fractions of a day. Under this rule, a person born on February 1, at 11 p.m., may make a will at 1am of of Januarys 1 of his 18th year; that is, 46 hours before the completion of 18 full years. It is submitted that the Anglo-American rule should be followed in this jurisdiction. ART 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. - - . g. unilateral A will is the product of the act of only one side, that of the testator. Only one side is necessary for a valid will. Page 11 of 207 TOLENTINO: The law presumes capacity to make a will; hence, in order that a person may be disqualified to make one. he must be expressly prohibited by law. A person under civil interdiction can make a will; he is disqualified for dispositions of property only by acts inter vivos, but not by act mortis causa. MAGIC NOTES: Q: why is testamentary capacity required? A: So that the will contains the true desire, of the owner of the property. The testator then, must have the capacity to discern the import and effect of a gratuitous disposition. Q: What is meant by testamentary capacity? A: It is the ability to discern and deliberate. Q: Does a child of 10 years Have testamentary capacity? A: No. At 10 years, of age, a child has no discretion yet. Acceptance is not necessary for the validity of a will. Acceptance or nonacceptance only determines whether the provisions will be enforced. h. mortis causa ART 777. The rights to the succession are transmitted from the moment of the death of the decedent. (For Tolentino's comments, please see Chapter I, No. 4) The disposition is effective only upon the death of the testator. i. testator must have animus testandi Animus testandi- intention to dispose by will MAGIC NOTES: Q: What is animus testandi? A: It is the intention of the testator to part with his property and to make the instrument his last will and testament. Montinola v. Herbosa j. Individual ART 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._________________________ one person, one will Two or more persons may not make a single will. Or in

2007A instrument is made the wiH of two or more persons and is jointly signed by them). TOLENTINO: A joint will is where the same instrument is made the will of two or more persons and is jointly signed by them. Such a will contained in a single instrument is the will of each of the makes, and at the death of one mat be probated as the will of the latter. Such wills are usually executed to make testamentary dispositions of joint property. Mutual wills 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 two or more persons. The provisions of which are reciprocal, and which shows on its face that the devises are made by one in consideration of the other Reasons for prohibition- A joint will is prohibited because: (a) a will is a purely personal and unilateral act. and this is defeated if 2 or more persons make their wills in the same instrument. (b) It is contrary to the revocable character of a will; if one testator revokes his will by burning the instrument, the other testator would have no document left containing his testamanetary dispositions. (c) A joint will, if mutual or reciprocal, may expose the testator to undue influence, and may even tempt one of the testators to kill the other. The Civil Code does not prohibit mutual or reciprocal wills, provided they are not conjointly made. The real prohibition in the Code refers to the execution of a joint will, or the expression by two or more testators of their wills in a single document or text and by one act. The law does not invalidate two distinct wills, independent of each other which are written on the same sheet of paper, one on each side, or even on the same side but separated by a line between. k. purely personal act persons, institutions or establishments, to which such property or sums of money are to be given or applied._______________________ ART 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person or accomplished through the Instrumentality of an agent i>r attorney._______ TOLENTINO: ART AO It is the making of the disposition, the expression of the will of the testator, that is not subject to delegation. The testator cannot substitute the mind or will of another for his own. But the mere mechanical act of drafting the will may be done by a third person. 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. ART 786. The testator may entnjst 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 a/so the designation of the TOLENTINO: In the cases contemplated by this article, there is no delegation of the will or testamentary disposition. The testator has expressed his will, by leaving specific property or sums of money in general to specified classes or causes. 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.__________________ Page 12 of 207 TOLENTINO: To delegate to a third person the power to determine whether or not a testamentary disposition is to be operative is in effect delegating the power to make the testamentary disposition; this is not permitted, because it would violate the general principle embodied in art. 784. The present article denies to the testator the power to make a testamentary disposition in such manner that another person has to determine whether it is to be operative or not. It is not only the delegation which is void; the testamentary disposition whose effectivity will depend upon the determination of the third person is the one which cannot be made. Hence, the disposition itself is void. MAGIC NOTES: The disposition of the testator's property must be in accordance with his wishes and not in accordance with the wishes of third persons. Under Art 784, the making of a will is a strictly personal act and cannot be left in whole or in part to the discretion of a third person or accomplished through the instrumentality of an agent or attorney. However, the mechanical act of drafting of the desires of the testator by third persons is permissible. Q: What if a will is dictated to an attorney? A: The will is valid as long as the dispositions contained therein are the desires of the testator. NOTE: Death automatically opens succession. But the transmission of property is not automatic. Acceptance of the inheritance is needed. (Remembering this principle, let's now answer the next question.)

Q: The father died without a will. He left behind three heirs. A accepts his inheritance and immediately sells the car which was part of the estate left by the decedent. Valid? A: Upon the death of the testator, all heirs automatically become co-owners of all the properties of the estate. So the three heirs are co-owners of the car. But the sale is nevertheless valid (A is to deliver his part of the car) but for the failure to deliver the entire car, he is liable for damages. Thus, the sale is valid up to A's share. This is known as the doctrine of "relativity of contract." As to some parties, the contract is valid. As to others, it is void. WON the contract is valid thus depends on whose point of view one is using.
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2007A Note that the mere fact that a person dies and his heir accepts does not mean that transmission automatically ensues because the document left by the testator may not be a will. The following are the requisites therefor: (1) A will or law (2) Death of the testator (3) Acceptance (4) Probate of the will. A will not probated does not transmit any property. Q: When does death occur? A: When such fact is proven by the presentation of the death certificate. But in the absence thereof, other evidence may be admitted, the term "death" includes presumptive death. Q: What are the two types of presumptive death? A: Ordinary presumption (Art. 390) and extraordinary presumption (Art. 391). Q: Why do they require different periods? A: Because the reason for the disappearance in Art. 390 is unknown. Therefore, the period is longer. Under Art. 391, we know that there is a possibility that a person is already dead because of the danger existing at the time of his disappearance. Thus, the period required by law is shorter. Remember, under Art. 39C, succession opens after 10 years Under Art. 391. after 4 years. Under Art. 390. death is considered to have accured on the lapse of the required period for reappearance. Under Art. 391, he is considered dead on the day he disappeared. Q: Why is it important to know when a person died? A: To determine who the heirs are. See Art. 40 of CC. Q: If a will does not name heirs, only legatees, is there testamentary succession? A: Yes. "Heir" here is used in its general sense. Q: When does intestate succession occur? A: See Art. 960. But there is no provision defining what it means. Intestate succession may take place even if there's a valid will (as in the case of mixed succession). Q: Comment on Art. 780 on mixed succession. A: It is a wrong provision or classification. There is no such type of succession, only testate ana intestate succession exists. Q: Suppose a testator leaves a will but not all his property are disposed of by will. Therefore, there's mixed succession. But what rules do we apply in this case? A: There is no set of rules applicable for mixed succession. Thus, as to those mentioned in the will, testamentary rules apply. The rest are governed by the rules on intestate succession. From this, it is evident that mixed succession is not a mode but only a description of what rules apply. It is not a mode of succession as no separate rules Q: What are the requirements for testamentary succession? A: A will and designation of heirs. Q: Is a recorded will valid? A: No. See Art. 804. Note that while Art. 783 says "any act", it is qualified by the phrase "with the formalities prescribed by law." Thus, wills are limited to wntren instruments. 3. Interpretation of wills a. interpretation should favor validity 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 prefen-ed.________________ TOLENTINO: The intention of the testator is the controlling factor in the juridical relations arising from the will; hence,- it is necessary to interpret that intention rationally and in such manner as not to render ineffective the testamentary disposition. MAGIC NOTES: Q: // a wiH admits of different interpretations, in case of doubt, how do we interpret it? A: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Art 788. Q: Why? A: There is a presumption that the testator wanted to have a will. Thus, the interpretation should favor validity. b. in case of ambiguities ART 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and onu'ssions 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.______ therefore apply. Page 13 of 207 ARITflO Note: The first clause of the provision is incomplete.' It refers to latent ambiguity. TOLENFINO: There are two kinds of ambiguity in a will: (a) patent or extrinsic ambiguity - A patent or extrinsic ambiguity is one 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 my brother Juan." (b) latent or intrinsic ambiguity - A latent or intrinsic ambiguity, on the other hand, is one which cannot be seen from a mere perusal or reading of the will, but which appears only upon consideration of extrinsic
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2007A circumstances, such as when the testator-gives a legacy to "my cousin Pedro," and it turns out that he has two or more cousins named Pedro. Our Code does not make any distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence is concerned, to aid testamentary interpretation. Under our Code, therefore, extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of the making of the will, for the purpose of explaining or resolving a patent ambiguity. The extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator; by implication, written declarations made by the testator, outside the will, are admissible. The reason is that the admission of oral declarations of the testator whose lips have been sealed by death and therefore can no longer deny or affirm the truth, of what witnesses may say he declared, would create confusion and give rise to false claims. MAGIC NOTES: Q: If there is ambiguity in the will, how do we resolve it? A: According to Caguioa, there are two kinds of ambiguities, latent and patent. A latent or intrinsic ambiguity is one which cannot be seen from a mere perusal or reading of the will but which appears only upon consideration of the extrinsic circumstances. Example: T gives a legacy to "my cousin Pedro" and it turns out that he has 2 cousins named Pedro. A latent ambiguity may arise either: (1) when the will names a person as the heir, devisee or legatee, and there are 2 or more persons that answer to such name or meets the description; (2) where there is a misdescription of the beneficiary or of the thing given gratuitously. On the other hand, a patent or extrinsic ambiguity is one which appears upon the face of the instrument. According to Caguioa, then, if the ambigujty is latent, all kinds of competent evidence is admissible to show the intention of the testator. Hence, parol or evidence aliunde may be admitted. However, excepted to this are declarations of the testator. But if the ambiguity is patent, intrinsic evidence is enough to discover the ambiguity so that only the will itself is needed to resolve it. Extrinsic evidence is not admissible. According to Tolentino and Paras, even if ambiguity is patent, extrinsic evidence may be admitted except oral declarations. The Code no longer makes a distinction between patent or latent ambiguities except to exclude oral declarations as a means of resolving ambiguity. Hence, all kinds of evidence may be used to resolve ambiguity, except oral declarations. Under the Code then (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 ic his intention; and when an uncertainty arises upon the face of the will as to the application of any of its Page 14 of 207 CD 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 oral declarations. c. interpretation of words 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 bs 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 the will was drawn solely by the testator, and that he was unacquainted with such technical sense._____ TOLENTINO: The supreme law in succession is the intent of the testator. It is only when the intention of the testator is contrary to law. morals or public policy that it cannot be given effect. Since respect for the will of the testator as expressed in his last testamentary disposition constitutes the principal basis of the rules which the

law prescribes for the correct interpretation of all the clauses of the will, the words and provisions therein written must be plainly construed in order to avoid a violation of his intentions and real purpose A distinction in interpretation is often made between a will drafted by skilled testamentary draftsmen, such as lawyers, and a will prepared by persons who have no knowledge of the law. Words found in the first are to be construed with some strictness, emphasis being placed upon their accepted technical meaning, while words in the second kind of wills are to be interpreted liberally with reference to their popular meaning, or the meaning which they would commonly have to a person in the situation of the one who used them. d. interpretation as a whole ART 791. The words of a will are to receive an interpretation which will give every expression some effect, rather than one which will render any of the expression some effect, rather than one which will render any of the expression inoperative: and of two modes of interpreting a will, that is to be preferred which will prevent intestacy._________________________ TOLENTINO: Effect should, if possible, b given to all words, clauses, and provisions of the will, if they are not inconsistent with each other, or with the general intent of the whole will taken in its entirety. Where a will has been executed, the reasonable and natural presumption is that the testator intends to dispose of all his property. The presumption against intestacy is so strong that courts will adopt any reasonable construction of a will in order to avoid it.
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2007A MAGIC NOTES: Q: According to Art 791. no part of the will should be discarded unless it is in conflict with some other part, in which case, that part which expresses the intention of the testator wM be enforced. Why? A: There is a presumption that every word or clause was intended by the testator to have some meaning and no word or dause should be rejected if it is at all possible to give it a reasonable effect. Also Art. 791 provides that here a will has been executed, the testator is presumed to intend the disposition of all his property. e. severability of invalid provisions 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 :vould not have made such other dispositions if the first invalid disposition had not been made. _________ MAGIC NOTES: Art 792. The invalid provision does not affect the validity of ether dispositions, unless such other dispositions were made in consideration of the provision later held to be invalid. f. after-acquired property ART 793. The property acquired after the making of a will shall only pass thereby as if the testator possessed it at the time of making the wi!l, should it expressly appear by the will that such was his intention. TOLENTINO: Observations on Article - This article states a principle that is contrary to principles expressed in other provisions of this Code. Under this article, the will of a person transmits only property owned by him at the time of making of such will; property acquired thereafter is transmitted only when it expressly appears in the will that such is his intention. This contravenes the concept of .heir and of inheritance in the Code. -'-,. The inheritance includes all the property, rights, and obligations of a person not extinguished by his death; it includes not only those existing at the time of death, but the heir gets also the property which may accrue thereto since such death. The drafting of this provision into the Civil Code has thus created a juridical conflict. The most that can be done, to save the law from being inconsistent with itself, is to construe the present article as referring only to devises and legacies, for, after all, these were the testamentary dispositions contemplated by the Code of Civil Procedure, from which this article was taken. Even in this light, the present article conflicts with art. 930, which refers to devises and legacies. This conflict between art. 930 and the present one is irreconcilable. Page 15 of 207 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. MAGIC NOTES: Q: If a property is acquired after the making of a wiH, is this property included in the will that should pass to the heirs? A: No. Under Art 793, property acquired after the making of the will shall only pass thereby as if the testator had possessed it at the time of making the will, should it expressly appear that such was his intention. The general rule, therefore, is that after-acquired property will not pass. g. extent of interest covered ART 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless, it clearly appears from the will that he intended to convey a less interest._______________

TOLENTINO: When the testator does not state the extent of the interest that he gives to the legatee or devisee in the property transmitted, it is understood that his whole interest passes, no more and no less But the testator, under the present article may manifest *TS intention to convey a less interest; and under art 929. he may expressly convey a larger interest. MAGIC NOTES: Q: In case a devise or legacy is given, what is the extent of interest that is given? A: Every devise or legacy shall convey all the interest which the testator could dense or bequeath in the property disposed of unless it clearly appears from the will that he intended to convey a less interest. Art 794 Q: May a testator convey a larger interest? A: Yes. Art 929. Q: If a lot is given, does it include th house built thereon? A: Yes. Under the law on property, the house is deemed included when the lot is given (Art 415). However, if only the house is given, the lot is not included therein because it is not an interest necessarily included in the house. 4. law governing form a. as to time of execution ART 795. The validity of a will as to its form depends upon the observance of the law at the time it is made. TOLENTINO: Law on Formal Validity. The law governing the execution and effect of wills may be amended by the legislature subsequent to the death of the testator. This however does not affect the operation of the will. As the property passes on death of the testator, either to his heirs and
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2007A next of kin by intestate succession, or to the devisees and legatees in case of a will, and as vested property rights are not permitted to be taken away without compensation and due process of law, it follows of necessity that if the will of any gift in it was invalid when the testator died, no subsequent statute can cure the defect for that would be taking property without due process law from those in whom it vested on the death of the testator. On the other hand, and for the same reason, if the will was valid, or any gift in it took effect on the death of the testator, the rights of the devisee or legatee cannot be divested by any law passed afterwards, changing the requirements for wills, or for the validity of any gifts by them. Before the death of the testator, however, no property rights vested either in the testamentary heirs or in the intestate heirs. Hence, an amendment of the law on wills, subsequent to the execution of the will and before the death of the testator, cannot constitute a deprivation of property without due process of law. In this case, some courts hold that the validity of the will depends upon compliance with the law at the time of executing it, while others use the law at the time of the death of the testator. The GENERAL RULE, however, 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 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 instalment, the capacity of the testator, and the like, has no retrospective effect. Law on Intrinsic Validity. Intestate and testamentary successions, both with respect to the order of succession and to the amount cf the successional rights and to the intrinsic validity 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 execution has no effect whatever upon the validity of the provisions of the.will. The intrinsic validity of the will, although executed in the Philippines, is governed by the laws of the state or country of which the testator was a citizen or subject at the time of his death. The law may be changed after the will has already been made. The provisions of the will, may be intrinsically valid under the law when it was executed; but it may be contrary to the law at the time of the death of the testator. In such case, the law at the time of the testator's death will apply. 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. The question as to what is the foreign law governing the issue is one of feet and not of law. Foreign laws have to be proven like-any other fact in dispute. MAGIC NOTES: Q: If a will is valid at the time of its execution but is invalid as to form at the time of the testator's death, is the will void? Page 16 of 207 O A: No, the wiH is stilt valid. The rule is that the validity of a will as to its form depends upon the observance of the law in force at the time * is made. Art 795. Q: What if a wit which is invalid at the time of its execution becomes valid at the time of the death of the testator due to some amendment in the law. what is the status of the wiH? A: The will is void even if the amendment is made retroactive because it will divest the legal heirs of their vested rights to the exclusion of those included in the will. Q: If a will is valid at the time of its execution, but years before the death of the testator, the law as to form was amended making the will

invalid at that point in time and the testator knowing the amendment in the law did not change his wiU accordingly until his death. Is the will valid? A: Yes. There is a vested right on ths part of the testator to the continuing validity of the will. The law requires merely that the will be valid as to form at the time of execution of the will. To make a subsequent law retroact will deprive the testator of his right to substantive due process. TAKE NOTE: The above rules on law governing the form of wills are dependent upon the effectivity of Art 795 which lays dawn the oite that the law at the time ot the execution of the wiH is that which governs the form of the will. If Art. 795 is no longer in force, then such rules may change. b. as to place of execution ART 17. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the acts referred to are executed before the diplomatic or consular officials of the ___Republic of the Philippines in a foreign country,
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1. In case of filipinos Q: In case of a Filipino citizen who is a resident of the US and who made a will, in the Philippines observingUS law, is the will valid?] A: No. Filipinos executing a will in the Philippine soil can only use Philippine law. A supporting article is Art. 17. Q: If a Filipino citizen abroad executes an act in the presence of diplomatic and consular officials of the Philippines, what laws shall govern? A: Philippine laws. Art 17 provides that this case is an exception to the lex loci celebreciones rule because the diplomatic offices are considered part of Philippine territory. Q: If there are no diplomatic officials, can Filipinos choose to execute a will according to the solemnities of Phil law? A: Yes. DLC and Tolentino: If Americans who execute their will abroad can observe Phil law if they choose to, then Filipinos have even more right to use Phil law.
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2007A the solemnities established by Philippine laws shai 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. ART 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines._____________________ ART 816. The will of an alien who is abroad produces effect in the Philippines if made with the fonnalities 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.____"___________ Art 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._______ Note: This is what is known as the "lex loci celebrationis" rule. The forms and solemnities of contracts, wills and other public instruments shad be governed by the laws of the country in which they were executed. TOLENTINO: This article follows the general rule expressed in art. 17 of the Code, that the law governing the formal validity of wills is the law of the place where it is executed. We believe, however, that the Code did not mean to invalidate the will of a Filipino, executed in a foreign country, when it is made in conformity with our law and not in conformity with the law of the place of execution. Under arts. 816 and 817, an alien who makes a will in a place other than this country is permitted to follow the laws of his own country; art. 816 even allows an alien executing a will in a foreign country other than his own, to follow the formalities prescribed by our law. It cannot be assumed that the Code places the Filipino citizen in a worse position than the alien in relation to our own law. Art. 819 provides an exception to the rule contained in the present article. Ftlipinos cannot execute a valid joint will, even in a foreign country. TOLENTINO: The probate of the will in the foreign state or country must proved in the same manner as any other foreign judgment; in the absence of such proof, the will cannot be proved in the Philippines, without actually showing its execution in accordance with any of the laws mentioned in this article. TOLENTINO: 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. ,' The provisions of art. 815 to 817 refer to the formal validity of wills executed by persons outside of their own state or country, with respect to the intrinsic validity of the provisions of the will, art. 16 of the Code provides that the national law of the deceased shall apply. The place of execution does not affect the intrinsic validity of the contents of the will. O Art 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. Art 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. Art 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.______________ Page 17 of 207 TOLENTINO: Although the general rule is that a will rhay be made by a Filipino, who is abroad, in accordance with the formalities prescribed by the law in the country where the will is executed (arts. 17 and 815), the present article creates an exception to that rule. A joint will is against the pubtic policy of the Philippines. MAGIC NOTES:

2007A Q: If a Filipino citizen who is a resident of the US went to London and executed his wiH in London, what laws will govern? a. American law? A: No. Take note that there is no provision allowing him to execute his will in accordance with the laws of his residence. b. Philippine law? A: Yes. c. British law? A: Yes, under Art 1 7, the law of the place of execution, and under Art 815, which authorizes a Filipino 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. However, he cannot make a joint will which is prohibited in the Philippines, nor can he make an oral will which is likewise prohibited in the Philippines. Q: If a Filipino citizen went to Timbuktu and lived there and made a wHI orally because under Timbuktu law, wills are to be made orally, is the will valid here? A: According to Tolentino, yes According to Paras, no. 5. law governing content a. as to time 2. In case of foreigners Q: If a US citizen executes his will in the Phils, what laws govern? a. Phil law? A: Yes. Art 1 7 - law of the place of execution b. US law? A: Yes. Art 8V7 - law of w/c he is a citizen Q: If a US citizen residing in the Phil executes a will in Hongkong. what laws govern? a. British law? A: Yes. Art 17 (Actually. Chinese law, since Honkong was already ceded by the brrts to China) b. Phillaw? A: Yes. Art 816 - law of the place where alien is a resident or is a citizen c. US law? A: Yes. Art 816 Q: If a US citizen residing in Hongkong visits the Philippines monthly, and it is in Canadawhere he executes a will, what laws will govern? a. Canadian law? A: Yes. Art 17 . b. US law? A: Yes. Art 816 c. HKlaw? A: Yes. Art 816 d. Phillaw? A: Yes. Art 816 only if the will is probated here in the Phils. For procedural convenience. 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)____________ b. as to successions! rights Art 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 wtterein said property may be found.__________________ Jimenez v. Fernandez (1990) Melecia Jimenez sold the property she claimed to have inherited from her late illegitimate father, Cades. Sulpida. Carlos' niece, however claimed to be Carlos' sole heir. Held: Melecia has no right to sell the property because she is not an heir of Cartos. The rights to succession are transmitted from the moment of death of the decedent. At the time of Carlos' death, successional rights were determined by the Old Civil Code which excluded illegitimate children as heirs. Melecia is an illegitimate child, thus she cannot inherit. Sulpicia owns the property by way of intestate succession __

Miciano v. Brimo (1924) Brimo, a Turkish national, expressed in his will that his properly be disposed of in accordance with Philippine laws. The probate of the will is opposed because it violates the Civil Code stating that the intrinsic validity of a will's provision shall be regulated by the national law of the persons whose succession is in question. No applicable turkish laws were presented. Held: The law applicable is turkish law. Since there was no evidence of trukish law presented, it is presumed to be the same as Philippine Law. The condition that the will be disposed of in accordance with Philippine laws, being vlolative of the Civil Code, it is considered not written.____ Page 18 of 207 /
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2007A Cavetano v. Leonides (1984) Adoracion Campos, a US citizen, executed a will in the US. The wM was presented for probate by her sister. Hermogenes. Adoraoon's father, filed a motion to dismiss on the ground that if the wiN is probated, he will be divested of his legitime. Held: The law governing Adoracion's will is the law of Philadelphia, which is the national law of Adoracion. Such law does not provide for legitimes. Adoracion can therefore give away all her estate. Hermogenes cannot be illegally divested of his right, which does not exist in the first place. ARI1AO Page 19 of 207
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2007A III. TESTAMENTARY CAPACITY AND INTENT 1. Who may make a will a. Age ART 797. Persons of either sex under eighteen years of age cannot make a will_____________ TOLENTINO: According to Spanish authors, the last day of the required year should have passed, before the person can be considered as having the requisite age for making a will. On the other hand, Anglo-American jurisprudence sustains the view that the required age is reached at the commencement of the day preceding the anniversary of the birthdayl that is. it is sufficient that the last day of the 18lh day shall have commenced. It is submitted that the Anglo-american rule should be allowed in this jurisdiction. b. Not disqualified by law ART 796. All persons who are not expressly prohibited by law may make a will.________ TOLENTINO: The law presumes capacity to make a will; hence, in order that a person may be disqualified to make one, he must be expressly prohibited by law MAGIC NOTES: Q: Who may make a will? A: Anyone NOT EXPRESSLY disqualified 1. at least 18 years of age 2. of sound mind If below 18, the will is INVALID because the testator had NO TESTAMENTARY CAPACITY Q: When am i legally 18? A: According to TOLENTINO you are 18 on the eve of your 18th birthday Q: Person was bom 2/7/60. and made his will 2/4/78. Is the will valid? A: Yes the will is valid; one must count years using 365 days/year not calendar years. REMEMBER: when counting years remember -> 365 days / year NOT calendar years once a day starts it is considered to have elapsed c. Of sound mind ART 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. 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. Page 20 of 207 TOLENTINO: The law requires that the testator be of sound mind at the time of the execution of the will. By this is meant that "he3 is able to execute his will with an understanding of the nature of the act, such as the recollection of the property he means to dispose of, of the persons who are or might reasonably be the objects of his bounty, and the manner in which it is to be distributed aming them." It is sufficient if he undersantds what it is about, even if he has less mental capacity thatn would be required to make a contact. The decisive question always is whether the instrument propounded is the spontaneous act of a person understanding its nsture and consequences. The elements of testamentary caoacity are:

(a) the testator must have mental capacity to understand the nature and effect of his act. (b) He must have sufficient recollection of his properties; (c) He must be able to remember the natural objects of his bounty; (d) He must have sufficient mental ability to make a disposition of h's property among the objects of his bounty according to some plan he has formed in his mind. The term "objects of his bounty" refers to near relations of the testator, those who are natural objects of his bounty. Effects of Infirmities. - it may be stated that neither sickness, old age, deafness, senile dbility, blindness, nor poor memory, nor the fact that somebody has to guide the testator's hand in order that he might sign, is by itself sufficient to establish a presuimption of lack of testamentary capacity, when there is sufficient evidence of mental sanity of the testator at the time of the execution of the will. On the other iiand, the absence of testamentary capacity is not equivalent to insanity; in other words, 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 terstator from making a will may be the resuktof many causes, such as mental disease, senile dementia, feversd, injuries, drug intoxicants, or the like. 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 cause may be, and it is the quantity or degree of the effect of which the law must determine to arrive at a decision on the presence or absence of testamentary capacity. Senile dementia - "Dementia" exists where amind once sound has become weakened or decayed, and when the cause by old age it is called "semnile dementia". To constitute complete senile dementia, there must be such failure of the mind as to deprive the testator of intelligent action. In the first stages of the disease, a person may possess reason and have will power.
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2007A When the testator has reached this point when he no longer understands the act in which he is engaged, he no longer has capacity to make a wiH. regardless of what his age may be. Insane delusions. - an insanes delusion is a false belief for which there is. no foundation in reason, and which would be incredible to the same person if of sound mind, and of which its victim cannot be dispossessed by either evidence or argument. Such a condition refers to a mental disturbance regarding some particular object or subject, and is often referred to as menomania or partial insanity, or hallucination. To amount to insane delusions, they must be beliefs such as no rational man, placing himself in the position of the testator, either would or could entertain; and this cannot be said of any belief which connects itself with any act. however flimsy the connection may be. Not every insane delusion will render one incapable of making a will. A testator may have delusions regarding matters which do not affect or concern his testamentary act and which have no influence upon the disposition which he makes of his estate. But the testamentary disposition will be void when the delusion touches the subject matter of the will; that is to say, when it pertains to the property, the beneficiaries, or those who would succeed to the property if the will were not made. Deaf. Dumb and Blind. - The modem rule is that neither blindness, nor deafness and dumbness, nor all of them combined, will alone incapacitate a person to perform the testamentary act If a person so afflicted has testamentary capacity and can communicate his desires, no reason exists for rejecting his will; the difficulty, however, lies in the proof. The question to be determined, if mental capacity exists, is whether the person afflicted knew the nature of the act he was performing and expressed his desires so that they were fully understood. Eccentricities and Prejudices. - The existence of strong passions on the part of the testator is not inconsistent with testamentary capacity. But where the prejudice borders upon an insane delusion, or the testator at the time of making the will labors under extraordinary excitement or stress of emotion, he may be rendered devoid of the power to realize the natural objects of his bounty, the extent of his property, and the nature of the business at hand; under such circumstances, he would be incapacitated to make a will. Determination of Soundness of Mind. - The soundness of mind of the testator must be determined as of the time of the execution of the will. If he was not of sound mind at that time, the will is invalid, regardless of his state of mind before or after such execution; and conversely, if he was of sound mind when the will was made, it will be upheld, even if he should later become insane and die in that condition. ART 800. 7"/7e 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 Page 21 of 207 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. 70 TOLENTINO: If the evidence be such as to show the existence of insanity in the testator generally, so that in the absence of further proof the presumption of sanity

would be rebutted, it may still be shown, in support of the will, that it was made during a lucid interval. But the effect of it is this, it inverts the order of proof and of presumption; for until proof of a habitual insanity is made, the presumption is that the party agent, like all human creatures, was rational; but where a habitual insanity, in the mind of the person who does the act, is established, then the party who would take advantage of an interval of reason must prove it. MAGIC NOTES: Soundness of mind to make a will is different from soundness of mind that would vitiate a party in a contact, exempt a party from crime etc.(US v. Vaquilar) For Soundness of Mind to Execute a Will the Testator should know: o Nature of estate to be disposed of (objects under ownership) o Proper objects of his bounty (proper people as heirs) o Character of the testamentary ac! (essentially gratuitous) Standard Oil v. Arenas - capacity is presumed, the burden of proof lies on the person contesting capacity REMEMBER. a person is presumed to be of sound mind, the burden of proof lies on the person Im* on the person claiming otherwise if testator is publicly known to be insane 1 montti (30 days) before the will is executed, burden of proof lies on the person claiming will was executed during a lucid interval o DANNYCON SAYS: there's a problem with this rule. When is a person considered "publicly know to be insane"? - It is NOT INDICATED! d. Case of married women ART 802. A married woman may make a will without the consent of her husband, and without the authority of the court. 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._________________________ 2. Supervening incapacity ART 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable
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2. the proper objects of his bounty, and 3. the character of the testamentary act (anuimus testandi) Q: Suppose a person of sound mind executed a will and later on, he becomes insane, what is the status of the will? A: The will remains valid. Supervening incapacity does not invalidate an effective will. (Art. 801) Q: Suppose if he is incapacitated to make a will but despite this incapacity, he made a will. Later on, he has recovered and is now capable to make a wiU, what is the status of the wiH? A: The will remains void and is not validate byt eh supervening capacity to make a will (Art. 801). ARHAO Page 22 of 207
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2007A L invalidated by the supervening of capacity. TOLENTINO: The capacity of the person who leaves a will is to be determined as of the time of the execution of such will. MAGIC NOTES: Q: Who may make a will? A: All persons who are: 1. qualified, and 2. not expressly prohibited by law may make a will (Art. 796) Q: A: What is meant by 'must be qualified"? 1. he must not be less than 18 years of age 2. he must be of sound mind Q: What is meant by "expressly prohibited by law"? A: The article says "expressly prohibited." Therefore, a person cannot be disqualified to make a will by a mere implication. Q: Who are persons expressly prohibited by law to make a will? A: (Art. 797) - persons of either sex under 18 years of age cannot make a will. Q: Can a child make a will? A: No. Art. 797. Q: When is a person considered 18 years old and hence, capable of making a will? A: There are 2 views: 1. Spanish view is that a person is not 18 until after the day marking the last day of his 18m year has lapsed. (Sir says follow this) 2. American view is that a person is 18 as soon as the last day preceding his 18th has lapsed and the first day of his 18th year has begun. Q: What is the status of a will executed 5 days before his 1st" birthday but finished after he is already 18 years old? A: Even if the provisions were written before he was 18 years old. the will is valid because it is the signing of the will which make s a will. The reckoning time is the completion of the will upon signing and dating. Q: What about spendthrifts or prodigals under guardianship? Are they prohibited by law from making a will? A: They make a will because the law does not expressly prohibit them, from making one. Q: What about persons under civil interdiction? A: They may make a will but only for properties disposed by acts inter vivos and not by acts mortis causa. Q: What about a person of unsound mind? A: A person of unsound mind may make a will since there is no express prohibition in the law. However, his will will be invalidated for lack of testamentary capacity. Q: Is the degree of soundness of mind required in making will the same as the degree of soundness of mind required in other acts? A: No. It is merely sufficient that the testator knew. 1. the nature of the estate to be disposed of;

2007A IV. SOLEMNITIES OF VWLL the Clerk of Court. 1. kind of wills a. notarial ART 804. Every will must be in writing and executed in a language or dialect known to the testator.___ b. Holographic ART 810. A person may execute a holographic will which must be entirely written, dated, and signed in 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.______ 2. notarial wills NOTE: Study this part very well. Eto yung part na ini-skip ni DannyCon nung nag-boycott tayo. Baka dalihin niya tayo rito. We did our best for this part. For the discussion of Art 805, we got commentaries from three authors. And for the cases, we made new ones for most of those cited in Art 805. * >* a. general requierements ART 804. Every will must be in writing and executed in a language or dialect known to the testator.____ TOLENTINO: The requirements provided in this article apply to both the attested and the holographic wills A holographic will must necessarily be written by the hand of the testator himself. In the case of the ordinary or attested will, however, it is immaterial who performs the mechanical act of writing the will, so long as the testator signs it or has somebody sign his name in his presence The ordinary will may be written out or printed, or partly written and partly printed. The language or dialect used in the will must be known to the testator. When a will is executed in a certain province or locality, in the dialect currently used in such province or locality, there arises a presumption that the testator knew the dialect so used, in the absence of evidence to the contrary. There is no statutory requirement that the will should express that the testator knows the language or dialect used therein. That is a fact which may be established by extrinsic evidence or proof aliunde. The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator. It is not part of the testamentary disposition. The language used in the attestation clause does not even .have to be known to the witnesses; it should, however, be translated to them (Art 805, par 4). 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 Page 23 of 207 TOLENTINO: The present article refers only to attested or ordinary wills. It has no application to holographic wills which do not have to be witnessed. Failure to affix a documentary stamp on a will is not a fatal defect, as the probate court can require the proponent to affix the required documentary stamp to the notarial acknowledgment of the will. The signing of the will by the testator and the witnesses, and the acknowledgement of said will before a notary public, do not have to be a single act under the present Code. An interval of time may elapse between the actual signing of the will and the acknowledgement before the notary public. The only purpose of the acknowledgment is to minimize fraud and the exertion of undue pressure and ?* influence upon the testator; and this purpose can be ^ attained, whether the acknowledgment takes place at the J same time as the signing of the will or at some time J>: thereafter. It is important, however, that the testamentary CD capacity must exist also at the time of the acknowledgment because this is an essential part of the execution of the will. The last sentence of this article safeguards the secrecy of the contents of the will during the lifetime of the testator so that 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. MAGIC NOTES:

Q: May the testator waive the requirements of Art. 805 and 806? Or may the testator require that the will be valid even if the Court declares it void? A: No. These requirements are MANDATORY. Non-compliance therewith invalidates the wilt. Q: Why is it called notarial will? A: Because of the requirement of Art. 806. Abanqan v. Abanqan (1919) The wilt of Ana abangan was probated. The said will consisted of two sheets: (1) contains all the dispositions of Ana; (2) contains attestation clause. The first sheet was duly signed by Martin montalban, under the direction and in the name of Ana. Said will's 1* page was also signed by the 3 witnesses. It appears that neither of the sheets were sined on the left margin by the testatrix and the witnesses, nor numbered by letters. ISSUE: WON the will is defective - NO HELD: In a will consisting of 2 sheets, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the 3 witnesses and the 2nd contains only the attestation clause and is signed on their margins by the testator and the witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses or be paged The testator;s signature is not necessary in the attestation cluse because thie is pertaining only to the witnesses. Moreso, the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guranty their truth and authenticity. Such as the law should be interpreted to attain these priomordial end.____
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2007A Suroza v. Honrado (1981) Opposition to probate of a will was filed on the ground that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written. HELD: The will is void, having failed to comply with the requirements of Art 804, that every will must be executed in a language or dialect known to the testatrix. In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into the Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and therefore, it is void because of the mandatory provision of Art 804 that every will must be executed in a language or dialect known to the testator. b. specific requirements ART 805. Ever/ 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 throe or more credible witnesses, in the presence of the testator and of one another. Trie 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, except the last, on the left margin, and all pages shall be numbered correlatively in letters, piaced on the upper part of each page. The attestation shall state the number of pages used upon which the will was 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. TOLENTINO: Interpretation of Wills - The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. Requisites of Ordinary Wills - Aside form the common requisites mentioned in Art 804, ordinary or attested wills must comply with the following requirements: 1. It 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. Page 24 of 207 2. It must attested and subscribed by three or more credible witnesses in the presence of the testator and each other. , 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 of the will 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. Date of Will - In an ordinary will, the date is not an essential part. Thus, it is valid even without a date, or even when the date thereon is erroneous. But a holographic will must bear a date.

Place of Execution - Failure to state the place where the will was executed, or an error in such statement, does not. invalidate the will. JURADO: Special Formalities of Ordinary Wills - From arts 804. 805. 806. the following are the formalities that must be complied with: (a) The will must be in writing; (b) The will must be written in a language of dialect known to the testator; (c) The will must be subscribed at the end thereof by the testator himself or by tne testator's name written by some other person in his presence and toy tiis express direction; (d) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; (e) The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin; See Abangan v Abangan 40 Phil 476 (0 All pages of the will shall be numbered correlatively in letters placed on the upper part of peach page; (g) The will must contain an attestation clause; and (h) The will must be acknowledged before a notary public by the testator and the witnesses. 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 clerk of court. ____ /. subscribed TOLENTINO: Signed by the Testator - Any complete mark or design made by the testator upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the testator as the written name would do, is as sufficient a signing as is the writing of the signature in full. A signature by mark will be sufficient, even if at the time of the placing of it the testator knew how to write and was able to do so.
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2007A 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. The purpose of this requirement is not only that it may appear on the face of the instrument that the testamentary purpose therein expressed has bsen completed, but also to prevent any opportunity for fraud or interpolations between testamentary dispositions and the signature. The position of the signature at the end of the will furnishes in itself intrinsic evidence of the finality or completion of intent. An instalment in the form of a will cannot be probated, if it is not signed at the end. Where the signature is followed by dispositive provisions, even the portion of the instrument preceding the signature cannot be probated, because the instrument must be considered as a whole. End of Will - There are two theories as to the meaning of "end of the will." One theory is that the end of the will refers to the physical end of the writing. The other theory is that the term refers to the logical end, which is the point where the testamentary dispositions terminate. The signature is considered to be at the 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 il. However, non-dispositive provisions intervening between the dispositive clauses and the signature do not affect the validity of the instrument. But the will cannot be considered as signed at the end where the dispositive clauses, intended to be a part of the will, follow the signature. Signature by 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. Mere knowledge by the testator that another is signing, and acquiescing in it, there being no previous express direction, is not enough; and if the previous direction be given by gestures, they must be as unambiguous as words. When the evidence does not show that the signature was made at his express request, the subsequent acknowledgment by the testator of the will as his own will be sufficient signing, and. it will be presumed to have been made at his direction. But if the testator directs another person to sign for him, and intends to affix his mane in completion of the signature, the will is not property signed until such mark is made. The fact that a third person was directed to sign the name of the testator need not appear in the will itself but may be established by extrinsic evidence. Such fact, however, should appear in the attestation clause, in a case, an attorney was requested by the testatrix to write her name on the will, and then she placed her thumbmark thereon. The court, finding that the signing was by the testatrix herself, said that it was not necessary that the attestation clause should state that the testatrix requested Atty. Almario to sign her name inasmuch as the testatrix signed the will in accordance with the law. But where the testator, in a similar case, put not his thumbmark, but a sign of a cross after his name, the SC held that it was not sufficient signature of the testator, and the failure of Page 25 of 207 the attestation clause to state that the attorney was requested by the testator to sign his name was fatal to the validity of the will. Who May Sign - The law does not specify. Any person may sign for him. Form of Signing - The form in which the signature is to be written when made by a third person is not specified by law. It seems clear from the law, however, that the testator's name must appear as a signature. It may be wise and practical to have the third person to also write his name, but that is not

essential to the validity of the will. Place of Signature The third person should write the testator's name somewhere between the dispositive provisions of the will and the attestation dause. But if it is written just after the dispositive provisions and before the signatures of the witnesses and the attestation clause, it is sufficient, although not written separately as a distinct signature but merely as apart of a recital. Siqninq Before Witnesses This is essential to the due execution of the will. Tolentino adheres to the adoption of the liberal construction followed by AngloAmerican jurisprudence. He states that the signature of the testator to the will has for its purpose to indicate that the testamentary dispositions contained in the instrument are his. This purpose served, whether the witnesses see him actually sign the instrument or he merely produces to them the will, already signed, and acknowledges before them that the signature appearing thereon is his. But Tolentino adds that though this should be sufficient compliance with the requirement that the testator should sign the will in the presence of the witnesses, great caution should be exercised in following this construction as it reduces the safeguard against undue and improper influence upon the testator. Signing of the Wilt - tt has been held, even after the effectivity of the present Civil Code, that the fact that the testator signed the will in the presence of the instrumental witnesses must appear in the attestation clause itself. It is not sufficient that the testator, at the end of the will and before his signature, states that the signs in the presence of the witnesses. In the attestation clause, the witnesses must declare that the testator signed the will in their presence; the omission of this statement by the witnesses in said dause is fatal to the validity of the will. This defect is not cured by proof aliunde or even by a judicial, finding based upon proof that the testator did in fact sign the will in the presence of the witnesses. And if the testator did not personally sign the will, but requested another person to write his name thereon, the attestation clause must state this fact. Tne attestation clause must also state that the witnesses signed the will and every page thereof in the presence of the testator and of each other. The case Quinto v. Morata denied the probate of a will whose attestation did not state that the witnesses signed in the presence of the testator, notwithstanding the fact that oral evidence to prove such fact was presented and admitted without objection on the part of the opponents. In Rey v. Cartagena, the Court found that although the attestation clause did not expressly and specifically state that the witnesses signed all the pages of the will, such intention must be deduced from the entire clause
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2007A The tendency has gradually been towards a more liberal construction of attestation clauses, such that while oral evidence is not admitted to supply omissions in the expression of the attestation clause, inferences and implications are admissible to discover the intent and meaning of such dause. Art 809 affirms the principle of liberal interpretation. When the will that is sought to be probated, however, is not before the court because it has been lost, and proof thereof is by recollection of the witnesses, the evidence should be strong and convincing that all the requisites of the law have been complied with. Thus, where the attestation clause of the supposed lost will does not recite that the witnesses signed on the left margin of the pages preceding the last one, it was held that the will was not duly executed. Reading of Will - Except when the testator is blind, deaf, or a deaf-mute, the law does not require that the will be read by him or to him. It is indispensable, however, that he should know its contents at the time of execution. The execution of the wilt raises a presumption that 4 the testator was aware of its contents. But if it appears affirmatively that he did not read the will and that it was read to him. it must be shown that the contents were n some way made known to him. The fact that the will was read to the testator does not have to be stated in the attestation clause, it is not enough that said fact is proved by extrinsic evidence during the probate of the will. JURADO: Subscription by the testator - As applied to the testator, the purpose of the statutory requirement of a signature is twofold: it is to identify the testator and authenticate the document. PARAS: if the testator's first name appears, without the surname, the will is valid. If the testator's name is misspelled, abbreviated, or by nickname, or by "Father" or "Mother" or in an assumed name, this is all right provided the testator intended the same to be his signature. This is true even in the case of a will signed by the testatrix after her second marriage in the name she had borne under her former marriage. The person writing for the testator should not be one of the witnesses. Of course, should there bore more than 3 witnesses, one of them may sign for the testator. But in Barut v. Cabacungan, it was held that if the person who signs the name of the T is one of the subscribing witnesses, this is all right. "Express direction" means that the delegate must be expressly authorized to do so. Hence, mere acknowledgement on his part that the will is being signed in his behalf or his acquiescence to such an act is not sufficient. However, an express direction may be given by the T even without using the words. Mere clear gestures or motions or conduct is sufficient. MAGIC NOTES Page 26 of 207 Q: What is meant by "subscribed"?

A: It is the act of signing the instrument to: (1) identify whose will it is (when signed by the testator) (2) and to authenticate the instrument (3) to affix one's signature Q: What signature will suffice? A: General Rule - Any signature will suffice as long as it is intended as the signature of the person or testator. It is not material whether it is the testator's customary signature. The intent to affix the signature is important. Thumb mark *^L only? Yes but not rubber stamp, wax seal or chap mark. It Z must be in the handwriting of the testator. If testator can """* read or write and he affixed just his thumb mark? Yes. 3>- goes back to intent. If he has no hands, he can use a delegate. End of the will Q: Where must the testator sign? A: At the logical end as this completes or executes the will. Logical end is where the dispositions terminate. Physical end is the farthest writing. The logical end may not be the same as the physical end. " Q: If the testator signed at the logical end but there are clauses following the signature, what is the state of the will? A: It depends. I the clauses following the signature of the testator are dispositive clauses, the entire will is considered VOID since the will is taken as one. However, if they are non-dispositive clauses, then there is no effect. Third party signing for the testator, the delegate Q: When can a third party sign in behalf of the testator? A: When the following requisites concur (1) under the testator's express direction; and 2) the delegate signed at the testator's presence. Note: The mere acquiescence of the testator is NOT sufficient: however, the testator's direction may be through body language. Remember that IMPLIED direction is NOT allowed. It must be express. There must be categorical instruction, only given when testator is conscious. Note: "In the testator's presence" does not merely refer to physical presence but also that the testator must be conscious that his name is being written by the delegate. Q: How about if the testator is conscious but his eyes are closed? Must he actually see delegate writing? A: In the case of A/era, the SC ruled that the testator need not actually see; it is enough that the testator COULD HAVE seen if he had chosen to do so. That is the test. Q: What is the status of the will if the delegate wrote and signed his own name on the will instead of the testator's name? A: The will is VOID (Guizon vs. Concepcion). However if the name of the testator is already there, the fact that the delegate's name was also signed therein has no effect. Such signature is merely a surplusage. Q: May the name of the testator be typewritten? A: No (In re: Will of Siason). The name must be (hand)written (Balonan vs. Abellana).
REVIEWER IN SUCCESSION

2007A Q: If the delegate merely copied the signature of the testator, is this valid? A: No. This is void because the law requires that the name of the testator be written and not his signature. Writing delegate's name only = unsigned will. Testator's name + delegates signature = signature surplus. Q: What are the requirements fora delegate? A: The law does not lay down any requirements for a delegate. DLC says the delegate must have enough discretion or enough discernment, otherwise, he may not be acting under the "express direction" of the testator. He must: (1) know how to read and write (2) of sufficient discernment to understand instructions Q: Should the delegate know that it is a will he is filling up? A: No. Q: May one of the subscribing witnesses be a delegate? A: No prohibition against this. According to Tolentino, he may be a witness or the notary. Caguioa does not think so (In re: Will of Tantuico). Q: Must the name of the delegate appear in the attestation clause? A: No. 2. attested and subscribed Attest - to witness/observe Subscribe - to sign. TOLENTINO: Attested and Subscribed by the Witnesses -Attestation is the act of the senses, subscription is the act of the hand; the one is mental, the other mechanical. To attest a will is to know that it is published as such, and to certify the facts required to constitute an actual and 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. The instrumental witness attests not only to the signature of the testator but also to the proper execution of the will. The attesting witnesses may sign at the left hand margin of the pages of a will instead of at the end of the will. There may be a perfect attestation in fact without subscription. To 'subscribe,1 when used in connection with attesting a will, means that the witnesses shall sign their names to the same paper for the purpose of identification and implies that attestation has been performed. Purpose of Attestation and Subscription by Witnesses

These are: (1) The identification of the instrument; (2) The protection of the testator from fraud and deception so that he may freely and voluntarily express his testamentary intent; and (3) the ascertainment of the testamentary capacity of the testator. Witnesses need not know the contents of the will. Thus, the will need not be submitted to the witnesses for examination. Page 27 of 207 Number of Witnesses - It is presumed that a witness to a win has the qualifications prescribed by law. unless the contrary is established. His credibility depends upon the appreciation of the court that he is telling the truth. _^ A will signed by a less number of competent C^ witnesses than that required by the statute cannot under any circumstances be recognized as valid. The fact that ' an additional witness, who was incompetent, also attested f*the will, cannot impair its validity. The same witnesses C J who sign on the left margin of each page of the will, presented by the testator to them as a will, must be the very same ones who should sign the attestation clause, inasmuch as they alone can certify the facts to be stated in said clause, for having taken a direct part herein. Publication of Will - In general, unless the law expressly requires it, publication of the will is not necessary. Publication is the declaration of the testator to his witnesses that the instrument is his will. In this jurisdiction, although there is no provision of law requiring publication, it is necessary that the witnesses should know that they are attesting a will, inasmuch as the attestation clause must siate that the testator signed the will and that the witnesses themselves witnessed and signed the will. Signing by Witnesses Although prudence demands that the witnesses chosen be able to write their signatures legibly and that they do so, nevertheless the statute is satisfied by the witness making a mark, writing his initials, or accidentally writing some other name for his own, or even a description of himself. Our law expressly requires, as a qualification to be a witness to a will, that a person must be "able to read and write" But so long as the witness is able to write, he does not have to sign in his full name; he may sign by mark or symbol. Order of Signing - 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 witnesses, and that 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. Other courts have given a liberal construction to the law. 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 seems to be more reasonable. This view, holding that under such conditions the will is valid even if the witnesses signed before the testator, is upheld by most courts, and the trend of authority is now towards this view. In the absence of proof to the contrary, it will be presumed that the testator signed first. In the Presence of Each Other - The purpose of requiring witnesses to sign in the presence of the testator is to prevent another paper being substituted for the will, fraudulently; and witnesses are required to sign in the presence of each other, so that each may be a witness of the other and so as to render fabrication of testimony more difficult. The signing of all the witnesses should constitute a single transaction
REVIEWER IN SUCCESSION

2007A In order that the signing can be considered in the presence of the testator, it is not sufficient that he is physically present, but he must know what is being done. On the other hand, it is not necessary that the testator should actually see the witnesses subscribe their names to the instrument; if he is in such a position that he might see them if he chose, it will be presumed that he did see them sign. But the act of signing must take place within the testator's range of vision, so that he may readily see what they are doing, if he is so disposed, and if he is deprived of the use of any of his faculties by mere physical infirmities, the test to determine whether the will was attested in his presence is to inquire whether he was conscious of the presence of the witnesses and understood what they were doing when they wrote their names on the will. If. however, he be hindered in his own movements by bodily infirmity or otherwise, the presumption is merely disputable, and if it be shown that he could not see the witnesses in the process of writing their names without assistance form another, or pain, or inconvenience, or danger to life, the will shall be void. If the signature is not made in the same room occupied by the testator, the presumption is that the will was not signed in his presence. When Testator Blind - A blind man may know the presence of another through the sense of touch or hearing. The rule now generally adopted is that, although one may have lost his sense of sight, if his mind is unaffected and he is sensible of what is being done, wfien witnesses subscribe his will in the same room or within reasonable dose proximity and within his hearing, they subscribe in his presence. The witnesses should be within the cognizance of the blind testator's remaining senses, such that he knows what is being done. Although it is not necessary that the will should be read to the blind testator in the presence of the

witnesses, proof will always be required that persons suffering from such infirmity had in some way acquired a knowledge of the contents of the paper. JURADO: Attestation and Subscription by witnesses - An instrumental witness may be defined as one who takes part in the execution of an instrument or writing. Attestation and subscription are different things and are required for different ends. They may be distinguished from each other in the following ways: 1. Attestation is an act of the senses while subscription is an act of the hand. 2. The first is a mental act, while the second is a mechanical act. 3. The purpose of the first is to render available proof during the probate of the will, not only of the authenticity of the will, but also of its due execution, while the only purpose of the second is identification. Meaning of Presence - The testator's consciousness of the fact that the attesting signatures are being written is held to be an indispensable requirement under a statute requiring attestation in the presence of the testator. The testator must have actually seen, not only the witnesses but the instrument itself, considering both his position and the state of his health Page 28 of 207 at the time, but according to some authorities, if the testator is unable to move by reason of physical infirmities, this will not prevent the act of attestation being considered as performed in his presence. The witnesses must subscribe "in his presence," but in cases where the testator has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribed in the same room or in such dose proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence. In case the testator is blind, the superintending control, which in other cases is exerdsed by sight, must be transferred to other senses; it they are. or may. at his ,' discretion, be made sensible that the witnesses are subscribing the same wili that he signed. It should be deemed sufficient compliance with the statute. The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sing, had they chosen to do so, considering their mental and physical condition, and position with relation to each other at the moment of inscription of each signature. PARAS: While the act of attesting must be done in the presence of all, ihe act of acknowledging before the notary public does not have to be contemporaneous, it does not even have4 to be done in the presence of all of them, since the law does not mention this as a requirement; neither does the law require that execution and acknowledgement of a will be made in the same day. MAGIC NOTES: Q: Hew many must attest and subscribe as witnesses? A: 3 or more persons (3 or more credible witnesses). Q: What if the testator presented the will to the witnesses already signed by him, is this valid? A: No. The witnesses must see the testator sign. Take note that in the 3rd par. of Art. 805. there is need to state in the attestation dause that the testator signed in the presence of witnesses. Q: Stated differently, is the acknowledgment by the testator that the signature was affixed in the will is his, sufficient? Meaning that the witnesses see the will as already signed and the testator merely tells them that the signature already appearing thereon is his. A: No. His acknowledgment that the signature appearing on the contract is his is NOT sufficient. The law requires that the testator must sign in the presence of the witnesses. Q: If a delegate wrote the testator's name, must delegate sign in the presence of the witnesses? A: Yes. Par. 3 Art. 805. Q: What must be stated in the attestation clause? A: (1) that the testator signed in all the pages; and (2) that the witnesses signed the will at the presence of each other (3) number of pages used
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2007A Q: A will was signed on the left margin instead of at the bottom. Is the will valid? A: In Taboada v. Rosal. the will was valid although the signature which should be at the bottom appeared on the left margin. In Cagro v. Cagro, however, the signature of the witnesses on the last page at the left margin of the attestation without signature at the bottom is invalid because the signature does not show that the attestation is their act. Since the attestation clause is invalid, the will itself was invalidated. There was however a strong dissent in Cagro. It argued that there is no requirement of the law that the witnesses must sign at the bottom of the attestation clause. Q: Distinguish between Taboada and Cagro. A: Kayo na .ang bahala Jan. Signatures had different purposes. In Taboada, it was to authenticate. In Cagro to show the attestation clause as their act. Will vas not the issue but the attestation clause. Q: Must the witnesses sign the will in presence of the testator? How will the attestation clause be written, separately of included in the body of he will? A: The law intends it to be a separate act (by the witnesses), but there is NO express requirement for a separate paper. !n Cuevas the court held that it might be included in the body of the will so that they have to sign at the bottom

of the will. (Effect: Taboada is abrogated. However it may be written on a separate paper.) Q: May the witnesses put their thumb mark instead of their signature? A: It depends. If the reason for so doing is illiteracy, such is prohibited because a witness must know how to read and write. If the reason is that he is just unable to write at that moment, it may be allowed. Q: May the witness request a delegate to sign for them? A: No. Unlike the testator, a witness cannot ask a delegate to sign for him. Q: Why? A: The general rule is that those whose signature are required must sign in their own hand. Since no specific exception has been mad with 'regard to witnesses, the general rule applies. Q: Should the witnesses know that it is a will that they are signing? A: Yes, Art. 805. They must know that testator executed a will. DLC says they need not actually see the provisions of the will though by the testator's acknowledgment, they know that it is a will. Q: How many witnesses? A: 3 or more credible witnesses. Q: What is the order of signing? Should the testator sign before the witnesses or vice versa? A: There are 2 views Page 29 of 207 1. the strict view - the testator must be first; otherwise, the witnesses have nothing to attest there being no wiH existing until the testator signs. ^ 2. the liberal view - as long as the act is completed in 1 70 continuous transaction, it is valid. ~. DLC: the liberal view is better. <--. Q: May the witnesses attest then sign the will later? A: No. The law requires the presence of the testator. Q: Can the testator and the witnesses sign on different occasions? A: No. Signing by the testator and the witnesses must be done in 1 special continuous transaction. Otherwise the testamentary capacity of the testator may have already ceased. Q: What if the testator and the witnesses are in 1 room. Then there is a brownout. They all agree to sign the will "next time nalang." It is possible ? A: There is an implied requirement that the will is executed in one continuous transaction (meaning that there is no time gap between the signing and the attestation) Reasons for this implied requirement -1. to prevent substitution and 2 so that the testator will remain to have testamentary capacity to execute a will. Q: What if the testator signed in the presence of the witnesses then, just as the witnesses were signing the will, the testator suffered a heart attack and convulsed on the floor? A: "Presence" refers no t only tot physical presence but also to consciousness of the testator. Here, the testator had lost consciousness. Q: What if the witnesses did not sign until the testator regained consciousness? A: It depends on the time it takes for the testator to recover. (It must be short enough to be considered as still one continuous transaction. 3. each and every page must contain the signatures of the testator and the witnesses. TOLENTINO: Signing on the Margins - The law refers expressly to "page" and not to sheet or leaf or folio. A sheet has two pages, the front and the reverse. If both pages of the sheet or leaf are used, it is therefore necessary that both front and reverse sides should bear the signatures of the testator and of each of the witnesses. The signature of the testator alone on all the pages will not be enough, the law expressly requires also the signatures of the witnesses. The rule, however, should not be applied so strictly as to defeat the will of the testator. The correct interpretation and application of this requirement has been explained by the SC in a case. It held: "Synthesizing our opinion, we hold that in a will consisting of two sheets, the first of which contains all the testamentary dispositions, and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottom
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2007A by three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses." In such a situation, the object of said requirement, to avoid Vie substitution of any of the sheets of the wM. is not compromised. Following this rule, it has been held that a will consisting of seven pages can be admitted to probate, if the first six pages are duly signed on the left hand margin, and the seventh page, which contains the final dispositions of the will and the attestation clause, is signed by the testator and the witnesses at the bottom, even if not signed by them at the left margin. And if every page has been signed by the testator and the witnesses, it is immaterial on what part of the page the signatures have been placed. JURADO: Marginal Signatures - There are certain exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and the witnesses. Such requirement is not necessary (a) in the last page, when the will consists of two or more

pages; (b) when the will consists of one page; and (c) when the will consists of two pages, the first of which contains all the testamentary dispositions and the second contains only the attestation clause duly signed at the bottom by the witnesses. Location of Signatures - The law requires that the signatures of the testator and the instrumental witnesses should be on the left margin of every page of the will except the last. According to the weight of authority, this requirement regarding the location of the marginal signatures is not mandatory in character, provided that such signatures are present in every page of the will, except the last. PARAS: In the case of Estate of Tampoy v. Alberastine, it was held that "if through the inadvertence or negligence of one of the 3 witnesses, he forgets to sign on the third page of a 5-page will, but was able to sign on ajl the pages of the duplicate, the omission ought not be considered a fatal dfefect. Indeed, the impossibility of substitution of this page is assured not only by the fact that the T and the 2 other witnesses did sign the defective page, but also by bearing the coincident imprint of the seal of the notary public before whom the testament was ratified. The law should not be so strictly and literally interpreted as to penalize the T on account of the inadvertence of a single witness over whose conduct sha has no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses maysabotage the will by muddling ot bungling it at the attestation clause. MAGIC NOTES: Q: Where? A: On the left hand margin. Q: What if the signatures are on the right? Page 30 of 207 A: Still valid. The reason behind the law is accomplished. Thus, the word "left" is merely directory, the word "margin" is mandatory. 5?" Q: What if testator asked a delegate to sign his name, who will C: sing at the margins? -* A: The delegate.' 3=*-CS Q: How will the delegate sign? A: Art. 805 states "as aforesaid" meaning to say "in the same manner as before", hence, the delegate must sing in the same manner as he had signed i.e., in the name of the testator. Q: If all pages contain marginal signature but 1. only of the testator and not of the witnesses? A: VOID. 2. only of the witnesses and not the testator? A: VOID. Q: "Except the last page" - why? A: Because they will already have signed the bottom of the last page, so marginal signatures are mere surplusage. Q: What is the purpose of marginal signatures? A: Marginal signatures authenticate each and every page and serve to identify the pages of the will. Hence, the last page need not contain marginal signatures because the signatures at the bottom thereof suffice to achieve this purpose. Q: If the will is composed oniyof 1 page. Must they sign on the margin? A: No. The signature at the bottom will suffice. Q: If the will is on a sheet of paper, back to back, will they have to sign both sides? A: Yes, otherwise the will is void. Remember that the law requires signatures in each and every page, not leaf or sheet. Q: What if there are no marginal signatures? A: The will is VOID due to failure to comply with formal requirements. Remember: the case of Icasiano does not create an exception to the general rule that at least 4 signatures must appear on each and every page of the will. In Icasiano, ther.e were facts peculiar to it. There was involved a duplicate original with all the signatures present. Also, there was no evidence or suggestion of fraud. Hence, Icasiano is no a doctrine but only applies to the set of facts involved therein. 4. all pages must be numbered TOLENTINO: Numbering of Pages - This must be done correlatively in letters. The purpose of this requirement is to afford a means for determining whether any sheet or page of the will has been removed. But, when all the dispositive parts of the will have been written on one page or sheet only, the object of the statute disappears, because the removal of the single sheet, althougn unnumbered, cannot be hidden; hence, such sheet need not be numbered. Furthermore, the law does not require that the sheet
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2007A containing nothing but the attestation clause, wholly on in part, be numbered or paged; consequently, the lack of paging on the attestation sheet does not take anything form the validity of the will, provided that the true number of pages is made clear in the attestation clause. The law requires that the paging be in letters, that is, "one, "two," "there," etc. However, any other form of writing the correlative number of the page is sufficient, provided the numbering used indicates the succession of pages and serves to prevent the loss of any of them. Number of Pages - The purpose is to safeguard the document from the possibility of the interpolation of additional pages or the omission of some of the pages actually used. This point is also safeguarded by the other two

requirements that the pages shall be consecutively lettered and that each page shall be signed on the left margin by the testator and the witnesses. In the light of these requirements, it is really difficult to see any practical necessity for the additional requirement that the attesting clause shall state the' number of sheets or pages used. Nevertheless, it thus affords additional security against tampering of the will. A failure to state in the attestation clause the number of pages or sheets used in the will renders such will null and void. It is not strictly required, however, that the number of pages must appear in the attestation clause only. Thus, where the attestation dause failed to state the number of pages, it was held sufficient for the acknowledgement clause to state the number of pages and the will had actually the number of pages stated. PARAS: Even if the number of pages is not stated in the attestation clause, if the number of passed is put down somewhere else in the will, as long as no ebidence aliunde or extrinsic evidence is required, there is deemed a substantial compliance with the law. MAGIC NOTES: Q: Why? A: To prevent the suppression of pages. Q: How should they be numbered? A: Correlatively. SC construed this as "uniform relation". DLC: In relation to total, la letters with the numbers spelled out. Q: Where? A: At the upper part. Q: If it were placed at the bottom? A: Substantial compliance validates the will. What is mandatory is that the pages must be numbered. Q: If the pages were not numbered, what's the effect? A: General RuleThe wilLts void for failure to comply with the formal requirement. It is then mandatory for all pages to be numbered. Except: I. if will is only 1 page. Why? Because there can be no substitution nor suppression. Page 31 of 207 2. if only attestation dause is on the unnumbered page and the clause contains the number of pages of the will. Q: How will you determine the number of pages of the will? A: This question can be answered only if we ask "Up to what page is the will? Up to the attestation clause or up to the page where the notary acknowledges?" Femandez v. Vergel de Dios states that it is up to the dispositive part only. But in this case the attestation clause was counted in the number of pages in the attestation dause. Hence, if not numbered, indude the page containing the attestation dause in the number of pages indicated in the attestation clause. Q: If a page of the will is missing, what is the effect? A: No probate. The probate is ALL or NOTHING. The missing page cannot be proven by parol evidence. 5. attestation clause This refers to a memorandum of facts certified by the witnesses dause. TOLENTINO: Attestation Clause Every ordinary will, or one that is not a holographic will, must have an attestation clause. An attestation dause is a memorandum of facts attending the execution off 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 its execution. Since it is a declaration made by the witnesses and not by the testator, it need be signed only by the witnesses and not by the testator. The will is subscribed at the end thereof by the testator alone, while the attesting witnesses sign at the end of the attestation dause. But even when the recital in the attestation clause appears to have been made by the testator himself in the first person, and not by the witnesses, there would still be a sufficient attestation clause if it contains all the facts required to be stated and is signed by all the witnesses together with the testator. The attestation clause duly signed is the best evidence as to date of signing. Where Written - Ordinarily, the attestation dause is written immediately after the signature of the testator at the end of the will. However, the law does not require the attestation to be contained in a single dause. Thus, where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation and the penultimate paragraph of the will stated the number of pages used, it was held that there was a sufficient attestation clause, even if such attestation was in the first person and signed by the testator, if it was likewise signed by the three instrumental witnesses. On the other hand, if there is a separate attestation clause, it need not be written on the very same page where the dispositions of the will end, even if there should be sufficient space to begin said clause. Contents of Clause - The attestation clause must state the following: 1. The number of pages used upon which the will is written;
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2007A 2. That the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction and in his presence; 3. That the signing by the testator, or by the person designated by him, was in the presence of the instrumental witnesses; and 4. That the witnesses signed the will and every page thereof, in the presence of the testator and of each other. It is not required that the attestation clause must state the number of the attending witnesses.

JURADO: Attestation Clause - There are three essential facts which must necessarily appear in the attestation clause in order that it will properly constitute a real certification by the instrumental witnesses that the formalities which are required by law in the execution of an ordinary will have been complied with. These essential facts are: a. The number of pages used upon which the will is written; b. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses; and c. The fact that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. Effect of defects or imperfections - If the defect of the attestation clause goes in the very essence of the clause itself or consists in the omission of one, some, or all of the essential facts, which according to law, must be stated in such clause and such omission cannot be cured by an examination of the will itself, the defect is substantial in character and as a consequence, the will is invalidated. Ho-.vever, if the defects of the attestation clause do not go into the very essence of the clause itself or they consist in defects or imperfections in the form of the attestation or in the language used therein, such defects are merely formal in character, as a consequence of which the validity of the will is not affected, provided that it is provide that such will was in fact executed and attested in. substantial compliance with all the requirements of Art 805. This rule is sometimes known as the doctrine of liberal interpretation as distinguished form the doctrine of strict interpretation as embodied in Art 809 of the Code. Language of the Attestation - If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. This rule is different from that which is required of the will itself because in the case of the latter the rule is that it must be executed in a language or dialect known to the testator. MAGIC NOTES: Q: What is the purpose of the attestation? A: To render proof of the authenticity and due execution of the will. To preserve in permanent form record of facts in case of failure of memory by witnesses. Page 32 of 207 To preserve a record of the facts surrounding the circumstance behind the execution of the will so that later on, if the witnesses are too old or forgetful, they can refresh their memories by merely looking at the AC. Q: Whose act is it? A: It is a certification by the witnesses that the facts in the AC attended the execution of the will. Where a page contains no dispositions but only AC, it does not need marginal signatures because it is not part of the "will" (which ends with the logical end, i.e. the disposition part) but is nonetheless part of the will as a document because the AC is essential to the validity of the whole will. Q: May the witnesses attest then sign the AC at another time? A: The law is silent but the authorities say that it must be signed in 1 continuous transaction. Q: May the attestation clause be executed on a different day? A: The law does not expressly provide. However, authorities are unanimous that it should be signed on the same day or occasion. Thus, all the requirements of Art. 805 must be complied with in the same occasion. Must witnesses sign? A: Yes. must testator? A: No as per Abangan v. Abangan. Q: How should the AC be written? How will the attestation clause be written, separately or included in the body of the will? A: The law intends it to be a separate act (by the witnesses) but there is NO express requirement for a separate paper. In Cuevas, the court held that it might be included in the body of the will so that they have to sign at the bottom of the will. (Effect: Taboada is abrogated. However, it may be written on a separate paper.) Q: Must the AC be written in a language known to the witnesses? A: No. Art. 805 allows the attestation clause to be written in a language NOT KNOWN to the witnesses. Q: Must the testator know the language of the AC? A: No. the law requires no such thing. The AC is not the act of the testator. Q: Must the AC be written in the same language as the will? A: No there is no such requirement by the law. Q: What is the effect if AC is absent? A: The will is VOID under Art. 839 (1). Will is invalid. Q: What must the AC contain? All facts required by law. A: (1) number of pages of the will (2) That the testator signed the will (3) that the testator signed every page of the will (4) that the testator signed in the presence of all the witnesses (5) that the witnesses witnessed and signed the will and all the pages thereof (6) that the witnesses signed in the presence of the testator
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2007A
clf cwe

ri.rtiW.lt - IIIF-F (7) that the witnesses signed in the presence of one another Q: What are the additional terms which must be added to the AC in case the testator requested a delegate? A:

(1) that the testator requested a delegate (2) that the delegate wrote it under the express order of the testator (3) that the delegate wrote it in the presence of the testator Q: Should delegate's name be indicated? A: No, there is no such requirement. Q: Is it required to be stated in the AC that the delegate signed in the presence of the testator? A: No. While in Art. 805. par. 3 the delegate must sign in the presence of the testator, it is not required that this fact be included in the AC. Q: What is the effect if the AC fails to state any of those requirements? A: General Rule - The will is VOID under Art. 839. Exception - When Art. 809 applies (doctrine of liberal interpretation). This is to balance the interest of the law and the testator who has no control over the AC. Not that the substantial compliance applies to defect in form or language of the AC ONLY and NOT of the body of the will. Q: Must testator be present during the signing of the AC? A: Some writers say no, no reason. DLC says yes, for testator to make sure of the validity of the will. Q: A will was executed today but was NOT acknowledged today. After 1 month, the testator became insane. Six montns thereafter, the testator regained his sanity and acknowledged it before a notary public. Is the will A: Tne testator musl nave testamentary capacity at the time of tne acknowledgement. s. ,-ME o/tntf Q: Before whom must the acknowledgment be done? A: Old rule - any person of known probity and integrity.// New rule - Only lawyers who had been commissioned by the SC. Testator must acknowledge the due execution of the will, the witnesses the attestation clause. To acknowledge is to admit as your own a judicial act. There is no need for the delegate therefore to acknowledge because he had done no : judicial act, just mechanical act. Q: May the testator and the witnesses acknowledge before * different lawyers/notaries? A: Caguioayes. There is no prohibition. Testator and witnesses may acknowledge on different occasions. Q: Must the notary public be present during the singing of the will? A: There is no requirement in the law. Hence, they can sign even not in his presence and just acknowledge before him. The notary public however must be convinced that the document executed is a will. Only the testator Page 33 of 207 i -. WILL
CM

: No. However, the stamp may be affixed thereto as per Gapucan v. Mania, after which the will becomes admissible in evidence. (Note that the reason is not for want of an essential requirement but that rules on evidence require documentary stamp in order for the will to be admissible.) Q: Must the notary public retain a copy of the will?
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EP C W A vvw-i-16 Ec/Me -tfO ft WJMI1 and the witnesses must be present during the singing of the will. Q: Must notary read the wiH? A: No requirement. Q: What is the evidence of acknowledgement? A: The certificate of acknowledgment given by the notary. Q: Must the acknowledgment state the name of the testator and the witnesses? A: Normally, the notary public requires it. But in Calangan v. Arreva, the notary public forgot to state the name of the testator and the witnesses but the certification was led sufficient; the absence of the names will not affect the validity of the will. Q: Must the notary public prepare and sign on the same day it was acknowledged? A: No as per Javellana v. Ledesma where the notary was present during the signing by the testator and the witnesses but he himself singed it afterwards. Act of notary may be delayed. Q: Should the notary public sing in the presence of the testator and the witnesses? A: No again as per Javellana. There is no requirement in the law. Q: When is a will considered executed? The day it was signed by the testator or the day it was acknowledged? A: The day it was SIGNED is the day of the execution. However, it becomes perfectly valid on the day of acknowledgment but the date of execution retroacts to the date of the signing. Q: Is the acknowledgement an essential part of the will? A: Yes Q: May the notary public be one of the witnesses? A: No as per Cruz v. Villasor since he cannot appear before _ himself and acknowledge his act. Q: May the delegate be the notary public? A: Yes, since there is no requirement in the law as to who will be the delegate. Moreover, the delegate need not acknowledge anything so that the prohibition in Cruz v. Villasor Is inapplicable. Q: What is the effect of the absence of the acknowledgement? A: The will shall be VOID. Art. 839 (1) and Garcia v. Lacuesta. : Will the absence of documentary stamp invalidate the will? : No. *-NIKC teoweS twvwiitfrWM ^M1" H\* w if it fc ACMIf ifM-E IN : Can the will in this case be presented for probate despite the absence of documentary stamp ?

2007A fc E Vfff WM ^T i THftT ee\AHT A: No. Art 806. The testator may wish to keep secret the contents thereof to provide security. However, if the testator aBowed the notary to keep a copy of the will. this is permissible. Matias v. Salud The deceased executed a win in the presence of the three witnesses. The document is comprised of 3 pages On the lower half of the 2"" page preceding the attestation clause appears the signature of the testatrix. Alongside it was a smudge in violet ink with blurred ridge lines, claimed by proponents to be the thumb mark of the testatrix. There were signatures on the left margin of each page, as stated in the attestation clause on the 3* page. On the upper part of each page's left margin appeared a violet ink smudge similar n texture to the one previously described, accompanied with the written words "Gabina Raquel" and underneath said name, "by Lourdes Samonte." Proponents submitted evidence that the will was drafted by the lawyer and that the testatrix thumb marked the foot of the will and left margin of each page. It was also signed by the decedent only on the lower half of the 2M page as she dropped the lawyer's pen. complaining of pain. After seeing that the testatrix could no longer proceed, the lawyer instructed Samonte to write "Gabina Raquel by Lourdes Samonte" next to each thumb mark. HELD: The legal requisite that the will shall be signed by the testator is satisfied by a thumb print or other mark affixed by him, and that where such mark is fixed by the decedent, it is unnecessary to state in the attestation clause that another person write the testator's name at his request. While in some cases, the signing by mark was desctibed in the attestation clause, it does not appear that the court ever held that the absence of such description is fatal defect. The failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponents fully satisfies the court that the will was executed and witnesses as required by law.____ Garcia v. Lacuesta (1951) A will was written by Mercado in the llocano dialect and it contained the following attestation: "We, the undersigned, by these presents do declare that the foregoing statement of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the 3 pages thereof, page 3 being the continuation of this attestation clause; the will is written in the llocano dialect which is spoken and understood by the testator, and it bears the corresponding number in letters which composes 3 pages, and all of them were signed in the presence of the testator and of each other..." The will appeared to have been signed by Atty. Javier who wrote the name of Mercado followed by "a ruego del testado" (at the request of the testator) and the name of Javier. Mercado allegedly wrote a cross immediately after his name CFI held that the recital of the attestation clause was sufficient. CA reversed. Hence this. HELD: The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write the testator's name under his express direction as required by the law. The herein petitioner argues that there is no need for such recital because the cross written by the testator after his nqme is sufficient and the signature of Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumb mark, the latter having been held sufficient by this court in Dela Gala v. Gonza/es, among others._________________________ Where the cross appearing in a will is not the usual signature of the testator or even one of the may ways by which he signed his name, that cross cannot be considered a valid signature._________________ Balonan v. Abellana (1960) The last will and testament that's sought to be probated is written in Sapnish and consisting of 2 pages which are typewritten. The 1* page is signed by uan Bello and under his name appears typewritten "For la testatodora Anacteta Abellana, xxx" and there appears in the left margin the signature of 3 instrumental witnesses. On the second page, there are the signatures of the witnesses too. and on the left margin again appears the handwritten phrase: "For la testadora anacleta Abellana". The will was duly acknowledged before a notary public. HELD: Art. 805 provides that "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 person in his presence, xxx" As held in Ex Parte Pedro Arcenas: "Where the testator does not know how, or is unable to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. E.g. "John Doe by the testator. Richard Roe", or "By the testator John Doe. Richard Doe.'

In the case at bar. the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is therefore a failure to comply with the express requirement in the law that the testator himself sing the will, or that his name be affixed thereto by some other person in his presence and by his express direction.___________ Nera v. Rimando (1911) When the will was being executed by the testator and the subscribing witnesses. 1 of the witnesses was outside the room, some 8 or 10 feet away, m a large room connected with the smaller room by a doorway, across which was hung a curtain which made it impossible for 1 in the outside room to see the testator and the other witnesses in the act of attaching {heir signatures. HELD: The will was duly executed. The true test of presence of the testator and the witnesses in the execution of the will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.___________ Page 34 of 207 Taboada v. Rosal (1982) The deceased left a will, written in the Cebuano language, which consisted of 2 pages. The 1s1 page contains the entire testamentary dispositions and is singed at the end or bottom of the page by the testatrix alone and at the left margin by the 3 instrumental witnesses. The 2" page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the 3 witnesses and the left hand margin
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2007A by the testator. The attestation clause failed to state the number of pages of the will, although the acknowledgment stated that the will consists of 2 pages. HELD: Art. 805 uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the law requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. In this case, the will was subscribed in a manner which fully satisfies the purpose of identification. The signature of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testator but also the due execution of the will as embodied in the attestation clause. Though the witnesses did not sign the end of the will, their signatures at the left margin of the 1st page were sufficient for them to subscribe the will. Though the defect in the AC is normally fatal, in this case it would not invalidate the will, since it is discernible from the entire will that it really consists of 2 pages duly signed by the testator and the 3 witnesses. Icasiano v. Icasiano (1964) The original of the will consisted of 3 pages, signed at the end and in every page by the witnesses, except for the 3rd page which does not contain the signature of one of the attesting witnesses. The duplicate copy attached to the petition for probate was signed by the testatrix and her 3 attesting witnesses in each and every page. The witness testified on his failure to sign page 3 of the original admitting that he may have lifted 2 pages instead of 1 when he signed the same, but affirmed that page 3 was signed in his presence. HELD: The inadvertent failure of 1 witness to affix his signature to 1 page of a testament, due to the simultaneous lifting of 2 pages in the course of signing is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only by the fact that the testatrix and 2 other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the document was ratified by the testatrix and the 3 witnesses. The should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the will by muddling or bungling it or the AC. That failure of witness Natividad to sing page 3 was entirely through pure oversight, is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in page 3. The text of the AC and the acknowledgment before the notary public likewise evidence that no one was aware of the defect at the time. Caqro v. Caqro (1953) The attestation clause was not signed by the attesting witnesses, although the page containing the same was signed by the witnesses on the (eft-hand margin. HELD: The will is fatally defective because the AC was not signed by the witnesses. The AC is a memorandum of the facts attending to the execution of the will, required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned AC cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. Baustists Angeto, dissenting: I dissent. In my opinion the will in question has complied with the formalities of the law and therefore, should be admitted to probate. While the 3 instrumental witnesses did not sign immediately after the AC, the fear entertained by the majority that ;t may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of

the witnesses to the effect that such AC was already written in the will when the same was signed. Tuason, J, dissenting: I concur with J. Bautista's dissent and may I add that the majority decision erroneously sets down as a fact that the AC was not signed. When the witnesses' signatures appear on the left-hand margin and the real and only reason is whether such signatures are legally sufficient. The only answer is yes. The law on will does not provide that the attesting witness should sing the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are no good._____________________ Cruz v. vlllasor (1973) Appellant Agapita Cruz, the surviving widow of deceased Valenle. opposes the probate of the latter's will on the ground that it was executed through fraud, deceit, misrepresentation and undue influence, and that the instrument was executed without the testator having been fully informed of the contents thereof. The issue is WON the requirement of at least 3 witnesses to attest and subscribe to the will, and the requirement that the testator and the witnesses acknowledge the will before a notary, were complied with. HELD: No. It appears that one of the instrumental witnesses to the will is a notary public. The appellant is correct in saying that the last will and testament was 'not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow, to own, to assert, to admit; and "before" means in front of. Consequently, if the 3rd witness happens to be the notary public himself, he would have to avow, assert and admit his having signed the will in front of himself. This cannot be done. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of his own act. To allow the notary public to act as third witness, or one of the attesting or acknowledging witnesses, would have (he effect of having only 2 witnesses to the will, which Page 35 of 207
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2007A by the testator. The attestation clause failed to state the number of pages of the will, although the acknowledgment stated that the will consists of 2 pages. HELD: Art. 805 uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the law requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. In this case, the will was subscribed in a manner which fully satisfies the purpose of identification. The signature of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testator but also the due execution of the will as embodied in the attestation clause. Though the witnesses did not sign the end of the will, their signatures at the left margin of the 1st page were sufficient for them to subscribe the will. Though the defect in the AC is normally fatal, in this case it would not invalidate the will, since it is discernible from the entire will that it really consists of 2 pages duly signed by the testator and the 3 witnesses. Icasiano v. Icasiano (1964) The original of the will consisted of 3 pages, signed at the end and in every page by the witnesses, except for the 3rd page which does not contain the signature of one of the attesting witnesses. The duplicate copy attached to the petition for probate was signed by the testatrix and her 3 attesting witnesses in each and every page. The witness testified on his failure to sign page 3 of the original admitting that he may have lifted 2 pages instead of 1 when he signed the same, but affirmed that page 3 was signed in his presence. HELD: The inadvertent failure of 1 witness to affix his signature to 1 page of a testament, due to the simultaneous lifting of 2 pages in the course of signing is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only by the fact that the testatrix and 2 other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the document was ratified by the testatrix and the 3 witnesses. The should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the will by muddling or bungling it or the AC. That failure of witness Natividad to sing page 3 was entirely through pure oversight, is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in page 3. The text of the AC and the acknowledgment before the notary public likewise evidence that no one was aware of the defect at the time. Caqro v. Caqro (1953) The attestation clause was not signed by the attesting witnesses, although the page containing the same was signed by the witnesses on the (eft-hand margin.

HELD: The will is fatally defective because the AC was not signed by the witnesses. The AC is a memorandum of the facts attending to the execution of the will, required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned AC cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. Baustists Angeto, dissenting: I dissent. In my opinion the will in question has complied with the formalities of the law and therefore, should be admitted to probate. While the 3 instrumental witnesses did not sign immediately after the AC, the fear entertained by the majority that ;t may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of the witnesses to the effect that such AC was already written in the will when the same was signed. Tuason, J, dissenting: I concur with J. Bautista's dissent and may I add that the majority decision erroneously sets down as a fact that the AC was not signed. When the witnesses' signatures appear on the left-hand margin and the real and only reason is whether such signatures are legally sufficient. The only answer is yes. The law on will does not provide that the attesting witness should sing the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are no good._____________________ Cruz v. vlllasor (1973) Appellant Agapita Cruz, the surviving widow of deceased Valenle. opposes the probate of the latter's will on the ground that it was executed through fraud, deceit, misrepresentation and undue influence, and that the instrument was executed without the testator having been fully informed of the contents thereof. The issue is WON the requirement of at least 3 witnesses to attest and subscribe to the will, and the requirement that the testator and the witnesses acknowledge the will before a notary, were complied with. HELD: No. It appears that one of the instrumental witnesses to the will is a notary public. The appellant is correct in saying that the last will and testament was 'not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow, to own, to assert, to admit; and "before" means in front of. Consequently, if the 3rd witness happens to be the notary public himself, he would have to avow, assert and admit his having signed the will in front of himself. This cannot be done. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of his own act. To allow the notary public to act as third witness, or one of the attesting or acknowledging witnesses, would have (he effect of having only 2 witnesses to the will, which Page 35 of 207
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2007A TH6CE "* fffil^*' would be in contravention of the provisions of Art. 805, requiring at least 3 credible witnesses to act as such, and of Art. 806. which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will.________________ Gabucan v. Manta (1980) The CFI dismissed a petition for probate on a will, on the ground that the requisite documentary stamp was not affixed to the notarial acknowledgment in the wiH, and thus it was inadmissible in evidence. HELD: What the probate court could have done was to require the proponent to affix the requisite 30 centavo documentary stamp to the notarial acknowledgment of the will. The lack of documentary stamp does not invalidate the will._________________ Javellana v. Led-isma (1955) The will was opposed on the ground that the will was not executed by the testatrix in the presence of the witnesses and that the acknowledgement clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses. HELD: The testimony of the witnesses proves that the testatrix executed tiie will in their presence. After the parties signed the will before the notary public, the notary public allegedly brought eh codicil to his office and singed and sealed it there. Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the will. The CC does not require that the signing of the testator, witnesses and notary public should be accomplished in 1 single act. All that is required is that every will must be acknowledged before a notary public by the testator and the witnesses. The subsequent signing and sealing by the notary public of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. In fact, the law does not require the testator and the witnesses to acknowledge the will on the same day or occasion that it was executed._________ c. special requirements. ART 807. If the testator be deaf or a deaf-mute, he must personally red the will, if able to do so; otherwise, he shall designate 2 persons to read it and communicate to him. in some practicable manner, the contents thereof.

DLC - the 2 wiH help each other in sign language. Deaf-mute difficult to teach to read and write. The 2 persons mentioned can be witnesses or the notarpy public (if present during the execution). 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.___________ TOLENTINO: The reason for the requirement in 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. Failure to comply with this requirement makes the will invalid. .' From the point of view of understanding or knowing the contents of the will, there is no difference between the illiterate and the blind testator. Therefore, the provisions of the present article should also be applied to an illiterate testator. MAGIC NOTES: Q: The requirements imposed for the validity of the will under Arts. 805 and 806 presuppose that the testator is normal. How about when he is handicapped, may he execute a wiH? A: yes. He is not prohibited by law. However, since he is handicapped, he is susceptible of being a victim of fraud so that the law requires additional requirements (to protect liim). Q: The law, in Art. 807 mentions only a deaf-mute, what if he is only mute but not deaf, does Art. 807 apply? A: DLCit seems not. Note: In Gara'a v. Vasquez, the testator need not be totally blind. In this case, the testator can only see from afar. Hence, under Art. 808, you do not need to lose your eyesight in order to be legally blind. In fact, even an illiterate is covered. Q: Must the testator sing only after 2 readings? A: The law -s silent. DLCHe cannot sign until both readings are over. But there is no requirement. ^ IF ii.l-Vt6p.ATE - tVE CmJl RFW - HE K 6UND - JTrtVIE \JG\C Garcia v. Vasquez (1970) The testatrix had cataracts in her eye and was suffering from glaucoma, a disease that leads to blindness, when she executed her will. According to her ophthalmologist, her vision remained mainly for viewing distant objects and nor tor reading print. She was incapable of reading because of her eye condition. HELD: For all intents and purposes, the testatrix was like a blind testator. The -due execution of the will therefore required observance of Art 808, that the will be read to her twice, once by the subscribing witness and again by the notary public. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself, it to may the provisions thereof known to him, so that he may be able to object if they were not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus, making them truly reflective of his desire, is evidenced by the requirement that the will should be read io the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of the testator's other senses. __________________ Alvarado v. Gaviola (1993) ff lifTHfJH The lawyer who drafted Alvarado's "Muling Habilin" read the will and the codicil aloud in the presence of the testator, the 3 instrumental witnesses, and the notary public. On both instances. the latter 4 followed the reading with their own furnished copies
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2007A HELD: "Poor/ defective/ blurred" vision come within the concept of "BLIND." With 4 persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents._________________ d. substantial compliance 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 tested in substantial compliance with all the requirements of Art. 805. TOLENTINO: If the testator, in executing his will, attempts to comply with any requisite although the compliance is not literal it will be sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. This is the rule of substantial compliance in the execution of the will. The law on the formal requirements of a will should be liberally construed; while perfection in writing is desirable, unsubstantial departures should be ignored, as long as the possibility of fraud and bad faith are obviated. The present article states the rule of substantial compliance with respect to the AC. The imperfections of the AC may either be in the language or form thereof. Grammatical errors which may be noted from the general tenor of the AC must be overlooked or corrected by construction so as not to frustrate the recognized intention of those who intervened in the execution thereof. Where it is evident that upon reading the AC, it is apparent at first sight that in its drafting there were omissions incurred which reason and common sense can

supply without altering or changing the intention of the testator and of the 3 witnesses, the AC must be considered sufficient. An attestation dause will be held sufficient, notwithstanding some imperfections in the grammatical constructions, where it is evident that the defect is due to carelessness of the clerk or to lack of mastery of the language is the meaning sought to be conveyed can be determined form the clause itself. An AC may be so inartistically drawn that, standing alone, it may not meet the requirements of the statute, but if, when taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent, it will be held sufficient. In order to determine whether or not an AC has complied with the requirements of the law, the whole language of the clause must be taken together, and the portion thereof drawn in question must be read and construed in connection with the rest of the clause. And where there is a possibility that the testator or the person who prepared the will had relied upon a ruling laid down in a case by the SC, it would be unfair to reject the will, when in its preparation such ailing was followed. The rule of substantial compliance has been appfeed to the extent that it has been held that the AC need not be an independent portion of the will; it may be contained in the body of the will itself, expressed in the 1* person as a recital of a testator, provided that it is also signed by the 3 instrumental witnesses. In determining whether the statements made in the AC complies substantially with what the law requires, the correct rule is that omissions which can be supplied by an examination of the will itself without resorting to extrinsic evidence, will not be fatal; but omissions which cannot be supplied except by presenting evidence aliunde will invalidate the AC. ' MAGIC NOTES: Q: Example of instances where there is substantial compliance? A: e.g. right marginal signatures, page numbered in Arabic (not roman) form, page numbers at the bottom (not on top) of page. Q: / ell the requirements are substantially complied with, what is the effect of a defect in the AC? A: It does NOT nullify the will nor make it VOID (Art. 809) as long as all the parameters are complied with 1. absence of bad faith 2. No forgery 3. no fraud 4. no undue influence 5. the will was in fact executed in substantial compliance with the law Q: If there is no defect in the AC hut the will does not strictly comply with the requirements of the law (e.g. AC states that the signature is at the left margin but is actuatfy on the right) what is the effect on the will? A: Substantial compliance is sufficient if the AC is defective or imperfect. It saves will from invalidity. Q: What if the AC is perfect, is not substantial compliance enough instead of strict compliance? Stated differently, suppose AC is not defective but the will does not strictly comply with Art. 805 nor 806? Can we apply substantial compliance? A: Yes. Why? If substantial compliance is applicable if the AC is imperfect, what more when the AC is perfect? But not under Art. 809 though. Q: When one of the things required to be stated in the AC is missing, is it a defect in form or language? A: "Form" refers to the way the will was executed. E.g. the AC was not written separately from the body but was embodied in the will. "Language", if meaning of the words in the clauses are ambiguous. E.g. Rey v. Cartagena: the testator signed each and every page of the will in the presence of the witnesses and the witnesses also signed in the presence of the testator and of one another. However, the AC failed to show that the witnesses signed each and every page of the will, the court held that there is no defect because the word "also" means that the witnesses signed in the same manner as the testator. Q: How about an absolute omission? Page 37 of 207
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2007A A: An omission is neither a defect in form or language. Hence, Art. 809 does not apply and the wilt is void. Q: What is the test in applying Art. 809? A: Jurado - An absolute omission of something needed to be stated in the AC is neither a defect in form nor a defect in language because the defect is substantial. Hence, Art. 809 is inapplicable. JBLReyes - The rule in Art. 809 is broad that no matter how imperfect the AC is, the same could be cured by evidence aliunde. It thus renders the attestation of no value in protecting against fraud or a defective execution. The rule then must be limited to disregarding those defects that can be supplied by an examination of the will itselfwhether all the pages thereof are consecutively numbered; whether the signatures appear on each and every page; whether the subscribing witnesses are 3 or the will was not notarized. All these are facts that the will itself can reveal, and defects or even omission concerning them in the AC can safely be disregarded. But the total number of pages and whether all persons required to sign did so in the presence of each other must substantially appear in the AC, being the only check against perjury in the probate proceedings.

The point of JBLReyes is - Art. 809 is applicable although the following terms are absent in the AC but can be seen from the will: 1. whether all the pages are consecutively numbered 2. whether the signatures appear on each and every page 3. whether the witnesses are 3 or more 4. whether the will has been notarized. But if those things which are required to be stated in the AC cannot be seen from an Examination of the will, the will is invalid and Art. 809 is inapplicable. These things include the following: 1. total number of pages 2. fact that the testator and the witnesses signed in the presence of each other. DLC - mukhang maW si JBL Jan! If we allow this, then the AC can be disregarded altogether. Suppose the original will was signed by only 2 witnesses and such was stated in the AC. Subsequently, someone who knew the law wanted to make the witnesses 3 and by himself signed each as the 3rd witness. Who will know which to rely on - the AC or the 3 signatures'. What if instead of stating that (here were 2 witnesses who singed the will, the AC completely omitted referring to the number of the witnesses, how pronounced will the problem be in such case, anyone can just add this signature as witness on the will. Q: In the AC, the phrase "have been signed by the testator" was missing, what is the status of the will? A: In the case of Gil v. Murciano, the SC in its 1st decision (penned by J. Hugo), invalidated the will. According to the court, an omission is not covered by Art. 809. "Where shall we stop supplying what is lacking in the AC?" he court did not apply the doctrine of substantial compliance. Justice Tuazon registered a dissent. On the MR however, the SC revred itself and adopted the dissent of J. Tuazon. This was made possible by the fact that the composition of the court Page 38 of 207 , .-, IT-vr then had changed. J. Tuazon stated just where to stop supplying what is laking in the AC. He quoted the opinion of JBLReyes as abovementioned and concluded that omissions which can be supplied by the will may be forgiven. Defect in the form of language of the AC covers all kinds of defects, including omissions, but despite such defect, it can be saved from nullity if it can be shown that there is substantial compliance with the requirements by merely looking at the will itself. Evidence aliunde is inadmissible. Evidence must be sought only from the 4 comers of the will. Illustration: Attestation Clause Defect in form substantial compliance + Art. 809 = valid (parol evidence admissible) Defect in Language subst'l compliance + Art. 809 =valid (parol evidence admissible) Omissions substantial compliance + Art. 809 = valid (parol evidence NOT admissible) DLC -1 agree with J. Hugo's decision in the case of Gil. 1) The defect must only be in form and language and 2) no omissions must be present. If we follow Justices JBL and Tuazon, then we wouldn't have nay need for the AC. The floodgates to fraud will then be opened. Gil v. Murciano (1951) The original of the will was submitted for probate. But before it came up for probate, it was destroyed by fire. The parties submitted an agreed statement of facts in which the will was reproduced as copied in the record on appeal in another case. The oppositors contend that the will is invalid since the AC did not state that the testator signed the will; it only declared that it was signed by the witnesses. HELD: The failure to state that the testator signed the will is a fatal defect for the precise purpose of the AC is to certify that the testator signed the will, this being the most essential element of the clause, without it, there is no attestation at all. In adopting a liberal construction of the will, evidence aiiunde is not allowed to fill the void or supply missing details. What is permitted is a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the required formalities of the law. Reconsideration: The trend has been towards a liberal interpretation at to the formalities in the execution of wills. It has been held that the object of the solemnities surrounding the execution of will is to close the door against bad faith and fraud, and to avoid substitution of will and to guarantee their truth and authenticity. Therefore the laws should be interpreted in such a way as to attain their primordial ends. But also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assumes such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. In this case, genuineness of the execution is admitted by the adverse party and there is not the slightest
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2007A insinuation of undue pressure, mental incapacity of the testator or fraud. There is no practical reason for objecting that he singed the will in the presence of the latter. The will of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose for the intervention of witnesses is to make certain that the testator has definite and complete intention to pass his property and to prevent, as far as possible

any chance of substitution on instrument fro another, what better guaranty of genuineness can there be than a certification by the testator himself on the body of the will so long as the testator's signature is duly authenticated? Caneda v. Cam (1993) Attestation clause does not expressly state that witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. HELD: Defect is fatal. Since attestation involves a mental act, there is no means of ascertaining by a physical examination of the will, whether the* witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation. Cuevas v. Achacoso The AC was made by the testator more than by the attesting witnesses. The AC contained the following: 'In witness whereof, I sign this testament xxx in the presence of the 3 witnesses, xxx I hereby manifest that every sheet of the aforesaid testament xxx has been singed by me as also each of the witnesses has also signed in my presence and in the presence of each other." (Sgd.) Testator, Witnesses: (Sgd.) A; (Sgd.) B; (Sgd.) C. HELD: The object of solemnities surrounding the execution of will is to close the door against bad faith and fraud, to avoid substitution of wills and to guarantee their truth and authenticity. Therefore the laws on these subjects should be interpreted in such a way as to attain their primordial ends. But on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when the interpretation already given ensures such ends, any other interpretation that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators will must be disregarded. In the case at bar. the apparent anomaly of the attestation made by the testator himself more that by the instrumental witnesses is not serious nor substantial, it appearing that right under the signature of the testator there appears the signatures of the 3 instrumental witnesses. This shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the AC. 6. witnesses to wills a. who are competent ART 820. Any person of sound mind and of the age of 18 years or mote, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Art. 805 of this Code. Page 39 of 207 TOLENTINO: The witness referred to in this and the succeeding articles are those of ordinary wills: holographic will need not be witnessed. ART 821. The ff. are disqualified form 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.________________________ TOLENTINO: The law requires that the witness be domiciled in the Philippines. Mere residence is not enough. Foreign Wills - Domicile of witnesses in the Philippines is required only for will executed in the Philippines. One who is not domiciled in the Philippines is disqualified to be a witness because it is likely that when the will is presented _, for probate he will not be available as a witness in the Philippines. Another reason is that a witness domiciled in 'the Philippines is more likely to know the testator and to be able to testify on his mental condition when this is put in issue during probate. When the will is executed in a foreign country, however, it seems absurd to require thai the witnesses be domiciled in the Philippines, under the old CC it was expressly provided that domicile of witnesses in the Philippines was not required in will executed in a foreign country. It is reasonable to apply the same rule now. No particular citi/ensfvp is required for witnesses to wills. A witness is disqualified when he has been convicted of falsification of a document, perjury or 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 be considered as the 3rd instrumental witness since he cannot acknowledge before h-mself having signed the will 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.______ MAGIC NOTES: *X3: Who may be witnesses? A: Those persons who are qualified and not disqualified. "w ho are competent (art. 820, 82 1 , 824) Q: Who are qualified? A: According to Art. 820. any person: 1. of sound mind -ICE^'N (KLeiMnw} 2. of the age of 1 8 years old or more and 3. not blind and -CAPABLE cr ftEAdriG 4. able to read and write may be witnesses in the execution of a will according in Art. 805. tAf Q: Who are disqualified? A: According to Art. 821. the ff. are disqualified from being

witnesses to a will: 1. any person not domiciled in the Phils.


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2007Ainsinuation of undue pressure, mental incapacity of the testator or fraud. There is no practical reason for objecting that he singed the will in the presence of the latter. The will of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose for the intervention of witnesses is to make certain that the testator has definite and complete intention to pass his property and to prevent, as far as possible any chance of substitution on instrument fro another, what better guaranty of genuineness can there be than a certification by the testator himself on the body of the will so long as the testator's signature is duly authenticated? Caneda v. Cam (1993) Attestation clause does not expressly state that witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. HELD: Defect is fatal. Since attestation involves a mental act, there is no means of ascertaining by a physical examination of the will, whether the* witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation. Cuevas v. Achacoso The AC was made by the testator more than by the attesting witnesses. The AC contained the following: 'In witness whereof, I sign this testament xxx in the presence of the 3 witnesses, xxx I hereby manifest that every sheet of the aforesaid testament xxx has been singed by me as also each of the witnesses has also signed in my presence and in the presence of each other." (Sgd.) Testator, Witnesses: (Sgd.) A; (Sgd.) B; (Sgd.) C. HELD: The object of solemnities surrounding the execution of will is to close the door against bad faith and fraud, to avoid substitution of wills and to guarantee their truth and authenticity. Therefore the laws on these subjects should be interpreted in such a way as to attain their primordial ends. But on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when the interpretation already given ensures such ends, any other interpretation that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators will must be disregarded. In the case at bar. the apparent anomaly of the attestation made by the testator himself more that by the instrumental witnesses is not serious nor substantial, it appearing that right under the signature of the testator there appears the signatures of the 3 instrumental witnesses. This shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the AC. 6. witnesses to wills a. who are competent ART 820. Any person of sound mind and of the age of 18 years or mote, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Art. 805 of this Code. Page 39 of 207 TOLENTINO: The witness referred to in this and the succeeding articles are those of ordinary wills: holographic will need not be witnessed. ART 821. The ff. are disqualified form 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.________________________ TOLENTINO: The law requires that the witness be domiciled in the Philippines. Mere residence is not enough. Foreign Wills - Domicile of witnesses in the Philippines is required only for will executed in the Philippines. One who is not domiciled in the Philippines is disqualified to be a witness because it is likely that when the will is presented _, for probate he will not be available as a witness in the Philippines. Another reason is that a witness domiciled in 'the Philippines is more likely to know the testator and to be able to testify on his mental condition when this is put in issue during probate. When the will is executed in a foreign country, however, it seems absurd to require thai the witnesses be domiciled in the Philippines, under the old CC it was expressly provided that domicile of witnesses in the Philippines was not required in will executed in a foreign country. It is reasonable to apply the same rule now. No particular citi/ensfvp is required for witnesses to wills. A witness is disqualified when he has been convicted of falsification of a document, perjury or 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 be considered as the 3rd instrumental witness since he cannot acknowledge before h-mself having signed the will 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.______ MAGIC NOTES: *X3: Who may be witnesses? A: Those persons who are qualified and not disqualified. "w

ho are competent (art. 820, 82 1 , 824) Q: Who are qualified? A: According to Art. 820. any person: 1. of sound mind -ICE^'N (KLeiMnw} 2. of the age of 1 8 years old or more and 3. not blind and -CAPABLE cr ftEAdriG 4. able to read and write may be witnesses in the execution of a will according in Art. 805. tAf Q: Who are disqualified? A: According to Art. 821. the ff. are disqualified from being witnesses to a will: 1. any person not domiciled in the Phils.
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2007A2. ThosE who have been convicted of falsification of a document, perjury or false testimony. Qualifications Is soundness of mind of the witness the same as soundness of mind required of the testator? A: NO. In 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 and unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of the making of the will to know (1) the nature of the estate to be disposed of (2) the proper objects of his bounty (3) the character of the testamentary act. With regard to the requirement of soundness of mind of the witness, there's no rule in the Code. Perhaps a person is of sound mind and qualified if (1) he has control over his faculties necessary to observe tha execution of the will (2) to comprehend what he observed (3) to testify what he observed and comprehended. As long as he is competent under the ROC, he maybe said to be of sound mind Art. 820 speaks of the general rule, while Art. 799 is the exception and if it was eradicated the general rule applies. </Q: Why should a witness be of sound mind? A: To be credible. //Q: Why 18 years of age? A: A 10 yr. old boy's testimony may be doubtful as to whether he can remember what he witnessed. //Q: Why can't a blind, a deaf/dumb or illiterate person be a witness? A: If blind, how can he see or observe the execution of the will. If deaf/dumb, while he can see, he cannot testify in court. He cannot recount to the court the events that transpired during the execution of the will. Besides, it's in the ROC that he can't testify. If illiterate, he will not be able to sign and his signature is required on all pages of the will. It will not be unlikely that he will not be able to testify. Re: illiterates, the attitude of society is to treat them as idiots and tience no credibility. Disqualifications i% '21 / . 1. Domiciled <n3: When is he considered domiciled? A: The domicile of natural persons is the place of their habitual residence (Art. 50, CC). vQ: What is meant by habitual residence? A: This is a matter of intention (animus revertendi). VQ: Why are persons not domiciled in the Phils, disqualified to be witnesses? A: Factor of availability. Chances that if he's a resident, he'd be available is greater. Those not domiciled may not be available to testify at the probate and service of processes difficult. Besidnes, he may not be familiar with the testator's practices or laws of the testator. Page 40 of 207 See r,E'. -THK turn wif CC , K it ? At THE mu. u (ftf \fl\n ) W wHftr it wirtjEK a IN -me Prtiw tt rttf TIME Of tf mil. RiAt At THE TIME Moreover, the court can't compel him by means of subpoena (this part not sure) and since his testimony is essential espetiaty when the will is contested, the reason of the law in requiring witnesses is defeated. DLC disagrees because those domiciled here can still leave the country. fa. If a Filipino executes a notarial will in a foreign country, may he observe Phil, law? A: No. because there is no law authorizing him to use Phil, law. BUT, DLC is of the opinion that if we don't allow him to do so, a foreigner will be at a more advantageous position because a foreigner can observe Phil, law in executing his will abroad. Generally there's nothing stopping him from doing so But there's a problem as to how it will be witnesses by people domiciled in the Phils. According to Tolentino, it would be absurd to require that the witnesses be domiciled in the Phils. Under the old CC, it was expressly provided that the domicile of witnesses in the Phils, wasn't required in wills executed in a foreign country. According to him, though there's no provision like that in the new CC, it's reasonable to apply the old CC rule now.

According to Caguioa, ha cannot execute a notarial will abroad The fact that the provision of the old CC allowing it was omitted in the new CC shows the intention of the framers to disallow people not domiciled in the Phils, to witness the execution of the notarial will even rf done abroad, (presumption to suppress rather than allow) Q: Can he execute a holographic wU abroad? A: Yes, because there's no need for witnesses. Q: May a foreigner be a witness? A: Yes, as long as he is domiciled in the Phils, and has all of the qualifications and none of the disqualifications. There is no citizenship requirement in the Code. ,s 2. Not Convicted of a Crime ,/jQ: Can a person convicted of rape be a witness? A: YES, since the Code mentions only conviction of falsification^ perjury^ and false testimonies^ as disqualifications. The enumeration is exclusive because of the conjunction "or" since there's no general category, the word "or" doesn't become a disjunctive, but a ^conjuctive. Hence, the enumeration is exclusive. However, according to DLC. NO daw because the enumeration is NOT exclusive. The common element of the 3 crimes is falsehood or untruthfulness. Falsification here is not that described in the RPC, but a general description of offenses. Same in the other crimes. The convicted felon is no longer trustworthy. Since the reason behind the law is the trustworthiness, as long as he's convicted of a crime of moral turpitude, he's automatically disqualified. Q: What if the convict has been pardoned by the President, may he qualify as a witness? A: No, the pardon didn't remove the fact of his conviction. If the fact of conviction is obliterated, as in the case of amnesty. then he may qualify as a witness. Note - Art. 820 merely says "convicted of and not by final judgment. Q: When must he be qualified and disqualified? c~ ? ^J HO REfilWEWfNl Tftfll REVIEWER IN SUCCESSION fteP Atopy # 2C07A IN #23 H-/W-re A: At Bie lime the will was executed. When the conviction is not yet final and executory, it's still not a conviction. Q: May the notary public be a witness? A: It depends. If he's 1 of the 3 witnesses, NO according to Cruz v. ViUasor. Since he cannot acknowledge before himself his having signed the will. He cannot split his personality into 2 so that 1 will appear before the other to acknowledge his participation in the making of the will; this cannot be done because it would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted. However, it's YES if he's one of the required witnesses and the will is acknowledged by a different notary public. The fact that he's incidentally one can't bar him from being a witness. ^.supervening incompetency Gonzales /. CA (1979) The probate of the will was opposed to on the ground that it was not witnessed by the 3 credible witnesses. Petitioner argued that the requirement that witnesses must be credible is an absolute requirement which must be complied with before an alleged will may be admitted to probate. She claimed that to be a credible witness, there must be evidence on record that the witness has a good standing in the community, or that he is honest, and upright, or reputed to be trustworthy and reliable. She contended that unless the qualifications of the witness are first established, the testimony may not be favorably considered. HELD: Under the law, there is no mandatory requirement that the witness testify at any time during the tiial as to his good standing in the community, his reputation for trustworthiness, his credibility, his honesty and uprightness in order that his testimony be believed and accepted by the court. It is enough that the qualifications under Art. 820 are complied with. Such attributes as to good standing, etc. are presumed of the witness unless the contrary is proved other wise by the opposing party. 'Credible" should not be given the same meaning it has under the Naturalization Law. Under such law, the witnesses are character witnesses. In case of a will, the witnesses merely attest to the due execution of the will. For a witness to be competent, he must simply qualify under Art. 820 and have none of the disqualifications under Art. 821. For his testimony to be credible, that is worthy of belief and credence, it is not mandatory for his good standing or trustworthiness to be established because such is presumed. In any case, the question of credibility depends on the appreciation of his testimony by the court.____________________ 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.__________ c. competency of interested witnesses 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 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.____________________ CD TOLENTINO:

This article does not disqualify a devisee or legatee, or the spouse, parent or child of such devisee or legatee, from becoming a witness to the will. If he is credible, and not disqualified under Art. 821, he is a competent witness but the devise or legacy in his favor, or in favor of his spouse, parent or child, will be void. This article, therefore, does not refer to disqualification to be a witness, but to disqualification to inherit. 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 present article, we believe that even as instituted heir, or his spouse, parent or child, is disqualified. The disqualification is intended to apply to one succeeding by wilt, and it is not material n what concept he succeeds. This conclusion is strengthened by the rule on relative incapacity to inherit, provided in Art. 1027 (4) which makes no distinction between heirs and devisees or legatees. MAGIC NOTES: Q: In Art. 805, it says "3 or more credible witnesses". In Art. 822 it says "competent", what's the implication? A: The requirement as to testator and to witness is different. if- Q: Can an heir, devisee or legatee be a witness? A: Yes. Art. 823 doesn t disqualify them from being a witness. If he's credible and not disqualified under Art. 821, he's a competent witness. But the devise or legacy in his favor, or in favor of his spouse, parent or child will be void. This article doesn't refer to disqualification to be a r y 9e. his inheritace ' SurP|usa9e. Therefore, he of 207 REV.EWERINSUCCESS.ON 2007A A: At the tome the will was executed. When the conviction is not yet final and executory, it's still not a conviction. Q: May the notary public be a witness? A: It depends. If he's 1 of the 3 witnesses, NO according to Cruz v. VHIasor. Since he cannot acknowledge before himself his having signed the will. He cannot split his personality into 2 so that 1 will appear before the other to acknowledge his participation in the making of the will; this cannot be done because it would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted. However, it's YES if he's one of the required witnesses and the will is acknowledged by a different notary public. The fact that he's incidentally one can't bar him from being a witness. b.supervening incompetency Gonzalesv.CA (19791 The probate of the will was opposed to on the ground that it was not witnessed by the 3 credible witnesses. Petitioner argued that the requirement that witnesses must be credible is an absolute requirement which must be complied with before an alleged will may be admitted to probate. She claimed that to be a credible witness, there must be evidence on record that the witness has a good standing in the community, or that he is honest, and upright, or reputed to be trustworthy and reliable. She contended that unless the qualifications of the witness are first established, the testimony may not be favorably considered. HELD: Under the law, there is no mandatory requirement that the witness testify at any time during the tiial as to his good standing in the community, his reputation for trustworthiness, his credibility, his honesty and uprightness in order that his testimony be believed and accepted by the court. It is enough that the qualifications under Art. 820 are complied with. Such attributes as to good standing, etc. are presumed of the witness unless the contrary is proved other wise by the opposing party. "Credible" should not be given the same meaning it has under the Naturalization Law. Under such law, the witnesses are character witnesses. In case of a will, the witnesses merely attest to the due execution of the will. For a witness to be competent, he must simply qualify under Art. 820 and have none of the disqualifications under Art. 821. For his testimony to be credible, that is worthy of belief and credence, it is not mandatory for his good standing or trustworthiness to be established because such is presumed. In any case, the question of credibility depends on the appreciation of his testimony by the court.____________________ Cruz v. Villasor. supra HELD: The notary cannot also serve as an instrumental witness of the will. The function of the notary public is among others, to guard against any illegal or immoral arrangements. That function would be defected if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act.______________________ 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 thejallowance of the will._____________ ^.competency of interested witnesses 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 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.____________________ Page 41 of 207

TOLENTINO: ^, This article does not disqualify a devisee or legatee, or the ~i-i spouse, parent or child of such devisee or legatee, from ~becoming a witness to the will. If he is credible, and not ^_ disqualified under Art. 821, he is a competent witness but -'"' the devise or legacy in his favor, or in favor of his spouse, parent or child, will be void. This article, therefore, does not refer to disqualification to be a witness, but to disqualification to inherit. 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 present article, we believe that even as instituted heir, or his spouse, parent or child, is disqualified. The disqualification is intended to apply to one succeeding by wilt, and it is not materiat m what concept he succeeds. This conclusion is strengthened by the rule on relative incapacity to inherit, provided in Art. 1027 (4) which makes no distinction between heirs and devisees or legatees. MAGIC NOTES: Q: In Art. 805, it says "3 or more credible witnesses". In Art. 822 it says "competent", what's the implication? A: The requirement as to testator and to witness is different. if- Q: Can an heir, devisee or legatee be a witness? A: Yes. Art. 823 doesn t disqualify them from being a witness. If he's credible and not disqualified under Art. 821, he's a competent witness. But the devise or legacy in his favor, or in favor of his spouse, parent or child will be void. This article doesn't refer to disqualification to be a witness, but disqualification to inherit. The witness in those cases becomes interested in a will and won't testify against its due execution. Q: If such person is one of the 5 witnesses, will he still be disqualified to get his inheritance, devise or legacy? A: NO MORE, he becomes a mere surplusage. Therefore, he may get his inheritance. Q: What is the reason behind Art. 823? A: He is interested in the validity of the will since it will make him receive something. Therefore his testimony will not be
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2007A credible. But if there are 3 other witnesses, his testimony need not be presented if the 3 other witnesses can testify to the validity of the will. Note: the disqualification of a witness to inherit extends to the spouse, parent, child or anyone claiming thereunder. This is to prevent the circumvention of the law. The will itself is valid but the legacy or devise is avoided. Q: How about an heir who is not the legatee or devisee, may he be a witness? A: of course, as long as he has all the qualifications and none of the disqualifications. Q: Is he disqualified to inherit? A: No. While Art. 823 speaks of devisees or legatees, the intention is to disqualify the witness form receiving something. However, if he is a legal heir, he may still receive the portion appertaining to him, since his being a legal heir has no connection with his being a witness, and since he would receive anyway even if the will is invalidated. If the witness is a legal heir receiving only what is due to him. undue influence is ruled out, e.g. a child who is a witness may still receive his legitime. Hence, he'll only be disqualified at to those given by the will, but whatever the law provides for him (legitime). he'll be allowed to inherit his part. Q: What if the legatee is an instituted heir? A: Hindi pa rin pwede. Q: How about the delegate of the testator who was requested by him to write his name on the will, may such person be a witness? A: According to Caguioa. No. because or In ro Tentiongco. But according to OLC. he should be qualified, witness fang pala eh. However, if something is given to him, he cannot receive suc*i. Q: When must the witness possess all of the qualifications and none of the disqualifications ? A: At the time of the execution of the will. Their becoming subsequently incompetent shall not prevent the allowance of tne will (Art. 822). Q: When is the will deemed executed? A: At the time all signatures are affixed. Q: What is the effect if one of the witnesses does not possess all of the qualifications? A: That witness will be disqualified, thereby resulting in a reduction of the number of witnesses by one and if there are no 3 witnesses left after he's disqualified, the will becomes void. Q: What is the effect if the witnesses become incapacitated after the execution of the will? A: No effect on the validity of the will according to Art. 822. Q: Is a creditor of a testator disqualified to be a witness? A: No. Art. 824 provides that a mere charge on the estate of the testator for the payment of debts due at the time Page 42 of 207 of the testator's death does not prevent his creditors from being competent witnesses to his will. DLC notes that Art. 824 is silent on the effect of his charge on the estate of the debtor-testator. Q: But what if the creditor is also a legatee, may he get his

legacy? A: No! Q: But if the legacy is in payment of a dbt to the creditor-witness, may the creditor-witness nevertheless receive the legacy (charge)? A: yes, even if it is worded as a legacy, the creditor will no lose such. Q: May a witness sign with his thumb mark? A: If he's illiterate, the will is void. But if it's his usual signature and he's not illiterate, he can. 5. holographic wills a. general requirements ART 804. Every will must be in writing and executed in a language or dialect known to the testator. TOLENTINO: Please see page of this Chapter. <+ MAGIC NOTES: See definition in Art. 810. Differences with notarial wills: aH (1 ) must be handwritten by the testator himseW J2) may not be witnessed -f3) may not be acknowledged before a notary public. ~N<? Q: What am the requisites of a valid holographic will? A: (1) General requisites: O*O ^ ^ ^ (a) must be in writing (b) in language Krvowvt to the testator (2) Specific requirements few') Src^wth $ (a) entirely written by his hand @(b) dated by" himself in his handwriting (^signed by him I'M HK _. . .A General requisites 1 . In Writing Q: What .material must he write his holographic will on? A: Any material, What about a computer? A: Maybe not because the written will is the only evidence of the will which can be compared with the available specimen of the handwriting of the testator. Q: How about a video? A: No. It would not comply with the requisites of a holographic will. 2. Language Known to the Testator Q: Is it possible for a person who does not speak English to write a holographic will in English?
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2007A A: No. The will is void. Q: What about if he wrote it in Tagalog, let a friend translate it in English and the testator copied the English transliteration, is the holographic will valid? A: No. the language must be known to him. b. specific requirements ART 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._____ TOLENTINO: A holographic will is one executed by the testator himself, writing, dating and signing it by his own hand, without the attestation of ay third person. The testator may either divulge its contents or keep them secret as he may please, and thus, he may execute what other codes call public, notarial, mystic, secret or closed will. Advantages and Disadvantages - The advantages of a holographic will are: (a) It is simple and easy to make, convenient for those who have no means to employ lawyers or notaries en who are timid and want to read and re-read their wills before signing them, or who have only very little property to dispose of. (b) It induces foreigners in this jurisdiction to set down their last wishes, (c) It guarantees the absolute secrecy of the testamentary dispositions. The disadvantages are the ff: (a) There is no guaranty as to the capacity of the testator, (b) There is no protection against violence, intimidation or undue influence, which may never be known in case of immediate death of the testator, (c) It may not faithfully express the will of the testator due to faulty expressions, (d) It can be easily falsified by expert forgers, because no witness or public official intervenes in its execution. (5) For the same reason, it can be easily concealed. Bind persons - Tolentino adheres to the view of De Buen that there being no prohibition in the law, a blind person can make such a will if he has the general testamentary capacity. The blind person may have learned to write before he became blind, or in spite of his blindness. The material on which the will was written is not important. There is no particular form stated by law for holographic wills. They may be in any form but the intent to dispose mortis causa must appear clearly in the contents. There must be seriousness in the act. The intention to make a will may appear expressly or it may be inferred from the terms of the instrument. It is enough that the intent to make a will or to dispose mortis causa can be clearly deduced from the terms of the instrument. A person can make a holographic will in the form of a letter in which he states his testamentary dispositions, giving to said letter the real character of a will. There must be, however, be a manifest intent to make a testamentary act and a disposition of all or part of the writer's property effective upon his death. Page 43 of 207 The most essential characteristic requisite of a holographic will is that it must be entirely written by the hand of the testator. What would be the effect of the

words written by another and inserted among the words written by the testator? The ff. are the RULES: (a) if the insertion was made after the execution of the will, but without the consent of the testator, such insertion is considered as not written, (insertion void but will valid) (b) if the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void. (c) if the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will and the entire will becomes void because of failure to comply with the requirement that is must wholly be written by the testator. (d) if the insertion made by a third person is made contemporaneous to the execution of the will, then the will becomes void because it is not written entirely by testator. Date - The law does not require that the will be completely executed on the single day. at one time, and in the same ink. because unity of the act is not a requisite for this form of wills. But the exact date, month and year on which the will was made must be indicated therein otherwise, the will should be void for want of an essential requisite. The validity of a holographic will is defeated by the fact that part of the date is printed. And where the testator reconstructed a torn will by pasting its fragments on a sheet of paper, but omits one fragment which has the last 2 figures of the year, the will was held to be void for lack of complete data. A simple involuntary mistake as to the correct date, when there are other statements or material elements in the will which fix the date with certainty, does not invalidate the will. Signature of the testator - the signature required for holographic will is not the simple writing of the name and surname of the testator. It is his name written by him in his usual and habitual manner. Generally, the signature includes a person's name and surname, but it is not necessary that the full first name or the surname. But the signature as habitually written cannot be substituted by a symbol or seal. A mere error in the spelling of the name does not invalidate the signature. Under our law the signature must be at the end of the will. This can be inferred from Art. 812 by the reference to dispositions "written below his signature." This phrase implies that the signature is at the end of the will, and any disposition below it must further be signed and dated. The will can be signed even long after the testamentary disposition has been written. As long as the will is not signed, it is not complete. But there must be a correlation between the signing and the date. The date must indicate the day on which the will was perfected; a date placed on the will long after the signing must be considered as a false date. Signatures of witnesses to holographic wills do not invalidate the will, but will be disregarded as mere surplusage.
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2007A 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._____________ TOLENTINO: The dispositions written below the testator's signature to the will are considered as independent of the will itself; hence, they must be signed and dated by the testator. If one is not dated, even if signed, that particular disposition will be void, without affecting the validity of the others or of the will itself. And an unsigned and undated postscripts to a holographic will is invalid as a testamentary disposition. ART 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the latest disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions._____________________ Note: Art. 813 provides an exception to Art. 835. Art. 813 validates a will void in form by mere last disposition which has been signed and dated. Now since Art 813 is an exception, it must be strictly construed. MAGIC NOTES: 1 . Written entirely by the hand of the testator. Q: If his hand is amputated, may the testator nevertheless write a holographic wil? A: Yes if he uses his mouth or other parts of his body. DLC - The use of the word "hand" by the CC is not intended to limit the writing to those executed literally by the hand. It is merely intended to refer tc that writing executed by the testator without any aid form anybody except the writing instrument Q: May an illiterate write a holographic will? A: E.g. his friend wrote it and he copied it himself. The law does not require that the testator should know how to read and write in the case of notarial wills. In the case of holographic wills, however, it seems that Art. 810 does not require a testator to be literate. According to Paras, the- holographic will made by an illiterate is valid. DLC -your guess is as good as mine. * Q: May a blind man make a will in Braille? A: The law says "by the hand of the testator". The reason behind this is to find out if the will was indeed written by the testator. Braille can easily be substituted. For this reason, typewritten holographic wills are not allowed too. iwt 4me*>- <c*ux ^-nte k/iArre*f|, Q: Suppose the testator. ts blind and deaf-mute, can he make a holographic will? A: Yes, as long as he can write. Q: In making the holographic will, must he observe Art. 807

and 808? A: No. He should know what he personally wrote in the holographic will. Page 44 of 207 is with '* (ubr 3) A) Q: Suppose a testator wrote in his holographic wiU and another person inserted something therein, is the will vaM? A: There are 4 scenarios After the wiU is written made without consent, the will is valid, N1) insertion is void. The validity of the will cannot be defeated by the caprices of 3rd persons (Ajerc v. CA). After the will is written and the insertion 'consent, the will is valid, insertion void. ~ ?r^r After the will is written and the insertion "was authenticated by testator, the entire will is void. For failure to comply with the requirement that the will be entirely written by the testator. By the testator's authentication, the insertion was made a part of the will itself. The will and the insertion was made at the same time, the will is void for not being entirely written in the hand of the testator. \S> Nt 1*1 VHJ <*lt^l fHWPWtlTlKG WILLTfKf V-ffV(. Q: By what form must the testator write the holographic will? A: There is no requirement as long as there is intent to make his last will and testament. Q: Suppose the testator wrote a holographic will and requested another to be a witness, is the will valid? A: Yes. The will is valid and the signature of the witness thereon is a mere surplusage. Q: If there is a witness in the holographic will, are the requirements of Art. 806 applicable? A: No. The intention of the law is to exemp: the holographic will from the requirements of acknowledgment before a notary public. Moreover, Art. 810 does not require it. Q: Suppose the testator not only required a witness but also had the will notarized. Is the will valid? A: Yes. Nothing prohibits him from acknowledging before a notary public. 2. Dated by the hand o< the testator. Q: What date must appear thereon? A: The date it was written. , Q: Suppose the holographic will is dated mChristmastime '92", is it valid? ' ^--~- >. A: "CJjrJstmasJime "92" is Dec. 25,1992. In the case ifRoxas v. (De Jesusjthe court held that the* present Codejnejeiy' provjdes''{nat it be dated. This is unlike the express requirements of the old CC that the month, date and year must appear. Q: What if the date is "February 1961"? A: Under the Roxas ruling, this is sufficient because the exact date is not required (substantial compliance). Q: Suppose the testator decided to write a holographic will in his diary under the August 3 space, is the will valid? A: No. The Code requires that it must be dated by him. In this case, the date was printed on the diary itself so that it does not meet the requirements of the Code. Q: Suppose the testator started writing his holographic will today b:i! finished it a week later, what date must he write on the will?
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Trt (P A: Tolentino - Any date will suffice as long as it is not a false date. The date is material in determining the testamentary capacity of the testator so that if the date is false, the will is void. Also, it is important to determine if the heirs were alive and thus capacitated to inherit at the time it was made. Caguioa says it should be true date, or any date that has a connection with the making of the will, any as long as this date is part of the will. Q: What is a false date? A: When it does not have anything to do with the will. It must be intentionally done and not merely be an involuntary mistake. (Involuntary mistake is valid due to substantial compliance.) Q: Therefore, what date should it reflect? A: De Leon says that the Code does not require a specific date. Thus it is the date of execution. Q: When is it deemed executed? At the tune of the starting to write the will or the time of finishing it? A: De Leon says both are valid. Q: Suppose the testator wrote his will and signed it but \ forgot to date if. 3 months later, she dated it with any of ~~^ the following dates - 3 Aug. starting date; 10 Aug. date she finished; 3 Nov, date she discovered that it did not have a date. Is the wUI valid? A: According to Tolentino. it is valid since none of those dates are false dates. 3 Nov is not a false date because the testator may be contemplating to change his will. According to Caguioa, 3 Nov is a false date making the will void. DLC - Tolentino is more correct than Caguioa. The testator can write the date when he wrote such date (when he dated the will) and not when he signed (\ the will. Until the will is dated, it is not complete. The testator may complete it at a later time, as long as it is not a false date. ' < Q: What is the effect if the date affixed is the date it was written? A: Date of the commencement of the writing is not a false
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date. Q: Suppose the testator decided to write a will today, took out a piece of paper and wrote the date today. However, due to circumstances, he was not able to write his will today. 3 months later, he found the dated paper and started writing his v/ill on it. Is the date false? A: There are 2 views on this matter. According to the first view, simple incorrect dates which can be corrected through the inspection of the will does not affect the/validity of the will. What will make the holographic will invalid is the intentional or voluntary fals date. The proof of falsity can be shown only by extrinsic evidence. According to the second view, the date is a false date. Q: What is the purpose of the requirement of the date? Page 45 of 207 A: To test the competency of the testator. Without the date, the will is invalid for not complying with Art. 810. Also, it is important in order to ascertain the heirs living at the time the will was executed. Q: Where must the date be written? A: There is no provision on this matter. Hence, it may be written either at the beginning or at the end of the will. 70 3. Signed by the testator. - "Mew w ^ ?t Q: What signature is sufficient? <v>14 -A: The customary signature of the testator. DLC - full signature is that which is used to sign the will, not long signature. Q: What about his initials? A: It is sufficient if it is his customary signature. However, Paras is of the opinion that the testator must sign with his 1 full customary signature. He based his opinion on Art. 814 ! which provides that in case of insertion, cancellation, ' erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. If it is required in the foregoing instances, more so in the case of the whole will. - Q: What about if he merely thumb marked ft, is this sufficient? A: According to Caguioa and De Leon. this is not handwriting, hence, it is not sufficient. Under Art. 811, witnesses must j testify to the authenticity of the handwriting during the probate of the will. DLC - The law does not require the handwriting ot the testator. Art. 81J applies only if the signature is in the handwriting of the testator. If a thumb mark was used. Art. 811 (1) is not applicable. What is applicable is the second paragraph thereof which provides tor resort to expert testimony-in the absence of competent witnesses referred to in the first paragraph. Q: When must U be signed? A: Upon completion of the holographic will. Q: Where must the testator sign? - wwi wet Htr rnvre ewr! -* A: He must sign at the end of the will as is implied from j^rjL 8J2. which provides that in holographic will, 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. If the dispositions appear after his signature (without being dated and signed), such are VOID. Q: Is substantial compliance (Art. 809) sufficient in nolographic wills? A: Yes as per Roxas v. De Jesus. ART 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. _____________________ TOLENTINO: If there are insertions, cancellations or alterations which are not authenticated with the testator's signature, they are considered as not made, but the will is not invalidated. This requirement appears in an article separate from that which provides for the necessary conditions for the validity \
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2007A WIU-W/ of the holographic will; hence it does not affect the validity of the will itself. However, where the testator himself crossed out the name of the heir named, and substituted the name of another, without authentication, it was held that this did not tesult in making the person whose name was corssed out an heir. MAGIC NOTES: Q: May the testator maxe changes in his will? A: Yes but the changes must comply with the formal requisites. Under Art. 814, it must be authenticated with the testator's full signature. Art. 814 applies to alterations in the body of the will. Art. 812 speaks of alterations NOT in the body of the will. There are 3 types of chages - cancellation, insertion and substitution. Q: What are the 2 kinds of changes? (!/ A: I 1) changes introduced in the body of the will (Art. 814) 2) Changes outside the body of the will (Art. 812 -codicil). Both are made after the will has been executed. Q: If" the dispositions appear on top of the body of the will. but with full signature, is it a valid alteration? A: The alteration is still outside the body of the will and is thus covered by Art. 812. Q: Suppose the testator signed with his initials and not with his full signature in making the holographic will. What will he use in authenticating the changes?

A: His initials also. * * Q: Suppose the testator has 2 sets of signatures, a full one and customary initials. In writing his holographic will, he used his initials. Is the will valid? A: According to Caguioa, the will is void. He has a full signature which he must use. According to Tolentino, it is sufficient. Q: Assuming that Tolentino is correct, later on the testator changes some parts, what signature will validate the changes, the full or the initials? A: DLC - the full signature refers to the signature which the testator used in executing the will. If he used his initials, then he must also sign with his initials to validate the changes he made. in other woids, if the authentication signature (2nd signature) is different from the executing signature f. (signature used in the writing of the holographic will), r the changes are void. Q: What is the effect if the change is not authenticated? A: The change is void because it did not comply with Art. 814. Q: How about the original will - is it valid? A: Yes, it remains valid. Q: Why? A: Because until and unless the change is not authenticated, it does not form part of the will, hence, it has no effect on said will. Page 46 of 207 Q: Suppose an alteration is inserted "by another and the testator authenticated it, is the alteration valid? A: No. Q: Why not? A: The entire will becomes void because it is not entirely written by the hands of the testator. The alteration was due to the authentication made by the testator, it became part of the will thus avoiding the same. The testator canceled the name of A who was named as an heir in the will without signing the cancellation. Above the name of A he wrote the name of D. however, he did not authenticate the name ofD. Who will inherit? In Kalaw v. Relova, none inherited. The insertion will not take effect as the same was not authenticated. As regards the first heir named, the fact that his name was canceled will show an intention to revoke the naming of A as heir. Hence, A cannot also inherit. So the first heir named was revoked through cancellation and the second heir named was not authenticated. In the cited case, the SC held that the cancellation revokes the entire will. Art. 830 (3) governs. It provides that revocation or cancellation doss not require authentication. The writing of a new name is an alteration which is governed by Art. 814 (validation by full signature). Hence, no one inherits as there is no heir instituted. pJ_C_^grees_with_Vitug. They are of the view that in holographic wills, even an erasure will amount to a revocation which must be governed by Art. 81"4 (special*/ applicable to holographic wills) and not Art. 830. Since Art. 814 is a specific provision and Art. 830 a general one being applicable to both notarial as well as holographic will Art. 814 should control over 830. Hence, even if cancellation amounted to a revocation, it does not take effect unless it is validated by the fun signature of the testator. This is primarily because of the fact that Ait. 814 did not specify the type or cancellation that is covered by it. As such, it can be made applicable to a cancellation which amounted to a revocation. Hence, if the cancellation is not signed, then the revocation is ineffective. This is the only way by which cancellation made by third persons can be guarded against. DLC says that in Relova, the Court is of the opinion that the cancellation of the first heir amounted to a revocation. So Art. 830 applies NOT Art. 814. Q: How do we then reconcile 814 and 830, for if the court is correct, what kind of cancellation do we need in order that Art. 814 is to apply? A: It would seem that not all cancellations amount to a revocation. If applied to Relova, when we have a) alterations which amount to revocation, apply Art. 830, b) alterations are short of revocation, apply Art. 814. Note: If erasure is upon a mistake, no authentication is needed. E.g. the phrase "any soul heir" was changed to "any sole heir." The rule is to authenticate only material portions. Art. 814 speaks of dispositions written below the testator's signature on the will. These are considered independent of the will itself, hence, they must be signed (4
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2007A ^~> ,& W and dated by the testator. If it s not dated but signed, the disposition is void, without affecting the validity of the others or of the will itself. An unsigned and undated postscript to a holographic will is invalid as a testamentary disposition. However. <f there are insertions, cancellations, erasures or alterations in a holographic will, a signature will be sufficient. If there changes aren't signed, they're considered as not made, but the will is not invalidated. Q: What if the change is introduced outside the body of the wiH (e.g. added below the signature)? A: The change must be signed and dated because it is actually a separate will (codicil) shich must comply with all the requisites of a valid holographic will. Q: If the insertion of additional disposition is placed on the top space, is the addition valid? A: No.

Q: Is a full signature sufficient under Art. 814 or does it need to be dated under Art. 812? A: No, it must be dated and signed. Art. 812 is applicable not only to those changes appearing below the signature but also to those outside the body of the will. To summarize 814: If change is outside body of the will, it must be dated and signed; if the change is inside, the signature is sufficient. NOTE: Changes in the will differ from an additional disposition. Q: A space between the last disposition and the signature is inserted with additional dispositions by the testator. He didn't authenticate the additional dispositions. Are the additional dispositions valid? A: No. they are alterations in the will and hence need a signature. Q: Is the original will valid notwithstanding the additional dispositions which were invalidated? A: Yes, the alterations not complying with the requirements of law, they don't form part of the will and even if invalidated, the will is not affected thereby. Q: Suppose they are authenticated but not dated, are the additional dispositions valid? A: Yes. they are alterations within the body of the will which requires only the full signature of the testator. Q: On the first day. the testator wrote the 1st disposition but he didn't sign it. On the 2nd day. he continued with the 2nd disposition but he didn't sign it. On the 3"" day, he made the 3d disposition which he signed. Are all the 3 dispositions valid? A: Yes, Art. 813 covers instances wherein the dispositions are signed but not dated. The case here is different for they were neither signed nor dated. The fact that the testator didn't sign the 2 earlier dispositions shows that he didn't intend to terminate the writing of the holographic will. Since there is no requirement to execute it in one sitting, the 3'a disposition must be deemed to have validated the 2 earlier dispositions. !n other words, the 3rd disposition which was signed and dated completed the writing of the will. Page 47 of 207 According to Paras and De Leon, the 2 earlier dispositions aren't valid. They claim that since they're not covered by Art. 813, they must necessarily be void because there are no provisions to cover them. OLC disagrees with these 2 authors. He says that it would be different if the testator signed each disposition. In this case, the intention would then be that he terminated the execution of the holographic will each time he signed it. In other words, he already finished writing his holographic will. Since this is only signed without being dated, it is then void. When he wrote the 2nd disposition and signed it without being dated, it's also void. However, if a 3 disposition was signed and dated by him, then all the dispositions became valid. This is the essence of Art. 313. Q: Suppose the 2 earlier dispositions were dated but not signed, the 3? was signed and dated. Are the dispositions valid? A: Well...there are 2 views on this matter. According to Caguioa, the 2 earlier dispositions are invalid. The act of the testator in writing the dates manifested his intention to terminate the writing of hi$ holographic will. Not being signed, they become invalid. In this case, the testator actually made 3 holographic wills, the 1* 2 were dated but not signed, hence, void and the 3rd one is valid. The 2nd view is that the will is valid as one whole holographic will. There's no difference with the case wherein the dispositions are not dated and signed. The testator must be considered as not havirnj terminated the execution of his holographic will after each disposition. Q: A holographic will was written without being dated. In the space between the last disposition and his signature, he inserted therein the date to complete the will and added additional dispositions therein. Are the additional dispositions which are dated but not signed valid? A: No, because there is no valid holographic will in the 1SI place as there was no date appearing thereon. However, when he puts in additional dispositions and dated it, the holographic will becomes complete. But it would be different if the date was placed before the additional dispositions. Roxas v. de Jesus (1985) A notebook belonging to the deceased was presented as containing the will of the deceased. On pages 21-24. a letter-will was addressed to her children, written and signed in her hand, dated Feb. / 61. HELD: If a will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said will would be admitted to probate. As a general rule, the "date" in a holographic will should include the day, month, and year of its execution. However, when, as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the issue is whether or not the date "FEB/61 appearing on the holographic will is a valid compliance with Art 810, probate of the holographic will should be allowed under the principle of substantial compliance.________________
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2007A Kalaw v. Relova (1984) Nathndad Kalaw's holographic will, as first written, named Rosa (Natividad's sister) as sole heir. Her name was crossed out and replaced by Gregorio Kalaw's name. Such alteration of the will was not signed by the testatrix. Held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his

signature, the will is thereby invalidated as a whole, but mostly only as respects to the particular words erased, corrected or interlined. Natividad's holographic will contained only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the testatrix's full signature. Hence, the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. To state the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. Therefore, SC held that the real intention of the testatrix cannot be determined with certitude. c. requirement for probate Aierov. CACI994) Clemente Sand opposed the probate of Annie Sand's will naming as devisees Clemente, Leah, Lilia, Edgar, Fe, Lisa (all surr.amed Sand), spouses Ajero, Or. Ajero Sr, and their children, on the grounds that the testament's body nor the signature were in the decedent's handwriting; it contained alterations and corrections which were not duly signed by said decedent; and the will was procured through improper pressure and undue influence. Held: In a petition to admit a holographic will to probate, the only issues to be resolved are: (1) WON instrument is decedent's last will and testament; (2) WON the will was executed in accordance with the formalities prescribed by lav/; (3) WON decedent has necessary testamentary capacity at the time of the execution of the will; and. (4) WON the execution and signing of the will were the voluntary acts of the decedent. What assures authenticity of the holographic will'is the requirement that it be totally autographic or handwritten by the testator himself. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. V.': If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will result only in the disallowance of such changes. As a general rule, courts in probate proceedings are limited to pass only uponthe extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. WILL ff <*rli) irt due Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the_hanj1writing 5ri3~~signature _o-#Ttesfaforexplicitly decl?rejhat the will and signature are in lfie~handwriting of the testator. If the will is contested, at least three, of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. ____ CD TOLENTINO JBL Reyes: (on the requirement of 3 witnesses in case there is a contest in the probate)"... The modern tendency is to leave the weight of evidence to the Courts. After all, one witness can be very convincing, and a probate case is not a prosecution for treason." A lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity, MAGIC NOTES Q: May a tost notarial 'Mil be probated? A: Yes, through parol evidence. "S flto/e Q: A: Q: Q: G> How about a tost notarial wiH? "***" No, the will is the only evidence of its due execution (Gan vs Yap) The authenticity of its execution can be ascertained from the handwriting of the testator. However, an obiter in the Gan case sakJ that if mere is a carbon copy, it may be probated. (DannyCon: difficult to detect forgery in a carbcn copy) In Rodelas vs Aranza. a photocopy was aitowed probate. DannyCon: this is a dangerous rule since forgery cannot be detected from a photocopy If advanced techniques to detect forgery are discovered, then it may be allowed. A testator wrote a wiH, signed and dated U, all in his own handwriting. He asked 3 persons to be witnesses to H and asked them to execute an attestation clause. Thereafter, he had such will notarized. The wiH could not be found after the testator died. May it be probated? Yes, the will which the testator wrote is

no longer a holographic will but a notarial will. Hence, it may be proved by the testimonies of the 3 witnesses. When a holographic will is uncontested and only 1 witness testifies, it is sufficient. If there are no witnesses, shall the court disallow probate? No, Art 811. par2 provides that expert testimony may be resorted to in the absence of a witness who knows the handwriting and signature of the testator. Page 48 of 207 If the genuineness of the will is contested, at least 3 witnesses must be presented. If there are no such 3 witness, shall the court allow probate? A: Yes. Art 811, par2
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2007A Q: If the contest is not on the genuineness or the authenticity of the signature, must 3 witnesses be required to testify on the genuineness or authenticity of the handwriting and signature of the testator? A: No more. Only 1 witness is sufficient as provided in Art 811. parl. Note: Art811 limits contests to genuineness of testator's handwriting and signature Gan v. Yap (1958) Fausto Gan (decedent's nephew) filed a petition for probate of a holographic will allegedly executed by FelickJad Yap. Her husband lldefonso opposed, asserting that she had net left any will, nor executed any testament. Will was not presented, but petitioner tried to establish its contents and due execution by the statements of several witnesses. Held: Will may not be probated. The law regards the document itself as material proof (as to holographic wills, the only medium of proof) of authenticity, and as its own safeguard, since it could at any time, de demonstrated to be - or not to be - in the hands of the testator himself. The only guaranty of authenticity is the testator's handwriting. Hence, the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. The execution and contents of a lost or holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. Rodelas v. Aranza (1982) MM-1 During the probate cf Ricardo Bonilla's holographic wili, petitioner Rodelas failed to produce the original and instead presented an alleged photocopy of said will. Held: According to Art 811, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested. at least one identifying witness is required and, if not witness is available, experts may be resorted to. However, if a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in the said will. It is necessary that a comparison between sample handwritten statements of the testator and the handwritten will/But, a photo static copy of such holographic will may be allowed because comparison can be made with the standard writings of the testator. witnesses acquainted with the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with ArtSt 1. parl may thus be imposstolity. But the law foresees such a possibility and provides for resort to expert evidence to supply such deficiency if the court deems it necessary. Hence Art811. parl is merely directory and not mandatory._________ ARiTAO H?66^004 M. tw-w&ftc\~ Azaola v. Sinqson (1960) Petitioner Azaola filed for probate the alleged holographic will of Fortunata Yance, whereby Milagros was made the sole heir. Azaola testified that the will was handed to him and his wife and that he recognized all the signatures appearing on the will, as well as the handwriting of said testatrix. Held: Since the authenticity of the will was not contested, Azaola was not required to produce more than one witness. But even if the genuineness of the holographic will were contested. Art811 cannot be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator. There may be no availably, Page 49 of 207
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2007A V. INCORPORATION OF DOCUMENT BY REFERENCE - ww6e.He\n(, WILL' Art 827. If a will, executes ad 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; The will must clearly describe and identify the same, stating among other things the number of pages thereof; It must be identified by clear and satisfactory proof as the document or paper referred to therein; and -wet u$ wfH n wiu. ~<> Wfi-iei re v(-e It must be sjgned by the testator and the t< witnesses on each and every page, except in cases of voluminous books of account or inventories. (2) (3) (4) TOLENTINO

Incorporation by reference is an exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be admitted to probate. Whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to. if it was in existence at the time of the execution of the will and identified by clear and satisfactory proof as the paper referred to therein, will take effect as part of the will and be admitted to probate as such. To establish a separate writing as part of a will by incorporation, on the face of the will, these must appear: a. A distinct reference to such writing, so explicit 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; b. The reference must indicate that the writing has already been, that is, must speak of it as then existing; . c. It can only 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. When the writing is offered, it must be shown by extrinsic proof: 1. that it is the very writing referred to in the will; and 2. that it was in fact made before the will was executed. If a writing made afterwards could be receded, the testator might create in himself a power of disposing of his property by will without complying with the statute on wills. 1. purpose Report of the Code Commission, p. 108 Incorporation by reference - Neither the present Civil Code nor the Code of Civil Procedure provides for incorporation by reference. There are cases where the testator may wish to incorporate into his will only by reference certain documents or papers, especially inventories and books of account. An express provision on this subject is necessary and Art. 849 of the proposed code prescribes the requisites for such incorporatjQjq^_<r_:_r ' ARITnO MAGIC NOTES Meaning: It is an incorporation of an extrinsic document or paper into a will by reference therein so as to become a part thereof. According to DannyCon, it is making an instrument an integral part of another. Purpose: to make the will shorter x . Unson vs Abella: The will expressly referred to the inventory attached to it. The inventory, however, although signed by the witnesses and the testator, did not contain an attestation clause. Q: (In reference to the Unson case) Valid? A: The SC said yes. The inventory need, not contain an attestation clause. Having been clearly referred to in the will, the attestation clause of the will is sufficient. Q: Is incorporation by reference allowed? A: General rule: it is NOT allowed. Exception: requisites of Art. 827 are met. when Page 50 of 207 tfft of rut Q: What is the purpose ofArt827? A: If a testator is not allowed to incorporate such documents and papers in the body of his will, such a situation will prove to be impractical, especially when what is to be incorporated is voluminous. In other words, its purpose is convenience. Q: Suppose a testator executed a notarial will but faiied to acknowledge it before a notary public. He realized that the will is void. Later, he executed another notarial will incorporating by reference the earlier will. "I hereby command that the provisions of my earlier will be complied with." Is the incorporation by reference valid, assuming requisites in Art827 are complied with? A: NO, because of Art. 635. A will invalid as to form cannot be republished without reproduction of the disposition in the subsequent valid will. (Rapublication) Q: But Art835 is limited to wills not valid as to form. May a will be valid as to form but void for some other reasons, be incorporated by reference? A: Yes. under Art836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by such codicil. (Ex. Incapacity at time of execution) Q: Suppose a testator made a first will when he was 16 yrs old, and A, B, and C witnessed it. Later on, he made a 2nd will when he was 19 yrs old, and incorporated the 1s1 will with D, E, and F as witnesses. Is this situation covered by Art835? A: NO. Art835 only contemplates cases where the will is void as to form, while this case presents a will which is void as to substance and is thus not covered by Art835 on republication. he 1s' will, made without capacity is void as to substance. Art827(4), however, may make the subsequent will valid, only if the same set of witnesses
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incorporated it by reference in a valid will. Is the incorporation by reference valid? A: NO. As long as there are dispositions, it is a will. Not having complied with Arts 805 and 806. it is void as to form. And such wills, void as to form, can be made valid only if republished in a subsequent will. In Art827, only those documents which do not contain testamentary dispositions may be incorporated by reference. Q: May a holographic will incorporate by reference a document? A: DannyCon: If the document referred to is a mere inventory, it may be incorporated by reference in a holographic will even if the document isn't in the handwriting of the testator. Q: Why? A: Because the document isn't a will. Caguioa: The document cannot be incorporated by reference in a holographic will since it becomes a part of the holographic will; hnce, it must be handwritten by the testator. Paras: The holographic will cannot incorporate by reference documents because there are no witnesses as required in Art827(4). DannyCon: When Art827(4) requires witnesses, it refers to attesting witnesses required by ArtSOS. Q: Suppose a testator made in his holographic will an incorporation by reference. He re'erred to a previous holographic wiH which is void as to form (Ex. Not dated). Is the incorporation valid? A: No. Art835 Q: Is the 2nd holographic will in the previous problem void? A: No, only the incorporation is void. The same is true in case of a notarial will. The 2nd will remains valid. Q: Must the attestation clause contain a statement about the incorporation by reference? A: No, it's not required. Q: Must the attestation clause include pages incorporated? A: No. It's the will which must state this fact and not the attestation clause. Art827(3) refers to the probate proceedings. It doesn't require the will to provide a clear identification of the document incorporated. If the will doesn't give any identification of the document, it's very difficult to know which document is incorporated by reference. Hence, art827(2) requires this. Q: Art827(4) requires that the document must be signed by the testator and the witnesses. What if it isn't signed? What's the effect? Page 51 of 207 A: DannyCon: Substantial compliance rule is inapplicable in the case of an incorporation by reference. The testator and the witnesses aren't required to sign voluminous books of accounts and inventories. Q: What are the documents which can be incorporated by reference? A: 1. all documents short of a will (no testamentary dispositions); and 2. In incorporating a will valid as to form under the Art836, must Art827 still be complied with? NO. Remember, if it's a will, it must comply only with Art836. SUMMARY If a will is void as to form, it requires a republication under Art835 If a will is valid as to form, but void for some other reason, it requires a codicil under Art836. Q: When is the document voluminous? A: This is a matter of proof. Q: Who will determine if such document is voluminous? A: The law doesn't say. Courts, malamang. Q: Is Art827(4) (re voluminous records) applicable to a Mtxl holographic wiH? ARIT A: No '" Unson v. Abella (1822) Unson filed an application for probate of the will of Dona Josefa Zalamea with an attached inventory of her properties. Oppositors claim that the will was not page corretativeiy in tetters, nor was there an attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other. Held: The contention that the will should be invalidated because the other party was not able to produce all the witnesses thereof was not accepted by the court. The general rule is that if opposition is presented to the probate of a will, all the attesting witnesses must be produced. Nevertheless, there are exceptions to this rule: when one of the witnesses is dead; cannot be served of process of the court; his reputation for truth is questioned, or; he appears to be hostile to the cause (as in the present case) of the parties seeking the probate of the will. In such cases the will may be admitted to probate, if upon the evidence actually introduced, the court is satisfied of the due execution of the will, inasmuch as even if said witness has been produced and had testified against the application, the result would not have been changed. As to the issue of the inventory, when in a will, reference is made to an inventory of the properties of the testator, which has thus been made a part of the will, if the will has an attestation clause that meets the requirements of the law, no attestation clause is necessary for said inventory anymore. As regards the paging, paging the inventory with Arabic numerals is in compliance with the spirit of the provision of law requiring that the paging of a will be made in letters, and is just as valid as paging with letters, i.e., A. B, C, etc. ________________
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2007A sign the 2nd will. Here, the witnesses in the 2" will are not A, B, and C. Note: Accdg to Jurado. Art836 doesn't require witnesses' signatures. Q: Suppose a testator executed, not a notarial will, but a typewritten note which he signed at the bottom. This contains testamentary dispositions. He

2007A VI. CODICILS 1. definition

ART 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered.___________ TOLENTINO After a testator has already made a will, a subsequent instrument mortis causa may either be a codicil or a new will. If the subsequent instrument explains the original will, or alters or adds to it, then it is a codicil. But if the later instrument makes dispositions independent of those in the original will, without explaining or modifying such original will, then it is a new will, not a codicil. A codicil is always related to some prior will. 2. solemnities ART 826. In order that a codicil may be effective, it shall be executed as in the case of a will. MAGIC NOTES Q: What's the difference between a codicil and a 2nd will? A: Codicil 1. forms part of the original will 2. supplements the original will, explaining, adding to, or altering any of its dispositions 3. it doesn't, as a rule, revoke entirely the prior will 4. a will and a codicil thereto, being regarded as a single instrument (except where a manifest intention requires otherwise), are to be construed 2nd will 1. new will 2. makes dispositions without reference to and independent of the original will 3. if it provides for a full disposition of the testator's estate (although inconsistent merely in part with a prior will), it may revoke the whole prior will 4. a prior will and a subsequent will, being 2 separate wills, may be construed independently of each other Q: In a holographic will, the testator may change, alter or add to the provisions by writing the changes, alterations or additions on the will itself, authenticating with his full signature. How about in the case of notarial wills? How can the testator change his notarial will? A: Through the execution of a codicil Q: What is the effect of any alteration made by the testator in a notarial will? . A: There is no provision which allows a testator to make changes in a notarial will. If he made additional dispositions, they are invalid though authenticated by him. Such alteration must be witnessed by witnesses and acknowledged by the notary public. Page 52 of 207 AT nte tm/ie. cte\m, Q: What if testator wrote the additional dispositions in his own handwriting, aren't such additional dispositions in the form of a holographic will? A: No because the testator cannot simply change a notarial will by mere additional written dispositions, as these dispositions were not witnessed by the required 3 witnesses of Art805. Q: What am the functions of a codicil? A: (1) It may explain the dispositions in the 1s1 will if they are unclear and ambiguous in order to clarify such dispositions; (2) It may revoke some of the dispositions in the earlier will; (3) It may add more provisions; (4) It may amend the dispositions made in the earlier will Q: What am the 3 forms of amendment? A: (1) alteration by insertion (2) alteration by deletion/removal (3) alteration by substitution Q: May a codicil render useless all the dispositions of a previous will? A: Yes, through a revoking will. In practice, the revoking will is still called a codicil. Q: What is the difference between a codicil and a will? A: As to solemnities, there are none As to reference, a will does not refer to a prior will but a codicil always refers to a prior will. Without a prior will, there is no codicil. Q: A: Q: A: Q: A: When is the codicil effective? - e^futrsv w <vLu TUP B.MTS <JF n MAM v After compliance with al! the requirements of a valid will.^ ia . lf the prior will is a notarial will, may the testator make a holographic codicil? Yes. but the holographic will must comply with the requirements of a valid holographic will (Art 826) or a holographic May a testator make a hotographt wiU? Yes Q: (May he make a notarial codicil for a holographic will? A: Yes '1 Q: In case of conflict between a will and a codicil, which one prevails? A: The codicil, since it is executed at a later point in time, hence, a later expression of the testator's desire. MtWJfti- WILU W fir THE ens & WVWlftt Mur>' ARITAO wl A HANDWRITTEN _.i -(7

(ML-M ttitVF HiH1 riffle vtr tttEN IF MA/! NEEO ff(j if ir? ft
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2007A VII. REVOCATION OF WILLS AND TESTAMENTARY DISPPOSITION 1. definition of revocation <x ntt win,. fff It is 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. 2. when may revocation be effected , cfi\nt 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._______________________ WIVNE ft|C4r -a TOLENTINO During the life of the testator, the will is said to be ambulatory; and it may be altered, revoked, or superseded at any time. It is of no possible effect as a will while the maker lives. A will may be revoked at pleasure. Common purpose of revocation and nullity: deprivation of a will of legal effect Difference between revocation and nullity: (1) Revocation - act of testator; Nullity - proceeds from the law (2) Revocation - presupposes a valid act; Nullity -inherent in the testament (3) Revocation - takes place during testator's lifetime; Nullity invoked after testator's death by his intestate or compulsory heirs (4) Revocation - right to do so cannot be renounced by testator; Nullity - may be disregarded by the heirs by voluntary compliance therewith MAGIC NOTES Revocation may be made at any time before the testator's death on any ground as a testamentary disposition is essentially gratuitous in nature. Any waver or restriction of this right is void. Even after a will has been probated during the lifetime of the testator, he may still alter or revoke the same. It is the essential character of wills that they are ambulatory and flexible. However, if the reason is proven to be based on a false cause, the revocation won't take effect. Q: Is there an exception to the revocability of wills? A: Yes, in case of contractual wills liks marriage settlements or donation propter nuptias. In case of contractual wills, you cannot enforce the contract if the consideration is illegal, but you may recover based on the principle of unjust enrichment (not contract) Q: May the testator bind himself for a valuable consideration not to revoke his will? A: No, any waiver or restriction of the right to revoke is void. Under Art1347, a contract-upon future inheritance is void 3. law governing revocation 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 is made, or according to the law Page 53 of 207 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. MAGIC NOTES When a testator revokes a will, he has to comply with certain formalities because the act of revocation is the same as the act of making a will. Q: What law governs the revocation of wills? (M829) A: Depends on the place where it is made and if one is a resident or not. (1) If revocation done outside the Phils: ' a. If a non-resident i. Law of the place where the will was made * (not revoked) ii. Law where the testator was domiciled at the ' time (the will was made?) b. If a resident i. Art'17 law of the place where the revocation was made ii. Law of the Phils - it being the place of his domicile (2) If revocation done within the Phils: a. WON testator's domicile is in the Phils and regardless of the place where the will was made. Phil law will govern Q: llf testator is a resident of the Phil but revokes abroad. what law will govern? A: Art 829 silent on such a situation. Art 17, as the general rule, applies, hence, the law of the place of execution governs 'Note: These problems on the application of laws arise only when the revoked will is presented in the Phils for probate. 4. modes of revocation Art. 830. A/o will shall be revoked except in the ff cases:

(1) By implication of law; (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, canceling, 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. _____ TOLENTINO Revocation bv implication of law - when certain acts or events take place subsequent to the making of the will. which nullify or render inoperative either the will itself or some testamentary disposition therein. (1) The commission by the heir, devisee or legatee of some act of unworthiness (Art'1032)
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2007A (2) The transformation, alienation or loss of the thing given as a devise or legacy, subsequent to the execution of the wW (Art957) (3) Judicial demand by the testator of a credit which has been given as a legacy (Art936) (4) The preterition of compulsory heirs (Art854) (5) The devise of the property given as devise or legacy, for the payment of the debts of the testator Revocation by subsequent instrument - such subsequent will must be valid and executed with the formalities required for the making of wills. It must also be probated to produce the effect desired. No declaration of a fixed determination to revoke at some future time amounts to a revocation. There must be a present action, as distinguished from intention to act. But the revocation may be made conditional upon a future event. When several wills wholly inconsistent, or containing express revocation clauses, are offered for probate, parol evidence is competent to shoe which is in fact the last executed, whether dated or not. But if of the same date, or not dated, and there is nothing to show which was lost, all fail for uncertainty Revocation by destruction - the testator must at the time of performing it be in possession of his faculties and capable of making a will. It must be further shown that his destruction was with intent to revoke (animo revocandi). A complete determination or intention to revoke an existing will does not produce the effect of revocation, unless the burning, tearing, canceling, or obliteration is actually carried out. In other words, the mental process or intent to revoke must concur with the physical fact or actual destruction of the will. Although the testator's intention to revoke did not materialize solely because the formal act was defeated by fraudulent devices exercised against the testator, the failure cf intent and destruction to concur defeats revocation. However, when it is the devisee or legatee who prevents the revocation of the will, by the use of threats, fraud, or violence, the will is revoked, as to him by implication of law, on the ground that he has committed an act of unworthiness. There is no revocation by a destructive act if the testator repents before he has done all that he intended to do towards the destruction of the will. As to what stage the act of destruction can be considered completed, or when it is not yet completed, is a question of fact to be determined by the court. If the complete destruction of the will, however, is prevented due to the interference by some other person, and not to a change of intention on the part of the testator, the will is already considered revoked. The legal act of revocation is complete and effective from the time the intention is carried out by the execution of the physical act necessary to otherwise accomplish fully the intention to revoke, whether the paper itself or the writing thereon is totally destroyed or not. The act of destruction is considered complete and the intention to revoke carried out, if the will bears on its face any evidence of the act. If the document itself is not burned, even partially, but only the envelope in which it was placed was burned, there is no revocation. Tearing off the signature indicates in itself an intention to revoke the whole will. While cancellation originally meant to make latticework or crisscross lines, dearly a will is well canceled by drawing lines over it that do not cross each other. 'Cancelled and is null and void" signed by the testator at the back of the will was considered sufficient. It would be going far beyond the statute to say that a will is not cancelled unless the words are erased or obliterated so that the nature of the will before its cancellation, or its provisions, cannot be discovered. To obliterate is to blot out. It is generally considered that whatever would be sufficient as a cancellation would satisfy as an obliteration in the absence of any more explicit requirement of the statute. Unless by statutory provision a different rule is required, a will may be revoked in part by canceling or obliterating a portion thereof, leaving the unobliterated parts in force. An unauthorized destruction may be ratified. The proponent is entitled to hearing to prove due execution of the will and its loss or unauthorized destruction, and. the probate court had no authority to dismiss the petition without such hearing. Carbon copies are generally considered as duplicate originals. When a will cannot be found by proper and diligent search after the death of the testator, there arises a presumption that he destroyed it for the purpose of revoking it, rather than it has been lost or unlawfully destroyed by another. If

the will be shown not to have been in the hands of the testator, the presumption that it was destroyed by him or by his direction does not arise, and the burden of proof is upon the party asserting the revocation. MAGIC NOTES Q: How can a will be revoked? A: Under art 830, a will is revoked, either partially or totally, by: (1) implication of law - will revoked by the happening of certain events, the testator having done nothing. Reason: the testator is presumed to have revoked the will, but due to his inadvertence, he failed to revoke it through a positive act (Arts 854, 936, 957,1032) (2) an act of the. testator a. execution of a subsequent document with all the formalities of a will; b. burning, tearing, canceling, or obliterating with intent to revoke (animo revocandi) Q: What are the conditions for revocation to be effective? A: (1) Testator must possess testamentary capacity (why? Revocation is an indirect disposition) (2) Testator must have animo revocandi (it must contain a revocatory clause or must be incompatible with the previous will, thereby showing such intent to revoke) (3) Revocation must comply with the formalities prescribed by law (must be a valid will and must be admitted to probate) (4) Testator must have revoked the will freely and voluntarily ARITAO Page 54 of 207
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2007A UQ: What are the 2 types of revocatory clauses? A: (1) Express - a revocatory clause in a subsequent will, when such revokes in categorical terms (2) Implied - when the provisions of the subsequent will is entirely inconsistent with the prior will (revocation by Implication) Q: What is the extent of revocation? A: Total - when the entire will is revoked Partial - when only specific testamentary dispositions are revoked Q: May revocation be subject to a condition? A: Yes, limited to being subject to a suspensive condition (revocation takes effect upon the happening of a future and uncertain event) but it cannot be subject to a resoluiory condition (revocation ceases upon the happening of future and uncertain event - not possible because once a will is revoked, it becomes a complete nullity and it can only be revived if republished) Q: What must be done to a revoked will to make it valid again? A: Republish it Revocation by implication of law occurs when certain acts or events lake place subsequent to the execution of the will from which the law infers or presumes thai he testator intended a change, either partial or total, in the disposition of his property K6W</fVt*-M l/ll/Kr P EXEO^EP ttfiiC^ to THE (?( WVtl/\te /V-WItt (Tvll/K I" ftt-fO P7 MWIiTTEp tf Revocation by subsequent will/codicil/other writing *** ^"^ Q: Under Art830, what does the phrase "other writing" refer to? A: It refers to any instrument that doesn't contain testamentary dispositions because if it is otherwise, it would become either a will or a codicil. Ex. Donation mortis causa (Accdg to Jurado - document incorporated by reference - NO, as such is not executed as a will) What if a letter contains only a revocatory clause, does it fall under "other writing"? DannyCon: The revocatory letter is still a will because it is an indirect disposition of the estate, since the legal heirs become the heirs instead of the legatee or devisee *Note: The Code Commission included the phrase "other writing executed as provided in the case of wills" because the Commission could not agree en whether instruments containing only a revocation clause is a will. But of course, we know better. A: Q: Supposing the will was denied probate for not having complied with the formal requisites, is revocation valid? A: No. For revocations to be valid, the will itself must be valid. Q: Suppose the will complies 'with the formal requisites and is probated but the subsequent heirs were disqualified as they were the witnesses, can the original heirs (heirs of the revoked will) inherit? A: No, the first will remains revoked. Hence, intestacy? j-tfNotrt/NAi. KFlAf'Cftn/N - MiVy MIM f>f cftNKr PE KE*IMWH -nrmC Page 55 of 207 STW a rfltt e ARITAO IK TWE WILL Q: // there is no revocatory clause but onty inconsistencies between the 2 wOs, can the heirs in the 1* wiH inherit when the heirs of fee f ** were doqualUed?

A: The effect of the 2nd wil is to annul the conflicting dispositions. Hence there is only partial revocation Under Art832, 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 renunciation. U: Is death a condition by which a revocation may be made to depend? A: NO. It is not a period, rather it is a term , THf ffUiH EVIDENCE U tH6 IU- Ifff Uf Revocation by physical destruction - uw w^ ncv K&a/iwie *ivi wiu-Whenever the testator physically destroys the will, there '"^ arises a presumption that he destroyed it because he wants to "K*<M revoke it. **"" nf6 w=A/cctvN MIACT ACHF/MI prj THE we* K THE WILL . rit Q: A: Q: A: Q: A: A: Q: A: Q: A: How is s will revoked by physical destruction? Burning, tearing, canceling, obliterating with intent to revoke (Art830). But such list is not exclusive What am the requisites in order for the act of physical destruction to revoke the will? (1) Testamentary capacity (2) Animo revocandi (3) Formalities complied with (4) Done freely and voluntarily (5) Must appear on the face of the will Why must he have capacity to revoke ? The same degree of mental capacity is required to undo what has been done Suppose that without his realizing that the wHI was inside the envelope, he destroyed the envelope. Is there revocation? No as there is no intent to revoke Q: A: Suppose the testator got mad at his heirs and announced pubUdy that he was revoking his will but did not do any physical act to revoke it. Is there revocation? No, mere intention to revoke is not enough. All the requisites must concur Suppose the testator threw the will into the fire with intent to revoke it. After throwing H. he left. The heir saved the will from burning. Is there revocation? NO, as the physical destruction must appear on the face of the will. In this case, the will wasn't caught in the fire, so no sign of destruction would appear as such is an absence of the requirement that the destruction must appear on the face of the will. However, the heir who rescued it from the fire is disqualified from inheriting (Art1 032(7)) To effect a revocation, must the destruction be total? Ex. Only a comer was burned or there was only a discoloration. No, it is sufficient if the face of the will shows some signs of physical destruction. Hence, a discoloration is sufficient. No evidence aliunde is allowed as the will is the only evidence of destruction
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WPJPJ rtK.E MACE 2007A Important problems Q: Suppose the testator wanted to revoke the will and started tearing it but after tearing halfway, he changed his mind and desisted. Was the wHI revoked by the sign of destruction on the face of the will? A: No, as a rule, revocation doesn't take place if the testator changed his mind and desisted before the completion of the destruction. Hence, revocation wasn't effected. Q: Suppose the testator tore the will in 2 and threw the pieces in the trash bin. He then returned to his room. After some reflections, he retrieved the torn will from the trash and taped the pieces together. Was the will revoked? A: Yes, he changed mind after the act of destruction had been completed. He cannot revive it by pasting the pieces together. It can be revived only by republication. Q: Suppose the testator got mad at his heirs and began to revoke the will by tearing it twice. The heirs asked for forgiveness when he was about to tear it for the 3"" time. So. the testator desisted from tearing the will for the 3? time and kept the pieces. Was the will revoked? A: No, the will wasn't revoked. He changed his mind before the act of destruction was completed. Conclusion The issue therefore is how to know whether the act of destruction is completed. If the act had been accomplished before the testator changed his mind, the will was revoked. But if he changed his mind before the act of destruction is completed, the will is not revoked. However, there is no hard and fast rule on this. Each case depends on its own set of facts. The intention to revoke must subsist until the act of destruction is completed. Once the requisites for revocation by physical act of destruction concur, revocation takes place instantly. This is known as the principle of instante. As the will loses its efficacy, the same may only be restored by republication.

Q: Who must perform the act of destruction? A: The testator must accomplish it himself. He may delegate it to a 3rd party as long as such act of destruction was performed in his presence under his express direction Q: Suppose the testator ordered a 3? party to destroy the will. The 3"" party was interested in preserving the will so that he substituted it with another. When the document was destroyed, it was the substitute that was destroyed. Was the will revoked? A: No. the physical destruction did not appear on the face of the will. This is the risk of delegation. 1. Burning Q: How is it done? A: It may be effected by any means which causes the oxidation of the document-." Q: Is it required that the entire will be burned? A: No, it is sufficient if only a small portion is burned. Discoloration by burning is enough Page 56 of 207 . tt*W IF A WILL u CO uwr , ft VYE ft Uf T Cf- M/W Nt't /t t/fi Q: Suppose that with intent to revoke, the testator threw the document into the fire. The envelope got burned but not the will because the fire died down. Was the will revoked? A: No, because there is no sign of physical destruction on the face of the will Q: May there be partial revocation by burning? A: Nothing in the Code Q: But if the testator burned only a provision of the will, is there a partial revocation? A: Maybe yes, if it can be shown that the burning is without doubt, intended for a particular disposition only. But note that the merest hint of discoloration would be sufficient proof of revocation. The whole document need not be burned. Q: How then do we prove that the testator intended to bum and thus revoke only a specific provision of the will? A: That is a question of fact which the court must decide 2. Tearing Q: Us it required that the tearing be complete? A: No, it is sufficient if an act of physical destruction, even if not total, appears on the face of the instrument. Q: (Suppose the tearing was confined to the margins, is the tearing a sign of destruction? A: It depends on the intent of the testator. If the tearing was with intent to revoke, there is a revocation. Q: Instead of tearing, what if the testator put holes on (perforates) the will. Is there a revocation? A: Yes Q: May there be a partial revocation by tearing? A: Nothing in the Code. However, authorities opine that if the intention is to revoke only a portion of the will, then there can ba a partial revocation 3. Canceling - it is the drawing of marks or lines across the face of the will or writing the word "cancelled" or "void" on the face of the document Q: Whenever the will is revoked by cancellation, does it require the testator's authorization by his full signature? A: It depends. If the will canceled is a notarial will, then it is not required by Art830. A: If it is a holographic will, such cancellation must be authenticated by his full signature (Art814) DannyCon disagrees with the decision in Kalaw vs Relova. He agrees with Vitug that Art814 applies when what is canceled is a holographic will, then the full signature is needed. Art814 refers to alteration of provisions in the will, and would, therefore, result in a partial revocation. But if the cancellation would revoke the entire will, Art830 applies as in the Kalaw case. Q: // the word "canceled" is written on the back of the will or on a blank portion or the on the margin of the will, is there a revocation? A: 2 views:
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e,e ' fo'WSC v (1) There is no revocation because the back page is not part of the will. Such page is not counted as one of the pages of said will (2) There is a revocation because greater weight should be given on the words written on the will, than the ambiguous line drawn on the same (Tolenlino) Note that if the cancellation was written, signed and dated by the hand of the testator, it becomes a holographic codicil. Q: Should the cancellation make the worts illegible? A: No Q: Is there partial revocation by cancellation? A: Yes. Accdg to Reyes-Puno, whether there is a partial or total revocation of a will depends on the effect of the disposition cancelled to the other dispositions. If the canceled disposition has no effect on the remaining provisions, partial revocation apples on the canceled part. However, if the partial revocation will increase or decrease the shares of the heirs n the will, there is no revocation of such is not executed in due form. 4. Obliteration

to blot out or render words illegible; legally no difference with cancellation Q: Is there partial revocation by obliteration? A: Yes Destruction by 3rd persons Q: What is the effect of a 3"* person not doing the act of revocation in the presence of the testator and under his express direction? A: The revocation is ineffective. Like in the execution of a will, which has to comply the requirements prescribed, there is the same degree of requirements in case of revocation. Q: Suppose that the testator, with intent to revoke his will, ordered a sen/ant to destroy it for him. Is the will revoked if destroyed in his absence?? A: No. because of his absence. The law requires the destruction to be made in his presence and under his express direction Q: Suppose a testatrix made a wit, naming her boy friend as her sole and universal heir. Later, she had a new boyfriend. This new boyfriend, apparently jealous of the first, tore he will in the absence of the testatrix and threw it away. The testatrix arrived and was informed of the fact. She agreed to the act of her boyfriend. Was the will revoked? A: No, the revocation is not valid since there is no compliance with the requirements of presence and express direction. Authorities, however, do not agree with the strict application of the law in this particular case. They propose that ratification after the" performance of the act is sufficient to revoke the will. DannyCon disagrees. The will may not have been revoked by the boyfriend. In fact, if the destruction is unauthorized, there is no revocation. .However, probate will be refused, not because there is no revocation, but rather because of the lack of the holographic will itself. Page 57 of 207 An act of destruction without the testatrix's consent cannot later be ratified by her. However, it is impractical for a testatrix to revoke an already destroyed wiH The reason behind the requirements of presence and express direction is for the testatrix to be sure that the will had indeed been destroyed. >. PO Q-" May a tost will be probated? ~ A: Depends. If the will is holographic, no, unless a copy is presented. If it is notarial, yes, as long as the presumption J of revocation is rebutted/ doesn't arise Q: When does the presumption of revocation arise? A: When the will cannot be found and it is shown that it was last seen in the hands of the testator, or that he had ready access thereto when it was last seen (Gago vs Mamuyac) Lipana v. Lipana (1940) Eliodoro Lipana filed an application for the probate of a will supposedly executed by the deceased Manuela Lipana with a carbon copy attached to the application. Natividad Lipana opposed on the ground that the carbon copy was not signed by the testatrix and the attesting witnesses at the end thereof and at the left margin of each page. Held: What is sought to be admitted to probate was the original of the will. The copy was attached merely to corroborate the allegation as to the existence of its original. If a will is shown to have been torn by some other person without the express direction of the testatrix, it may be admitted to probate, if its contents, due execution and its unauthorized destruction are established by satisfactory evidence. The applicant therefore was entitled to hearing.___________ Gaqo v. Mam uvac (1927) Francisco Gago filed a petition for the probate of Miguel Mamuyac's will. The same was opposed by the Mamuyacs on the ff grounds: (1) that the will is a copy of the 2M will executed by Miguel; (2) that the same had been canceled and revoked (luring Miguel's lifetime ; and (3) that said will is not Miguel's will, li was proven during the trial that the will presented was a cartoon copy of a will which was revoked by Miguel in 1920 when he made another one. Held: The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other component evidence, that the same was canceled or destroyed. The same presumption arises when it is shown that the testator had ready access to the will and it cannot be found after his death. Such presumption is never conclusive and may be overcome by proof that the will was not destroyed by the testatrix with intent to revoke the same. The burden of proof therefore is upon the proponent to establish not only its execution but also its contents If the proponent proves the execution, the burden is on the contestant to show that it had been revoked. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all !'i& formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the
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original has been tost and was not canceled or revoked by the testator. Maloto v. CA (1988) Aldina. Constancio. Panfito and Fefino (all sumamed Maloto) executed an extrajudicial settlement dividing the estate of the decedent Adrians Maloto, believing that she did not execute a will. A will was found, however, 3 years later in a cabinet by the decedent's lawyer. Although all 4 were named heirs, Aldina and Constancio were given bigger and more valuable shares. They then prayed for the annulment of the extrajudicial partition prayed for the allowance of the will. Panfilo and Felino opposed and presented evidence to the effect that the will had been burned in the kitchen by the household helper of Adriana, thereby revoking said will. Held: There is no doubt as to the testamentary capacity of the testatrix Pursuant to Art830. the burning itself does not per se effect a revocation unless accompanied by animus revocandi. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliteration or canceling by the testator herself or by another in her presence and under her express direction. The helpers who allegedly burned the will testified that they were the only ones in the room. Both are likewise illiterate, therefore, they did not know if what they were burning was indeed the will.__________________ 5. implied revocation ART 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.____ ART 833. \A revocation of a will based on a false cause or an illegal cause is null and void.______________ Kalaw v. Relova. supra HELD: Where holographic will has only 1 substantial provision, which was altered by substituting the original heir with another, but which alteration did not cany the requisite of full authentication by the full signature of the testator, the ENTIRE will is voided/ revoked. TOLENTINO: The revocation by one will by another may be express or implied, partial or total. It is express when the latter will declares the former, and all former wills, revoked. It is implied when, and in so far only as, it merely makes dispositions inconsistent with the provisions of the former will or wills; in this case, the later will annuls only such dispositions in the prior wills as are inconsistent with those contained in the subsequent will. But even if 2 will do not completely cover the same subject, if. from the 2nd will, taken as a whole, and the circumstances attending its execution, there appears an intention of the testator to dispose of his property in a manner different from the 1SI will, it is to that extent revoked. But a will is not revoked by a subsequent instrument which neither revokes it in express terms nor by implication; and in such case, the wills hot inconsistent with each other must be construed together, and all their provisions, so far as possible, be carried into effect. If 2 similar wills are executed on the same date, the 2nd does not revoke the 1sl, for the 2 writings taken together are considered to constitute one and the same will. 6. effect of revocation Page 58 of 207 TOLENTINO: Falsity of Cause - When the testator declares in a later will that he revokes a former will because of a certain state of facts, revocation is inoperative if such facts were not as the testator supposed them to be. If the act of revocation is induced by a belief which turns out to be false, there is no revocation. Such fact must however appear upon the face of instrument. Parol evidence is not competent to prove that a revocation unconditional on its face was induced by a false assumption of fact or law. When revocation valid If it appears that the testator only alleged the belief as a reason for revoking, intending to revoke absolutely, j.,,,. whether such belief were true or false ^3o If the revocation be mad dependent merely upon ~ information received by the testator, or upon his . opinion, although the testator may have been Q misinformed, or may have formed his own opinion under a misapprehension Where the facts alleged by the testator were peculiarly within his knowledge, or the testator must have known the tiuth of the facts alleged by him. it does not matter whether they are true or not MAGIC NOTES There 2 requirements for Art833 to apply: (1) The cause must appear on the face of the instrument. No evidence afiuode may be presented to establish such cause (2) That the testator would not have revoked had he known the falsity of the cause 'Note: Falsity of cause is not the same as the cause itself. Falsity of cause would naturally not appear on the face of the will itself Q: Is the doctrine of relevant revocation a species ofArt833? A: no. DRR is a conditional revocation. Only the existence of the condition must be proved and the condition need not be stated in the will. Evidence aliunde is admissible to prove the same.

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Q: In the example given under the discussion on DRR (art834 - see question with an *), is the 3? will a species ofArt833 or is it conditional? A: If we consider the 3rd will as coming under a false cause, then we follow a liberal view as such view is in favor of the validity of the 1sl will. But if we consider the will as conditional, then we use a strict view as such is against the validity of the 1st will Q: If the testator revoked the will for a reason and it turned out later that the reason therefore is false, what is the effect of the revocation? A: The revocation is null and void under Art833 which provides that a revocation of a will based on a false cause or illegal cause is null and void. Q: How do we establish that the revocation was for a cause? A: It depends on the manner of revocation. If through:
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2007A (1) Codicil or Will - false cause must appear on the face of the will itself. Evidence aliunde is not allowed to show the same. If it isn't mentioned in the will, then the revocation is effective. (2) Physical destruction - evidence aliunde is allowed to prove that the revocation was for a false cause Q: The testator executed a revocatory will but did not include the cause for revocation. He then wrote a letter to his friend stating the reason for such revocation. May we introduce the letter to prove that the revocation was for a false cause? A: If the letter qualifies a holographic will, then it may be introduced in evidence. DannyCon: This is allowed but if we follow the rules strictly, we cannot. However, if the letter qualifies as a holographic will explaining the revocation, it may be allowed. We are not violating the rule that the cause must ? be contained within the 4 comers of the will because the -letter which qualifies as a holographic will is actually a ~ codicil. As such, it foims part.of tha will. ~3> 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. When the recognition of a natural child is made by will, he can demand his rights even if the will is revoked. The recognition does not lose its legal effect even if the will is revoked, because the recognition is no! a testamentaiy disposition; it takes effect upon the execution of the will and upon the death of the testator. . 7. doctrine of dependent relstive revocation. X A revocation made in a subsequent will shall v -Take effect, ; ART 832. even if the new will shall become inoperative by reason of the incapacity of the heirs. devisees or legatees designated therein, or by their renunciation. TOLENT.NO K^ & ^" J^" Dependent Relative Revocation - rule that where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition. If, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in force. It is equivalent to the nonfulfillment of a suspensive condition, and hence prevents the revocation of the original will. The question in each case is whether the destruction or revocation was with the absolute intent to revoke at all events, or only in case the new will is well and completely executed and operative;, or conditionally on the effectual execution of the new instrument. This is a question of fact. What the testator said at the time of doing the act of revocation is competent as part of the res gestae, to give color to it and show what his purpose was. Where a subsequent will revokes a prior one, and the validity of the later will is established, but its provisions cannot be carried out because of the incapacity of or renunciation by the beneficiaries named therein The Page 59 of 207 Nt C FflUt" \f (flfl revocation is effective because of the dear intent of the testator to revoke, contained in a valid will. Such validity prevents the operation of the principle of dependent relative revocation, even if the new dispositions cannot be carried out. MAGIC NOTES: Q: A 2* will expressly revokes the 1st will, stating in the 2nd will that should the 2nd will be denied probate, the revocation is nonetheless effective. If the 2nd will is denied probate, is the 1st will revoked? A: No. While the 2nd will contains the desire of the testator to revoke the 1*1 will, that command has no effect if the 2nd will is not probated. The revocation is void, the 2nd will being void as well (this is not an application of ORR) Q: Testator made a will which he revoked by destroying it. Later he executed a will expressly revoking the 1st. Such 2nd will was denied probate. May the 1st will be allowed? A: No. What revoked the 1s1 will was not the execution of the 2nd will but the act of destruction. This is likewise not an application of ORR because the aci of destruction must depend on the efficacy of the substitute will Q: The testator made a will and revoked it after 1 month by executing a 2nd will which contains a revocatory clause. Believing that the 2" will was valid, ha revoked the 1s1.

Thus, he tore the 1s1 will. After his death, the 2nd will was denied probate. Was the 1st will revoked? A: No. This is the doctrine of DRR Q: The 1st will was revoked by a 2nd will and by the act of destruction which was after the execution of the 2nd will. The act of destruction was depended on the efficacy of the 2nd will. He destroyed the 1st on (he assumption (hat the 2"" will was valid. Since the 2nd will is not valid in revoking the 1st, does the physical destruction revoke the 1st will? A: No. because he did it on the assumption that the 2nd will was valid (Molo vs Molo) Q: Testator executed a will. Later, he made a 2nd will which was totally inconsistent with the 1s1 but it had no revocation clause. To be sure, the testator made a 3? Mil, this time, the will contained a revocation clause revoking the 2nd will. 2nd will was denied probate while the 3d was admitted. Is will #1 valid? Does DRR apply? A: No answer. Merely stated that DRR is premised on the intention not to revoke the 1s1 will had the testator known the invalidity of the 2nd will Q: Paras example: The testator made 3 wills. 2nd will was inconsistent with and therefore, impliedly repeals 1s' will. The 3rd will, on the other hand, revokes the 2nd. Is the 1*' will valid? A: No, but Paras did not use DRR. He used the principle of revival under Art837. He states that since the article uses the word "expressly", it follows a sensu contrario that in case of an implied revocation by the 2nd will, an automatic revival of the 1st occurs. Apparently, the reason is the fact that an implied revocation is ambulatory, the inconsistency being truly and actually apparent only mortis cause, when the properties are distributed. (CAVEAT: author not sure if answer is correct) TttftT (5E
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ffI1 fIIIIIIIIIII There must be an assumption that the 2nc will was valid when he revoked the 1*. If the 2nd will is not valid, he didn't want the 1st wfl revoked. The physical destruction of the will depended on the vaidrty of the 2nd will. DRR applies when there is an act of destruction coupled with making of the will. ARIT.XO Molo v. Molo (1951) The decedent Mariano Molo left 2 wife, one executed in 1918 and the other in 1939. The 1939 win has a revocatory clause expressly revoking the 1918 will. The decedent's wife sought the probate of the 1939 will but the court denied the application on the failure of applicant to prove its due execution in accordance with law. The wife then sought probate of the 1918 will. This was opposed by the nieces and nephews of the decedent on the ground that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and has the effect of nullifying the prior will of 1918 Held: A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of sec618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. It is true that the law provides that a will may be revoked "by some will, codicil, or other writing executed as provided in case of wills* but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing...", simply because it was denied probate. And even if it be regarded as "other writing", there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. There is no direct evidence of voluntary or deliberate destruction of the 1* will by the testator. And this matter cannot be left to inference or conjecture. But granting that the earlier will was voluntarily destroyed by the testator after the execution of the 2nd will, which revoked the 1*1, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? If such is the case, then the earlier will can still be admitted to probate under the principle of DRR. DRR is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to-make a new testamentary disposition as a substitute for the old. and the new disposition is not made or, if made, fails of effect for some reasons. The rule is established that where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. The theory on which this principle is predicated is that the testator did not intend to die intestate. Page 60 of 207
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2007A XII. SUBSTITUTION OF HEIRS 1. concept of substitution A"' AU ART 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.___________________ TOLENTINO: The present article is defective as the definition does not embrace the fideicommisary substitution, in which the first heir actually succeeds to the inneritance. A more accurate definition would be: Substitution is the act by which the testator designates the person or persons to take the place of the heirs or the heirs first instituted. DANNY CON SAYS: that this definition of course assumes that fideicommisary substitution is a kind of substitution. Some writers dispute its status as such. In reality, substitution is but a subsidiary institution of heir or legatee, subjected to the condition that the first heir or legatee should not want to succeed or has not disposed of his property by will. The right granted to the testator to appoint substitutes flows from the freedom to make testamentary dispositions and impose conditions upon them. Since substitution is merely a second institution, the principles and rules on institutions of heirs are applicable to substitution except in so far as they may be modified by the express provisions on substitution. Accretion is the right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounces 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. As in substitution, therefore, a vacant portion of the inheritance goes to another heir. In case of conflicting daims between a substitute and an heir entitled to accretion, the former should be preferred, because his right springs from the express will of the testator while that of the latter is derived only from a will presumed by law, MAGIC NOTES: Art 857 is a conditional institution of heir. The provisions on institution of heirs are applicable to substitution. For instance, the substitution of heirs cannot be left to the will of a third party following the rule on institution of heirs. Art. 786 may however apply if the requirements therein are present. Q: What is the rationale behind substitution? A: 1. To insure that the property will not go to his legal heirs 2. To insure that it will go to somebody other than his legal heirs 3. To prevent it from going to the State Q: Example of substitution A: T instituted X to 1/4 of his estate providing that if X dies before the Testator, Y shall substitute X. Q: "/ hereby institute A. In case A dies 3 years after my dealt;, B shall substitute A." Is this a substitution? Page 81 of 207 A.:.,No It is an institution with a suspensive condition and A's institution is subject to a resolutory condition. Note: Substitution may either be successive or simultaneous. 2. kinds of substitution ART 858. Substitution of heirs may be: (1) Simple or common (2) Brief or compendious. (3) Reciprocal; or (4) Fideicommisary.__________ TOLENTINO: Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommisary. The others are merely variations of these two. LECTURE NOTES: OANNYCON SAYS : in reality there are only two kinds [ > simple/vulgar/common brief and reciprocal are merely modifications > fideicommisary When substitution takes place > Heir predeceases > Heir repudiates > Heir becomes incapacitated OANNYCON SAYS: catch all for all instances when heir can no longer inherit In the absence of a dear provision of wiU as to when substitution will occur in the 3 instance provided by law The testator can limit the circumstances under which substitution will occur but he must do so CLEARLY and EXPRESSLY Testator is not allowed to provide for substitution in the alternative, but successive is allowed. The testator can provided for substitution to take place on instances other than the 3 provided by the law however this is no longer substitution - it is a conditional institution One substitute for 2 or more heirs, only one heir is unable to inherit A + B are given % the estate C is their substitute A predeceases the Testator - C will not receive anything via substitution - Substitution only takes place when A AND B cannot inherit A is given Vz, B is given % C is their substitute A predeceases the Testator C gets Yi A and B are separately instituted, are not Coheirs so when A predeceases the part left to him goes to the substitute.

a. simple or common 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
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2007A the cases to which it refers, shall comprise the three mentioned in the preceding paragraph unless the testator has otherwise provided.____________ TOLENTINO: This kind of substitution rests upon the principle that the testator should be allowed to reward and compensate deserving persons who although they may not be the first in the heart of the testator may be more deserving of his liberality than the intestate heirs who would succeed if substitution is not all owed. Note that the substitution takes place in three cases. If the testator specifies the particular case when the substitution takes place, it is dear that it cannot take place for any other cause not specified by the testator. When he does not specify, all the three causes are deemed included. The power to appoint a substitute emanates only from the freedom to dispose by will since the legitime is not subject to the free disposal of the testator; there is nothing to justify his right to order vulgar or simple substitutions as to such part This kind of substitution is in reality a conditioning institution of the substitute hence, the provisions on conditional Institution are applicable as suppletory law. In all cases, simple or vulgar substitution is extinguished 1. By the nullity of the will 2. By the annulment of the institution of heir 3. 3y the death if the substitute before the testator 4. When the substitute himself is incapacitated to succeed the testator 5. When the substitute repudiates or renounces the inheritance To have capacity, the second heir must be living at the time the condition happens (art. 1025); hence, if he had died prior to the happening of the Condition, or the renunciation, he cannot succeed because of want of capacity. The capacity must be determined, not only at the time of the testator's death but also when the condition happens (art 1034, par. 3). Valverde also sustains this view that death of the substitute before the renunciation extinguishes the substitution. MAGIC NOTES: NOTE: This enumeration is EXCLUSIVE. If the Testator failed to stipulate the cause for. substitution, substitution will take place upon the happening of any of the three causes. If the Testator limited the cause to one particular cause, there will be substitution only upon the happening of such cause. Q: It substitution is ordered after the death of the testator, is it a simple substitution? A: no, the simple substitution may be a conditional substitution subject to the suspensive or resolutory conditions. Q: How many substitutes may the testator appoint for an heir? A: One or more under Art. 859. Q: May the substitution be successive? A: Yes, there is no prohibition. So A may institute B and appoint C as substitute for B and appoint D as substitute forC. Q: How is substitution extinguished? Page 82 of 207 A: In all cases, simple or vulgar substitution is extinguished 1. By the nullity of the will 2. By the annulment of the institution of heir 3. By the death if the substitute before the testator 4. When the substitute himself is incapacitated to succeed-the testator 5. When the substitute repudiates or renounces the inheritance Q: If there are two or more substitutes, how will they share? A: The rule Jon institution of heirs will apply i.e., they will share equally unless the testator has designated their shares as unequal. b. brief or compendious ART. 860. Two or more persons may be substituted for one and one person for two or more heirs________ TOLENTINO: These two terms mean that form of substitution which includes or may include all kinds of substitution and all heirs, so that in a single testamentary provision more than one kind of substitution is established for several heirs. This is thus a mere form of substitution, and not ready a distinct dass of substitution. If one person is named as substitute for two or more heirs, will there be instituted heirs if the heir dies before the testator, or is incapacitated, or repudiates the inheritance? There will be no substitution in such case, even with respect only to the share of the heir who cannot or does not succeed. The condition under which the substitution is to operate is that the instituted heirs al. of them and not only one or few do not succeed; as tong as there is one left to succeed, the condition is not complied with and the substitution cannot take place. The share of the heir who does not succeed may either go to the intesiate or legal heirs, or to the other instituted heirs by right of accretion, depending upon the manner in which the institution was made. But if the substitute is named for any or all of several heirs instituted, then the substitution will take place even if only one instituted heir dies before the

testator, or is incapacitated, or renounces the inheritance, but only with respect to the share of such instituted heir. MAGIC NOTES: Q: If one substitute is appointed for 3 heirs, how much will the substitute get if only one of the three is incapacitated? A: The general rule is that the substitute will get none. He will not inherit anything. Q: Why? A: Because inasmuch as he was substituted for three heirs, then the three should die ahead, be incapacitated or repudiate in order for him to be a substitute. The property will go to the legal heirs or the co-heirs if accretion is proper. But there is an exception. According to Tolentino. where the T specifies that the substitution may take place for any or all of the several heirs such substitution is effective. According to Caguioa, substitution may also take place if the respective share of the heirs(?) is specified.
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2007A c. reciprocal ART 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shai acquire the share of the heir who dies, renounces, or is incapacitated, unless i*. clearly appears that the intention of the testator was otherwise. If there is more than one substitute, they shall have the same share in the substitution as in the institution.______ Note: This sounds redundant but Art. 861 applies only to reciprocal substitution. TOLENTINO: If two or more persons are reciprocally substitutes for each "other, the one who succeeds gets the share of the heir who dies 'before the testator, or is incapacitated to succeed, or renounces his inheritance. If there is more than one substitute, they shall have the same shares in the substitution as in the institution. This rule is based on the presumption that the testator, having instituted his heirs to unequal portions, would want them to share in such unequal proportions also in the substitution which has been made reciprocal. MAGIC NOTES: Q: When is there reciprocal substitution? A: When the heirs instituted are made mutual substitutes of each other. Both of them are instituted and both of them are substitutes of each other Q: Suppose T instituted /? to 1/2 of the estate. B to 1/3 of the estate and C to 1/6 of the estate. T provided that A and B are substitutes of each other. If B dies or predeceases to whom will his share go? A: To A. Q: How much ofB's share will A get? A: Everything. If B's share is 1/2 and A's share is 1/3. A will "get all 1/2 and 1/3. Regardless of the sharing of the 2 substitutes therefore, one will get the entire inheritance of the other because they are mutual substitutes of each other. [861] Q: May the. testator provide that the substitute will get a smaller portion? Example: A's share is i/2 and B's share is 'A of A's share if A predeceases. May the substitute inherit a smaller portion of what the original heir will inherit? A: Yes, under art. 861. Q: Suppose A was instituted to 1/2. B to 1/4. C to 1/4. It is provided in the will that all of them are substitutes for each other for any and all of the heirs. Suppose C predeceases. To whom will his share go and how much? A: C's share will go to A and B, the substitutes A and B will share in proportion to their institution. A's share is twice as much as B's share (2;1)r.;A will therefore get 2/12. (2/3 x 1/4) of the entire estate in addition to his original share and B will get 1/3 x 1/4 = 1/12 in addition to his institution. Q: If the institution of the heir is subject to charges and conditions will these charges and conditions apply to the substitute? A: Yes, under art 862. Q: T instituted A to 1/2 of his estate. Ts will provided chat ifX should die within 1 year after Ts death, the property shall gotoB. Is this a substitution? A: No. This is a conditional institution. Institution of A is subject to a resolutory condition. The institution of B is subject to a suspensive condition. r' d. fideicommissary ART 863. A ftdeicommisary substitution by virtue of which the fiduciary or first heir instituted is entnjsted 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 death of the testator. TOLENTINO: The original purpose of this substitution is feudalistic and is not in accord with the modem concept of ownership which puts the welfare of the society over and above that of a particular family. As amended, property cannot stay in 3**- the same family for the same length of time authorized by ^Z {he oW Civil Code ~< Requisites of Fideicommisarv substitution 5i > a first heir called to the succession

> an obligation clearly imposing upon such first heir the preservation of the property and its transmission to the second heir > a second heir to whom the property is transmitted by the first hair The Fiduciary > The first heir is not an administrator o- the property. Neither is he a mere intermediary or agent of the deceased. He is recognized as an instituted heir, and is entitled to the enjoyment of the property. > Although there is no complete' identity between fiduciary and a usufructuary, he is commonly considered as such because, although he has right to enjoy the property, he can alienate it. Thus, although he is not expressly required to in an inventory, such an obligation cannot be doubted. > However, the fiduciary is not required to furnish a bond secure the delivery of the property to the second heir. > Although there is a similarity between the fiduciary and trustee, there is a difference between the two. While the first is a real heir who enters upon the property and enjoys it .as his own (with the obligation, to preserve and transmit it to another) the latter is a mere agent who carries out the. wishes of the testator without himself enjoying the property left under his care. > There is an express limitation on the right of first heir: he cannot alienate, the property, except in favor the second heir, either by act inter vivos or mortis causa is bound to preserve it and transmit it to the second he; Without such obligation, there is no fideicommisary substitution. The obligation of the fiduciary to preserve the property must be clearly imposed, in order that there can fideicommisary substitution. Page 83 of 207
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2007A > The time when the transmission is to be made to the second heir is left to the will of the testator. If the testator should not have expressly provided when the transmission is to be made to the second heir is left to the will of the Testator. If the testator should not have expressly provided when the transmission shall take place, it is understood to be at the death of the fiduciary. Fideicommisary Heir > He must have the capacity to succeed the testator. He is really a second heir instituted by the testator; he does not succeed the fiduciary for he acquires his rights from the moment of the testator's death. > It is required that the second heir: Must not be beyond one degree from the heir originally instituted Must be living at the time of the testator's death Persons conceived but not yet bom at the time of the testator's death are considered living , provided they a subsequently bom with the requisites for civil personality. > What is meant by "one degree" from the first heir? Scaevola, Maura, and Traviesas construe "degree" as designation, .substitution, or transmission. The SC of Spain has adopted this construction. From this point of view, there can only one transmission or substitution, and the substitute need not be related to the first heir. Mariresa, Morefl, 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 dearly indicates that the second heir must be related to and be one generation from the first heir (Note: DLC also adopts this construction) From this, it follows that the fideicommisary can only be either a parent of a child of the first heir. These are the only relatives who are one generation or degree from the fiduciary. And since the limitation of "one degree" refers to one generation and not to one substitution or designation, it is possible to establish fideicommisary substitution successively in favor of an unlimited number of persons, provided that all of them are one generation from the first heir and are living at the time of the death of the testator DANNYCON SAYS: One degree refers to transfer, not relationship! > Substitution mnay refer only to a part of the property to which the first heir is instituted. Substitution may refer not only to the heir who is given the entire estate, but also to one who receives only part of it. ART 864. A fideicomissary substitution can never burden the legitime._____;________________ TOLENTINO: All kinds of substitutions are prohibited in so far as legitimes are concerned. If the testator provides for a subsiitution in relation to a legitime. the substitution is considered as not imposed. ART 865. Every fideicommisary substitution must be expressly made in order that it be made valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions that those which arise from legitimate expenses, credits and improvements, save in case where the testator has proyided otherwise._____ TOLENTINO: As fideicommisary substitutions are net favored, because they entail the locking up of property within a family and suspending its alienability, the law requires that they should be made expressly, they cannot be implied. "Legitimate expenses" do not refer to those which have been occasioned by the use or enjoyment of the property, but refer to those which have been made for the acquisition, and preservation of the inheritance. Expenses made purely in connection with the management of the property during its onjoyment by the first heir can be deducted only when they constitute improvements.

They are considered as "improvements" only when they are necessary for the preservation of the property, or when they constitute useful expenses. Expenses for were luxury and ostentation are excluded. However, the amount allowable is not the expense itself, but only the increase in value, by analogy to the rights of the usufructuary. By deducting only the increase in value, the fideicommisary neither gains nor loses; the property is actually preserved. On the other hand, the fiduciary is not Sable for deteriorations, unless caused by his fault or neglect. ART 866. The second heir shall acquire a right to succession from the time or the testator's death, even though should die before the fiduciary. The right of the second heir shall pass to his heirs._________ TOLENTINO: Remember that the fideicommisary succeeds the testator, 'not the fiduciary. The fiduciary acquires only the usufruct of the of the inheritance. The naked ownership in vested on the fideicommisary. 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 Art. 863 (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Art. 863, a certain income or pension; (4) Those which leave to a person the whole or 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. TOLENTINO: The provisions of this article are intended to prevent possible abuses that may be made in the use of Page 84 of 207
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2007A fideicommissary substitutions as we* as of indirect means of violating the limitations imposed upon it. The rationale for paragraph one is that substitution must clearly spring from the testator's wM, imposed by him, and not left to the discretion of the fiduciaryThe second paragraph seeks to prevent the entail of property or its withdrawal from circulation. There may or may not be any fideicommissary substitution, but if the prohibition to alienate is perpetual or even if temporary, beyond the limits set forth in Art. 863, the prohibition is void and considered as not written. If the testator prohibits alienation for a definite period of time, it cannot exceed twenty years (Art. 870) The third paragraph seeks to -further secure the observance of the limitations in Art. 863. The fourth paragraph is intended to avoid the possibility of the property being applied to purposes prohibited by the law, or going to incapacitated persons, by means of secret instructions to the fiduciary. The will or intention of tha testator, not being evident in his testament, cannot be given effect, whether there is fideicommissary substitution or not. Only the secret instructions are void, and the beneficiary under such secret instructions cannot compel the heir to comply therewith. The disposition itself is void only if the sole purpose is that the person who has been named shall receive the property not as heir but as mere agent of the testator for carrying out his secret instructions. This is a prohibition known as TACIT FIDEICOMISO. 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._______ TOLENTINO: This provision fideicommissary substitution applies to all cases of nullity of a fideicommissary substitution. DANNYCON: Art. 868 applies only when a fideicommissary is intended by the Testator but one of the elements thereof is absent. ART 869. A provision whereby the testator leaves to a peison the whole or part otlhe inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Art. 863 shall apply. TOLENTINO: When the testator leaves his property in naked ownership to one person and in usufruct to another, upon the expiration of the tetter's right the former acquires such usufruct, thereby consolidating the absolute ownership in himself. But he should be considered as a mere substitute or second heir of the usufructuary. There would be a real substitution, however, when the testator calls a third person to succeed the usufructuary. If more than one person care called successively, all of them must be living at the time of the testator's death and they must not be beyond one degree. Since the heir instituted to the naked ownership, upon consolidating absolute title at the expiration of the right of Page 85 of 207 -70

the usufructuary, does not succeed the latter as a substitute, it is clear that he s a first heir. Being so, the testator may also provide that after the consolidation of ownership in such heir, lie may still be substituted by others within the limits of Art 863. LECTURE NOTES: 1s1 heir never gets ownership, 2nd heir has title even if 2nd heir dies. 1st heir never gets ownership Fideicommisary [863] vs. Legacy of Usufrcut [869] > Difference : NO SUBSTITUTION in 869 but in 863 there is a substitute. Fideicommisary is VOID when > 2nd heir is already dead at the time of death of the testator [863] > When the Testator intended a fideicommisary substitution but failed to call it such or failed to impose on the 1 * heir the obligation to transmit PCIB v. Escolin (1974) In Mrs. Hodges' will, she gave, bequeathed, and devised her estate to her husband during his lifetime. The inheritance is subject to the condition that upon his death, the remainder of what he inherited shall be given to the brothers and sisters of Mrs. Hodges. ISSUE/HELD: WON this is a case of fideicommisary? - NO RATIO: One basic element of fideicommisary substitution is absent i.e. the duty.to preserve the thing inherited. In this case Mr. Hodges obtained total dominion over the inheritance. He became the absolute owner of the property and he could do anything he desired with it. The provision regarding the brothers and sisters is a simple case of conditional simultaneous institution of heiis. The institution f Mr. Hodges is subject to a partial resolutory condition, the operative contingency of which is coincident with that of his brothers and sisterin-law. Since she didn't intend fideicommisary, we don't apply Art 867.868. The property goes to Mrs Hodges' brothers and sisters because conditional institution. Palacios v. Ramirez (1982) Ramires died in Spain, with his widow Marcelle as the only compulsory heir. R left a will, the principal, beneficiaries of w/c were his wife, his 2 grandnephews and his companion Wanda. The will provided for a simple fideicommisary substitution. The will was admitted "for probate and subsequently the administrator submitted a project of partition wherein 1/2 of the estate was given to the widow as her legitime; the free portion to the grandnephews, 1/3 of the free portion was charged with the widow's usufruct with a simple fideicommisary substitution in favor of Wanda; the remaining 2/3 was charged with a usufruct in favor of Wanda, with a simple and fideicommisary substitution for one Jankowski and a certain Horace Ramirez. The grandnephews opposed. ISSUE/HELD: WON disposition of the free portion was proper? - NO HELD: The usufruct in favor of Manda with respect to the 2/3 of the free portion is partly valid and partly not. The substitution in its fideicommisary aspect is void. The reason is, because the substitutes are not related to Wanda, the heir originally instituted. The Code validates a fideicommisary substitution provided such does not go beyond one deciree from the heir originally instituted. "One degree" refers to the relation of the fiduciary and the fideicommisary. It includes only either a child or parent of the first heir ________________________
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2007A Peros v. Garchitorena (1930) Testatrix instituted Carmen, her niece-in-law as hersote heir. It was further provided that should Carmen die. "I order that the whole estate shall pass unimpaired to the surviving children." Should Carmen die while her children are still minors, the estate shall be administered by persons named in the will. ISSUE/HELD: WON there is a fideicommisary substitution? - YES HELD: The will contemplates the enjoyment of the estate by the heir instituted during ner lifetime, with the only provision that she could not dispose of it. because its transmission is limited to her children, and it is provided that the whole of it shall pass to them unimpaired. AD the requisites of a fideicomrnisary substitution are present institution.________ Crisologo v. Sinqson (1962) Singson died in 194S. leaving a will stating that upon the death of Florentine (a grandmece), whether this occurs before or after the death of the testatrix, the property Bequeathed to her shall be delivered or shall belong in equal parts to her brothers or their forced heirs. When Florentine asked for partition w/ another who was given the other half, the jitter refused alleging that Florentine only obtained a usufruct over the property the substitution being fideicommisary. ISSUE/HELD: WON Florentine is entitled to a partition? - YES HELD: A fideicommisary substitution shall have no perfect unless it is made expressly, either by giving it such name or imposing on the first heir the absolute obligation to deliver the inheritance to a, second heir. The testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommisary kind, nor does it contain a clear statement to the effect that appellee during her lifetime shall enjoy only the usufructuary, rights over the property bequeathed to her. naked ownership being vested in the brothers of the testatrix. DANNYCON SAYS: Court erred in this decision by failing to consider the concept of legacy of a usufruct.__________ Vda de Kilavko v. Tenaco (1992) Eustaquia Lizares inherited properties from Maria Lizares. The will of Maria was duly probated and a project of partition was approved by the court Thereafter, the properties were distributed to the respective heirs. When Eustaquia died

without issue and intestate Celsa Vda. de Kilayko. et at. sisters of Maria Lizares sought the reopening of the estate of Maria Lizares and sought the properties adjudicated to Eustaquia claiming that they were substitute heirs. ISSUE/HELD: WON Ps may reopen the proceedings on the estate of Maria Lizares HELD: Granting that res judicata has not barred the institution of Civil Case 11 639, the contention of Celsa L. Vda de Kilayko. et al.. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares is not meritorious. While the allegation of the joint administrators that pars. 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommisary substitution under art. 863 of the CC is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa et al neither may said paragraphs be considered as providing for a vulgar or simple substitution._________________ It should be remembered that when a T merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideiconimissary substitution. The substitution should then be construed as a vulgar or simple substitution under art. 859 of the CC but it shall be effective only if the first heir dies before the T. In this case, the instituted heir, Eustaquia. survived the Tx, Maria Linares Hence, there can be no substitution of heirs for, Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters Maria Lizares could only inherit the estate of Eustaquia operation of the law of intestacy. DANNYCON SAYS: The ruling of the Court in this case is erroneous. The court should have used the reasoning in PCIB v. Escolin. Art- 868 is not applicable because the Testator did not intend a fideicommisary._______________________ Page 86 of 207 MAGIC NOTES: Reason: To allow the testator to keep his property within the family by entailing the property to preserve the status of the family and to protect family from prodigality. Q: What are the limitations on fideicommissary substitution: 1. T can entail only the free portion 2. Inalienability of the property cannot exceed 20 years Q: How is the fideicommissary instituted? A: the testator institutes a first heir called the fiduciary who will enjoy the inheritance for the priod specified in the wM and the testator will impose an obligation on the fiduciary to preserve and transmit the property in whole or in part to a second heir called the fideicommissary. Q: What are the requisites for a valid fideicommissary substitution? A: (1) the substitution must not go beyond one degree from the heir originally instituted (2) the substitution must be made expressly (3) both heirs must be living at the time of the death of the testator (4) the substitution is imposed on the free portion and not on the legitime Q: How may the substitution be made expressly A: (1) by giving it that name; or (2) by imposing on the first heir an obligation to preserve and transmit the property to a second heir Q: Does a FS prohibit or disallow the transfer of property, if it is for the purpose of preserving the property? A: NO a. fiduciary Q: How do you call the first heir? A: The fiduciary Q: Who may be instituted as a fiduciary A: Anybody who has the capacity to succeed at the time of the testator's death may be a fiduciary. He need not be related to the testator. Q: What does the fiduciary Inherit?
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2007A Peros v. Garchitorena (1930) Testatrix instituted Carmen, her niece-in-law as hersote heir. It was further provided that should Carmen die. "I order that the whole estate shall pass unimpaired to the surviving children." Should Carmen die while her children are still minors, the estate shall be administered by persons named in the will. ISSUE/HELD: WON there is a fideicommisary substitution? - YES HELD: The will contemplates the enjoyment of the estate by the heir instituted during ner lifetime, with the only provision that she could not dispose of it. because its transmission is limited to her children, and it is provided that the whole of it shall pass to them unimpaired. AD the requisites of a fideicomrnisary substitution are present institution.________ Crisologo v. Sinqson (1962) Singson died in 194S. leaving a will stating that upon the death of Florentine (a grandmece), whether this occurs before or after the death of the testatrix, the property Bequeathed to her shall be delivered or shall belong in equal parts to her brothers or their forced heirs. When Florentine asked for partition w/ another who was given the other half, the jitter refused alleging that Florentine only obtained a usufruct over the property the substitution being fideicommisary. ISSUE/HELD: WON Florentine is entitled to a partition? - YES HELD: A fideicommisary substitution shall have no perfect unless it is made expressly, either by giving it such name or imposing on the first heir the absolute obligation to deliver the inheritance to a, second heir. The testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommisary kind, nor does

it contain a clear statement to the effect that appellee during her lifetime shall enjoy only the usufructuary, rights over the property bequeathed to her. naked ownership being vested in the brothers of the testatrix. DANNYCON SAYS: Court erred in this decision by failing to consider the concept of legacy of a usufruct.__________ Vda de Kilavko v. Tenaco (1992) Eustaquia Lizares inherited properties from Maria Lizares. The will of Maria was duly probated and a project of partition was approved by the court Thereafter, the properties were distributed to the respective heirs. When Eustaquia died without issue and intestate Celsa Vda. de Kilayko. et at. sisters of Maria Lizares sought the reopening of the estate of Maria Lizares and sought the properties adjudicated to Eustaquia claiming that they were substitute heirs. ISSUE/HELD: WON Ps may reopen the proceedings on the estate of Maria Lizares HELD: Granting that res judicata has not barred the institution of Civil Case 11 639, the contention of Celsa L. Vda de Kilayko. et al.. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares is not meritorious. While the allegation of the joint administrators that pars. 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommisary substitution under art. 863 of the CC is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa et al neither may said paragraphs be considered as providing for a vulgar or simple substitution._________________ It should be remembered that when a T merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideiconimissary substitution. The substitution should then be construed as a vulgar or simple substitution under art. 859 of the CC but it shall be effective only if the first heir dies before the T. In this case, the instituted heir, Eustaquia. survived the Tx, Maria Linares Hence, there can be no substitution of heirs for, Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters Maria Lizares could only inherit the estate of Eustaquia operation of the law of intestacy. DANNYCON SAYS: The ruling of the Court in this case is erroneous. The court should have used the reasoning in PCIB v. Escolin. Art- 868 is not applicable because the Testator did not intend a fideicommisary._______________________ Page 86 of 207 MAGIC NOTES: Reason: To allow the testator to keep his property within the family by entailing the property to preserve the status of the family and to protect family from prodigality. Q: What are the limitations on fideicommissary substitution: 1. T can entail only the free portion 2. Inalienability of the property cannot exceed 20 years Q: How is the fideicommissary instituted? A: the testator institutes a first heir called the fiduciary who will enjoy the inheritance for the priod specified in the wM and the testator will impose an obligation on the fiduciary to preserve and transmit the property in whole or in part to a second heir called the fideicommissary. Q: What are the requisites for a valid fideicommissary substitution? A: (1) the substitution must not go beyond one degree from the heir originally instituted (2) the substitution must be made expressly (3) both heirs must be living at the time of the death of the testator (4) the substitution is imposed on the free portion and not on the legitime Q: How may the substitution be made expressly A: (1) by giving it that name; or (2) by imposing on the first heir an obligation to preserve and transmit the property to a second heir Q: Does a FS prohibit or disallow the transfer of property, if it is for the purpose of preserving the property? A: NO a. fiduciary Q: How do you call the first heir? A: The fiduciary Q: Who may be instituted as a fiduciary A: Anybody who has the capacity to succeed at the time of the testator's death may be a fiduciary. He need not be related to the testator. Q: What does the fiduciary Inherit?
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2007A afi the properties, the 2" heir will inherit nothing. It is actually a conditional testamentary institution. The institution of the 2nd heir will be subject to the happening of the condition that something will be left of the property inherited by the 1* heir. Note: Relate this case to Vda de Kilayko. OanCon says the court should have used the ruling in PCIB in the case of Kilayko. Q: When will the 1st heir transmit to the 2nd heir? A: As a rule, it depends on the will of the testator. The testator may provide that the first heir will enjoy the property for a certain period of time and at the end of the period, the property will be transmitted to the 2nd heir. Q: Suppose the testator did not fix the period, when will the property be transmitted to the 2nd heir? A: the property to the second heir b. Fideicommi ssary heir Q: Who may be a fideioommissary heir? A: Under Art 863. anybody who is not beyond one degree from the fiduciary and who is living at the time of the death of

the testator Q: What is the relevance of this one degree? A: If it is one degree of transfer, the testator cannot provide for successive substitution because the property may be transferred only once from the fiduciary. if it is one degree of relations, successive substitution is possible as long as all the fideicommissaries are within one degree from the fiduciary (1* heir originally instituted). Thus, the 2nd heir. 3'a heir. 4* heir, etc., should all be within one degree of civil relations with the I1' heir. DanCon: the prevailing policy is in favor of non-entailment of property. Art 87C provides that dispositions of the T declaring all or part of the state inalienable for more than 20 years is void. If we interpret one degree as referring to one degree of relationship and successive substitution is possible in FS, does the limitation of inalienability for not more than 20 years apply in FS? The decision in Palacios should be reversed and one degree should be taken to mean as one degree of transfer. However, it could be argued that Art 870 does not apply in case of FS nor in successive legacy of usufruct because in such cases there are no express prohibition to alienate the property. Art 870 should apply only to dispositions which expressly provides for inalienability of the property. Prof Balane is of the opinion that successive transfers should be aloowed but must be limited to 20 years. Q: A fiduciary has the right to enjoy the property during his lifetime. What if he lives more than 20 years after Ts death, is it not entailing the property for more than 20 years, thus violating Art 870? A: Under art 866, the fideiconimissary acquires a right to the succession from the time of Ts death. He could alienate his right even if the property is still with the fiduciary. There is really no prohibition against alienation in this case. The legal heir can alienate his right subject to the existing usufruct. Q: May a corporation be a fiduciary? Page 88 of 207 <=> Q: A: Q: A: No. it may not be a fiduciary because it has no relatives and therefore no fideioommissary will ever qualify. In the same line of argument, a corporation may not become a fideioommissary because it cannot be related within one degree from the fiduciary. Therefore, in fideicommissary substitution, only natural persons will be involved. If substitution is simple, a corporation may be a substitute and a representative may be appointed to take the place of the corporation. The 2"* requirement of a fideicommissary is that it must be alive at the time of death of testator. Why is this required ? Because the 2nd heir is inheriting from the testator and not from the fiduciary and therefore the 2nd heir must be qualified at the time of the Ts death. May an unborn child be a 2nd heir? Yes. for as long as the child has already been conceived at the time of the T's death and the child was born in accordance with the code, meaning it is born alive. But if the child had an intrauterine life of less than 7 months, it is considered bom if it was alive for at least 24 hours from its complete separation from the womb of the mother. Q: Suppose the fideicommissary dies before the fiduciary but after the testator, who will get the property form the first heir? A: We apply Art 866. the heirs of the 2nd heir. Q: Why? A: Because the 2nd heir, upon the death of the testator, has acquired a vested right to the property. The testator intended the property to go to the 2nd heir but wants the 1st heir to enjoy the property. However, the ownership will ultimately go to the 2 heir. Q: how about if the fideicommissary dies before the testator, who will get the property? Did it make the substitution null and void? A: According to some authorities, the death of the fideicommissary before the T nullifies the institution because under Art 863. for the fideicommissary to take place, the 2nd heir must be alive at the time of the Ts death. Since that condition can no longer be complied with, the fideicommissary substitution becomes null and void. Having become null and void, Art 868 will operate and the fiduciary will get the property. It will be different had it been a legacy of usufruct because if the T gave the 2nd heir ownership of the property and a mere legacy to the 1S| heir, then the death of the 2nd heir will not entitle the 1st heir to get the property. The legal heir will not get the property. The heirs of the 2nd heir will not get the property since there is no representation in voluntary succession. This is the essential difference between a mere legacy of usufruct and fideicommissary substitution. Problem: The testator provided that the 1* heir shall enjoy the property during his lifetime and that upon his death, it shall pass upon to a 2nd heir without imposing the obligation to preserve the property. Is it a null fideicommissary substitution or is it a mere legacy of a usufruct? If we look at it as a legacy of usufruct, the first heir will never inherit the property but if we look at it as a null and void fideicommissary substitution, the express obligation having been omitted, then the 1S| heir will inherit under art 868. An opinion provides that it will always be
REVIEWER IN SUCCESSION

2007A decided on the basis of the intent of the testator, tf the testator intended it to be a substitution, meaning in case the fideicommissary will not inherit, the 1* heir will inherit, then that intention will be given effect. But the problem is how do we know the intent of the testator. In the absence of indication on the will, how shall we look for it? Is there a presumption in favor of legacy of usufruct or fideicommissary substitution? The law is silent.

DanCon: to determine intention, we go to Art 789. both extrinsic and intrinsic evidence may be used. Q: Suppose the fiduciary predeceases the fideicommissary, who will inherit? A: Apply Art 863. the fideicommissary will inherit. That it the essence of fideicommissary substitution. Q: How about if the fiduciary predeceases the testator and the testator dies subsequently. Who will get the property? A: The law did not provide to whom the property will go. According to Prof Baviera, the property will go to the fideicommissary and that is the essence of the substitution when the testator provided for a fiduciary. DanCon: FS is simple substitution in the reverse. The 1* heir will get the property if the 2nd heir does not qualify. In simple substitution, the 2nd heir will get the property if the 1* heir does not qualify. Q: How about Art 863 wliich says that the 1* heir and ?* heir are Ifvingh at the time of the testator's death" which we considered as a condition. Since this is not met. the fideicommissary becomes null and void so that Art 868 will be applied. But this article does not apply because the 1a heir is already dead and there is no right of representation in voluntary succession. Will the fideicommissary inherit? Extinguishment of substitution will not entitle the substitute to inherit. What will then be the basis for the fideicommissary to inherit? A: Some authors believe that the property will go back to the estate of the testator and will be distributed to his legal heirs. Q: Art 868 applies in cases where the FS becomes nuH and void for not complying with the requirements in Art 863 and 867. Does Art 868 apply to cases where the 2* heir repudiates the inheritance or becomes incapacitated? A: According to the authorities. 868 covers also repudiation and incapacity of the 2nd heir, thus, the 1* heir will get the property.. Q: If the testator gives a legacy of usufruct, may he give a legacy successively? A: Yes. under Art 869 but the provision of Art 863 shall apply 3. time-limitation on inalienability ART 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years void._________________________ NOTES: In all these examples, there are three parties, the testator (T), the first heir (FH). and the 2nd heir (SH) Situation 1: If the following is the sequence of death of 3 parties: FH - SH - T. Who will inherit> Answer: the legal heirs Situation 2: T-SH-FH Answer: SH under Art 866 Situation 3: FH - T- SH Answer: no provision in the law. But SH inherits because the T intended him to inherit. Note: This provision applies to all substitutions except TOLENTINO: This article is intended to give more impetus to socialization of the ownership of property, and to prevent perpetuation of large holdings which give rise to agrarian troubles. The testator cannot declare the legitime of compulsory heir as inalienable. But he may impose sue condition to the free portion. But the period of inalienable cannot exceed 20 years. If it does, the property becomes after 20 J, years. It is presumed that the testator did not intend violate the ~ law. If the period fixed by the testator is lifetime of the I~> heir, then there would be a dual limitation. The heir dies before 20 years expire, the property passes to heirs already free; but if he lives for more than 20 years a the death of the testator, the property becomes alienable a twenty years. The present article must be deemed limited inalienability of the property in the hands of the instituted heir where there is no fideicommisary substitution. If a fideicommisary substitution is imposed, then the control provisions must foe Arts. 833 and 867(2). Thus. where the testator provides for fideicommisary substitution, the fiduciary must preserve the property even if he lives for more than 20 years after the death of the testator the limitation in the present article cannot apply to him. because ii would defeat the fideicommisary substitution. On the other hand, the testator cannot keep the property inalienable for 20 years, if the fiduciary should die before that period; the property becomes free the moment it passes to the fideicommisary heir/heir Mayorazgos and Fideicomisos > The fideicomiso was invented in order to afford an indirect means of circumventing the law and transmitting' hereditary property to incapacitated persons. It is a charge of confidence. A person is called by the testator to the success-or, mortis causa but he receives the inheritance not directlyfrom the testator but through another who has been expressly designated by the testator for this purpose. > There are there-fore three parties: the testator (fideicomitente), the person charged with the transmission of the property (fiduciario), and the person who receives the property according to the wishes of the testator (fideicomisario). This last one is the real and only heir, instituted by the deceased.

> The fideicomiso was either express or tacit. The latter form was usually employed to indirectly avoid the law and ultimately make the property pass to an incapacitated person. At other times, this was employed because the testator wanted to perform an act of generosity without making known his motives therefore, and relying solely upon the good faith of the fiduciario. Page 89 of 207
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2007A decided on the basis of the intent of the testator, tf the testator intended it to be a substitution, meaning in case the fideicommissary will not inherit, the 1* heir will inherit, then that intention will be given effect. But the problem is how do we know the intent of the testator. In the absence of indication on the will, how shall we look for it? Is there a presumption in favor of legacy of usufruct or fideicommissary substitution? The law is silent. DanCon: to determine intention, we go to Art 789. both extrinsic and intrinsic evidence may be used. Q: Suppose the fiduciary predeceases the fideicommissary, who will inherit? A: Apply Art 863. the fideicommissary will inherit. That it the essence of fideicommissary substitution. Q: How about if the fiduciary predeceases the testator and the testator dies subsequently. Who will get the property? A: The law did not provide to whom the property will go. According to Prof Baviera, the property will go to the fideicommissary and that is the essence of the substitution when the testator provided for a fiduciary. DanCon: FS is simple substitution in the reverse. The 1* heir will get the property if the 2nd heir does not qualify. In simple substitution, the 2nd heir will get the property if the 1* heir does not qualify. Q: How about Art 863 wliich says that the 1* heir and ?* heir are Ifvingh at the time of the testator's death" which we considered as a condition. Since this is not met. the fideicommissary becomes null and void so that Art 868 will be applied. But this article does not apply because the 1a heir is already dead and there is no right of representation in voluntary succession. Will the fideicommissary inherit? Extinguishment of substitution will not entitle the substitute to inherit. What will then be the basis for the fideicommissary to inherit? A: Some authors believe that the property will go back to the estate of the testator and will be distributed to his legal heirs. Q: Art 868 applies in cases where the FS becomes nuH and void for not complying with the requirements in Art 863 and 867. Does Art 868 apply to cases where the 2* heir repudiates the inheritance or becomes incapacitated? A: According to the authorities. 868 covers also repudiation and incapacity of the 2nd heir, thus, the 1* heir will get the property.. Q: If the testator gives a legacy of usufruct, may he give a legacy successively? A: Yes. under Art 869 but the provision of Art 863 shall apply 3. time-limitation on inalienability ART 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years void._________________________ NOTES: In all these examples, there are three parties, the testator (T), the first heir (FH). and the 2nd heir (SH) Situation 1: If the following is the sequence of death of 3 parties: FH - SH - T. Who will inherit> Answer: the legal heirs Situation 2: T-SH-FH Answer: SH under Art 866 Situation 3: FH - T- SH Answer: no provision in the law. But SH inherits because the T intended him to inherit. Note: This provision applies to all substitutions except TOLENTINO: This article is intended to give more impetus to socialization of the ownership of property, and to prevent perpetuation of large holdings which give rise to agrarian troubles. The testator cannot declare the legitime of compulsory heir as inalienable. But he may impose sue condition to the free portion. But the period of inalienable cannot exceed 20 years. If it does, the property becomes after 20 J, years. It is presumed that the testator did not intend violate the ~ law. If the period fixed by the testator is lifetime of the I~> heir, then there would be a dual limitation. The heir dies before 20 years expire, the property passes to heirs already free; but if he lives for more than 20 years a the death of the testator, the property becomes alienable a twenty years. The present article must be deemed limited inalienability of the property in the hands of the instituted heir where there is no fideicommisary substitution. If a fideicommisary substitution is imposed, then the control provisions must foe Arts. 833 and 867(2). Thus. where the testator provides for fideicommisary substitution, the fiduciary must preserve the property even if he lives for more than 20 years after the death of the testator the limitation in the present article cannot apply to him. because ii would defeat the fideicommisary substitution. On the other hand, the testator cannot keep the property inalienable for 20

years, if the fiduciary should die before that period; the property becomes free the moment it passes to the fideicommisary heir/heir Mayorazgos and Fideicomisos > The fideicomiso was invented in order to afford an indirect means of circumventing the law and transmitting' hereditary property to incapacitated persons. It is a charge of confidence. A person is called by the testator to the success-or, mortis causa but he receives the inheritance not directlyfrom the testator but through another who has been expressly designated by the testator for this purpose. > There are there-fore three parties: the testator (fideicomitente), the person charged with the transmission of the property (fiduciario), and the person who receives the property according to the wishes of the testator (fideicomisario). This last one is the real and only heir, instituted by the deceased. > The fideicomiso was either express or tacit. The latter form was usually employed to indirectly avoid the law and ultimately make the property pass to an incapacitated person. At other times, this was employed because the testator wanted to perform an act of generosity without making known his motives therefore, and relying solely upon the good faith of the fiduciario. Page 89 of 207
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2007A Fideiconvso is very different from a substitution fideJcomisaria. In the former, there is only one disposition, that is, in favor of the real heir (Wetcomisario); and there is no possibility of the property passing through several hands before reaching such heir. Art 867(4) is an express, prohibition of the tacit fideicomiso. A species of- the fideicomiso is the mayorazgo. It is the right to succeed to the property left upon the condition that it be preserved perpetually intact in the family and that it be transmitted in order of succession to each next first bom. While he possesses the property, the first-born is a trustee, but he is not a beneficiary. If he enjoys the property, he does not do so either as trustee or as beneficiary, but as usufructuary heir. During his possession of the entail, he is the trustee and the one called to succeed him in the enjoyment and "possession of the entail is the beneficiary or cestui q.ue trust until his tenancy begins; and when it does begin, he ceases to be the cestui que trust and becomes the trustee. It follows that in the mayorazgo, the usufructuaries who are the first-born possessors succeed one another in the usufruct of the properties and transmit them from one to the other. As to the naked ownership of the entailed properties, the beneficiaries or fideicomisarios are the descendants of the founder of the mayorazgo in their indefinite succession. Mayorazgos cannot now exist in this jurisdiction. If up to the present, we have what are known as mayorazgos, it is because they had been founded before the Disentailing Law was extended to the Philippines, and the interested parties have been maintaining them without, proceeding to the appraisal and distribution of the entailed properties as required by the Disentailing Law. T Page 90 of 207
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2007A XIII. KINDS OF INSTITUTIONS 1. simple or pure Art 777. The rights to the succession are transmitted from the moment of death of the decedent._________ (for comments, see Chapter 1, no. 4) 2. conditional Art 871. The institution of an heir may be made conditionally or for a certain purpose or cause_____ TOLENTINO: Condition may be defined as any future and uncertain fact or event on the happening of which a juridical act is made to depend. Testators may therefore make the validity and efficacy of their testamentary dispositions dependent upon such future or uncertain event. This manner of institution is frequently utilized to compel the fulfillment of or the abstention from certain things under the pain of losing the inheritance, devise or legacy. If the condition does not appear in the testament itself, or in a document executed with the same formalities as a will, it cannot be enforced: the testamentary disposition will be considered pure. a. Kinds MAGIC NOTES: Q: What are the kinds of conditions which the testator may impose? A: (1) As to manner of imposition: (a) expressly - when imposed in black and white in the will (b) tacit merely inferred from the will (2) As to the effectivity of dispositions (a) suspensive - when it prevents the effectivity until the happening of the condition (b) resolutory - when it extinguishes the right upon the happening of the condition (3) As to the fulfillment of condition (a) potestative - depends exclusively on the will of the heir -: (b) casual when it depends on chance or the will of 3rd parties (c) mixed - depends on chance or will of 3rd parties or chance and will of the heir (4) As to the nature of the conditions (a) positive - when it consists of doing or giving something (b) negative - when it consists of not doing or giving of something (5) As to the effectiveness of the conditions

(a) proper - wheri (hey may take effect (b) improper - when the law does not allow these conditions to take effect (ex. Art 873 cf. Art 1183) Q: Where must the testator impose the conditions ? A: The conditions must appear in the will itself or in the document executed as in the case of wills. It cannot be Page 91 of 207 imposed verbafly on any other document or elsewhere but in The wHI. If not imposed in the wtt. the condition is deemed not imposed at all. In case of doubt as to whether a win is conditional or not. the conditions should be considered as not imposed. Why? Because a testamentary disposition is by its nature an act or liberality. Being an act of liberality, it should not have any onerous effect on the part of the heir. Vda de Kilavko v. Trangco. supra. Held: Granting that res judicata has not barred the institution of the case, the contention of Vda. De Kilayko, et al that they are conditional substitute heirs of Eustaquia in the testamentary estate of Maria LJzares is not meritorious. While the allegation of the joint administrators that paragraphs 10 and 11 of the last will and testament conceives of a fideicommissary substitution is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa the properties. Neither may said paragraphs be considered as providing for a vulgar or simple substitution. It should be remembered that when a T merely names an heir and provides that if such heir should die a 2nd heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution, but shall be effective only if the 1* heir dies before the T. in this case the instituted heir, Eustaquia, survived the T, Maria LJzares. Hence, there can be no substitution of heir for upon Maria's death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria could only inherit the estate of Eustaquia by operation of the law of intestacy._________ b. inoperative conditions Art 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitime prescribed in this code. Should he do so, the same shall be considered as not imposed.__________ TOLENTINO: Encumbrances, 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 riot written. The compulsory heir's right to the legitime is free, unencumbered and pure. The testator is allowed to forbid the partition of the estate for a period not exceeding 20 years and this is the power to prohibit division applies to the legitime (Art 1083) 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._____________ TOLENTINO: In the law of obligations, when the condition is impossible, contrary to law or good morals, the obligation dependent upon it is void. In case of testamentary dispositions, however, such condition is disregarded and the validity of the disposition is maintained. A condition prohibiting the contest of the will and of its dispositions, under the pain of losing one's inheritance, legacy of devise, should be considered void and not
REVIEWER IN SUCCESSION

2007A imposed. It amounts to depriving an heir, devisee, or legatee of a day in court All the rules of interpretation should first be resorted to in order to determine the intention of the testator, but if the condition is sti doubtful, or is contradictory or unintelligible, then it should be classed as among the impossible conditions. It will be deemed that there is no condition. As to what time should be considered in determining whether a condition is impossible or not, authors differ. The better opinion, however, is that the time when the condition is to be fulfilled. Art 874. An absolute condition noi 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 tatter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation maybe devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. TOLENTINO: The exception provided by the article is sought to be justified on grounds of conjugal and family affection, as a means of securing more fidelity, even beyond the tomb, and in order to avoid the consequence that property coming from the deceased spouse should be enjoyed, through a subsequent marriage, by a person who, with more or less offense to the memory of the deceased, has taker his place in the family. A distinction should be made between the prohibition on 1* marriage and prohibition on subsequent marriages. A prohibition on 1* marriage is always void, and the condition containing it will bs considered as not written. When the prohibition refers to subsequent marriages, the general rule is that it is void, but it is valid when imposed upon a widow or widower by the deceased spouse, his ascendants or descendants. The absolute prohibition will be valid only when imposed upon a widow or widower by tlie deceased spouse, his ascendants or descendants. Whether the

descendant is exclusively of the deceased spouse or begotten with the widow or widower is immaterial; the reason for upholding the prohibition is the same in either case. It is dear, however, that the ascendants or descendants of the surviving spouse, had by a prior marriage, cannot impose the prohibition, because they are not ascendants or descendants of the deceased spouse. The condition absolutely prohibiting a subsequent marriage, cannot be imposed upon the legitime of the widow or widower. The legitime is given to the widow or widower by force of law and not by the will of the deceased spouse and not by the will of the deceased. Hence, the latter cannot subject it to any condition. Relative prohibition is valid. The prohibition is void only when it is absolute; that is, when the heir or legatee is forbidden to remain unmamed or in widowhood. When the prohibition refers only to particular persons or group of persons, or particular period or places, it is not absolute but only relative and, therefore valid/ however, even when by its terms, the prohibition appears to be relative, it will be understood as absolute if the conditions required by the testator practically render it impossible for the heir or legatee to get married at all. Effect of valid prohibition. When the condition is validly imposed, it is ' resolutory in character. The widow or widower gets the property upon the death of the decedent. but she loses all her rights thereto upon her marriage. The property shall then be distributed among the legal heirs of the deceased as in cases of intestacy, unless otherwise provided in the will itself. Conditions to contract marriage. If the condition is to contract marriage, either generally or with a determinate person, it is obvious that there us also a violation of the freedom to select one's status. Nevertheless, the CC has specifically rendered void only the absolute condition not to marry; a sensu contrario, a condition requiring marriage is valid. The condition to marry a determinate person will be valid as a rule, but if its performance becomes impossible, it is considered as not written, such as, when the person indicated refuse to marry the heir or legatee or does not have the legal capacity to marry. Related to Art 1 188. The creditor may before the fulfillment of the condition bring the appropriate actions for the preservation of his right. The debtor may recover what during the same time he has paid by mistake in case of suspensive condition. MAGIC NOTES: Q: What are impossible conditions? A: Those the nappening of which are contrary to law or nature and therefore will never happen. Q: What conditions are contrary to law? A: The condition is contrary to law when the law referred to is mandatory. It is mandatory when non-compliance is sanctioned, i.e., by the nullity of the act or contract, or by the imposition of penalty. In the absence of sanctions, the law is merely directory. (Art 5, CC) Q: When is a condition to be fulfilled? A: It is to be fulfilled upon the death of the testator. DanCon: If that is so, then if a condition which is illegal at the time of the execution of the will becomes legal at the time of the Ts death then the heir has to comply. Q: when is the prohibition to contract a 1st or subsequent marriage deemed absolute? A: The heir should be prohibited from marrying anyone, at anytime and any place. So if the T prohibits the heir from marrying anyone within a certain period after his death, the condition is valid because it is not an absolute prohibition for the heir not to contract a 1 * or subsequent marriage. Q: What if the T prohibits Thea Daep from marrying before her SCt" year. Is the condition valid? A: it is valid under Art 874 but invalid as contrary to good customs. Q: C, son of the 1s" marriage dies, and he imposes in his will a condition that his father B should not marry again. But at that time, B had already remarried. Does the term "deceased spouse" in 874 limited to the last deceased spouse or to all deceased spouses? Page 92 of 207
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2007A wife dies A 2nd wife dies B Son C son E ART 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor cfthe testator or any other person shall be void._____ TOLENTINO: Disposicion Captatoria - to allow the dispositions prohibited in this article will be to convert the testamentary dispositions into contractual agreements, to impair the heir's freedom to testamentary dispositions, and to allow the testator to dispose not only his property after death but also the heir's property after the tatter's death. If the heir is allowed to change his will after acquiring the property, there would be a flagrant breach of good faith, and if, on the other hand, he is not allowed to change his will, then the very essence of revocability of testaments would be impaired. Thus disposicion captatoria is incompatible with good faith and with the nature of testaments; it is immoral and contrary to the freedom to make wills.

MAGIC NOTES: Q: Give an example of a disposicion captatoria. A: "I institute my driver to % of my estate provided that my driver will institute my nephew as his universal heir." Q: what is the difference between an illegal or impossible condition and a disposicion captatnha? A: When the T imposed an impossible or illegal condition on the heir, the heir will still inherit. The condition shall be merely deemed as not imposed. In the case of disposicion captatoria. the institution of the disposition itself is void. The heir will not inherit. The condition is not the one that is void, it is the disposition. There is a difference between the consideration being immoral and the condition being immoral. In the example above, the condition may not be immoral but it is the consideration which is immoral. According to some authorities, a disposicion captatoria may encourage assassinations. d. compliance ART 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he teams of the testator's death. This rule shall not apply when the condition already complied with cannot be fulfilled again. ART 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless ne has otherwise provided. Should it have existed or should it have been fulfilled at the time the wM was executed and the testator was unaware thereof, it shai be deemed as complied with. If he had Knowledge thereof, the condtton shal be considered fulfilled onfy when it is of such a nature that it can no longer exist or be complied with again A: Condition is deemed not written since B had already remarried. c. dispocicion captatoria NOTE: do not confuse Art 876 with Art 877. In Art 876 knowledge of the T of the compliance or non-compliance of the condition is immaterial. Such is not the case in 877. TOLENTINO: Kinds of conditions (1) Potestative condition - is one which depends exclusively upon the will of the heir, devisee, or i legatee, and must be performed by him personally. It ~_'-~ does not admit of performance by a 3rd person. ) (2) Casual condition - one that does not depend upon the will of the heir, devisee, or legatee, but upon .> chance. (3) Mixed when it depends jointly upon the will of the heir, devisee, or legatee and upon chance and/or will of the 3rd person Fulfillment of conditions while a potestative condition must be fulfilled after death of the T (except when it has already been fulfilled and is not of such nature that it can be repeated), casual or mixed conditions may be fulfilled either befoie or after such death unless the T has provided otherwise. The difference is based on the fact that potestative conditions is to be performed by the heir, devisee, or legatee in obedience to the wishes of the testator; since the testator may still change his will at any time before the moment of tris death, ttvere fe reafty no testamentary disposition that the heir, devisee or legatee should obey until such death. In case of casual or mixed conditions, where the will of the heir, devisee or legatee has limited or no intervention, it is immaterial to the T when the condition happens unless he knew at the time he made his will that it had already happened. In this last case, it is presumed that he wanis it to be fulfilled if it cannot be repeated or it cannot exist anew. Constructive compliance - in the case of casual conditions, there must always be fulfillment as a fact or actual compliance. In potestative conditions, it may happen that the heir, devisee or legatee willingly obeys the wishes of the T which, however, is not fulfilled for reasons not imputable to the fault or neglect of such heir, devisee or legatee. In such case, the condition should be considered as fulfilled. In mixed conditions, since the will of a 3rd party intervenes, a distinction should be made. If the heir, devisee or legatee has done everything within his power towards the fulfillment of the condition, but this is not fulfilled because of the failure of the 3rd psrty to comply with what is expected of him, the condition is deemed fulfilled if such party has an interest in the fulfillment or non-fulfillment of the condition, otherwise, the condition cannot be considered fulfilled, and the institution is annulled e. effect ART 1034, par 3. If the institution, devise, or legacy should be conditional, the time of the compliance with Page 93 of 207
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2007Awife dies A 2nd wife dies B Son C son E ART 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor cfthe testator or any other person shall be void._____ TOLENTINO: Disposicion Captatoria - to allow the dispositions prohibited in this article will be to convert the testamentary dispositions into contractual agreements, to

impair the heir's freedom to testamentary dispositions, and to allow the testator to dispose not only his property after death but also the heir's property after the tatter's death. If the heir is allowed to change his will after acquiring the property, there would be a flagrant breach of good faith, and if, on the other hand, he is not allowed to change his will, then the very essence of revocability of testaments would be impaired. Thus disposicion captatoria is incompatible with good faith and with the nature of testaments; it is immoral and contrary to the freedom to make wills. MAGIC NOTES: Q: Give an example of a disposicion captatoria. A: "I institute my driver to % of my estate provided that my driver will institute my nephew as his universal heir." Q: what is the difference between an illegal or impossible condition and a disposicion captatnha? A: When the T imposed an impossible or illegal condition on the heir, the heir will still inherit. The condition shall be merely deemed as not imposed. In the case of disposicion captatoria. the institution of the disposition itself is void. The heir will not inherit. The condition is not the one that is void, it is the disposition. There is a difference between the consideration being immoral and the condition being immoral. In the example above, the condition may not be immoral but it is the consideration which is immoral. According to some authorities, a disposicion captatoria may encourage assassinations. d. compliance ART 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he teams of the testator's death. This rule shall not apply when the condition already complied with cannot be fulfilled again. ART 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless ne has otherwise provided. Should it have existed or should it have been fulfilled at the time the wM was executed and the testator was unaware thereof, it shai be deemed as complied with. If he had Knowledge thereof, the condtton shal be considered fulfilled onfy when it is of such a nature that it can no longer exist or be complied with again A: Condition is deemed not written since B had already remarried. c. dispocicion captatoria NOTE: do not confuse Art 876 with Art 877. In Art 876 knowledge of the T of the compliance or non-compliance of the condition is immaterial. Such is not the case in 877. TOLENTINO: Kinds of conditions (1) Potestative condition - is one which depends exclusively upon the will of the heir, devisee, or i legatee, and must be performed by him personally. It ~_'-~ does not admit of performance by a 3rd person. ) (2) Casual condition - one that does not depend upon the will of the heir, devisee, or legatee, but upon .> chance. (3) Mixed when it depends jointly upon the will of the heir, devisee, or rd legatee and upon chance and/or will of the 3 person Fulfillment of conditions while a potestative condition must be fulfilled after death of the T (except when it has already been fulfilled and is not of such nature that it can be repeated), casual or mixed conditions may be fulfilled either befoie or after such death unless the T has provided otherwise. The difference is based on the fact that potestative conditions is to be performed by the heir, devisee, or legatee in obedience to the wishes of the testator; since the testator may still change his will at any time before the moment of tris death, ttvere fe reafty no testamentary disposition that the heir, devisee or legatee should obey until such death. In case of casual or mixed conditions, where the will of the heir, devisee or legatee has limited or no intervention, it is immaterial to the T when the condition happens unless he knew at the time he made his will that it had already happened. In this last case, it is presumed that he wanis it to be fulfilled if it cannot be repeated or it cannot exist anew. Constructive compliance - in the case of casual conditions, there must always be fulfillment as a fact or actual compliance. In potestative conditions, it may happen that the heir, devisee or legatee willingly obeys the wishes of the T which, however, is not fulfilled for reasons not imputable to the fault or neglect of such heir, devisee or legatee. In such case, the condition should be considered as fulfilled. In mixed conditions, since the will of a 3rd party intervenes, a distinction should be made. If the heir, devisee or legatee has done everything within his power towards the fulfillment of the condition, but this is not fulfilled because of the failure of the 3rd psrty to comply with what is expected of him, the condition is deemed fulfilled if such party has an interest in the fulfillment or non-fulfillment of the condition, otherwise, the condition cannot be considered fulfilled, and the institution is annulled e. effect ART 1034, par 3. If the institution, devise, or legacy should be conditional, the time of the compliance with Page 93 of 207
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2007A the condition shal also be considered.

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 he 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._______ heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this section.____________________________ TOLENTINO: Negative Potestative Condition - the person instituted under a negative condition has a perfect right to the hereditary property from the moment the succession opens. Such right continues until the moment when he violates the negative condition. The bond may be demanded by those who will succeed upon the violation of the condition. These persons may be the substitute. If one has been appointed, if there is no substitute, then the co-heirs may acquire the property, by right of succession, and if there are no such co-heirs, the legal heirs who would get the property by intestacy. If the condition is violated, the fruits must be returned together with the thing and with interest. If the bond or Caution Muciana is not furnished, the property shall be placed under administration until the condition is fulfilled or it becomes certain that it cannot be fulfilled. The heir is placed in the same position as one whose institutions is subject to a suspensive condition. 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.________ TOLENTINO: Administration under suspensive condition - when the institution is under a suspensive condition, the right of the heir is not definitely transmitted to him until the condition is fulfilled. This is the reason for the administration. Upon the happening of the condition, the property must be delivered to the administrator to the heir. If it becomes certain that the condition cannot be fulfilled, .then the administrator must deliver the property to the person entitled thereto. When institution is with a term - as to the institution with a term, there is a conflict between this article and Art 855, the present article provides that in such institution, the property shall be placed under administration which, under Art 881 shall be governed by the rules of court; but in Art 885, the property must be given to the legal heir, until the arrival of the term or period. This article, therefore, must be construed as limited to institutions under a suspensive condition. If the institution is with a term, 855 should apply. 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. ART 884. Conditions imposed by the testator upon the Page 94 of 207 MAGIC NOTES: Suspensive Condition Q: In suspensive conditions, when must the condition be fulfilled? A: It depends on the nature of the suspensive condition imposed. Q: Comment on the rule when the condition is potestative. A: there is a problem with this rule. Is this reasonable if though the learning of the T's death, the will was not yet discovered? How can the heir possibly comply with it? It would seem that he should comply with the condition within a reasonable time from the time he leams of the condition. And if he fails to comply with the condition within a reasonable time upon the learning of the condition, it should be deemed as a renunciation of the inheritance. Why? Because the fulfillment of the condition depends ~> entirely on his will. An exception to this rule is when the condition has already been complied with and it cannot be complied with again. If the condition has been fulfilled before the Ts death but it mat be fulfilled again, then the heir has to comply again with the same. Note: Under the law of contracts, an obligation dependent entirely on the will of the debtor is void. But in succession, it is valid. Q: May a 3* person perform for the heir? A: NO. As a general rule, substitute performance is not allowed. Q: Suppose the heir fails to comply with the conditions despite his best efforts, will he inherit? A: According to Tolentino and Caguioa. the condition is deemed fulfilled. DanCon: I do not know why we should consider the condition as deemed fulfilled. !f the condition is potestative, I do not know why the condition cannot be complied with. If it cannot be complied with because of some other factors, then it is not purely potestative. Q: In the case of casual or mixed conditions, if the T has knowledge that the condition cannot be complied with or the condition has occurred and despite such knowledge, he still imposed the condition in his will, should the heir comply with it again? A: Yes. There arises the presumption that the T wants the heir to comply with the conditions again. Please take note of the distinction. In purely potestative suspensive condition, the heir cannot comply with the condition before the T's death. But in the case of casual or mixed conditions, the condition may be complied with even before the death of the T unless the T provides in his will otherwise.

The reason behind the distinction is this. The happening of the condition in the case of casual or mixed conditions does not depend on the heir's will. He has no control over the condition and therefore the happening of the condition before the dea'h of the T should be deemed as compliance with the condition
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2007ACD Note: there is no right of representation in voluntary Q: succession even if the condition happened. There is no transmission of rights. A: Q: Suppose the T instituted the heir subject to a suspensive condition. The T died followed by the heir before the happening of the suspensive condition. Two days after the death of the heir, the condition happened. Who will inherit? A: The legal heirs of T will inherit. Under Art 759 of the Old CC, an heir who died before the condition is fulfilled, even if he survives the T, transmits no rights whatsoever to his Q: heirs. While he has acquired a vested right in A: the j.^, inheritance, the vested right is not complete until the 50 condition is fulfilled. Under the New CC, there is no such ~"I provision. But the rule holds because Art 1034(3) which requires that the heir should have capacity not only at the time of the Ps death but also at the time of the fulfillment of the condition. If he has no capacity at the time of the happening of the condition, he cannot inherit. Hence, applying Art 1034, since he died before the happening of the condition, he did not transmit anything to his heirs. The legal heirs of the T will be the one entitled to inherit. Q: Q: Before the happening of the condition, to whom will the property go? A: A: Under Art 220. the property should be placed under administration. Why? Because before the happening of the condition, no one is entitled to inherit it as yet. Hence, no one is entitled G: to the property and therefore it should be placed under A: administration. The administrator has the obligation to preserve the property and to collect the fruits and upon the happening of the condition, to turn it over to the conditional Q: heirs together with the fruits. But when the non-happening A: of the condition becomes certain, the administrator should turn over the property and the fruits to the legal heirs Q: Resolutorv Condition Q: Suppose the heir dies before the happening of the A: resolutory condition but after the death of the T, who will get the property, the heirs of the resolutory heirs or the legal heirs? A: it depends. If the death of the heir will make the non-happening of the resolutory condition certain, then the heirs of the resolutory heir will get the property. Why? Because the resolutory heir is an heir from the start. It is Q: only subject to the resolution of his rights on the happening of the resolutory condition and if this condition A: is potestative and he died, the nonhappening of the resolutory condition becomes certain by his death, the Q: heirs of the resolutory heir will get the property. A: Q: Suppose the resolutory condition is not dependent on the will of the resolutory heir or its non-happening was not rendered certain by the death of the heir, to whom will the property go? A: to his heirs because he., is still the owner of the property which will become part of his estate but his heirs will get the property subject to the resolutory condition, the happening of which will cause the reversion of the inheritance to the legal heirs unless the T provided that the happening of the resolutory condition should only be effective during the lifetime of the resolutory heir. Page 95 of 207 May a condition be imposed by a T successivety (on the condition heirs then on the heirs of the conditional heirs)? In the case of substitution, there is a provision in the Code that any condition or charge imposed on fte heir may be imposed on the substitute. An institution subject to a resolutory condition may be considered as a species of substitution although not strictly because it is not a case of predecease, incapacity or renunciation. Thus, the property will go to the heirs but are still subject to the resolutory condition. Will the death of the resolutory heir extinguish the condition? If the happening of the resolutory condition depends entirely on the will of the heir, then its non-happening becomes certain and therefore the ownership which the resolutory heirs will get becomes absolute. But if the condition can stil! happen despite the death of the heir, then the heirs of the resolutory heir will get the property subject to the resolution thereon by the happening of the condition. What is the safeguard against the destruction by the resolutory heirs of the property to defeat its passing to the legal heirs upon the happening of the resolutory condition? The requirement of a bond called caucion muciana. Caucion muciana is imposed only if the condition is potestative under Art 679. Who will demand for the bond? the heirs who wilt succeed upon the happening of the resolutory condition. How much is the bond? the security must be equivalent to the value of the inheritance. Art 879 refers to potestative conditions. Will it apply to mixed resolutory conditions? The code is silent. DanCon: the right of the heirs must be annotated on the back of the title of real property so that prior purchasers will receive constructive notice. But if the property is personal, security must be given. Commentators agree that a bond must be given for all resolutory conditions what is the effect if the resolutory heir fails to comply with the bond? The property will be placed under administration. (Art 880).

Until when? Caguioa: Until the heir has given a bond. DLC: Within a reasonable time because if the resolutory heir does not pose the bond within a reasonable time, it may amount to a renunciation of the inheritance on his part. Thus, if the condition is purely potestative and resolutory: (1) if the heir gives a bond, he will enter into the inheritance (2) if the heir does not give a bond, it shall be placed under administration. (3) If the heir later gives bond, he inters into the inheritance and the administration will end. But, if the heir does not give a bond, the administration will end when:
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2007A I I1 I (1) resotutory cantSHon happens, so the property goes to the legal heirs; (2) There is a certainty frat the condition wM not happen, the property will then go to the heirs of the resolutory heirs. The heirs of the resolutory heirs receive the property subject to the condition. But if the condition is potestative and resolutory. the heirs of the resolutory heir will receive it absolutely. 3. with a term a. kinds ART 885, 1" paragraph. The designation of the day or time when the effects of the institution of an heir shall commence or cease shaH be valid. TOLENTINO: When the institution is from a day certain the T may designate a person who will enjoy the property until the day comes when the instituted heir shall take it; likewise, when the institution is to a day certain or in diem, he may appoint another to succeed the instituted heir. Art 885 should be construes merely as suppletory, applying when the T has not provided otherwise. b. Effect 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. TOLENTINO: Term distinguished from a condition - While a condition is an uncertain event which may or may not happen, a term is sure to happen or to arrive, even if the exact date of such happening or arrival may be uncertain. In a conditional institution, therefore, the acquisition of the rights of the heir depends upon the happening of the condition such that if the condition does not happen, the heir does not succeed. But in an institution with a term, the right is already transmitted to the heir upon the death of the T; the term merely serves to determine the demandability of such rights already acquired. Like the condition, the term may either be "suspensive" or "resolutory*. It is suspensive when the inheritance can be delivered to the heir only upon the arrival of the term; and it is resolutory when the inheritance is delivered immediately to the instituted heir, who holds it until the arrival of the period. The former is also called ex die; and the latter in diem. Effects of suspensive term -the present article refers to the effect of a suspensive term. The heir instituted under a suspensive term acquires his right from the moment of the Ts death, therefore, even if such heir should die before the term arrives, his right is no longer affected. Effects of suspensive:' condition - the effect of a suspensive condition was stated in Art 759 of the old civil code as follows: "An heir or legatee who dies before the condition is fulfilled, even if he survives the testator, transmits no right whatever to his rights Successions! rights, in institutions with a suspensive condition, as distinguished from a suspensive term, are transmitted only upon the happening of the condition Page 96 of 207 although the effect retroact to the moment of the Ts death. It is for this reason that Art 1034 (3rd par) requires that the capacity of the conditional heir, devisee, or legatee must be determined not only at the time of the death of the T but also at the time of the happening of the condition. If the heir, devisee or legatee dies before the happening of the condition, his personality disappears and his capacity to succeed terminates at the moment that he dies, he has not yet acquired any rights, and therefore he cannot transmit any to his own heirs. Even if the condition happens later, there can be no more acquisition of rights by him, because he would have no more capacity to succeed by that time. ART 885, 2 par. 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 until after having given sufficient security with the intervention of the instituted heir. TOLENTINO Right of 1st heir - In both kinds of institutions, ex die and in diem, the heir who 1* takes the property is bound to preserve the property until the arrival of the day when the instituted heir's or legatee's enjoyment thereof begins (in ex die) or terminates (in in diem). He is merely a usufructuary during the time of his profession and cannot validly alienate it. The law requires the first heir to furnish the security only when the institution is ex die. If such legal heir fails to furnish the security required, his failure will be equivalent to renunciation and the heir next in the order of the intestate succession will be called, upon filing the security; if the next in order does not file the security, the order of succession will be followed until the State succeeds. The state should not be required to furnish the security.

There are some who sustain the view that if the institution is ex-due, and there are administration proceedings, the administrator continued to hold the property until the day arrives. This is the error which the Code Commission made in Art 880. this solution would be proper in cases of institutions subject to suspensive condition because pending the condition, it is uncertain whether the conditional heir or his substitute, it any. or his co-heirs would ultimately get the property. This solution would not be proper in institutions ex-die, where the identity and the right of the heir are certain and only the commencement of his enjoyment is suspended. The legal heir who is called to the property until the day arrives, is not merely ^n administrator who must account, but also usufructuary who has the right to enjoy it. Cf. 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.________ MAGIC NOTES: Suspensive Term
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2007A Q: If the term is suspensive and the suspensive heir dies before the testator, will the heirs of the suspensive heir inherit upon the arrival of the term? A: No. because before the death of the T. he is still a voluntary heir and transmits nothing. Q: Suppose the T dies and before the happening of the term, the heir died. Upon the arrival of the term, will the heirs of the suspensive heir inherit? A: Yes, they can inherit under Art 878. An heir subject to a suspensive term transmits rights to his heirs even if he dies before the srrival of the term. Why? Because the T in providing for a term merely postpone delivery of the property and intended the property to be ultimately go to the heir instituted. He merely postponed the entry into the successive inheritance. Q: But before the arrival of the term, who gets the property? A: Under Art 885. the legal heirs will get the property. Under Art 880, the administrator will get the property. Under the Old Civil Code. Art 885 only rule and therefore the legal heirs get the property. But because of the insertion in Art 880 of the word "term", there is now a conflict. But authorities are unanimous in saying that it is Art 885 that should be applied in case is institution is subject to a suspensive term. DanCon: Art 885 should prevail in case of term Q: What is the nature of the rights of the legal heirs pending the happening of the term? A: they merely get the usufruct of the property. They are not required to turn over the frurts. Otherwise, they will be merely administrators which are not different with the administrators under Art 880. this is unlike an institution subject to a suspensive condition where those legal heirs do not receive the fruits. Q: May the legal heirs alienate the property? A: No, because it is not theirs but they can alienate the usufruct. The third party will get the property subject to the arrival of the suspensive term Q: What if the legal heirs alienate or dispose of the property nevertheless? A: the heirs subject to the term shall go against the security given by the legal heir. The term "commence" under Art 885.1* paragraph, refers to suspensive condition. Dan Con's Analysis of Art 885(2) Q: What is the meaning of "in both cases"? A: First case, suspensive term. When the legal heirs give a bond they will never enter the property. If the legal heirs refuse to give bond. Tolentino says it amounts to a renunciation of that heir, hence, it will go to the next legal heir, and so on, until there is no more legal heir. So it will then pass on to the State which is also a legal heir. If the legal heirs give a bond, they shall enter into the inheritance. Second case, resolutory term. When there is a resolutory term, the legal heirs are instituted subject to a suspensive term. But it is the legal heir subject to the term who will enter. Q: is (he heir required to give a bond? Page 97 of 207 A: No. this is the loophole in Art 885. in the opinion of OanCon, the resolutory heir must also give a bond. In case of resolutory term, .the heir is entrtted to a ._. usufruct c4. modal 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 the 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.________ TOLENTINO: Modal institution - A modal institution or "institucion sub modo", is one where the testator states the following: (1) the object of the institution, or (2) the purpose of the application of the property left by the testator; or

(3) the charge imposed by the creator upon the heir Mods and Condition - 'Mode" imposes obligation upon the heir or legatee, but it does not affect the efficacy of his rights to the succession, differing in this respect from condition. In general, mode is obligatory except when ii is imposed for the benefit of the heir or legatee himself. Thus, the "condition suspends but does not obligate; and the mode obligates but does not suspend." The condition is fulfilled in order to acquire a perfect right as heir or legatee, while the mode is complied Kith because of being already an heir or legatee. In case of doubi, the institution should be considered as modal and not conditional. It should not be understood, however, that every expression of the wish of the testator, not constituting a condition, should be considered as a mode. In case of doubt, the statement of the testator should not be considered as a mode which imposes an obligation but merely as a suggestion or discussion which the heir or legatee may follow or not. Enforcement of mode - when the modal institution is for the benefit of determinate persons, or of undetermined persons, such persons may demand the compliance of the obligation. But if the mode is for the benefit of one in particular, as for instance, when the heir is ordered to spend a certain amount for the funeral of the testator or for the construction of a mausoleum for the deceased, there is no one who may have an interest sufficient in law to entitle him to bring an action for specific performance. The security furnished by the heir, however, guaranties the performance of the mode. When there is no third party beneficiary of the mode, the legal heirs should be entitled to enforce the security. But if the mode is for the benefit of a 3rd person, then the person may enforce. ART 883. When without 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
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2007AQ: If the term is suspensive and the suspensive heir dies before the testator, will the heirs of the suspensive heir inherit upon the arrival of the term? A: No. because before the death of the T. he is still a voluntary heir and transmits nothing. Q: Suppose the T dies and before the happening of the term, the heir died. Upon the arrival of the term, will the heirs of the suspensive heir inherit? A: Yes, they can inherit under Art 878. An heir subject to a suspensive term transmits rights to his heirs even if he dies before the srrival of the term. Why? Because the T in providing for a term merely postpone delivery of the property and intended the property to be ultimately go to the heir instituted. He merely postponed the entry into the successive inheritance. Q: But before the arrival of the term, who gets the property? A: Under Art 885. the legal heirs will get the property. Under Art 880, the administrator will get the property. Under the Old Civil Code. Art 885 only rule and therefore the legal heirs get the property. But because of the insertion in Art 880 of the word "term", there is now a conflict. But authorities are unanimous in saying that it is Art 885 that should be applied in case is institution is subject to a suspensive term. DanCon: Art 885 should prevail in case of term Q: What is the nature of the rights of the legal heirs pending the happening of the term? A: they merely get the usufruct of the property. They are not required to turn over the frurts. Otherwise, they will be merely administrators which are not different with the administrators under Art 880. this is unlike an institution subject to a suspensive condition where those legal heirs do not receive the fruits. Q: May the legal heirs alienate the property? A: No, because it is not theirs but they can alienate the usufruct. The third party will get the property subject to the arrival of the suspensive term Q: What if the legal heirs alienate or dispose of the property nevertheless? A: the heirs subject to the term shall go against the security given by the legal heir. The term "commence" under Art 885.1* paragraph, refers to suspensive condition. Dan Con's Analysis of Art 885(2) Q: What is the meaning of "in both cases"? A: First case, suspensive term. When the legal heirs give a bond they will never enter the property. If the legal heirs refuse to give bond. Tolentino says it amounts to a renunciation of that heir, hence, it will go to the next legal heir, and so on, until there is no more legal heir. So it will then pass on to the State which is also a legal heir. If the legal heirs give a bond, they shall enter into the inheritance. Second case, resolutory term. When there is a resolutory term, the legal heirs are instituted subject to a suspensive term. But it is the legal heir subject to the term who will enter. Q: is (he heir required to give a bond? Page 97 of 207 A: No. this is the loophole in Art 885. in the opinion of OanCon, the resolutory heir must also give a bond. In case of resolutory term, .the heir is entrtted to a ._. usufruct c4. modal 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 the 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.________ TOLENTINO: Modal institution - A modal institution or "institucion sub modo", is one where the testator states the following: (1) the object of the institution, or (2) the purpose of the application of the property left by the testator; or (3) the charge imposed by the creator upon the heir Mods and Condition - 'Mode" imposes obligation upon the heir or legatee, but it does not affect the efficacy of his rights to the succession, differing in this respect from condition. In general, mode is obligatory except when ii is imposed for the benefit of the heir or legatee himself. Thus, the "condition suspends but does not obligate; and the mode obligates but does not suspend." The condition is fulfilled in order to acquire a perfect right as heir or legatee, while the mode is complied Kith because of being already an heir or legatee. In case of doubi, the institution should be considered as modal and not conditional. It should not be understood, however, that every expression of the wish of the testator, not constituting a condition, should be considered as a mode. In case of doubt, the statement of the testator should not be considered as a mode which imposes an obligation but merely as a suggestion or discussion which the heir or legatee may follow or not. Enforcement of mode - when the modal institution is for the benefit of determinate persons, or of undetermined persons, such persons may demand the compliance of the obligation. But if the mode is for the benefit of one in particular, as for instance, when the heir is ordered to spend a certain amount for the funeral of the testator or for the construction of a mausoleum for the deceased, there is no one who may have an interest sufficient in law to entitle him to bring an action for specific performance. The security furnished by the heir, however, guaranties the performance of the mode. When there is no third party beneficiary of the mode, the legal heirs should be entitled to enforce the security. But if the mode is for the benefit of a 3rd person, then the person may enforce. ART 883. When without 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
REVIEWER IN SUCCESSION

2007Aconformity with his wishes. If the person interested in the condition should prevent its fulfilment without the fault of the heir, the condition shatt be deemed to have been complied with. TOLENTINO: Constructive compliance - in modal institutions, if the person for whose benefit the mode has been imposed should renounce his right there is, of course, no need of compliance with the wishes of the testator, but, if the 3rd party beneficiary seeks to enforce the obligation, and it cannot be complied with in exact terms of the will, then comoliance must be in terms most analogous to and in conformity with the wishes of the testator. If the fulfillment is prevented by the intestate heirs, however, who would legally take the property with its fruits and interests upon non-compliance with the obligation, then the obligation should be construed as fulfilled by analogy to the rules on the fulfillment of conditions. MAGIC NOTES: As a rule, a mode shall not be considered a condition unless it appears that such was the intention of the T. the mode must clearly he expressed or inferred from the will. In case of doubt, the statement shall not be considered as a mode and shall be regarded as a request or suggestion by the T to the heir. Q: How is the obligation imposed enforced? A: By the giving of security. Q: Who shall demand the giving of security? A: The 3rd party for whose benefit the obligation was imposed or the legal heir of the T. Q- If the mode is not followed, what is the effect? A: Penalty or returning the thing received together with the fruits and interests Caguioa: If this is so, of the heir, by his failure tc comply with the obligation imposed by the T, must return the thing received, then it is a resolutory condition. It becomes a resolutory condition because he loses his inheritance. NOTE: Effect of non-compliance: (1) security will answer (2) or property will be placed under the administration, and the fruits and interests shall be used to satisfy the obligation or mode imposed. Q: What then is the difference between a resolutory condition and a modal institution? A: Caguioa believes that in that case, the modal institution will just be a species of a conditional institution, the condition being resolutory, Look at Art 880. par 2 which states, "That which has been left in this manner may be claimed at once ..." that is the difference between a condition and a mode, "...provided that the instituted heirs or his heirs give security for the compliance of the wishes of the T ..." So if he does not comply, the security will answer but he will not lose the inheritance because if he loses the inheritance, it becomes a resolutory condition and not merely a mode, however, the law did not stop there. "... and for the return Page 98 of 207

of anything he or they may receive together with its fruits and interests, if he or they should disregard the condition." So if they do not comply with the obligation imposed, they lose the inheritance so that the mode becomes a resolutory condition. What then is the difference between a resolutory condition and a modal institution? Because of this. Justice Caguioa advanced the opinion that a modal institution is nothing but a conditional institution, the condition being resolutory. If he is correct, then we should rewrite the books on succession and remove the section on modal institution. ARJTSO
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2007A XIV. LEGITIME /.. TOLENTINO: There are 3 principal systems of distribution of hereditary property: (a) the system of absolute freedom of distribution; (b) the system of total reservation; and (c) the system of partial reservation. Our Civil code, as in the old CC, has preserved the system of partial reservation. This means that the inheritance is divided into the free part and the legitime. The amount of the legitime may either be variable (depending on the number of children), or it may be a fixed quota. However, changes have been made with respect to the amounts that the compulsory heir should receive; illegitimate children have been made compulsory heirs, but with a small amount of legitime; and the legitime of the surviving spouse have been changed from a mere usufruct to full ownership. 1. concept ART 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.____________________ TOLENTINO: Nature and Purpose of leqitime - the system of legitime is a limitation upon the freedom of the T to dispose of his property. Its purpose is to protect those 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. Thus, the testator cannot impose any lien, substitution or condition on the legitime. It is to be noted, however, that although the system of legitime limits the Ts right to dispose of property mortis causa, the limitation upon acts inter vivos is confined to dispositions by lucrative or gratuitous title. When the disposition is for valuable consideration, there is no diminution of the estate, but merely substitution of values. The legitime does not consist in determinate or specific property which the testator must reserve for his compulsory heirs. It consists of a part or fraction of the entire mass of the hereditary estate. The standard of measure for its determination is fixed by the law, but the quantity may vary according to the number and relation of the heirs to the testator. 2. who are entitled ART 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 Art 287 (which article states that illegitimate children other than natural in accordance with Ant 269 and other natural children by legal fiction are entitled to support and such other successional rights as are granted in this code; Art 269 states that children'; bom outside wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, 'are natural) 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. Page 99 of 207 TOLENTINO: Concept of Compulsory heir -3 kinds of heirs may be distinguished: (a) the voluntary heirs who become such only by the express will of the testator; (b) the legal or intestate heirs who are called by the law to the succession in the absence of voluntary heirs designated by the testator; and (c) the compulsory heirs, for whom the legitime is reserved by the law, and who succeed whether the T likes it or not, for they cannot be deprived by the T of their participation in the inheritance except when the T

has so disposed of his property. The difference between the compulsory and intestate heir is that the intestate heir succeeds only when the deceased has not disposed of his property by will; white the compulsory heir succeeds to his legitime even when the T has so disposed of his property. The law on legitime is a restriction, not on the freedom of the heir to accept or repudiate the inheritance, but on the freedom of the T to dispose of his property. Kinds of Compulsory Heirs - the primary compulsory heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants are primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the primary heirs; the legitimate parents and ascendants are the 2ndary compulsory heirs. The concurring compulsory heirs are those who succeed together with the primary and secondary heirs; the illegitimate children and the surviving spouse are concurring compulsory heirs. Legitimate Children and Descendants - in the category of "children and descendants" as compulsory heirs. The nearest in degree exclude the more remote, except in cases where representation is proper. Legitimate children - they are compulsory heirs in the same manner as legitimate children Adopted children - with the change introduced in the Family code, the successional rights of the adopted child, in relation to the adopting parents, are exactly the same as those of the legitimate child in relation to is parents. Parents and ascendants - the legitimate parents and ascendants are suppletory or secondary compulsory heirs, and are entitled to the legitime only when the deceased does not in turn have legitimate children and descendants. But the concurrence of illegitimate children and their descendants with parents or ascendants of the deceased is not an obstacle to the forced succession of the parents
REVIEWER IN SUCCESSION

2007A and ascendants because the share of the fflegrtimate children are taken from the free portion and do not affect the legitime of the parents and ascendants. Illegitimate parents - the parents of the iBegitimate children are compulsory heirs of the latter only in the cases and to the extent provided for by Art 903. they are excluded by legitimate or illegitimate children of their deceased natural or illegitimate children of their deceased natural or illegitimate child. They are compulsory heirs, therefore, only in the absence of legitimate, or illegitimate children of the decedent. Adopting parents - Tolentino is of the opinion that in spite of Arts 189 and 190 of the Family Code and the implied repeal of Art 342 of the civil code, the adopting parents are not compulsory heirs of the adopted. The fact that Art 190 of the FC enumerates the cases where the adopters inherit by legal or intestate succession to the estate of the deceased adopted person (not making him generally a legal heir), and is silent as to their becoming compulsory heirs, indicates that the latter was not intended. . Adoption is for the benefit of the adopted, and unless the law clearly intends to favor the adopted, all doubts should be resolved against him. Because of the silence of the iaw on legitimes. he cannot be entitled to the legitime of the legitimate parents; and in the law of intestacy, he is not given, in general, the same rights as a legitimate parent but only such as are specifically provided in Art 190 of the Family Code Illegitimate Children - the Family Code has abolished the distinction among illegitimate children, and now classifies all of them as illegitimate children with the same rights. Paragraphs 4 and 5 of Art 887 are merged into one as a group of compulsory heirs. The present article requires nothing else other than that the illegitimate children proves their filiation, which does not mean that they must first be recognized by their putative parents. Enforcement of New right - the successional rights recognized by the present Civil Code in favor of illegitimate children can be claimed only by those whose parents die after the effectivity of the Code. Successional rights are transmitted from the moment of death of the decedent. If the parent had died before the new code took effect, other persons had already succeeded mortis causa. Such heirs under the Old Code have already acquired vested rights to the inheritance from the moment of the succession opened; they cannot be deprived of those rights by the provisions of the present Code creating a new right in favor of illegitimate children. It is the death of the parent, and not the birth of the illegitimate child, which determines the right of such child to succeed. The Surviving Spouse - the condition of being a surviving spouse requires that there should have been a valid marriage between the deceased and the survivor. If the marriage is null and void ab initio, the survivor in the supposed marriage is not a surviving spouse entitled to a legitime. In cases of a bigamous marriage, however, where the 2 wives contract the marriage in good faith, it has been held in this jurisdiction that both widows are entitled to inherit from the deceased husband. They share equally in the portion which is the legitime of the surviving Page 100 of 207 spouse (not sure if statement is valid under the Family Code)

If the marriage is not void ab initio, but merely voidable or annullable, then there is an existing marriage which remains valid and produces civil affects until set aside by a competent court. The marriage must by subsisting at the time of the death of one of the parties, in order that the survivor can be called a widow or widower and thus be entitled to a legitime. Effect of Legal Separation - Under Art 892, "In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same." This rule is reproduced in Art 63(4) of the Family Code. The intention of the law is to exclude the guilty spouse from the succession, testate or intestate. Therefore, in case there has been a legal separation, the widow or widower will be entitled to succeed only when he or she is the innocent ~~J spouse. ? Effect of Reconciliation - Under Art 108 of the CC and Art 66(2) of the FC, the rule is the same that reconciliation '" stops the proceedings for legal separation and rescinds . the decree of legal separation already rendered. If. after such reconciliation, one of the spouses should die, the survivor gets his or her legitime regardless of whether he or she is the guilty party. Death before Decree - if death should occur during the pendency of the legal separation proceedings, the action should be allowed to continue, not for the purpose of the suspension of the marriage, which is already dissolved by death, but for the purpose merely of determining whether or not there is ground for iegal separation. Upon determination rests the rights of the surviving defendant spouse to the legitime. The innocent spouse can be substituted in the action by his or her executor or administrator. , . . If it is the defendant (who would be the guilty spouse) who should die before the final decree, then the action should terminate. The survivor being the plaintiff (who is the innocent spouse), there is no question as to his or her right to the legitime of the deceased party spouse. Hence, there would be no need for allowing the proceeding to continue. Separation in fact - Separation of the spouses by virtue of an amicable agreement between thena is not equivalent . to legal separation. Even if the separation^! fact has been due to causes which could have been sufficientssustain an action for legal separation. Nevertheless,\there being no judicial decree of legal separation, the right to the legitime is preserved. Amounts of legitmes - Arts 888 to 903 determine the amounts of legitmes of the different compulsory heirs, neither inheriting by themselves or in concurrence of compulsory heirs which may call for the ^application of these provisions may be summarized as follows: 1. Leqitimate'children: % of the estate, in equal portions, whether they survive alone or with the concurring compulsory heirs (Art 888) 2. One legitimate child and the surviving spouse: Legitimate child, % of the estate (Art 888); the surviving spouse, % of the estate (Art 892, par 1) 3. Legitimate Children and the surviving spouse: legitimate children, in equal portion^ of Yi of the estate (Art 888); the surviving each legitimate child /REVIEWER IN SUCCESSION 2007A I W 4. Legitimate children and illegitimate children: legitimate children, in equal portions of % of the estate (Art 888); each illegitimate childifety V4 of the share if each of the legitimate children (Art 176. FC) 5. One Legitimate child, illegitimate children and the surviving spouse: legitimate children, Vi of the estate (Art 888); each illegitimate child. V4 of the share of each of the legitimate child (Art 176. FC). the surviving spouse. % of the estate (Art 892, par 1). All the concurring heirs get from the half free portion, the share of the surviving spouse having preference over those of the illegitimate children, whose share may suffer reduction, pro-rate because there is no preference among themselves (Art 895. last paragraph) 6. Legitimate children, illegitimate children and the surviving spouse: the children receive the same as in no. 5 and the surviving spouse gets a share equal to that of each legitimate children (Art 892(2). 897 and 898) 7. Legitimate parents: % of the estate, whether they survive alone or with compulsory heirs (art 889) 8. Legitimate parents and illegitimate children: legitimate parents, % of the estate (Art 889)' illegitimate children, in equal shares. % of the estate (Art 896) 9. Legitimate parents and the surviving spouse: legitimate parents. Vt of the estate (Art 899); illegitimate children, in equal shares of Vi of the estate (Art 893) 10. Legitimate parents, illegitimate children and surviving spouse: parents and children, same as no 8; the surviving spouse. Ve of the estate (Art 899) 11. illegitimate children alone: all together get Vz of the estate (Art 901); they divide the portion equally 12. Illegitimate children and the surviving spouse: all the children together divide h of the estate equally (Art 894); the surviving spouse, '/3 of the estate (Art 894) 13. Surviving spouse alone V of the estate, or V3 , if marriage is an articuto mortis and deceased dies within 3 months after marriage (Art 900) 14. Illegitimate parents alone: % cf the estate (Art 903) 15. Illegitimate parents and children of any class': the illegitimate parents, none (Art 903); the children, same as in no 1.6 and 11 as the case may be

16. illegitimate parents and the surviving spouse: illegitimate parents. % of the estate; and surviving spouse, % of the estate (Aft 903) General observations: (a) When the compulsory heir or compulsory heirs of the same kind survive alone, without the concurrence of other kinds of compulsory heirs, except that of the surviving spouse (which is 1/3 of the estate) when the deceased spouse dies within 3 months after a marriage in articulo mortis. We may call this portion (Vi) of the estate as the basic legitime. (b) The legitmes of children are graduated according to their status, so that the illegitimate child gets less than the legitimate child. (c) Not only is the legitime of the legitimate children bigger in amount than that of the other kinds of children, but it is also preferred in character; the legitimes of illegitimate children are subject to reduction in certain cases, but that of the legitimate child is never reduced (d) There is no absolutely fixed criterion for the legitime of the surviving spouse. When concurring with one legitimate child, she gets only half of the legitime of the child, but with several legitimate children, she is places at par with them; and when concurring with illegitimate children or illegitimate parents alone, she is also placed at par with them. However, when she ^ concurs with legitimate parents and illegitimate Jl- children, the legitime is less than that of the I illegitimate children. Thus, in one case she is placed ;*: on the level of legitimate relatives, than in another CD case at par with illegitimates, and in still another case, lower than the illegitimates. 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. TOLENTINO: This article grants the rights of representation to children of an illegitimate child. By its terms, only the rights of illegitimate children "set forth in the preceding articles" are transmitted upon their death to their descendants, whether legitimate or illegitimate. This would mean only the iegitime of the illegitimate child granted and specified in Arts 894, 895, 896, 899 and 901. This article has no application to intestate succession; the right to represent an illegitimate child in intestate succession is to be found in Arts 989 and 990. . ~? Children of Legitimate Chiid -/QBJyJIIegitimate children -V of an illegitimate drikf are given ffie right of representation 1 in this artide^There is no (aw or provision en the present I Code which expressly gives this right to the illegitimate I children of a legitimate child. < In Conde v. Abaya, the SC affirmed the principle that the heirs of a natural child cannot be in a better position than the heirs of a legitimate chttd. Can we also recognize in the illegitimate descendants of a legitimate child the right of representation which the present article confers upon the illegitimate descendants of an illegitimate child? We cannot, because we are confronted with an express provision of the law which bars it. Art 992 provides that 'an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother.* Hence, the illegitimate child cannot represent his father or mother in the succession of the tatter's legitimate parent or ascendant. In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Code. But in retaining without change the provisions of the old Code in Art 992. it created an absurdity and committed an injustice, because while the illegitimate descendant of an J illegitimate child cannot. Shares in Representation succession by representation is as much by operation of law as is succession in intestacy; hence, the rule as to the manner of dividing the inheritance should be the same. When right arises - even ja the illegitimate child to be represented had been before the Civil code took effect, if the parent died after the promulgation of the said code, then the rules of the Civil Code governs. / Page 101 of 207
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2007A 4. Legitimate children and illegitimate children: legitimate children, in equal portions of % of the estate (Art 888); each illegitimate childifety V4 of the share if each of the legitimate children (Art 176. FC) 5. One Legitimate child, illegitimate children and the surviving spouse: legitimate children, Vi of the estate (Art 888); each illegitimate child. V4 of the share of each of the legitimate child (Art 176. FC). the surviving spouse. % of the estate (Art 892, par 1). All the concurring heirs get from the half free portion, the share of the surviving spouse having preference over those of the illegitimate children, whose share may suffer reduction, pro-rate because there is no preference among themselves (Art 895. last paragraph) 6. Legitimate children, illegitimate children and the surviving spouse: the children receive the same as in no. 5 and the surviving spouse gets a share equal to that of each legitimate children (Art 892(2). 897 and 898) 7. Legitimate parents: % of the estate, whether they survive alone or with compulsory heirs (art 889) 8. Legitimate parents and illegitimate children: legitimate parents, % of the estate (Art 889)' illegitimate children, in equal shares. % of the estate (Art 896)

9. Legitimate parents and the surviving spouse: legitimate parents. Vt of the estate (Art 899); illegitimate children, in equal shares of Vi of the estate (Art 893) 10. Legitimate parents, illegitimate children and surviving spouse: parents and children, same as no 8; the surviving spouse. Ve of the estate (Art 899) 11. illegitimate children alone: all together get Vz of the estate (Art 901); they divide the portion equally 12. Illegitimate children and the surviving spouse: all the children together divide h of the estate equally (Art 894); the surviving spouse, '/3 of the estate (Art 894) 13. Surviving spouse alone V of the estate, or V3 , if marriage is an articuto mortis and deceased dies within 3 months after marriage (Art 900) 14. Illegitimate parents alone: % cf the estate (Art 903) 15. Illegitimate parents and children of any class': the illegitimate parents, none (Art 903); the children, same as in no 1.6 and 11 as the case may be 16. illegitimate parents and the surviving spouse: illegitimate parents. % of the estate; and surviving spouse, % of the estate (Aft 903) General observations: (a) When the compulsory heir or compulsory heirs of the same kind survive alone, without the concurrence of other kinds of compulsory heirs, except that of the surviving spouse (which is 1/3 of the estate) when the deceased spouse dies within 3 months after a marriage in articulo mortis. We may call this portion (Vi) of the estate as the basic legitime. (b) The legitmes of children are graduated according to their status, so that the illegitimate child gets less than the legitimate child. (c) Not only is the legitime of the legitimate children bigger in amount than that of the other kinds of children, but it is also preferred in character; the legitimes of illegitimate children are subject to reduction in certain cases, but that of the legitimate child is never reduced (d) There is no absolutely fixed criterion for the legitime of the surviving spouse. When concurring with one legitimate child, she gets only half of the legitime of the child, but with several legitimate children, she is places at par with them; and when concurring with illegitimate children or illegitimate parents alone, she is also placed at par with them. However, when she ^ concurs with legitimate parents and illegitimate Jl- children, the legitime is less than that of the I illegitimate children. Thus, in one case she is placed ;*: on the level of legitimate relatives, than in another CD case at par with illegitimates, and in still another case, lower than the illegitimates. 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. TOLENTINO: This article grants the rights of representation to children of an illegitimate child. By its terms, only the rights of illegitimate children "set forth in the preceding articles" are transmitted upon their death to their descendants, whether legitimate or illegitimate. This would mean only the iegitime of the illegitimate child granted and specified in Arts 894, 895, 896, 899 and 901. This article has no application to intestate succession; the right to represent an illegitimate child in intestate succession is to be found in Arts 989 and 990. . ~? Children of Legitimate Chiid -/QBJyJIIegitimate children -V of an illegitimate drikf are given ffie right of representation 1 in this artide^There is no (aw or provision en the present I Code which expressly gives this right to the illegitimate I children of a legitimate child. < In Conde v. Abaya, the SC affirmed the principle that the heirs of a natural child cannot be in a better position than the heirs of a legitimate chttd. Can we also recognize in the illegitimate descendants of a legitimate child the right of representation which the present article confers upon the illegitimate descendants of an illegitimate child? We cannot, because we are confronted with an express provision of the law which bars it. Art 992 provides that 'an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother.* Hence, the illegitimate child cannot represent his father or mother in the succession of the tatter's legitimate parent or ascendant. In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Code. But in retaining without change the provisions of the old Code in Art 992. it created an absurdity and committed an injustice, because while the illegitimate descendant of an J illegitimate child cannot. Shares in Representation succession by representation is as much by operation of law as is succession in intestacy; hence, the rule as to the manner of dividing the inheritance should be the same. When right arises - even ja the illegitimate child to be represented had been before the Civil code took effect, if the parent died after the promulgation of the said code, then the rules of the Civil Code governs. / Page 101 of 207
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2007A If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.______________ ART 893. If the testator leaves no legitimate ascendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate._____________________ This fourth shall be taken from the free portion of the estate. ______ __ TOLENTINO: / This article is limited to the concurrence of the surviving spouse with legitimate ascendants of the deceased. If the ascendants are not legitimate. Art 903 applies. TOLENTINO: the legitime of the surviving spouse has been changed from usufruct to full ownership Spouse and Legitimate Descendants - this article applies to a case where the widow or widower survives with a legitimate child or children or descendants of the deceased. The law makes no distinction, and so all children or descendants of the deceased, whether in a previous marriage or in the marriage dissolved by his death, are included. Legitime of Surviving Spouse - the law provides that the surviving spouse is entitle to a portion "equal to the legitime of each of the legitimate children or descendants." This seems to imply that if no children survive, but only descendants, the divisor would be the number of descendants. The law, however, cannot have such absurd meaning. The important thing is the number of children they represent, and not the number of descendants, it to be taken as the divisor. All the children, however, repudiate, the descendants next in degree will succeed in their own right and share equally or per capita. In this case, it would seem that the legitime of the surviving spouse must be equal to that of each defendant. The legitime of the widow or widower should not be reduced by the unilateral act of the children. The divisor must still be the number of children. But if only some of the children repudiate, the bases of computation should be the number of children who accept the inheritance. Institution or Legacy for Spouse if the deceased institutes the surviving spouse to a portion of the estate, or leaves him a devise or legacy, is he entitle to the portion or property given by the will in addition to his legitime? The solution to the problem can be found in the principle which recognizes the supremacy of the will of the testator. The devise or legacy should first be taken from the remaining disposable portion, and if there is any excess of the devise or legacy-over the disposable portion, that excess should be considered as charged against or merged in the legitime of the surviving spouse. This is the same principle underlying the second paragraph of Art 912. If the surviving spouse, however, is instituted to a portion of the state equivalent to his legitime. and the disposable portion is covered by other institutions, devises, or legacies, then such spouse cannot claim more than the portion given to him by the will, which must be considered as merged in his legitime. The testamentary dispositions giving the free portion to other persons must be respected, as long as the legitimes are not impaired. This is in consonance with the principle laid down in Arts. 842 and 906. ART 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.___________ TOLENTINO: The term "illegitimate children" is used in a broad sense, so as to include acknowledged natural children, natural children by legal fiction, and other illegitimate children. ART 895. The legitime of each of the acknowledged natural children and each pf the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child be legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.___________ Page 103 of 207 TOLENTINO: ~Xr This article must be considered as modified by Art 176 of the Family Code; which provides: The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child." Qualifications and Limitations to the rights of Illegitimate Children (1) In order to succeed, their filiation must be duly proven; (2) The share pf all illegitimate children are taken only from the free portion; (3) If there is a surviving spouse concurring with legitimate and illegitimate children, the legitime of the surviving spouse must first be satisfied before the iegitmes of the illegitimate children are given; and (4) In case the total amount of the legitimes of all illegitimate children exceeds what remains of the free portion after deducting the legitime of the surviving spouse, they are subject to reduction. Amount of Leqitime - the basis for computation of the legitime of illegitimate children is the legitime of the legitimate children. Each illegitimate child is entitled to V4 of the legitime of each illegitimate child. If by reason of the number ot^ illegitimate children, the total of the legitimes would exceed the free portion, then all of this will suffer proportionate reduction. The only preference established by law among concurring

compulsory heirs is in favor of the surviving spouse, who gets his or her legitime in full while the illegitimate children must divide proportionally among themselves the remainder of the free portion.
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2007A I 1 I i: i; i i ART 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. ART 897. when the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. ART 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. TOLENTINO: The Family Code has abolished the distinction between natural and other illegitimate children, all of them being grouped now under one class, illegitimate children. 3-I II ii iii ART 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eight of the hereditary estate of the deceased which must be taken from the illegitimate children shall b disposable portion. The testator may freely dispose of the remaining one-eight of the estate. ART 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator dies within three months from the time of the marriage, the legitime of the surviving spouse as ths sole heir shall be onethird of the hereditary estate, except when they have been leaving as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph: _____________ TOLENTINO: Marriage in Articulo Mortis - if the marriage was in articulo mortis and the parlies has not lived together as husband or wife for at least 5 years prior thereto, the legitime of the surviving spouse is reduced to Va of the estate. We believe that this rule will apply only when the deceased is the spouse who was at the point of death at the time of marriage; hence, it will not apply when the spouse who was at the point of death at the time of the marriage is the one who survives, and the other is the one who dies within three months after the marriage. ART 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. ____The other half shall be at the free disposal of the testator. ART 903. The legitime of the parents who have an legitimate chid, when such child leaves neither legitimate descendants, nor a surviving spouse, nor legitimate -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.______ __ TOLENTINO: Illegitimate Parents - the illegitimate parents of the deceased are compulsory heirs only when the latter does not have legitimate of illegitimate children or descendants. When the deceased has legitimate children or descendants, even a legitimate parent or ascendants is excluded as compulsory heir, with more reasons should an illegitimate parent of the deceased be thus excluded. The presence of the surviving spouse of the deceased, however, does not exclude the illegitimate parent as a compulsory heir. Ascendants excluded - Only the parents of illegitimate children are entitle^ to legitime; grandparents and other ascendants are excluded, even when the parents have predeceased them. In illegitimate filiation, the right to succeed in the ascending line terminates with the parent of the deceased illegitimate child. There is, therefore, no reciprocity of succession^ rights between the illegitimate grandparent and the illegitimate grandchild. PD 603, ART 39. Effects oTAdopfem. - The 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 adopted is the spouse of the surviving natural parents; (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, such illegitimate issue collectively or the spouse shall receive onefourth of such property; if the adopted is survived by illegitimate 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 Page 104 of 207
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2007A 3 a i. a i a in Article 895 of the CM! Code. The adopter shaU 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 intestate._____ 4. restrictions regarding the legitime ART 904. The testator cannot deprive his compulsory heirs of the legitime. except in cases expressly specified by law. Neither can he impose upon the same any buiden. encumbrance, condition, or substitution of any kind whatsoever TOLENTINO: Exceptions to the rule - the law provides only one exceptional means by which the compulsory heirs may be deprived of their legitimes by the testator, that is, by disinheritance legally made. There is also one exceptional encumbrance which the testator can impose upon the legitime. He can forbid the partition of the inheritance, including the legitime, for not more than 20 years ART 872. The testators cannot impose any charge, condition or substitution whatsoever upon the legitime prescribed in this Code. Should he do so. the same shall be considered as n$ imposed.__________ TOLENTINO: Encumbrances, conditions or substitutions of any kind, imposed upon the legitime, cannot affect the right of the compulsory heir, and they are simply disregarded and considered as not written. The prohibiiion imposed by this article upon the T, however, applies only with respect to the testamentary dispositions. It has no application to acts inter vivos even when they are by gratuitous or lucrative title, although they may latter be revoked or reduced as inofficious ART 905, Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is voidf and the latter may claim the same upon the death otthe former, but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. ___ TOLENTINO: Reason for Nullity- A future legitime is merely expectancy, and the heir does not acquire any right over the same until the death of the T. Hence, juridically, there is nothing to renounce, and nothing on which to compromise. Moreover, Art 1347 provides that "no contract may be entered into"We future inheritance except in cases expressly authorized by law." Thus, any act in violation thereof would be null and void. Scope of prohibition - Under this article, all renunciations of future legitime are void, whether the renunciation is part of a bilateral act. or whether it is a unilateral act, or whether it is for onerous or gratuitous consideration. Page 105 of 207 But adhering strictly to the language of this article, we may say that not all compromise on future legitime is void under it. They will be void only when "made between the person owing it and his compulsory heirs.* It seems, & therefore, that when the compromise is among the -compulsory heirs themselves, to the exclusion of the | testator, or between compulsory heirs and third persons, ^ or between the testator and third persons, the compromise < > is not prohibited. But it should be remembered that there is a general prohibition in Art 1347 against contracts "upon a future inheritance". Since the legitime is part of the inheritance, and a compromise is a contract, it is obvious that all compromises on future legitime must be held void, not under the provision of this article, but under the general prohibition of Art$f7. Who may claim nullity - the nullity of the renunciation or the compromise may be claimed, not only by the compulsory heir who has made it, but also by any co-heir who may be prejudiced by such act. The nullity may be claimed only after the death of the testator.

Permissible contracts - Under Art 1080, a person may validly make a partition inter vivos of his property, and such partition must be respected, insofar as it does not prejudice the legitime of compulsory heirs. The giving of donations advances of the legitime is not prohibited under the terms of the present article nor of Art 1347. When the compulsory heir makes a voluntary declaration that he has received property from the T, so that it should be considered as part of his legitime upon the death of the latter, such declaration does not constitute a renunciation but merely an acknowledgement of whatever he has received. 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._____ TOLENTINO: 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 of 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 It may happen, however, that the T entirely omits the compulsory heir from the will, but during his lifetime-he has given to such heir some property by way of donation. The evident purpose of Art 906 evidently is to give the heir only that which has been reserved for him by the law if he has not been forgotten by the testator, he is entitled only to that of which the T cannot deprive him. Besides, donations inter vivos to children are not imputable to their legitime; hence, such donations really constitute an advance upon the legitime. and consequently, it is the same as if they had been given to the compulsory heir by hereditary title. If subsequently, such compulsory heir is omitted in the will, the preterition is more apparent than real; the compulsory heir to whom something has already been given cannot reasonably complain of the conduct of the T. He should only be entitled to the completion of his legitime. Tolentino says that the same solution should be reached, even when the compulsory heir has not been mentioned in the will, it has not been given any advance on his legitime,
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2007A if the testamentary dispositions do not cover the entire estate but something has been left undisposed of, and the compulsory heir is also an intestate heir. The undisposed portion would pass by the rules of intestacy to the compulsory heir; if it is not enough to cover his legitime, then he may ask for the completion of such legitime. ART 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. TOLENTINO: While the article mentions only reduction of inofficious testamentary dispositions, dispositions impairing the legitime, not in a will, but in form of donation inter vivos, is also subject to reduction Persons who are not compulsory heirs cannot ask for the reduction of inofficious dispositions. The reduction lies only when the donation or testamentary disposition impairs the legitime. ART 1347. All things which are not outside the commerce of man, including future things, may be the object of a contract. All rights which are not intransmissible may also be the subject 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. __ 5. determination or computation ART 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 hereditaiy estate shall be added the value of all donations by the testator that are subject to collation, at the time he made them TOLENTINO: Steps to determine Leaitime (1) Determination of the value of the property which remains at the time of the testator's death (2) Determination of the obligations, debts, and charges which have to be paid to or deducted from the value of the property thus left; (3) The determination of the difference between the assets and the liabilities, giving rise to the net hereditary estate; (4) The addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and (5) The determination of'the amount of the legitimes by getting from the totalthus found the portion that the law provides as the legitime of each respective compulsory heir Determination of Net Estate - the debts and charges which form the liabilities of the estate are all such are not created by the testamentary disposition. If the obligation is for the first time created by testamentary disposition, as a change upon the heirs or legatees, or as an obligation to Page 106 of 207

be taken from the free part, it is not deductible. But when the testamentary disposition merely recognizes or acknowledges the existence of a pre-existing obfigation and orders its payment then it is deductible. Collation of donations - the purposes of collation has two distinct .concepts/ in one concept, it is a mere mathematical operation by the addition of the value of donations made by the testator to the value of the hereditary estate; in the other, it is the return to.the hereditary estate of the property disposed of by lucrative title by the testator during his lifetime. Within the first concept. Art 1061 provides for a special purpose of collation; namely, so that the property >1 given by the testator by lucrative title may be taken "in the ^ account of the partition." This means, that not only is there \ a numerical or theoretical addition of the value of the ';P=-. donation to the net hereditary estate, but such value is to O be charged against the share of the compulsory heir donee in the legitime. Thus collation in general takes place whenever there is a compulsory heir, even if he be the one only and 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/s. 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. But if there are 2 or more compulsory heir, to one or some of whom the testator had given a donation, then the special purpose of ART. 1061 must be carried out. to protect the share of each compulsory heir in the legitime from encroachment by other compulsory heirs to whom a donation has been given by the deceased; this purpose is attained by charging such donation against the share of the compulsory heir-donee in the legitime. This special purpose cf collation can be defeated by a declaration of the testator that the donations shall not be subject to collation (ART> 1062), in which case it shall be treated as if given to a stranger. The second concept of collation takes place when, after the operation of collation in its 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 such excess. The first concept of collation is contemplated by Arts. 908 and 1071; while the second concept is presumed in Arts. 912 and 1076. Donations to Strangers. - If we bear in mind the distinction in the 2 concepts of collation, and consider that Art. 1061 has a special purpose, it will be clear that all donations, whether made to compulsory heirs or to strangers, are subject to collation in its first concept. The amount of the free portion that may result from this theoretical reconstruction 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. So that if it is not sufficient to cover the amount of the donation, it becomes clear that the excess of the amount of the donation encroaches upon the legitime by creating a shortage in the available assets for the payment of such legitime. It is only when
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2007Asuch shortage results that it becomes necessary to reduce the donation in order to maintain the tegftkne intact For Whose Benefit - Cdation should take place only when there are compulsory neks, inasmuch as the purpose of fre coRation is to determine the legitime and the free portion. Value to be Collated. - The value of the donations subject to collation is to be 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. Hence, any increase in value or any deterioration or loss, whether by fortuitous event or through negligence, must be for the benefit or account of the donee. A life insurance in which the beneficiary is a 3rd person is considered as a donation to the extent of the premiums paid by the insured. It is not the amount of the insurance which constitutes the donation, because only the premiums leave the patrimony of the insured. Jurisprudence, however, exempts the beneficiary from collation of the premiums when they were paid from the income of the insured and they are not excessive. Collation and Imputation. - After the amount of the distributable estate has been determined, and the legitime and the free portion ascertained, donations which had been brought to collation should next be imputed to and charged against the corresponding portion of the estate. This step is governed by Arts. 909 and 910. ART 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 i. 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. ART 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 in this Code.__________ TOLENTINO: Donations to Compulsory Heirs. - The term "children" in these provisions has been generally construed to refer to all compulsory heirs; thereby simply

creating a distinction between donations to compulsory heirs and those made in favor of strangers. The donations to compulsory heirs are chargeable against and imputable to their respective legitimes, while donations to strangers are imputable to the free portion. But both are to be collated upon the donor's death, to his estate. To Descendants - Is 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. When the grandchild, however, does not succeed to the donor-grandfather, as when the father is alive, the donation cannot be imputed to the legitime because he receives Page 107 of 207 none; it is imputable to or chargeable against the free portion as if made to a stranger. To Illegitimate. Children. - The second paragraph of Art. 910 means that, if the donation to an illegitimate child exceeds his share in the legitime, such excess should be treated as a donation to a stranger and charged against the free portion, subject to the rules on reduction provided for in the Code. To Ascendants. Donations made to parents and ascendants are chargeable against their legitime, if they ^succeed as compulsory heirs; otherwise, they are chargeable against the free portion. In Excess of Leqitime. - When the donation to a compulsory heir exceeds his legitime, the excess is r chargeable against the free portion which is at the disposal of the testator, just as any donation to a stranger, subject to the risk of reduction. From Free Portion. - When the compulsory heir dies before the testator or is incapacitated or is disinherited or is repudiates the inheritance and he has no children or descendants to represent him. 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 stranger. The same rule applies if the testator has expressly provided that the donation to the compulsory heir shall not be brougnt to collation or charged against his iegitime. However, if the donation exceeds the disposable portion of the estate, the excess will still be charged against the legitime of the compulsory heirdonee, so as not to prejudice the legitimes of other compulsory heirs. Donation to Strangers. - Donations made to strangers area always chargeable agawsf the free portion. By "strangers" we mean all persons who do root inherit as compulsory heirs form the donor. If the donation to a stranger exceeds the free portion, then it will have to be reduced as inofficious. The purpose of the law is not to prevent the stranger form getting more from the inheritance, but to see to it that the compulsory heirs do not get less than what pertains to them as legitime. ART. 911. After the legitime has been determined in accordance with the 3 preceding articles, the reduction shall be made as follows: I. 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 devises or legacies shall be pro-rata. without any distinction whatever. It the testator has directed that a certain devise or legacy be paid in preference to others, it shall not transfer 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._______________________
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2007A TOLENTINO: The article should be construed to indude all kinds of testamentary dispositions, such as bequests, donations. mortis causa, and institutions of voluntary heirs; in other words, all dispositions to take effect upon the death of a person. Donations Preferred. - As between donations inter vivos and dispositions mortis causa, the law gives preference to the former, so that whenever reduction or annulment is necessary to preserve the legitime, dispositions mortis causa are the first ones to suffer the reduction or annulment. Reduction of Legacies and Devises. - The formula for the reduction would be: total amount of all the legacies is to the value of the particular legacy, as the total number available for legacies is to the reduced amount of the particular legacy. Relations to Art. 950. - Besides the present article, there is another. Art. 950, regarding the reduction of legacies and devises. It provides: "If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the ff 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 part of the estate, (6) all others pro-rata."

Since the present Art. 911 provides for pro-rata reduction of legacies and devises, without distinction, (except the preferred), while Art. 950 provides for an order of preference in payment, there seems to be an apparent conflict between them. Art. 911 will apply as to the manner of reducing legacies (a) when such reduction is necessary to preserve the legitime of compulsory heirs from impairment, whether there are donations inter vivos or not; and (b) 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. When, however, the question of reduction is exclusively among the legatees themselves, either because there are no compulsory heirs, or because the legitime of compulsory heirs has already been provided for by the testator in his will and there are no donations inter vivos, then Art. 950 applies. V Usufruct or Life Annuity. - Our inheritance law provides for the determination of the value of the usufruct, thus: "In order to determine the value of the right of usufruct, use or habitation, as well as that of annuity, there shall be taken into account the probable life of the beneficiary in accordance with the American Tropical Experience Table, calculated at eight per centum annual interest." The value of the usufruct will thus be capitalized in the manner indicated, and if it is found to exceed the free portion, the compulsory heirs are given the option of complying with the testamentary provision (give the property specified by the testator in the usufruct or pay the amount of the life annuity) or of delivering the entire free portion to the legatee or devisee. This option pertains exclusively to the compulsory heirs, and cannot be exercised by the legatees or devisees. The delivery of the entire free portion, instead of allowing the usufruct or paying the annuity, is possible only when there is a single legacy or devise. If however, Page 108 of 207 there are donations inter vivos or other legacies or devises, the general rule of proportionate reduction should be complied with, and only the value which pertains to the legatee of the usufruct after such reduction can be delivered to him, because such usufruct cannot be made to burden any part of the legitime. Reduction of Donations. - The order to be followed in the reduction of donations is provided in Art. 773. as follows: "If, there being 2 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." The reduction of donations, .therefore, shall be in the inverse order of their dates. If there are several donations on the same date, they are reduced pro rata. Remember that the donations here referred to are donations inter w'vos; because donations mortis causa do not take effect except upon the death of the donor, they are included among legacies and devises for purposes of reduction. Effect of Alienation. - After the property donated has once been alienated by the donee, the alienation cannot be set aside. This view is on the assumption that the donation is inscribed in the registry of property, but the causes of its revocation are not stated; hence, upon its alienation to a 3rd person, the latter acquires it free from any conditions or susceptibility to revocation as inofficious. Liability of Donee. - If the property donated has been validly alienated by the donee, and the transfer cannot be rescinded, can the inofficious part of the donation be taken form other property belonging to the donee? We believe that in such a case, the donee should be made to respond for the value of the excess or inofficious part of the donation. It was the act of the donee which made it impossible for him to return the inofficious part of the hereditary estate. He is conclusively presumed to know the law that the donation to him stands the risk of reduction if found to be inofficious at the time of the donor's death. Therefore, as between the compulsory heir and the donee, the latter should suffer the effects of his own act of alienating the property donated; he should pay the value of the inofficious part. Insolvency of Donee. - If a donee whose donation is subject to reduction is insolvent and cannot return anything to the estate to complete the amount needed to pay the legitime of compulsory heirs, the most acceptable solution is that the amount to be retumedby the insolvent must be borne and paid by those whose donations are within the free portion. ART 912. If the devise subject to the 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. ART 913. If the heirs or devise, 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
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2007A //, the property shall tie sold at public auction at the instance of any one of the interested parties._______

TOLENTINO: Division here means a material division, which is inconvenient, because the property is not susceptible of sucii division, or because it will lose or diminish its value or utility when so divided. Hence, although the law specifically refers only to a devise of real estate, it should be considered applicable to all other objects whether movable or immovable, of the same nature, such as vessels. Reduction by One-Half. - The law allows the devisee to retain the thing "if the reduction does not absorb Vi of its value." But if the reduction should be exactly V4 of the value, who shall be entitled to retain the thing? The better opinion is that the thing should be retained by the devisee. The intention of the testator 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 wHI of the testator is the governing law in succession, the thing should be given to the devisee in case he is entitled to half its value and the heirs to the other half. Waiver of Retention. - If the heir or legatee entitled to retain the thing does not desire to do so, then "any heir or devisee who did not have such right may exercise it." If there are several heirs and devisees, the right pertains to each group as much as to each individual in the group. It is a right which is solidary in nature, and the exercise by one of those in the group is sufficient, even if the others do not concur. But the person exercising the right cannot compel his codevisees or co-heirs to accept the thing or to make reimbursement for the balance of the value. If nobody chooses to exercise the right to retain the thing and reimburse the others in the amounts due them, the properly may be sold at public auction and the proceeds distributed properly. Locsin v. CA 1992) Mariano and Catalina, a childless couple, entered into an agreement that upon their death, their properties shall revert to their respective sides of their family. When Mariano died, he i'nstituted Catalina, his spouse, as his sole and universal heir. Catalina, in accordance with their previous agreement, began transferring by sale, donation or assignment, properties belonging to Mariano to his own relatives while she transferred title to her own properties to her relatives. After Catalina's death, her relatives sought to recover the properties which she has conveyed to Mariano's relatives ISSUE: WON dispositions made, by deceased Catalina during her lifetime of Mariano's properties to Mariano's relatives were intended to circumvent the laws of succession. HELD: NO. Catalina's relatives (her nephews and nieces) are not entitled to inherit properties which Catalina had already disposed of more than 10 years before here death. For those properties did not form part of her hereditary estate, i.e. "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession (AT. 781). The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time. Property which Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the righi arising under certain circumstances to demand and compel the reduction or revocation of a decedent's gifts inter vivos does not include Catalina's relatives since neither they nor the donee are compulsory or forced heirs; said relatives are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All Catalina's relatives had was an expectancy that in no way restricted her freedom to dispose of even her enure estate subject only to the limitation set forth in ART. 870 which, even if breached, they may not invoke as they are not persons qualified to invoke.____________________ 6. freedom to dispose free portion ART 914. The testator may devise and bequeath the free portion as he may deem fit._____ ___________ TOLENTINO: Same principle as in Art. 842. This article is misleading. What the testator can really devise and bequeath is the portion subject to free disposal, which is the remainder of the free portion when this is partly consumed by the legitimes of concurring compulsory heirs. Besides, the phrase "as he may deem fit" is wrong, because the testator does not have absolute freedom of disposal, even of the portion subject to his disposition. He can dispose of this only in favor of persons who are qualified to succeed him, and not as he may deem fit. MAGIC NOTES: [Preliminary matter: Legend: SS - surviving spouse; LC and D legitimate children and descendants; LP - legitimate parents; IP - illegitimate parents; A -ascendants] Page 109 of 207
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2007A Q: Who are CHs? A: Compulsory heirs are those enumerated in ART. 887. They are the: 1. Legitimate heirs and descendants; 2. Legitimate parents and ascendant is in default of aboe; 3. Widow or widower; 4. Acknowledged natural children and natural children by legal fiction; and 5. Other illegitimate children under ART. 287

The existence of legitime depends en the existence of compulsory heir/s. If there are compulsory heirs, then a certain portion is reserved to them as their legitime. They will receive her legitime regardless of whether the testator has left a wiil or not. When a testator makes a will, the law prohibits him from disposing of the legitime of the compulsory heirs. Hindi niya pwedeng galawin iyon. However, the testator may disinherit a compulsory heir when a ground therefore exists. The grounds are enumerated in the law. The effect of disinheritance is that the heir will not receive his legitime. Q: Who are primary heirs? A: Those who inherit at ail times, whenever they exist, (e.g. SS. LC and D, 1C and D) Note: Legitimate children may also be variable or fixed (Ex. fixed - LC and LP and A; variable - SS. 1C. IP) As a rule, all CHs concur with each other in the absence of an express legislative provision. Legitimate children and descendants Q: WhoareLDs? A: Those bom or conceived under a lawful marriage. The Family Code gives us the rules in determining who are the legitimate children and descendants B "C G Q: A married B. They had 2 children C and D. Both are legitimate. C married E and had 2 children F and G. D did not many but lived in with H and had by Ha child. I. having been bom out of wedlock, is illegitimate even if D and H vould have married if they have done so. He is a natural child. Suppose the inheritance of A is in question. There is no question that C and D are the legitimate children of A Is I a compulsory heir? Take note that I is an illegitimate grandchild. A: Look at #4 and #5 of ART. 887. These mention only "children* and not descendants. Under ART. 992 the illegitimate child has no right to inherit eb intestato from the legitimate children or relatives of his father or mother and vice versa. So I cannot inherit from the legitimate relatives of his father. That is why ART. 887 has limited the enumeration of compulsory heirs to illegitimate children. Q: Is I a compulsory heir? Page 110 of 207 A: YES. because of ART. 902. The rights of illegitimate children as set forth in the articles on legitime are -transmitted upon their death to their descendants, whether I legitimate or illegitimate. / Now. descendants will be compulsory heirs only if the L_ children are dead. For as long as the children are alive, then the descendants cannot inherit. They are excluded. Re: Descendants always inherit in representation of their ascendants. Q: A and B had 4 children, C, D. E, and F. C had one child G. D had 2. E had 3. F had 4. C, D. E. F were killed in one freak accident. After A's death, who are his CHs? CD E I A A ... G H I J KL MN OP A: C. D, E, and F will be represented by their respective children, v^ Q: How much will the grandchildren share? A: G will get the share of his fathei C. D's share will be divided by his 2 children. E's share will be divided by his 3 children equally and F's share will be divided into 4 equal parts by his 4 children. This is the essence of the right of representation, ^ Legitimate parents and ascendants with respect to their legitimate children and descendants Q: A: Who is legitimate A? An ascendant of a legitimate child. direct line. Example: X_ An A is always on the A Q: A: D in this is an ID of A and X and Y. C and A and X and Y are las of D. F is a LD of B and E but an ID of Y and Z. Y and Z are las of F, B and E being Las of F. B is an ID of Y and Z. What does the phrase "in default of the foregoing" in ART. 887 (2) mean? It means that without legitimate children and descendants, the legitimate parents and ascendants will inherit as compulsory heirs. But if there are legitimate children and descendants, the ascendants are 4o Compulsory heirs. This is the principle of exclusion. The basis of this principle is that a person loves more his children than his
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2007A parents. Thus descendants are preferred over ascendants. If there are no legitimate children, then the legitimate parents become compulsory heirs. The widow or widower NOTE: ART. 900 applies to both widow and widower.

The widow, however, is always a compulsory heir, but take note that the widow must be the legal spouse. A common law spouse is not a compulsory heir. Q: Suppose the marriage is void ab initio because the man was previously married when he contracted the bigamous, who is the surviving spouse who will inherit as a compulsory heir? A: Under the NCC, a void marriage need not be judicially declared null and void. It produces no effects. So the second wife is not the lawful wife. Under the Family Code, even if the marriage is void ab initio, it requires a declaration for purposes of subsequent .marriage. But how about for purposes of succeeding to the estate of the deceased spouse? Walang nakalagay. This gives the implication that judicial declaration of nullity is not required for purposes of succession. Q: How about if a spouse got lost and after 4 years of absence, the present spouse contracted a subsequent marriage believing that the 1st spouse is dead. A: Under the NCC, the 2nd marriage is voidable. It becomes voidable when the absent spouse reappears. The 1S| marriage marriage subsists. Take note that it is the 2nd which is voidable and not the 1 Q: Who may bring an action to annul the 2"" marriage? A: Any of the 3 parties involved. Q: Suppose nobody brought an action to annul the marriage and the absence simply allowed the spouses of the 2nd marriage to cohabit. Who then is the legal spouse to inherit. A: We will discuss this later when we discuss then amount of legitimes of compulsory heirs. The framers of the Family Code sought to remedy this situation of a person dying with 2 surviving spouses. As a solution, the framers provided in the family Code that the 2nd marriage is automatically terminated by the filing of an affidavit of reappearance by the absent spouse. The framers of the Family Code did not realize that whether an affidavit of reappearance will be filed or not depends entirely on the discretion of the appearing spouse. Maybe they realized this. So what they did is to allow 3rd party to file the affidavit if the reappearing spouse fails or refuses to do so. Hence the children by the 1st marriage may file the affidavit that their missing parent has reappeared. In that case, the 2nd relationship will be terminated at once so that the 2nd spouse will not considered as a legal spouse. But the problem still looms if no one filed the affidavit of reappearance. This gives rise to another question. May the affidavit of reappearance be filed after the death of the spouse present? The FC is silent on this. In my opinion, in fairness to the 1" spouse and his children, the affidavit should be allowed to be filed even if after the death of any parties. Page 111 of 207 Acknowledged natural children and natural children by legal fiction According to framers of the Family Code, natural children no longer exist as a class of illegitimate children. ART. 902 will apply! Q: Who is a natural child? A: Those born outside of marriage of parents with no legal impediment to marry each other. Q: Who is a spurious child?:. A: Those whose parents at'conception had an impediment to marry. :. WhoareNCLF? A: Those born of a valid marriage. NCLF has been abolished. _4 NC were not but they may be legitimated by subsequent marriage. - j There is no mere distinction between these 3 classes for purposes of succession. Computation of the leoitime SUMMARY: The legitime I fixed at Vi of the estate. This is reserved as legitime of the compulsory heirs. This may grow bigger of there are illegitimate children concurring : with the LC. lyong V4 kasi reserved iyan sa LC under ART. 888. Q: Paano kung mdy asawa7 A: The legitime of a surviving spouse is equal to the legitime of one LC. Saan kukunin iyon? Sa free portion. Tandaan nir.yo lagi na % ang legitme of the LC and the other half is Free Portion. The FP may grow smaller depending on the concurrence of other compulsory heirs. Tingnan natin ngayon iyong concurrence niia Q: Suppose there is no wiU, to whom will that 'A go? A: !t will be distributed as in intestacy which we shall discuss later. Q: Suppose the LC survived with the legitimate parents (LP), what will the latter get? A: Nothing. They are excluded by the LC. Q: Suppose the child is not a natural LC but is merely an adopted child (AC), will he exclude the LP? A: Yes. Q: Suppose the LC concurs with the surviving spouse, how much will each get? A: LC=1/2, SS=1/4 under ART. 892. But if there are 2 or more LCs, the SS will get a share equivalent to that of one LC. But in case of legal separation, the SS may inherit only if it was the deceased who had given cause for the same. The SS share will betaken from the FP. The FP will only have VJ then. Q: Suppose the LC concurs with an illegitimate child(IC)? A: LC will get Vi and 1C will get half of ihe share of one LC. Hence, the 1C will get Vi since there is only 1 LC who will get the entire Yz.
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2007A Q: Suppose the LC concurs with SS and 1C, how much does each get? A: LC=1/2, SS=1/4, and IC=1/2 of LC =1/4. There will be no free portion. Q: If there are 4 ICs surviving with one LC, how much will they share? A: LC=1/2. Lagi ito maski sino kasama niyan nag-inherit. IC=1/2 of 1 LC. (FC) But since their share is more than the free portion, they will suffer reduction. Hence the 4 1C will TABLE OF LEGITIMES divide the remaining !4 of the estate so that each gets 1/8 of the estate. This is half smaller than his supposed inheritance. The legitime of the LC will never be reduced Suppose the survivors are 1 LC, SS and 4 1C, how will they share? LC=1/2, SS=1/4, 4 IC=1/4 or 1/16 each. The SS is preferred over the 1C. The latter's share will always depend on the estate that is not taken up by the LC and the SS. Table 1. Share of legitimate child. CONCURRENCE LEGITIME LEG. CHILD 1. Alone 2. LP 3. SS Excluded V, E (888) y, E (888)

a) if 1 LC. % (892) b) if more y, E (888) y, E (888 than 1 LC, share of 1 LC (892) % of LC's share (895) share of 1 LC (897) 1/4 of 1 LC (895) Excluded y, E (888)

4. 1C 5. SS 1C 6. IP

y, E (888) y, E (888 ^ y, E (888)

LEGEND: LC : 1LC : SS : 1C : VzE : LP : IP : Legitimate Child share of 1 child . surviving spouse Illegitimate Child V2 of the estate Legitimate Parents Illegitimate Parent REMEMBER: 1. If there are many persons in a category, the share is to be divided among themselves equally. If there is only one in a category, he gets the entire share. Hence: Estate: 10,000 LC: 4 Share of LC: 5.000 Share of 1 LC: 5.000/4 = 1250 2. Legitimate parents are excluded only be legitimate children. However, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate. 3. Case #3 in table SS: 1 Estate: 20.000 LC: 3 LC: 20.000/2 = 10.000 1LC: 10.000/3 = 3.333 SS: 1LC = 3.333 4. Case of #4 in the table Estate: 24.000 = 12.000 LC: 12,000/4 = 3.000 1 LC: 3,000/2 = 1.500 However, if the estate is not enough to cover the share of the illegitimate children, they suffer proportionate reduction and the share of the legitimate children is not affected. Hence. Estate: 24,000 LC: 4 1C: 10 LC: 24.000/2 = 12.000 1LC: 12,000/4 = 3,000 1LC: 3.000/2=1.500 Total 1C: 1.500x10=15.000 Total 1C: 12,000 TOTAL: 27.000 Excess: 3.000 Therefore, the share of the illegitimate children must be reduced to 12.000 to be divided equally between them. Each illegitimate child therefore gets only 1,200 (which we got by dividing 3.000 over 10.) Answer is 300. Therefore, deduct the 1.500 of each 1C by 300 and we get 1,200. Page 112 of 207
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2007A Q: Suppose the LC concurs with SS and 1C, how much does each get? A: LC=1/2, SS=1/4, and IC=1/2 of LC =1/4. There will be no free portion. Q: If there are 4 ICs surviving with one LC, how much will they share? A: LC=1/2. Lagi ito maski sino kasama niyan nag-inherit. IC=1/2 of 1 LC. (FC) But since their share is more than the free portion, they will suffer reduction. Hence the 4 1C will TABLE OF LEGITIMES

divide the remaining !4 of the estate so that each gets 1/8 of the estate. This is half smaller than his supposed inheritance. The legitime of the LC will never be reduced Suppose the survivors are 1 LC, SS and 4 1C, how will they share? LC=1/2, SS=1/4, 4 IC=1/4 or 1/16 each. The SS is preferred over the 1C. The latter's share will always depend on the estate that is not taken up by the LC and the SS. Table 1. Share of legitimate child. CONCURRENCE LEGITIME LEG. CHILD 1. Alone 2. LP 3. SS Excluded V, E (888) y, E (888)

CONCURRENCE 1. Alone 2. LC (1) LC (1 or more) 3. LP 4. 1C

LEGITIME

SURVIVING SPOUSE '/2 E (900)

FREE PORTION y2E XE y, E - ss %E 1/3 E !4E 1/8 E Excess, if any

% E (888) y2 E (888) % E (889) 1/3 E (894)^ % E (903L X E (899) % E (899) %E %1LC (895)

% E (892) shoMLC (892) % E (893) 1/3 E (894) tf E (899) 1/8 E (899) shoflLC (897)

5. IP a) if 1 LC. % (892) b) if more y, E (888) y, E (888) 6. 1C LP than 1 LC, share of 1 LC (892) % of LC's share (895) share of 1 LC (897) 1/4 of 1 LC (895) Excluded y, E (888) 7. LC 1C

4. 1C 5. SS 1C 6. IP

LEGEND: LC : 1LC : SS : 1C : VzE : LP : IP : Legitimate Child share of 1 child . surviving spouse Illegitimate Child V2 of the estate Legitimate Parents Illegitimate Parent REMEMBER: 1. If there are many persons in a category, the share is to be divided among themselves equally. If there is only one in a category, he gets the entire share. Hence: Estate: 10,000 LC: 4 Share of LC: 5.000 Share of 1 LC: 5.000/4 = 1250 2. Legitimate parents are excluded only be legitimate children. However, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate. 3. Case #3 in table SS: 1 Estate: 20.000 LC: 3 LC: 20.000/2 = 10.000 1LC: 10.000/3 = 3.333 SS: 1LC = 3.333 4. Case of #4 in the table Estate: 24.000 = 12.000 LC: 12,000/4 = 3.000 1 LC: 3,000/2 = 1.500 However, if the estate is not enough to cover the share of the illegitimate children, they suffer proportionate reduction and the share of the legitimate children is not affected. Hence. Estate: 24,000 LC: 4 1C: 10 LC: 24.000/2 = 12.000 1LC: 12,000/4 = 3,000 1LC: 3.000/2=1.500 Total 1C: 1.500x10=15.000 Total 1C: 12,000 TOTAL: 27.000 Excess: 3.000 Therefore, the share of the illegitimate children must be reduced to 12.000 to be divided equally between them. Each illegitimate child therefore gets only 1,200 (which we got by dividing 3.000 over 10.) Answer is 300. Therefore, deduct the 1.500 of each 1C by 300 and we get 1,200. Page 112 of 207
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y, E (888) y, E (888) NOTE: In the case of #1 in the table, the share of the wife would be reduced to ^ 1/3 if the marriage is in articulo mortis and the spouse died within 3 months except if they had been living together previously for more than 5 years, in y, E (888) which case, the share of the spouse would be Vt. ART. 900 If the estate is not sufficient to cover all the shares of the heirs, the spouse is preferred over illegitimate children. The latter will suffer a reduction in their share. Table 4. Shars of Legitimate Parent and Ascendant CONCURRENCE LEGITIME LPand FREE PORTION ASCENDANT 1. Alone 2. LC 3. 1C 4. SS 5. SS 1C % E (888) % E (896) V E (893) 1/8 E (899) % E (899)
1

/4 E (900)

%E -doKE XE 1/8 E

Excluded (903) Y, EJ889) 1.2E(889) V4 E (899)

2007A Table 2. Share of Illegitimate Child CONCURRENCE LEGITIME 1. Alone 2. SS 3. LP 4. IP 5. SS LP 1/3 E (894) yz E (889) Excluded

ILLEGITIMATE CHILD '/2 E (901) 1/3 E (894) % E (896) '/2E

FREE PORTION Y2E 1/3 E Y.E y,E 1/8 E

MAGIC NOTES: Like the legitime of legitimate children, the legitime of legitimate parents, when they are not excluded from inheritance, is always fixed at % of the estate. 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 legitimes 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 (ART. 890). Page 113 of 207 Hence, if only the mother survives, she gets the entire y> of the estate. The parents of the father are excluded by the mother (nearer excludes more remote). However, if both parents are alive, they shall divide the share so that each ends up getting y* of the estate. But if both parents are dead, then the paternal and maternal parents would inherit tiie % share. Each line (paternal and maternal) gets % of the estate to be divided equally between the grandparents. Hence, if only one paternal grandparent survives, he gets the entire % pertaining to his side. If both paternal grandparents are alive, they divide the V pertaining to their line and each ends up with 1/8 of the estate each. If however, the maternal grandparents are already dead but the great grandparents are alive so that the deceased id survived by his paternal grandparents and maternal grandparents, the maternal great grandparents are excluded by the paternal grandparents. This is the essence uf the last sentence in the 2nd par. Table 5: Share of Illegitimate Parents CONCURRENCE LEGITIME ILLEGITIMATE FREE PARENT PORTION 1. Alone 2. 1C 3. 1C 4. SS
1 1

/2 E (900)

y2E
1

/2 E (888)

Excluded (903) Excluded (903) y. E (903)

/2E /2E

1/8 E (899) 1/2 y E (899) E (899)

y> E (895) y, E (903)

y2E

Table 3: Share of Surviving Spouse

NOTE: Illgitimate parents are excluded by all types of children, legitimate or illegitimate.

Ascendants of illegitimate parents cannot inherit the share of the illegitimate parents. The law. in ART. 903, mentions only parents of an illegitimate child omitting grandparents therein. Hence, if A has a legitimate child M who in turn, has 1 legitimate child X and illegitimate son \, and M is already dead, if X dies (legitimate child). A can inherit from X being the tetter's ascendant. However, if Y dies (illegitimate child), A cannot inherit from him because ihe law mentioned only his parents, meaning, only M can inherit from him. I Exercises on Determination of CHs and Their Respective Shares: (To see whether you understood all those tables and magic notes.) U
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2007A Q: If C dies, who are C's CHs? A: A and B. Q: Why not the grandparents? A: Because the nearer excludes the more remote. A and B share equally. Q: Same situation as above but B predeceases C. Who is C's CH? A: A alone. (890) Q: Suppose both parents (A and B) predecease C. Who are C's CHs? A: X and Y. and U and V. (How much? They share in the Vi equally as individuals.) Q: What if Y is already dead? A: X and Y get'/(1/2 of 1/2) and U also 1/< (1/2 of !6). X and Y would further divide the Vt between themselves. Q: When C died, he was married to E who predeceased him. They have a child F. Who is C's CH? A: F (887). The ascendants are excluded. (How much is F's legitime? % (988).) Q: Suppose F is an 1C and E, the common law wife, does not predecease C. Who are the CHs? A: F (1/4), A and B (1/2 to be shared equally). FP is V. E is not CH because she is not a legitimate spouse. Q: Why is it that in this case, F concurs with A and B? A: Because the law seeks to discourage illegitimacy. Q: Still the same example, but C, after having an affair with E (with whom he had a son, F), had an affair with G with whom he had a son H. Who are the CHs? A: A and B (1/2) and F and H (1/4. divided, equally). Q: Suppose C married E. No child. Who are C's CHs? A: A and B (1/2) and E (1/4). (893) U: IS it possible to leave 2 lawful spouses? A: Yes. but only under the CC. (c.f.FC 41-42) Q: Suppose E married C in articulo mortis. C died immediately. IsEa CH? A: Yes, and E gets %. A and B are also CH and given Yt. Q: Why not 1/3? A: The reason behind ART. 900 providing for 1/3 share by the SS is N/A. ART. 900 applies only when spouse survives alone. Q: Suppose C and E had no child. C had an affair with F and they had a son, H. Who are the CHs of C? A: A and B (1/2). E (1/8), H (1/4). FP is 1/8. Q: Suppose C and F had 21C, H and G? A: Then H and G share equally in the %. NOTE: Illegitimate children cannot inherit unless they are recognized or acknowledged. Acknowledgment is of 2 kinds: 1. Voluntary (e.g. acknowledgment is in a private writing, birth record, court judgment or will). Page 114 of 207 2. Compulsory - This is evidence of recognition other than voluntary (e.g. reputation). This is done through a court action to compel paternity. When the putative parent is already dead, compulsory recognition is no longer allowed. Q: C died first. B died second. D died last. Who are the CHs? Z ----- ----- X , Y A: Only the IPs. As they survive alone, they get 16. (903). Note that IPs are excluded by legitimate children/Ds (1/2). They are also excluded by 1C (1/2). Thus, all children/Ds exclude IPs. Q: Z and X are married Z died so X married Y. X died. Who are the CHs? X (adopted) A: Nos. 1-6. From what marriage they came form is irrelevant. They share equally. No. 7 is also a CH. The same is true if No. 7 were a legitimated child. Q: C died. Then B. Who are the CHs? D(adopted) A: D only. Under ART. 343 of the CC, an adopted child shall not exclude LPs/As. But this has been suppresses by the CYWC and the FC. But the adoption must have court approval. NOTE: FF will vary depending on the number of 1C. So, let us illustrate this with the ff examples. Divide the shares: A=1/4 B = y< C = 1/8 B C 0 E Then: A= 1/4 B=1/4
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A: A (1/10), B (1/10). C (1/10). E (1/10) and Z (1/10) Q: Suppose X marries again when he was 90. the 23 year old Z. His 4 children with Y were then all dead but the 4 had a total of 9 children. X and Z has E for child (pwede pa ba 'yon?). Xdies. CHs? A: Same as bove but each of the child from prior marriage is represented by his cilhdren. The same thing happens if E is also already dead, with 2 children left behind. Q: Suppose A to E are alive and all repudiate, what would Z get? A: Apply 892. Share of SS is sacrificed so that there would be a X FP. Q: For this question, see ART. 83 of the CC and its equivalent in FC. (1st) (disappeared) Y X What is the status ofX and Z's marriage? A: Voidable. That is, valid until annulled. Q: What if Y reappears such that X now has 2 wives. X dies without an annulment. Does this mean that X has 2 lawfully wedded wives who are both CHs? A: Yes. The % share for SS is divided equally between Y and Z. But the FC changed the rule. The 2nd marriage would e valid if X. during Y's disappearance, obtained a declaration of presumptive death only through court action but by the recording of an affidavit of reappearance. Any interested party may file the same. Note that under the CC. when one party dies, the marriage cannot be annulled anymore. Therefore, if X dies, the marriage with Z is no longer annullable. But under the FC, no time or period is prescribed within which the affidavit may be filed. If such affidavit may be field even after the death of one spouse, then it is not possible for a person to die with 2 lawful surviving spouses. Reduction of Shares when Leaitime is Impaired: Q: T left a will leaving A-% } B-Vt } voluntary heirs Y-y, } Estate is worth Php 120K. At the time he died, he had 2 children, A and B. So what do A, B, and Ygei? A: Page 115 of 207 Legitime Will Total A B Y % = 30K % = 30K % (60K) % of 60K = 15K 45K % of 60K = 15K 45K Vi of 60K = 30K 30K 60K 120K

2007A Thus, FP = 3/8 D=1/8 E = 1/8 Thus. FP = 1/8 only Q: Who are X's CHs? 77TT

NOTE: The solution applies only if the will includes institution. A different formula is involvedifHegacies are involved. Computation of value of estate Q: How do we compute the estate of the decedent? A: ART. 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 2> added the value of all donations by the testator that are yo subject to collation, at the time he made them. So the formula is: Gross Estate (Summation of all assets) (-) Liabilities (Contingent or mature as long as survived T of death) xxx xxx xxx xxx HEREDITARY ESTATE Donations inter vivos NET HEREDITARY ESTATE The NET HEREDITARY ESTATE is the "estate" which will be used in computing tegitimes and for distribution and to determine WON a DIV is inofficious. Q: What if the liabilities are greater then the gross estate'7 Who will pay? A: Nobody. In this case, heirs are not liable beyond the value of their inheritance. The law took a shortcut so that individual creditors wouldn't have to go after each heir. So pay first the debts before distribution. But the effect is the same as if the individual heirs paid. Q: What are the kinds of donations? A: Inter vivos (IV) and mortis causa (MC). Q: What is the test? A: When the ownership is intended to be conveyed as opposed to the delivery of the property. So if Pedro. T. leaves to Juan a house and lot in Alabang to be delivered upon Pedro's (donor's) death, the donation is IV. Only the enjoyment of property is postponed. DMC partakes of the nature of a testamentary disposition. Nothing is left, therefore, nothing should be returned to the estate. Only DIV must be added.

Q: What is the purpose of adding the donations to the estate of the testator?
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2007A A: To prevent him from giving inofficious donations which might prejudice the legitimes of his heirs. Example, A has 20M. To prevent his son from inheriting much from him, he gave 2M each to his 8 nieces or a total of 16M. At the time of his death, he has only 4M from which the legitime of his son would be taken. Therefore, the legitime of his son was impaired. To prevent this situation, the legitime must be returned to complete the legitime of the son and the rule is that the last donation is the first to be reduced. Q: What if the donations were already given to his children or to strangers, how do we treat them? A: 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 maybe inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by the Code. ART. 909. Q: What value of the donation is to be added to the estate, value at the time of the donation or value at the time of the testator's death? A: The value at the time the donation was made. This is clear in ART. 908. Q: What is the reason for this rule? A: This is because for all intents and purposes, the donee was the owner of the property donated so that whatever fruits received would pertain to him. Similarly, decrease in the value of the property would be charged to him. Hence, he returns only the value of the property at the time of the donation. Q: When T died, he only had 10M but a debt of 20M. He made donations of 15M to various persons. How much is the estate of T? A: 15M. Although there is a standing debt amounting to 20M, the creditors could not go after the property already donated, unless the donations were simulated or made in fraud of creditors. The creditors can only exhaust the available asset of the estate and could not touch on the donations which were collated. [10M - 20M = 0 + 15M = 15M] DIV is given only when the legitime is impaired and only to CHs, not to creditors. See ART. 1061. Q: What if the donation was made to illegitimate children, how do we treat it? A: ART. 910. Donations which an illegitimate child may have received during the lifetime of his mother or father, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of. they shall be reduced in the manner provided for by the Code. Q: What about if the donations were given to the surviving spouse during the lifetime of the deceased, how do we treat them? A: There is no provision in the Code. But donations between spouses during the existence of the marriage is void, except donations pnopter nuptias. Diagram of Possible Scenario when Computing Estate: Legitime DIVonCH IV Leg & Dev Insfn Stranger excess Remember that DIV to CH are chargeable against their legitmes but the T may provide otherwise, in which case, it is chargeable against the free portion. Page 116 of 207
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2007A XV. PRETERITION 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 bom 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._________ TOLENTINO: Concept of Preterition. Preterition means the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regafd to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. Distinguished form Inheritance. The deprivation of a compulsory heir of his legitime by the testator may be express or tacit. The express method is disinheritance; the tacit, by preterition. a. Disinheritance, being express, is always voluntary; preterition may also be voluntary, but the presumption of the law is that it is involuntary. b. In disinheritance, there is some legal cause; in preterition, the law presumes that there has been merely an oversight or mistake on the part of the testator. c. In case of a valid disinheritance, the compulsory heir is totally excluded from the inheritance; and if the inheritance is not lawfully made, the compulsory heir is merely restored to his legitime. But in case of preterition in the direct line, the omitted heir gets not only his legitime, but also his share in the free portion no! disposed of by way of legacies and devises.

Requisites of Preterition. A.) That there is total omission; G.) that the person omitted is a compulsory ehir in the direct line; and C.) that the compulsory heir omitted survive the testator. Total Omission. Most writers hold that 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 under ART. 906. Such donation, under ART. 909, is considered as an advance on the legitime of the compulsory heir; and his only right is to ask for completion of his legitime under ART. 906, if the amount already given is not sufficient to cover such legitime. Compulsory Heir Omitted. The omission of heirs bom 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. Heir in Direct Line. The compulsory heir who is omitted must be in the direct line, whether descending or ascending Heirs in the direct line include the illegitimate parents and all kinds of illegitimate children, whether natural or otherwise. Omitted Heir Survives. If the compulsory heir who has been preterited dies before the testator, it is the same as if there had been no preterition. The right of representation, however, should not be lost sight of. Page 117 of 207 Preterition must always be determined in relation to the persons who are compulsory heirs at the time of the death of the testator, and not in relation to those who never became such. Effect of Preterition. If the testator disposes of the free portion only, and leaves the legitimes of the compulsory heirs untouched by the will, his act is valid; there is no preterition even if the compulsory heirs are not mentioned in the will, and they will receive their legitimes. But is the testator institutes an heir to the estate, including the legitime of a compulsory heir, at the same time omitting the compulsory heir, thefrthere is preterition; but the effect depends upon the character of the compulsory heir omitted. If the omitted heir is in the direct line, the institution is totally annulled, saving only legacies and j^ devises which are not inofficious; but if the omitted heir is Q not in the direct line, only his legitime is given to him and the institution is annulled only to that extent. In the Direct Line. The preterition of compulsory heir in ^ the direct line annuls the institution of heirs, but legacies and devises shall stand insofar as they are not inofficious. The annulment, therefore, may either be partial or total, resulting in partial-or total intestacy, depending upon whether or not there are devises and legacies provided for in the will. If there are, the intestacy is partial; if there are none, there is total intestacy. The effects of preterition are different from those of an ineffective disinheritance. In the latter case, the instrt-jtion of heirs is annulled only to the extent that it prejudice the legitime of the compulsory ehir improperly disinherited; while in the former, the institution is annulled in its entirety, including that affecting the free part, unless this has been disposed of as devises and legacies. The reason for the difference lies, not only in the express words of the law. which adds "insofar as it may prejudice the person disinherited" in illegal disinheritance but omits such clause in preterition, but also in the fact that preterition is presumed to be only an involuntary omission. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the tew is that he wants such heir to receive as little as possible from his estate. The annulment of the institution of heirs, in case of preterition. is thus in toto and creates intestate succession; but legacies and devises are valid insofar as they are not inofficious. Surviving Spouse. The surviving spouse is not a compulsory heir "in the direct line"; hence the present article does not include him or her. However, the legitime of the surviving spouse is protected by ART. 842, which provides that "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 preterition of the surviving spouse, therefore, does not entirely annul the institution of heir. The institution is only partially annulled, by reducing the rights of the instituted heir to the extent necessary to cover the legitime of the omitted surviving spouse. This differs from the preterition of compulsory heirs in the direct line, which produces total intestacy, saving devises and legacies.
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2007A 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. 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 will, if any; if that is not sufficient, as much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. TOLENTINO: This article does not necessarily refer to preterition. It refers to a child or descendant "omitted in a will"; and mere omission in a will does not necessarily imply preterition, because the compulsory heir may have received or may still receive part of the inheritance in some other concept than by will. There is preterition only when the heir has been completely omitted from the inheritance, and not only in the will. This article does not formulate a rule for determining the extent or quantity of the share of the omitted child or descendant but merely provides how that share, after it has been determined, should be paid. The share of the omitted child or descendant is to be determined by other provisions of the law; once

that is determined this article provides the manner in which that share shall be satisfied. This article suffers from very patent and fundamental errors. It is limited to a "child or descendant" omitted in a will, as if implying that its principle has no application to other compulsory heirs omitted in a will. The term "child or descendant" in this article should, therefore, be construed as "compulsory heir". A more serious error is in the last part of the article, which provides that "if that (the undisposed part of the estate) is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. This article could have well been omitted. To harmonize this article with the system of tegitimes, and to erase its absurdity, it should perhaps be rephrased as follows: "The share of the compulsory heir omitted in a will must -be first taken fro the part of the estate not disposed of by will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of other heirs given to them by will." This is the real intention of the law. 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.______________ TOLENTINO: Where the disinheritance is ineffective in this case, the compulsory heir must be given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to (awful dispositions made by the testator in favor of others. Page 118 of 207 MAGIC NOTES: Q: Preterition from whom? A: A reading of ART. 854 would imply that it is a preterition or omission from a will. Therefore, the preterition is from a will. This is the first view. Preterition, according to this view, occurs when: 1. There is a will 2. There is an institution in the will; and 3. The compulsory heir was not mentioned or omitted in the will. Thus, if I instituted. A to Vi. B to 1/4, and son D to H nothing, under the first view, there is preterition since all *! elements therefore are present. This is the view being 3 followed in Spain. On the other hand, under the second view, there is not preterition because preterition is exclusion from the INHERITANCE. Preterition is not only omission from a will, but alfo omission from inheritance. In this case, D can still inherit by way of intestate succession the remaining Y* of the estate. This is the view being followed in the Philippines as held in the case of Aznar v. Duncan and Nuguid v. Nuguid. Q: If G was not given anything but during Ts lifetime, D was given donations inter vivos, is there preterition? A: Under the first view, there is preterition. Under the second view, there is no preterition since D was not excluded from the inheritance. The donation given to him will be charged to his legitime. He will therefore receive something from the inheritance. According to DNC, both views are wrong. The second view is a wrong view. There will never be a case of preterition because a compulsory heir can never be excluded from the inheritance. He always has his legitime. Since he always receives something, preterition wiil never operate. The first view is also incorrect. Institution in a will always refers to the free portion since the legitime cannot be affected. However, we know that the testator has complete freedom to dispose in any way he chooses the free portion. Therefore, no heir, not even compulsory heirs, can compel him to include the heir in his will. The question therefore is, from where is the heir preterited? Sir'said that he can't think of nay situation. Thus, DNC proposes to the Code Commission to erase ART. 854. Q: What is the importance of preterition? A: To illustrate this, let us make a hypothetical case. Suppose A was instituted to Mr. B to 1/i. and D (son) has nothing. There is therefore a preterition of D. The effect is that the institution of heirs will be annulled (ART. 854). ABC will not inherit and D will be the legal heir. If D received donation inter vivos, there will be no preterition so that the institution will not be annulled and ABC will get their inheritance. D will be entitled only to complete his legitime under ART. 906 (Any compulsory heir to whom the testator has left any title less than the legitime belonging to him may demand that the same be fully satisfied.) Q: What is therefore the rule now? A: For preterition to occur, there must occur the following requisites:
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2007A 1. Will; 2. Institution of heirs in the will; 3. Heir does not receive anything by will; 4. Heir did not receive donation inter wvos; and 5. He did not inherit by way of intestacy. Q: What is the effect of preterition? A: It will annul the institution of heirs.

Q: What will happen to the estate? A: Intestate succession will operate. (Nuguid v. Nuguid} Q: 7" made a will instituting A to 'A, B to Y*. and C to Y*. The entire estate was disposed of and his son D was given only P10000. Was he preterited? A: NO, since he was given a legacy. Q: / died intestate, can there be preterition? A: NO, because there is no will. Q: A: Q: A: Q: A: A: / made a will giving his house and lot to A, his house in Alabang to B. and his car to C, without mentioning his son D. AH his estate consist of these properties. Is there preterition? There is no preterition since there is no institution of heirs. Institution of heirs is the giving of an aliquot part of the estate to a person. Devise or legacy is the giving of a specific oroperty to a person. Preterition will be irrelevant. May the surviving spouse be preterited? NO. As !ield in Balanay v. Martinez, the compulsory heir must be in the direct line. The spouse is not in the direct line. May the adopted child be entitled to the benefits of preterition? Under ART. 189 of the FC, the adopted acquires all rights and obligations of the legitimate child of the a^ppter. If the legitimate child is entitled to the benefits or* preterition, then the adopted child must also be entitled to the same benefits. How about the adopter, is he entitled to the benefits of preterition once he is preterited? Siguro. because he acquires also reciprocal rights and obligations under the same article. If legitimate parents can benefit under ART. 854, why not an adopter? In the first place, can the adopted child or the adopter be preterited? The answer to the immediately preceding question is in our magic notes. However, during our own discussion, DNC stated that an adopter is an heir of the adopted child under ART. 190(2) of the FC. However, he/she is not a compulsory heir because he/she has no legitime. The adopter is only entitled to an intestate share under ART. 190 of the FC. Legal heirs are different from compulsory heirs. It seems therefore that adopters cannot be preterited. Q: If the omitted heir predeceases the testator but such heir left behind legitimate descendants, can the legitimate descendants annul the institution of heirs and claim the legitime of their omitted parent? A: There are 2 views on the matter. Page 119 of 207 1 view: If the compulsory heir totally omitted from the inheritance is represented by descendants, then the descendants may claim the inheritance of the father and to annul the institution of heirs. Since their father is allowed to annul the institution, so are they. . 2nd view: If the 1s1 view prevails, then there would be no more need for the 2nd paragraph of ART. 854. Q: The testatrix has a mother and a sister. In her will, she instituted her sister as her sole and universal heir. She gave a P10.000 legacy to the maid and to the driver. The mother was not mentioned:, Preterition? A: YES, Nuguid v. Nuguid. DNC's pointers in answering: State the elements of preterition. Thus, the answer would be: There was preterition ' because the mother was omitted from the inheritance. She was not mentioned in the will. She was not given any donation inter vivos, nor was she given any legacy. Q: What is the effect of such preterition? A: The institution of heirs is annulled. The sister will therefore no longer receive anything anymore. The maid and the driver will still receive their P10,000 each because legacies are not affected by such annulment of institution of heirs. Q: But what if the testatrix says in her will: "And to my mother, I will give all the prayers in the world xxx." Is there pretention? A: YES, there is still preterition. Q: iWhen is one omitted from the inheritance? A: When he is omitted in the will, does not receive legacy, and did not receive donation inter vivos. Aznar v. Duncan (1966) The deceased left a will instituting his daughter, Lucy, as his heir and a legacy was given to Helen Garcia in the amount of P3.600. During probate proceedings, court declared Helen Garcia as natural child of the deceased. ISSUE: WON there is preterition annulling institution of an heir HELD: NO. Manresa defined preterition as the omission of the heir in the will, wither by not naming him at all, or, while mentioning him as father, son, etc. by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. To determine WON there is preterition. the succeeding question must be answered. In order that the right of a forced heir may be limited only to completion of his legitime (instead of annulment of institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? NO. Manresa cited 3 decisions of the SC of Spain. In each of those cases, the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that ART. 815 applied and the heir could not ask that institution of heirs be annulled entirely but only that legitime be completed.

There is no preterition where something is left in will for forced heir even if it was not recognized that he is an heir.__________________
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2007A Nuquid v. Nuquid (1966) The testator left a will instituting as her sole and universal heir her sister. She was survived by her legitimate parents and 6 brothers and sisters. ISSUE 1: WON there is preterition HELD: YES. The deceased left no descendants but she left forced heirs in the direct ascending line her parents. They received nothing by the testament; they were deprived of their legitime, neither were they expressly disinherited. This is a clear case of preterition. The case of universal institution of the sister to the entire inheritance results in totally abrogating the will because the nullification of such institution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. ISSUE 2: WON instituted heir can invoke statement in ART. 854saying that annulment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious." HELD: NO. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in ART. 854 suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be in addition to such institution, a testamentary disposition granting him bequests and legacies apart and separate from the nullified institution of her. Sanchez Roman stated that preterition annulled institution of the heir. As Manresa puts it, annulment throws open to intestate succession entire inheritance including free portion._____________________ invalidate institutions of spurious heir, Salud. as heir, since there is no prelerition or total omission, if a forced heir._____ Reves v. Barreto-Datu (1967) When Bebiano Barretto died, he was survived by his spouse. Maria and their 2 children, Lucia and Salud. In his will, he instituted his 2 children as heirs. A few years later, in the probate proceedings for the wilt executed by his spouse (who died), the court declared that Salud was net his daughter by then deceased spouse. Maria ISSUE 1: WON the subsequent declaration of lack of filiation between testator and one of the instituted heirs after partition nullifies probated wffl and entitles recovery by other compulsory heir (the real daughter) of all properties received from testator by heir or the tatter's successors-in-interest on ground that such properties were acquired by mistake (ART. 1081) HELD: NO. ART. 1081 is not applicable. Salud (spurious heir) admittedly had been instituted heir in the testator's will together with other daughter; hence the partition between them could not be a partition with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (ART. 1081) does not speak of children or descendants, but of heirs (without distinction between forced, voluntary, or intestate heirs), and the fact that Salud happened not to be the daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bebiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (1/2) assigned to spurious heir impugned on legitime of real daughter, the former did not, for that reason, cease to be testamentary heir of the deceased. ISSUE 2: WON there was preterition HELD: NO. The fact that the real daughter was allotted in testator's will a share smaller than her legitime does not Laiom v. Leuterio (1960) The deceased left all his properties to his 3 legitimate sons. Afterwards, Maximo Viola, upon tne fetter's own petition, was declared by the courts as a natural child of the deceased. Maximo sought to have the properties of the deceased collated so he could get the share due him as compulsory heir. ISSUE 1: WON there was preterition HELD: YES. The will completely omitted the natural child who was a compulsory heir. Having disposed of all the properties in favor of the 3 legitimate children, it naturally encroached upon the legitime of the material child. Such testamentary dispositions may not impair the legitime. (ART. 1038, Spanish CC) Due to preterition of compulsory heir in the direct line, the institution is annulled in its entirety. (ART. 854, CC) ISSUE 2:WON due to preterition, the institution of heirs made by the deceased became ineffective and Civil Case 8077 is thereby converted into intestate proceedings for the settlement of the estate HELD: No. It might have been possible if the court was dealing with special proceedings for settlement of the testate estate of the deceased, which, in consequences of preterition, would thereby acquire the character of a proceeding for the settlement of an intestate estate, with jurisdiction only over properties specified in pleadings which do not encompass all the properties of the deceased.________________ Balanav v. Martinez (1975) The testator omitted her husband in the will and instituted as heir her six legitimate children. ISSUE: WON there is preterition producing intestacy. HELD: No. Art 854 provides that preterition or omission of one. Escuin v. Escuin (1908) The testator left a will designating as heirs his natural father and his wife, ignoring his recognized natural child who is his general heir.

ISSUE 1: WON there is preterition HELD: There is preterition to 1/3 of the estate, which amount constitutes the legal portion of a natural child (ART. 842); and for the reason that minor was ignored in the wiil the designation of heirs made therein was, as a matter of fact annulled by force of law, insofar as the legal ponion of the said minor was thereby impaired. Legacies and betterments shall be valid, insofar as they are not illegal, for the reason that a testator cannot deprive the heirs of their legal portions, express in the cases expressly indicated by law. ISSUE 2: WON the testator could be considered to have died intestate HELD: NO. The designation of heirs became void insofar as it impugned the right of his general heir and deprived him of his legal portion; the will, however, is valid, with tespect to the 2/3 of the property which the testator could freely dispose of. It is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law. he had the right to dispose of by will, as he has done, provided the legal portion of his general neir was not thereby impaired, the 2 former persons being considered as legatees under the will.____________ Page 120 of 207
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2007A some, or all of the compulsory heirs in the direct line; shall annul the institution of an heir; since preterited heir is the surviving spouse who is not a compulsory heir in the direct line, the preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary nights_________________________________ Solano v. CAM 983) the testator left a will instituting Sonia. his acknowledged natural child, as his sole ana' universal heir. The was contested by the Gracias who claimed to be the illegitimate children of the testator. The court found that acknowledgment made by testator of Sonia as his natural child was invalid and the testator, at time he made it, was incapacitated to make such acknowledgment. On the other hand, the Gracias were recognized by the testator as his illegitimate sons. The status then of Sonia and the Gracias is the same, that is, they are all illegitimate children of the testator. ISSUE: WON there was preterition HELD: Yes. The Gracias were preterited from testators last will and testament and as a result, the institution of Sonia as sole heir is null and void pursuant to Art 854 CC but only insofar as the legitime of the omitted heirs is impaired. The will, therefore, is valid subject to that limitation. It is plain that the intention of the testator to favor Sonia with certain portions of his property, which under the law he had the right to dispose of by will, so that disposition in her favor should be upheld as to the one-half portion of the property that testator could freely dispose of. 'Note that DLC thinks that this decision is wrong. Preterition must be annulled if the institution, legacy or devise goes over the legitime. If there are still free portion, then solution is Completion.______________________ Acain v. CA (1987) The testator instituted as heirs his brothers and sisters omitting his widow and adopted child. ISSUE #1: WON widow has been pretreated HELD: No. Art 854 does not apply as she does not ascend or descend from the testator, although she is & compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance for she is not in the direct line. ISSUE *2: WON adopted child was preterited. HELD: Yes. Under Art. 39 of P.O. No. 603, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator. Hence, there is preterition of legally adopted child. ISSUE *3: WON Opening of total intestacy will result. HELD: Yes. The universal institution of the testator's brothers and sisters to the entire inheritance results in totally abrogating the will because the nullification of such institution - without any other disposition in the will amounts to a declaration that nothing at all was written.____________________ Page 121 of 207
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2007A XVI. RESERVA TRONCAL ART 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. TOLENTINO: The Reserva Troncal or Lineal - The purpose of the article is to reserve certain property in favor of certain relatives. It seeks to prevent persons outside a family from securing, by some accident of life, property that would otherwise have remained therein. Its principal aim is to maintain as absolutely as possible, with respect to the property to which it refers a separation between the paternal and maternal lines, so that property of one line may not pass to the other, or through them to strangers.

Nature of Reserva Troncal The greater weight of opinion among commentators is that the reserva creates a double resolutory condition to which the right of ownership of the person obliged to reserve is subjected. The resolutory condition are, first, the death of the ascendant obliged to reserve., and, second, the survival at the moment of relatives within the third degree belonging to the line from which the property came. In reserva troncal: (a) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister (b) the same property is inherited by another ascendant, and (c) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came. Limited to Legitimate Relations In reserva troncal or lineal, there are four parties to consider (a) the ascendant or brother or sister from whom the property originally came (b) the descendant who acquired the property by lucrative title from the foregoing (c) the reservists or ascendant who received the property by operation of law from the descendant (d) the reservatarios or reservees, or the relatives within the third degree belonging to the line from which the property came All these persons, in order that the reserva will exist, should be legitimate relations. No reserva will exist in favor of illegitimate relatives; nor are natural and illegitimate ascendants bound to reserve. Person Obliged to Reserve The reservists, or the person obliged to reserve, is the ascendant who inherits from his descendant by operation of law certain property which the latter has acquired by gratuitous title from another ascendant. Hence, not all ascendants are bound to reserve, but only those who acquired property from a descendant by operation of law and not by the will of the latter. The property however must have been acquired by Page 122 of 207 the descendant from another ascendant or from a brother or sister, by lucrative title. The reservoir or reservista is a usufructuary of the reservable property. It is maintained that even if the reservista and the other ascendant from whom the property came belong to the same line, there is still an obligation to reserve. This view is strengthened by the fact that reserva is imposed even when the property comes from a brother or sister, who cannot be said to be from a different line There is, however, one case, when the ascendant who has received property under the circumstances mentioned by the law should not be obliged to reserve in ^ favor of relatives within the third degree. This is the case PO when the only relatives are the common descendant of the ^ predeceased ascendant and the ascendant who wculd Y.^. have been obliged to reserve. Person 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 a brother or sister of such descendant. It is immaterial whether the property came from some other person before it became property of the other ascendant or the brother or sister. In the term brother or sister is included not only those of the full blood, but also those of the half-blood. The guest ion of half-blood or full blood is not important in this special reservation, because precisely the reservation is in tavor of a line, whether maternal or paternal. Persons Benefited by the Reserva The law mentions as reservees or reservatarios the relatives who are within the third degree and who belong to the line from which such property came. Commentators are almost unanimous in holding that the third degree is to be counted from the descendant whose succession is in guest ion, because it is upon his death that the reserva begins to life. These relatives within the third degree must be related by consanguinity to the descendant. These relatives must likewise belong to, the line from which the property came. The term line is not here used in the juridicogeometrical sense of direct, ascending or descending, and collateral. Rather, it is used in the juridicofamiliar sense of the paternal as opposed to the maternal line, and vice versa. An important guest tan, however, is whether the paternal and maternal lines contemplated by law are those of the descendant only, or whether they include the branching of each of these main lines. For example: A child acquires by gratuitous title some property from his paternal grandfather. Upon the death of the child without issue, his mother succeeds to the property by intestate - succession. Upon the death of the mother, the paternal grandmother survives. It is evident that the paternal grandmother is only two degrees from the child or descendant and is within the paternal line. However, she is not a relative by consanguinity of the grandfather from whom the property came; in other words, with respect to the grandfather, she is in a different line, and the grandfather is in another. Guest ion therefore is: To be a reservatario, is it enough that one belongs to the paternal line of the descendant only, or it is also required that he be in the particular branch from which the property came? We are more incline to the view that the relative within the third degree be within the paternal or maternal line.
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2007A XXI. ORDER OF INTESTATE SUCCESSION A. Descending Direct Line 1. estate of a legitimate decedent a. illegitimate children

ART 983. If illegitimate children survive the legitimate children, the shares of the former shall be in the proportions prescribed by article 895._______ TOLENTINO: This article applies where there is a concurrence of legitimate and illegitimate children. Bear in mind that his article includes all kinds of illegitimate children. Although 895 allotted the shares of the iiiegitimate children according to the category they belonged to. said article has already been repealed by the Family Code article 176, which eradicated the distinctions. So ihe rule now is that all illegitimate children are entitled to their legitime, which is % of the legitime of each legitimate child. Determination of shares: article is not clear as to what will be the basis of the computation or determination of the shares of illegitimate children who concur with legitimate children. Is the disposable portion only or the whole estate passing by intestacy? 3 Theories are advanced: (1) FIRST theory: 1* Determine the legitimes of the illegitimate children 2nd Give it to them 3"* Rest of the estate will go to the legitimate children Application: Estate: 70,000 1 Legit 1 Illegit Vi estate % of Legit's legitime ( % of estate) 1" Legitime of Illegit is % of the estate = 17,500 2nd Ibigay sa kanya 3rd 52.500 will go to the legitimate child Criticism: The above solution was under the old code which followed the principle of exhaustion. It cannot apply to present code which adopts principle of concurrence rather than exclusion. Hence, as intestate heirs, the illegitimate children are entitled to receive, not their legitimes, but the portions determined by the present article, which may exceed their legitimes. (Bwisit. hindi pala maga-apply tapos sinulat pa) (2) SECOND THEORY The determination of the portions of the legitimate and illegitimate children who concur in intestacy should be based upon the WHOLE ESTATE Application: ESTATE 2 Legit VS Estate 28,000 each 70.000 1 Illegit Yi of 1 Legit's share 14.000 Criticism: Although the above seems to be in conformity with the present article and the family code provision, there are situations in which the above 1st step Page 165 of 207 theory is not legal by virtue of the fact that said computation can impair the legitime of legit heirs. Take for example if you have several illegit children but only 1 legit child. ESTATE 70,000 1 Legit 3 Illegit Legitime Yi of Legit's legitime 28,000 14,000 each The problem here is that the legitimate child's legitime is impaired since what he receives from the above solution is less than Vi of the estate (which is his lawfully mandated share in the entire estate), which is 35.000. Always remember that intestate dispositions can never impair the legitime. (3) THIRD Theory: 1st step. Legitimes of the children, legit or illegit must be determined 2nd step. Disposable portion, if there is any left, is distributed among them in the proportions established in 895 ( Vx to legitimate and Yi of legitimate legitime to illegitimate) 3rd step. Add them all together to determine total shares in the intestate succession. Application: ESTATE 70,000 1 Legit 1 Illegit 35,000 17,500 2" step* 11,667 5,853 (* since the disposable portion is 17,500, we then divide according to 895 as well) 3ld step Add them together to get total share in the intestate disposition Tolentino prefers the second and third theories provided that when one applies either, it should not impair the legitimes. Law on intestacy is merely presumed will and should be subordinate to principle on legitimes. Partial Intestacy. If the deceased bequeaths any amount or portion of his property, the testamentary provision should be carried into effect in so far as it does not impair the legitimes of compulsory heirs. Art 960 (2) provides that legal succession shall only take place with respect to the property which testator has not yet disposed of by will. This means, in light of the present article, that after deducting the amounts or portions disposed of by will, the remainder of the estate is the property which shall be distributed in the proportions prescribed in 895. In no case, should the legitime be impaired. Application: ESTATE 70,000 1 Legit 1 Illegit X friend - legacy of 16,000 35.000 17,500 disposable part is 17.500 No impairment of legitimes since disposable part is 17,500 and legacy is only 16,000.
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2007A

IIIIII The entire line should be considered, with one terminal being the descendant, and the other terminal being the ascendant or brother or sister from whom the property came. In other words, relation by affinity will not be sufficient to establish ones 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, brother or sister, from whom the property came. Only then can he be considered as belonging to the line from which the property came. When the property proceeds from a brother or sister of the full blood, there is no way of determining the line from which the property came. Since the descendant and the brother from whom the property came are both children or" common parents, their relatives in the paternal side as well as in the maternal side will be in the same line emanating from the deceased. But when the brother or sister from whom, the property comes is of the half blood, the guest ion of line arises, attention being given to the common parent. If the common parent is the father, then the line from which the property came is the paternal line. If the common parent is the mother, it is the maternal line. Note that when some of the reservees are of the half blood and others are of the full blood, the rule of unequal participation in the inheritance does net apply because the basis of succession is not tlte extent of the blood tie, but it is the condition of being related to the special line to which the reserva belongs. i Who are the relatives within the third degree? 1. First degree: The father or the mother only, because in order that an ascendant can be a compulsory heir, either there are no descendants or such descendants are incapacitated to succeed or were disinherited or have repudiated the inheritance; and in all these cases they should not be entitled to the reservable property. 2. Second decree: The grandparents of the line from which the property came, and the brothers of the full blood, or those of the half blood on the side -from which the property came. 3. Third degree: The great-grandparents; the uncles by consanguinity (full or half brothers or sisters of the father or mother), and the nephews and nieces (children of full or half brothers of the deceased descendant). Expectancy by All In determining the right of the relatives within the third degree, there are two moments to consider: the death of the descendant, when the reservation begins the death of the ascendant, when the right of the relatives in the third degree to succeed becomes definite. At the first moment indicated, all relatives within the third degree, whatever the line or proximity of the relationship, acquire an expectancy, an inchoate or contingent right, and may individually or as a group compel the reservista to perform all the obligation necessary to secure the reservation. But none of them, so long as the reservista lives, acquires any definite right to the property subject to reservation. The reservation exists, during the life of the reservista. in favor of a class Page 123 of 207 (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 death of the reservista, he is called upon as if to the succession of the descendant. \ Preference Among Reservees There are those who maintain that since the reserva exists in favor of relatives within in the third degree, the law making no distinction of lines and degrees, all of them succeed in their own right, per capita. This is the theory of reserva integral. An opposing view, sustained by the greater number of commentators, is to the effect that the rules of legal or ?B> intestate succession apply, and that there is among the 22 relatives within the third degree a preference, first between 4 lines, (the ascending being preferred.to the collateral), and jg^_ within each line, the nearest in degree excludes the more ) remote: While all relatives within the third degree, as a grouj) is called to succeed as reservees as among -themselves the rules of intestacy will apply, particularly Arts. 1101.1004.1005. and 1009 in this case. Representation-~As held in Florentino v. Florentine, the right of representation cannot be alleged when the one claiming the same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which the property came; inasmuch as the right granted by the CC in art. 891 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Property Subject to Reserva The property which has been acquired by the descendant gratuitously, should pass to the ascendant reservista by operation of law. in order to be reservable. The term operation of law applies to the transmission of the tegitime 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. No Substitution The very same property which the descendant acquired gratuitously from another ascendant, or from a brother or sister, must pass by operation of law to the ascendant supposed to reserve. The reservation applies only to Properties having these circumstances which distinguish and

individualize them; it is not possible to substitute them with others of the same kind or with equivalent quantities or values. If the property subject to reservation is money, and there is no cash in the estate of the reservista at the time of his death, the solution should be similar to that followed in the enforcement of Judgment credit. It should be noted, however, that before the death of the descendant there is no reservation yet, and hence no obligation to preserve the property. The descendant may thus sell the property acquired gratuitously from an ascendant or from, brother or sister, or may exchange such property with others, the purchase price or the substitute acquired does not thereby become subject to reservation, because they are not the very property gratuitously acquired from the ascendant or brother or sister.
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2007A Institution of Ascendant If, upon the death of the descendant, he leaves property acquired gratuitously from some other ascendant or a brother or sister and others which do not have this character, and in his will he institutes as his ascendant, it is clear that 1/2 of the estate passes to the latter by operation of law as legitime and the other half by will of the descendant. But within what limits should the reservation obtain? There are two views on this question. The first one known as the reserva maxima, holds that the 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 Vi of the estate. The second view, known as the reserva minima, holds that 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, brother, or sister should be reservable. and the other half should be free. The reserva minima is based on general principles of law and is more equitable, and is also more in line with the philosophy of the present Code of socialization of property. Institution of Strangers The ascendant may have been instituted to 1/2 of the estate, and another person to the other half, without express designations of properties. The ascendant is an owner in common of every property in the inheritance, with a 1/2 interest, and therefore, 1/2 of the property acquired by the descendant gratuitously from another ascendant, or from a brother or sister, should be reserved and the other half should be free. This is to be understood as applying only cases where there has been no partition of the inheritance between the ascendant and the ttwi person. Hence, during the state of pro indivisio, 1/2 of the properties acquired gratuitously from some other ascendant is reservable and the other half is free. Legacies to Strangers If the descendant disposes of 1/2 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 or 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. If the total value of the properties given by the descendant in legacies does not cover the entire free portion, the balance of the estate goes to the ascendant by intestate succession. Hence, the reservation will attach to each and every property in that balance which may have been acquired by the descendant gratuitously from another ascendant or brother or sister. But, if the descendant does not allow such remainder to go to the ascendant by intestate succession, but instead provides in his will that such remainder shall pass to the ascendant, the latter gets part of, H as legitime and part by will of the testator. In such case, the reservation attaches to the property acquired by the descendant gratuitously, only in proportion to the extent of the legitime within the remainder given to the ascendant. Page 124 of 207 Will may Prevent Reserva The descendant is absolutely free to dispose of the property acquired by him gratuitously from some ascendant or brother or sister, in such a manner as to give them all to strangers and thus prevent the creation of the reservation. The descendant thus becomes the arbiter of the fate of the reserva. Partition for Reserva When the reservation has once been created, because of the death of the descendant, who has not made any partition of his properties, but has instituted voluntary heirs the partition of the estate thus left, whether judicial or extra judicial, cannot be effected in such a way as to prejudice the relatives within the third degree, on one hand, or the ascendant on the other. The equitable solution is to slart of the assumption to the reserva minima, and adjudicate to the ascendant Vz of such properties as part payment of this legitime, and the other half to the voluntary heirs or legatees. Not Part of Estate of Reservista Upon the death of the reservista. should there be debts, can the property subject to reservation be sold for the satisfaction of those debts? We believe that the reservable property is not part of the estate of the deceased that may be liable for his debts. If the reservable property is not a part of the estate of the reservista and not subject to administration, it cannot be sold for the payment of his debts. Rights of Reservista In principle, the reservista has the right of revocable and conditional ownership, inciuding full enjoyment and usufruct of the property, with the power of free disposition for the purpose of alienating and encumbering the same, subject to the nature of his revocable and conditional ownership. The two resolutory conditions affecting the reservist's right are his death and the existence of reservatarios the time of such death. Effect of Alienation Alienations of reservable personal property are valid and pass irrevocable title to the transferee but the reservista has the obligation to

indemnify the reservatarios. The alienation of the reservable immovable property, however transmits only the revocable and conditional ownership of the reservista so that the right of the transferee is revoked and resolved by the survival of the reservatarios at the time of the Reservista's death. If however, the property is registered land but the reservable character has not been annotated in the registry of property, the transferee who acquires the same in good faith without notice of its reservable character holds it free from the resolutory condition. But if the reservable character of the property is registered in the registry of property, or, even if not registered, is known to the transferee, he holds the property subject to the resolutory condition, and the alienation may rescinded upon the reservista being survived by relatives within the third degree belonging to the line from which the property came. Obligations of Reservista 1. To annotate in the Registry of Property the reservable character of the immovable, 2. To make an inventory of all the reservable property and
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2007A 3. To constitute a mortgage or give a security to guaranty, upon his death, the delivery to the reservatarios of the personal property, the value of property, movable or immovable, that has been alienated, and the reimbursement of deteriorations occasioned by his fault or negligence. Registration of Reserva The reservista has a period of 90 days, from the time the reserva arises, in which to register the reservable character of the immovable property; if he does not voluntarily cause the registration within that period, then the reservatarios may judicially demand that he be compelled to make it. Making Inventory An inventory of all the reservable property is necessary in order that there may be a means of determining what property should be delivered to the reservees upon the death of the reservista. The actual condition of the property should be described, and their value should be stated, inasmuch as ihis will be the basis of reimbursement for deterioration? which may subsequently be caused by the reservista. Mortgage or Security - The reservista is required to secure by mortgage (a) the restitution of personal property in the condition in which it may be found at the time of his death (b) the return of the price received for personal property alienated, or the delivery of its value at the time of alienation if this has been made by gratuitous title (c) the payment of the damages caused by his fault or negligence, and (d) the value of immovable property validly alienated. Rights of Reservees Aside from the rights which are correlative to the obligations of the reservista, the resen/atarios do not have any other rights over the property during the existence of the reservation. Among the rights of the reserves during the existence of the reserva are to ask for the registration of the reservable character of the immovable property if the reservista has failed to register the same within the period of 90 "days from the creation of the reserva and to demand the constitution of the security or mortgage after the same period. If the reservista does not have immovable property on which to create the first mortgage, then he must constitute the mortgage on the first real property he acquires. Alienation of Right - The Reservatarios may dispose of their right in its uncertain and conditional form. Although they cannot alienate any perfect or definite tight over the reservable property they can alienate their right in its contingent form. If they die before their reservista they transfer nothing because they do not definitely acquire anything and the transfer becomes void. But if they survive him. then the transmission is effective, because they have disposed of that which definitely becomes theirs. The disposition made by the reservatarios may not only by act inter vivo but also by last will or act mortis causa. Upon Death of Reservista - Upon the death of the reservista the surviving reservatarios who, according to the rules of legal succession to the descendant, would be entitled to the reservable property, succeed to the same. Page 125 of 207 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. With respect to improvements made by the reservista, his or her heirs are not entitled to any indemnification, they may remove the improvements if that can be done without injury to the reservable Property, or they may compensate the liability for deteriorations with the value of such improvements. If the improvement is caused by nature or time, it belongs to reservatarios. Alienated Immovables If the reservable character of the property has been annotated in the registry of property, the transferees after the obligation to reserve has arisen acquire only a conditional title; hence, upon the survival of the reservatarios at the death of the reservista, such transfers are resolved and the right of the transferees is, extinguished. The reservees are thus entitled to recover possession of the immovables. If the reservable character of the immovable was not registered, but the transferee had knowledge thereof, he . also acquires the, property subject to the resolutory condition; his actual knowledge of the condition is equivalent to registration. But if he is not informed of the reservable character, and there is no registration thereof in the registry of property, he acquires a better title than the reservatarios, if he has registered the transfer in his favor.

If, however, the transferee has not registered the transfer made in his favor, and the property does not appear to be reservable in the registry of property, the transferee cannot have a better right than the reservatarios. Both the right of the transferee and the right of the reservatarios are on an equal footing, so tar as the Mortgage law is concerned because neither is registered. We submit however, that under such circumstances were the transferee, whether immediate or subsequent, has no notice of the reservable character which has not been annotated in the Registry of Property he must be held to have acquired the property with an absolute title, free from the resolutory effects of the reservation, if he acquired it after the lapse of the 90 days within which time the reservable character should be annotated, the reservatarios should, in such case, look into the hereditary property of the reservista for the satisfaction of the value of the property thus alienated. If the reservistas estate should be insolvent, then the reservatarios should suffer the loss. Extinguishment of Reserva First: Death of the ascendant. Since he is the person obliged to reserve, that is, the passive subject of the obligation, his death terminates the reservation. Second: Death of all relatives within the third degree belonging to the line from which the property came. Third: Loss of the things which are reservable. by causes not imputable to the fault or negligence of the reservista. Fourth: Renunciation by the reservatarios. If the renunciation is made after the death of the reservista, renunciation releases the property. If, on the other hand, the renunciation is made before the death of the reservista, such renunciation is not effective as against other relatives within the third degree who may be subsequently born and who survive at the
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2007A time of the ascendants death. Renunciation of the father is not binding upon his descendants, because these descendants succeed to the reservable property, not in their general capacity as heirs of the father, but under the special rule established for reserva troncal. In order that the renunciation may extinguish the reserve, it is necessary that it be made by all the children and descendants who definitely become entitled to the reservable property. Fifth: Prescription, when the reservista holds the property adversely against the reservatarios, as free from reservation. Sixth: Registration under the Torrens system as free. This last cause of extinguishment of the reserva is peculiar under the Land Registration Act (Act No. 496). When the reservable property is brought under the operation of the Land Registration Act, for the purpose of obtaining a certificate of Torrens title, the omission to register the reservable character will extinguish the reservation. When ;he land is already covered by a certificate of title under Act No. 496, and the reservees fail to have the reservable character of the property annotated on the certificate, an innocent purchaser for value who subsequently acquires the property from the reservista, free from liens or encumbrances, has a better right than the reservees. MAGIC NOTES Q: What is reserva troncal A: Under Aft. 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 the property came. As worded, this is complicated. Let us reword it. The ascendant who inherits by operation of law from his descendants any property which the latter may have acquired gratuitously from another ascendant, brother or sister, is obliged to reserve the property for the benefit of the relatives of the descendant who are within the third degree and who belong to the line from which the property came. Q: What is the purpose ofRT? A: To prevent certain properties from passing from, one family to another through the accident of lack of heir. Ganito iyan: X and Y had a son A. A is married to B and had a son F. B is the daughter of M and N. P is given a property by his grandpa X. After the donation, A died. Later, F died leaving behind the donated, property as his only property. The property will be inherited by R. X and Y cannot inherit because they are excluded by H who is nearer in degree. B gets the property by intestate succession. After B's death, where will the property go? To X and Y? No because they are no longer legal heirs of B as they had no relation with her. The property will therefore go to the legal heirs of B. But had P had a son. the property will remain in X's family. It will not go astray to the family of P's mother. But because of this accident, his having died without a legal heir, the property which used to belong to X will go astray. This is the purpose of the reserva. It will prevent the property from being inherited by the relatives of B. The Page 126 of 207 property then under RT, will be reserved for the relatives within the third degree of the prepositus coming from the line from which the property originated. Q: When does reserva arise? A: These conditions must be present: .1. The descendant acquires by gratuitous title property from an ascendant or a brother or a sister. Q: Whatis the mode of acquisition? A: gratuitous acquisition. Q: How many gratuitous acquisitions do we know? A: Two: donation (inter vivos or mortis causa) and succession.

^O Q: From whom will the descendants acquire the H^ property? -^ A: From an ascendant or from a brother or sister. c: 2. The very same property is in turn inherited by operation of law from the descendant by another ascendant. Underline-the word inherits in art 891. SG a donation inter vivos. though it may be gratuitous, is not the mode of transfer referred to. The very same property which the prepositous may have acquired gratuitously from an ascendant, will be inherited by . ' operation of law by another ascendant. Q: To whom will that pioperty go? A: To ANOTHER ascendant. Q: By what mode? A: By inheritance by operation of law. Succession by will or by donation inter vivos are theiefore not included. It is only inheritance by operation of law. Q: For whose benefit is the property received? A: For the benefit of the relatives within the third degree from the descendant and who are within the same line from which the property came. Q: How many parties therefore are there in RT A: There are four parties: 1. Origin of the property or the mediate source; 2. Descendant or the prepositus who acquired the property gratuitously 3. Ascendant from another line or the reservista who inherits the property by operation of law; and 4. Relatives within the third degree of the prepositous or the reservatarios. Q: Suppose A is married to B and had C and D as children. D married E and had S. C (aunt of S) donated property to S. When S died, the property was inherited intestate by E. In the hands E, is the property reserved? A: No. C is not an ascendant of S. She is only a collateral relative. S did not issue from her. Different View: The ascendant in the article should include the ascendant in the collateral line because art. 891 did not say that the ascendant must be in the direct line.
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the hands of G, the property may be reserved. I'm not sure. Puwedeng itanong sa eksam iyan! Example: -.'-_._ B dies first, then C dies. A donates the land to G, who later dies in an accident. 0 inherits from her son by-operation of law. If G has a child then D is barred from inheriting. However, if G has no child then D inherits. What happens when D dies? The property then goes back to A and not to the parents of D. as the property is reserved. D is a reservista, G the prepositus. Q: What if G is adopted? A: When D inherits, then the property does not become reserved. Adoption is a personal relationship between parent and adoptee. There is no legal relation between A andG. ORIGIN For Reserva to arise source and prepositus is legitimately connected o Ascendant, brother or sister o Uncles are not sources as they are NOT ascendants but are collateral relatives Q: What if A is married to B who has C. A dies and his beneficiary is C. who dies without heirs. Is the property reserved in the hands ofB? A: No. Since the money comes from the insurer and not the father. At most, only the premiums are donated by the father, but DLC thinks that no reservation occurs as such arises out of an aleatory contract. The origin must be an ascendant, brother or sister. (DLC says that RT does not apply if full blood brothers or sisters. Property does not leave the family - JBL) Q: Will reserva arise when the brother or sister is illegitimate? A: No. Nieva V. Alcala. Q: If the brother is a half blood relative, will RT arise
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2007A DLC: Art 964 defines direct line as that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by series of degrees among persons who are not ascendant and descendants but who come from a common ancestor. Under this article, it seems that whenever someone is in the collateral line, he is not an ascendant or descendant. In the absence of a particular provision, the law, when speaks of ascendants and descendant, refers only to ascendants, and descendants in the direct line. So, in the problem above, whether C is an ascendant for purposes of RT is still debatable. But in my opinion, C is not an ascendant. Q: Suppose A and B had C who had a common law wife D which bore E. an acknowledged child. A donated property to E. When died. D inherited the property by operation of law. In the hands ofD, is the property reserved? A: No. Under the case of Nieva v. Alcala, art. 891 applies only to legitimate relatives of the prepositous. If prepositous is illegitimate, he cannot have legitimate relatives. Since he cannot have legitimate relatives, there cannot be any reservatarios. Q: Suppose C above married F who is an illegitimate daughter of. D and E. C and F had a legitimate child S. A donated property to S which was later inherited by F by operation of law after S:s death. Is the property reserved? A: Take note that Nieva v. Alcala says that RT applies only to legitimate relations. There is a reserva here. The legitimate relation is reckoned from the prepositous and not from any other party. Q: Suppose it is the reverse. E (illegitimate grandma) donated, to S which was inherited by C upon S's death. Is the property reserved? A: Vn the hands of C, the property is reserved to relatives within the third degree from the preposrtous. But S is not legitimately related to E, the mediate source. Since the origin of the property is an illegitimate and the reservatarios must be in the same line from where the property came then the reservatarios will somehow be related to the origin. Sa kanyang line kasi manggaling ang mga reservatarios. Those reservatarios will necessarily be illegitimate relatives of S. But his relatives with respect to F are all legitimates. Since legitimate relatives are reckoned from the prepositous it is not material. Do you follow? So Nieva v. Alcala should be viewed only with respect to the prepositous. Q: Must the four parties be related to each other? A: No. The origin must not necessarily be related to the reservista. But the parties must all be related to the prepositous. Q: Suppose S (prepositous) is an adopted child, will there be a RT? A: Under the Civil Code, it was impossible for an adopted child to be a prepositous because an adopter was not a legal heir. Under the PC the adopter is now a legal heir. The question is will RT arise? The answer is NO. Adoption creates a personal relationship only between the adopted and the adopter. Hence, the relatives of the adopter are not relatives of the origin and they do not come from the Page 127 of 207 line from which the property came. There can be no relatives by adoption. So reserva will never arise Q: Suppose the adopted is the pamangkin of the adopter? A: Siguro magaarise ang reserva. I'm not sure about it. For example: A is'married to B and had 2 children C and D. C had E who was adopted by D who was married to G. A donated to E which was inherited after E's death by G in

2007A Example: A married to B had a child C. C was married to D and had E. Later D died and C married F. They had G. Therefore, G and E are legitimate halt brothers. E donated property to G a property. After G's death, F inherited the property as C is already dead then. Is the prooerty reserved in the hands of F? A: Yes, for the benefit of the relatives from the line where the property came. Q: Where is this line? A: Line of E as he was the origin. Q: From which specific line, on C or o n D who are both E's Parents? ^ A: Authorities are of the opinion that it is the line of the common parent. It will go astray to the relatives of F if there is no reserva. Hence, it is the line of C. Q: How about if G and E are full brothers, will there be a RT? In the above problem, C and D had 2 children E and F. E donated a certain property to F. his brother. After P's death the property was inherited by D as C is already dead. Is the property reserved in his hand? A: Tolentino: Yes. RT will arise. JBL Reyes and Puno: If there is a RT who are the reservatarios? These are relatives within third degree from where the pioperty came. But where is that line? On C or on D7 These are both his lines. It is impossible then to have a RT because there ear be no line to where the property will go astray. All the relatives of E is also a relative o< E. It will remain on the same line therefore and will never go astray. Hence, there is no need for a RT. DLC: I think Reyes and Puno, are more accurate than Tolentino. Of course, Reyes and Puno cited Spanish author Maura. Hence. RT will arise in the case of half blood brothers and not in the ease of full blood brothers. Balane: Even if the relationships are full blood, it can stiU leave the family, for if the reservista marries again then such becomes the property within the marriage (depending on the property regime) DLC: NO! Such does not matter since at the deatn of the prepositus, the property automatically becomes reserved. Reserva is based on the time of death of the prepositus! Q: A and B. married, had a child C who married D. C and D had a child S. S married K and had a child P. D donated to C a property which was later donated by the latter to P. K inherits it. Is the property reserved? A: Of course. Q: 3ut what if K donated it to C and C donated it back to P. Whan P died, K inherited it. Is there RT? Take note that if there is a reserva, then K or his relatives will not get the property. A: There is a RT in the hands of K. In the hands of the mediate source, it is not material where the property came from. Ke nakuha niya iyon sa reservista is not material. PREPOSITOUS Q: How is the prepositous related to the origin? A: He must always be a descendant, or brother or sister of the mediate source. Hindi puwedeng ascendant. Page 128 of 207 Q: How is the property transferred to the prepositous from the origin A: Must be transferred gratuitously. There are only 2 gratuitous transfers, to wit: succession (testate or intestate) and donation (inter vivos or mortis causa). Q: May the prepositous who acquired by gratuitous title a property dispose the property during his lifetime? A: Yes, puede niyang ibenta. (in the hand of prepositus, property is not yet reserved. Hence he is considered as an : arbiter of reserva) Q: If sold by him, will reserva arise? A: No more, naibenta na niya. Wala nang mamanahin ang reservista. The very same property must be inherited by the vista from the prepositus. Example: If the property

donated was a land in Alabang and the prepositous j..,. exchanged it with a Cavite land, the property is no longer ^y subject to reserva in the hands of donee's mother because ~ the reserva attached only to the very property received by ~; the donee from the ascendant, brother or sister. That is ^ why the prepositous is the arbiter of the reserva. Whether RT will arise or not; depends on the prepositous: He caw defeat it by selling itor exchanging it with another. In the hands of the prepositous. RT will not arise. Q: F married to B had son C married to D. They had son G who married to and K had P a son. A donated to S. When S died, the property was inherited by A, (C and D was predeceased). In the hands of A. Is the property reserved? A: No. Under the law. it must be inherited by another ascendant. If it was inherited by the same ascendant from which the property came, there is no reserve. Q: How should the ascendant inherit to make a reserva? A: By operation of law, meaning compulsory or intestacy Q: What happens when prepositus wills it to ascendant? A: No reserva arises then Q: What if A donates to C who is his grandson. C dies, and by operation of law, property goes to B the father. Is there a reserva? A: Tolentino: YES. JBL & Puno however think that property did not leave the line, thus it cannot be said to be a reserva. DLC agrees with the latter view. Q: Suppose it was inherited by C, is there a reserva A: There are 2 views: First view: No reserva troncal because the property has not gone astray. It has remained on the same line. Second view: Tole: The property is received because all the requirements of Art. 891 are present. DLC: reservista must be ascendant from another line. RESERVISTA They have the duty to preserve the property as such will ultimately go to the reservatarios. However they can will the properties but such will be subject to a resolutory condition her death. If there are no reservatarios then her title to it becomes absolute. Q: Can an innocent purchaser defeat the rights of the reservatarios?
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2007A A: Yes! Law requires that it should be annotated in the title of the properties. All an innocent purchaser has to rely on is the title. Absent the annotation, then the purchaser must be protected RESERVATARIOS Q: Who are reservatarios? A: The heirs for whose benefit the property is reserved. TO FIGURE OUT WHO THE RESERVATARIO IS, APPLY THE DOUBLE CONSANGUINITY TEST: Should be a blood relative of both the source and the prepositus Q: Third degree relative from whom? A: From the prepositous. They are relatives by blood and never by affinity. They all must come from the line where the property came. Q: Are all relatives within the third degree reservatarious? A: No. Among them, rules of intestacy will apply. Hence, the nearer excluded the remote and the descending excludes the ascending. Q: How do we know whether reservatarious belong to the same line? A: Tolentino: Reservatarious should be related by blood not only to the prepositous but also to the origin. Q: A is married to B and had C. C was married to D and had S as a son. After S's death, the property donated to him by A is inherited by D. D therefore has to reserve the property for the benefit of S's relatives. When D died, B is the only surviving heir. Is B a reservatario ofS? A: No because she is not a relative of A by consanguinity but only by affinity. NOTE: To be reservatanos, we must apply the double relation test: related by blood to both the prepositous and the origin. As far as the prepositous is concerned, the relation must be within third degree. Q: Who are these relatives within the third degree by consanguinity? Let us illustrate this M is married to N and they child A. A married B who is the daughter to O and P. A and B had 2 children G and E. On the other hand, C is married to D and had 2 children, F and H. Now, married F and they had children, I and J. J is married to K and had child L. I is the prepositous. Who are his relatives within the third degree?

(maternal auntie) is 3 degrees away. K wife of J is excluded as she is related to him by affinity. Q: If the property came from the line of E (father), who are his reservatarios? A: MNOP (great grandparents), AB (grand parents). J (brother), L (nephew), ami G the (auntie). Q: How will these reservatarios share? A: The rules of intestate succession will apply. First rule; the nearer excludes the father. Brother J (2 degrees) excludes auntie G (3 degrees). Papa excludes grandpa. Second rule: descending excludes the ascending. (Camacho v. Papa) Brother J excludes grandpa A although both are 2 degrees away. Nephew L excludes M 5>-. great grandpa M (both are 3 degrees away). 3LJQ: Will reservatarios inherit in equal shares? Tolentino: Yes. When some are half brads and others are full, the rules on intestacy does not apply so that they will receive equal shares. SC in Padua v. Baldomero: The ruies on intestacy apply so that half brothers get half of the share of the full blood brothers. Q: Must reservatarios be living at the time of the death of the Prepositous? A: Not necessarily because RT exists in favor of a class of heirs who are alive at the time of the death of the reservista Q: If a. relative dies before the death of the reservista, can his heirs inherit? A: It depends. In the case of Florentino v. Florentine, the court held that this depended on whether the heirs of the predeceased are also related within the third degree to the prepositous. If they are. then they can exercise the right of representation in favor of their deceased reservatario. If they are beyond the third degree relation, then they cannot represent their predeceased reservatario parent. Example: A is married to B and had three children with her named P C and 0. 0 is married to E and had children G and F. G had son H. A donated a property to P and upon his death, P inherited it. Is the property reserved in P? Yes. Q: Who are the reservatarious ofP? A: C equals 2 degrees. D equals 2 degrees, F equals 3 Degrees, and G equals 3 degrees. P is not a reservatario since he is 4 degrees away from P. Q: Suppose D died, are his rights transmitted to his heirs G andF? A: Yes, G and F may represent D. Q: Can H represent BifG also died? A: No more because he is beyond the requisite 3 degrees of relation. Note: reservatarios who predeceased the reservista may be represented for as long as the representatives are within the third degree relation required.
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2007A EXAMPLE: Presume G is dead


TAIJ

Page 129 of 207 A: E (father) is one degree; G (paternal aunt) is 3 degrees; A and B (grandparents) are 2 degrees related to him; MNOP (paternal great grandparents) are 3 degrees away; J (brother) is 2 degrees; L (nephew) is 3 degrees down; C and D (maternal grandparents) are 3 degrees up; and H

1. Apply double consanguinity test: Blood relatives of both source and prepositus DEF HIJ KLM P 2. 3rd degree from Prepositus Q: What happens when n dies? A: Reservatarios (3rd degree relatives of the same bloodline from where the property came from) o Relatives not in the 3"1 degree - P, Q, V o Not the same bloodline - D, E, F, H, I. J. K. L, M Q: How do we know if they come from the same bloodline? A: Double consanguinity test - must be related to both Source and Prepositus Q: Then what? A: Apply the rules of intestacy. 1 . Direct Line excludes the collateral 2. Nearer relative excludes the more remote o By Line of Succession: o C o A&B o R&S o In case of R's death, S & U inherits by virtue of Florentine vs. Florentine with regard to representation Q: Can reservatarios sell property? A: Yes! It's not a future inheritance but is already a thing that has a potential existence. However, the buyer only gets what the reservatario gets (and for him to get something, reservista must die first) Q: Can reservatarios be half blood? A: Yes! As long as they are legitimate relatives! Refer to the Padura case Page 130 of 207 Q: What if the reservatario is bom after death of the Prepositus but when the Reservista is still alive. Is it valid? A: Yes! Such is held for a class of heirs which is reserved at the time of the death of the prepositus. PROPERTY SUBJECT TO RESERVA The same property which came from the mediate source must be reserved in the hands of the reservista. In the hands of the prepositous, the property is free and is not subject to reserva. He may dispose it if he chooses so But when it is inherited by the reservista by operation of law. it is subject to RT. When reservista dies the reservee gets the property. Q: What is the nature of the interest of the reservista on the property? A: Ownership subject to resolutory condition that reservatarios exist at the time of his death. If there are no reservatarios the property becomes part of his estate. Q: May reservista sell it during his lifetime? A: Yes since he exercises the right of ownership thereon. However, the transferee acquires the property subject to resolutory condition which must be

annotated at the back of title. Otherwise, innocent purchasers may get a better title thereon. Q: May reservatarios acquire interest over the property while the reservista is alive A: Yes, they have an inchoate right over the property. Q: Can they sell it while the reservista is alive? A: Yes as held in Edroso v. Sablan and Nono v. Nequi, since these fellows have ownership subject to the 2 suspensive conditions that they are alive at the time of the death of the reservista and that they are qualified to inherit at that time. Q: When must the right of the reservatarios vest?
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2007A A: At the time of the death of the reservista. It is necessary that the reservatarios be alive at the time of the, death of the descendant or the prepositous because reservation attached in favor of a class (the class of heirs who are within the third degree relative of the prepositous and belonging to the linewhere the property came). So those persons related to him within the third degree and within the appropriate line may be born after the death of the testator and may still be reservatarios. Q: Saan maghahanap ng reservatarios? A: Doon sa relatives of the prepositous who qualified as reservatarios at the time of the death of the reservista. Q: A and B are married and had one child C married to D. The latter couple had 2 children P and G. A donated a property to P. Then later on C died followed by P (prepositous) D (widow of C inherited the property donated to P and become a reservista. She married E and had child F. G (brother) is obviously a reservatario if he is alive at the time of the death of the reservista (D). Suppose he sold the property in question when the reservista is alive, can he do that? A: Yes but the sale is subject to the condition that he is alive and qualified at the time of the death of the reservista. If he becomes disqualified (predeceased D), then the sale will not take effect. Q: A is married to B and had child C who married D. C and D had three children namely, P E and F. E had child G. G had child H. A donated to P a lot. When P died. U inherited the lot became a reservista. E father of G6 is already dead. Suppose G sold to K the 1/2 share of his father E. what is the right of K. A: It is a mere expectancy. He will own the property when the suspensive condition (G is alive and qualified to be reservatario at the time of the death of D). Q: In the previous problem suppose G predeceased D leaving son H, can K get the property object of sale A: No because the suspensive condition did not happen. Q: Cannot H represent his father G so that the sale would be effected notwithstanding the death of G A: No, H cannot represent G as he is 4th degree related to the prepositous Q: Suppose E, before his death, sold his share to K and later' he died leaving G. Can K get the property A: I will not give a categorical answer to this because G in representing E does not inherit from E but rather from D. Since E is not qualified as reservatario, the sale is void. Q: Is this a sale of future inheritance A: No because the reservatarios are not inheriting from the reservista but rather from the prepositous. It is an inheritance reserved by law to them so that it is not actually a future inheritance. If they are inheriting from the reservista. then obviously the sale is void. Please refer to the case of Edroso v. Sablan Q: What is the essence of representation if the representatives are actually inheriting from the prepositous? A: With representation in the case above. G takes the place of E who is predeceased. G then is on equal standing with F, Page 131 of 207 the brother of E. Hence, G will be of the same degree as F without representation, G would not be of the same degree as with F. Take note however that if G is dead, his son H can no longer represent C to represent E because H is beyond the 3 degree relations required. Note: Reserves arise if the very property is inherited by another ascendant by operation of law Q: In what instances is inheritance by operation of law? A: Intestacy and legitime. Q: A is married to B and had child C who is married to D. The Istter couple had son E. A-donated a land to E. E died leaving a will the devise of land to his driver. Is there reserva? A: No because the driver inherited by will. Q: Suppose E gave the land by will to D, is there a reserva A: No because D got the land by will and not by operation of law Q: Suppose E left a will instituting his mother D as his sole and universal heir, is the land reserved? Take note that the will applies only to the free portion. A: In this case. D acquired hflf of the estate of the prepositous by will and the other half as legitime. Now, E cannot leave to her will the designation of which property he received by way of legitime and which by way of testate succession because she can defeat the RT by assigning the land donated to E and inherited by her, to her inheritance by will so that RT does not attach. Q: What if the prepositus only has one land, and also wills his mother to be his universal heir'-' A: Mother will get it in 2 parts, one by will and the other by legitime. The legitime will be reserved. But if there is no will. Yi of property is from legitime and the other half by intestacy, then the entire property shall be reserved Q: What if Prepositus receives 2 lots, one from grandfather and another by his uncle. He designates the mother as the sole heir. If Prepositus dies, then

mother gets everything. Can the mother designate which of the tots are to be inherited from will or legitime? A: NO! then mother'will be able to defeat the purpose of the reserva by saying that the one by the grandfather (the reservable property) is the one by will so that the reserva will not arise. Therefore the views of Reserva Maxima and Minima arises. There are 2 views: Reserva maxima: This is in favor of the reservatarios. This provides that the reservable property should be imputed to legitime or the reservista and the excess, if *\ any. would go to the free portion. As the inheritance is 22 by way of legitime and not by way of a will, then it is A an inheritance by operation of law so the heir is 3>- obliged to reserve. Hence, the property becomes O reservable. Reserva minima: Half of the property is legitime and another half of each property is inherited by will. In effect this reduces the amount of property that will be reserved by the reservista since only half was inherited by operation of law.
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2007A I I I I I I I I I I IIIIII "effect would be different if its inherited by legacy or devise since here, for so long as it is within the free portion then it will not be reserved Q: What if the mother is instituted to 1/3 so that she inherits by way of a will, by operation of law as regards her legitime and by intestacy, as to the free portion. Is the property reserved A: No answer given. Exam Question daw nila to sabi ni DLC Basically, the problem that the two concepts of reserva maxima and minima, seeks to answer is this: Suppose the reservable property, is half of the, estate and this is given by will, then the reservista, to defeat the reservation, may choose to impute the reserved property to the free portion so that it will not be subject to reserva since it is an inheritance not by operation of law. Hindi puwede iyon. To prevent this situation, the reserva maxima and minima was conceptualized. Reserva maxima is in favor of reservation. The property subject of reservation should be imputed to that portion received by operation of law. If all the reservable property fit in there, then the entire property is then reserved. OLC's criticism: This is unfair because you, as a -compulsory heir (CH), will always receive the property by, operation of law when you receive your legitime. Yet the legitime is reserved for the relatives under this concept. This is absurd, isn't it? For Art. 891 to remain there, it should exclude the legitime. It should cover only those property received by way at intestate succession. Edroso v. Sablan (1913) The parents of Victoriano Sablan gave to him by inheritance 2 parcels of land. Victoriano & Marcelina Eo'rosc had a son, Pedro, who inherited the parcels of land from his father when the latter died. A short time thereafter, Pedro, who was single, also died leaving the lands to his mother, who sought to register the land in her name. Two uncles o Pedro opposed her and claimed that their right of reserva troncal be recorder in the registration of each parcel. CLR denied her application on ttie ground that such property should be reserved in favor of the uncles who wete held to be owners of the land. HELD: As the lands in issue were first inherited by Pedro's father from his own parents and such passed unto Pedro and then to P. having acquired them without any consideration, she's obligated to reserve them for the undes of Pedro who are relatives within the third degree and belonging to the line where the lands proceeded. The SC however ruled that P, being the legal heir can do any act of ownership since she possesses legal title to the properties while she lives. The reservees don't own the properties with her, but only have a mere expectation of inheriting it if P dies before they do.____ Seines v. Esparcia (1961) Saturnino Yaeso had a first wife, Teresa Ruates, with whom he had 4 children, namely Agaton, Fernando, Paulina and Cipriana. He then had a second wife, Andrea Gutang, with whom he had a child. Francisco. The properties left by Saturnino upon his death were left to his children. Because Francisco was a minor at that time, his mother administered the property for him, declared it in her name for taxation purposes and paid the taxes due thereon. When Francisco died at the age of 20, single without any descendant, his mother, as sole heir, executed an EXTRA JUDICIAL SETTLEMENT & SALE whereby, she sold the property to Sienes & Silay. When the said vendees asked for the property from Paulina, the surviving half-sister of Francisco, she and her husband refused to surrender it, which gave lise to a cadastral case which was denied. Cipriana and Paulina, the surviving half sisters of Francisco, sold the land to spouses Fidel Esparcia and Paulina Sienes. TC held that the sale to Sienes and Silay is void, sale of land to Esparcia and Sienes also void, and that the reservable property is part

of and must be reverted back to the estate of Cipriana, the lone surviving relative and heir of Francisco at the death of Andrea Gutang HELD: Andrea Gutang was under obligation to reserve the property for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived heir. The reserva instituted by law constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. The lone reservee surviving her being Cipriana, the latter became the absolute owner upon Andrea's death. The reserva creates two resolutory conditions: (a) the death of the ascendant obliged to reserve and (b) the survival at the time of the formers death of relatives within the third degree belonging to the line from which the property came. The reservista has the legal title and dominion to the reservable property but subject to a resolutory condition that he's-like a usufructuary of the reservable property; that he may alienate the same but subject to a reservation, said alienation transmitting only the revocable and conditional ownership of the reservista the rights acquired by the transferee being revoked or resolved by the survival cf reservatarios at the time of the death of the reservista. The sale made by Gutang was subject to the condition that the vendee would acquire ownership, by virtue of alienation, ONLY IF THE VENDOR DIED W/O BEING SURVIVED BY ANY PERSON ENTITLED TO THE RESERVABLE PROPERTY. I Florentine v. Florentine (1919) Apolonio Isabelo Florertino and first wife Antonia Paz de Leon begot S children. Apolonio and his second wife, Severina Paz de Leon begot 2 children, Mercedes and Apolonio III. Apolonio II died and was survived by his second wife, and his 10 children, Apolonio III being a posthumous child Apolonio !l instituted as his heirs his children and widow leaving to Apolonio III certain lands and other personalty. When the latter subsequently dies, he was succeeded by his mother to the property left to him by his father. Severina later died leaving a will instituting Mercedes as her sole and universal heir. Mercedes then took possession of the.properties. The children and grandchildren of the first marriage asked the TC for the said properties to be declared a reservable property. CFI dismissed case. HELD: REVERSED. Apolonio III acquired property by lucrative title or by inheritance from his father. Although said property was inherited by his mother, nevertheless, she was duty bound, according to 891 to reserve the property thus acquired for the benefit of the relatives within the third degree of the line from which said property came. When there are relatives of the L- decedent within the third degree, the right of the nearest C ^relative, called reservatarios, over the property within the reservista (person holding it subject to reservation) should return to him. and excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatarios of the reservable property is not among the relatives within the third degree belonging to the line from which said property came inasmuch as the right granted by 891 CC is in the highest degree personal and for the^ exclusive benefit of the designated person who are relatives within the third degree, of the person from whom the reservable property came. Hence, relatives of the fourth and Page 132 of 207
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2007A succeeding degree (the grandchildren of Apolonio Ill's sisters and brothers) can never be considered as reservatarios; since the law doesn't recognize them as such. Nevertheless, there is the right of representation on the part of the reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased (children of Apolonio's sister & brothers) person from whom the reservable property came. They have the right to represent their ascendants (fathers and mothers) who are brothers of the said deceased person and relatives within the third degree.__________________ Padura v. Baldovino (1958) Agustin Padura contracted 2 marriages. With his first wife, Gervrsia Landig, he had one child, Manuel; and with his second, Benita Caring, he had 2, Fortunate and Candeleria. Agustin died, leaving a will which was duly probated, wherein he gave his properties to Manuel. Candelaria, Fortunate, and Benita Caring. Under the probate proceedings. Fortunate was given the 4 parcels of land. Fortunate died without issue and without a will, and so the properties \*ere inherited by his mother Benita Caring. She was issued a Torrens Title, but subject to the condition that the properties were reservable in favor of relatives within the third degree belonging to the Hne from which said property came. Candelaria died, leaving 4 legit children (the Baldovino's). Later, Manuel died who left 7 legit children (the Padura's). Upon Benita's (reservista) death, both groups of heirs took properties. CFI gave it to both. The Padura's want to have properties partitioned, on the basis that they inherit by right of representation from their respective parents, the orig. reservees. CFI declared them co owners, w/o distinction. HELD: REVERSED. The nephews of the full blood (Baldovino's) must take a share twice as those of the naff blood (the Padura's), in conformity with the laws on intestate succession (1006, 1008 CC). In the relations between one reservaiario and another, of the same degree, there's no call for applying 891, hence each respective share of each in the reversionary property should be governed by ordinary rules of intestate succession. Upon the death of the ascendant reservista. the reservable property should pass, not to all the reservatarios as a class, but only to those nearest in degree to descendant (preposrtus). excluding those reservatario of more remote

degree (1) Proximity of degree and (2) Right of representation are basic principles of ordinary intestate succession; so is the rule that (3) Whole blood brothers and nephews are entitled to a share double that of brothers and nephews of hatf blood. If in determining the rights of the reservatarios inter se, the first 2 rules are applied, the third rule should likewise be operative. Chuav. CFAM977) Jose Frias Chua and first wife Patricia Militar had 3 children: Ignacio, Lorenzo and Manuel (who died without leaving any issue). Jose and second wife Consolacion de la Torre had 1 son, Juanrto. Jose died intestate. TC gave Consolacion 1/2 of a lot and money, to Juanito the other half of the lot, to Lorenzo some money. Juanito died intestate without any issue, and Consolacion adjudicated in her favor Juanrtos other half. Consolacion later died leaving no direct heir except her brothers and sisters. In the intestate proceedings, Ignacio and Lorenzo's legitimate children asked that the % portion of the lot of Juanito be declared as reservable property. TC dismissed. HELD: In order that a property may be impressed with a reservable character the ff. must exist: (a) That the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous ____title;____________________________ Gonzales v. CFA(1981) Benito Legarda y Tuazon (later as Benito T.) had 3 children: Consuelo. Rita and Benito Legarda y Dela Paz (or Benito D.). Benito D. died, and was survived by his widow Filomena Roces and his 7 children: Beatriz Rosario, Teresa, Filomena Benito, Atejandro and Jose. When Benito T. died, his properties were partitioned in 3 equal parts to Consuelo, Rita and heirs of Benito D. Filomena Lagarda y Roces (child of Benito D.) died, and her sole heiress was her mother Filomena Roces vda. de Legarda The latter adjudicated extrajudicially to herself the properties she inherited. She later disposed the property to her sons (Benito III. Alejandro and Jose) children (16 grandchildren). Filomena died. During testate proceedings, Beatriz Legarda; Gonzales (child of Benito D.) moved to exclude from the inventory of her mothers estate property inherited by deceased from daughter Filomena (her sister), as they were reservable & should be inherited by the 6 other children of Benito D. TC dismissed. HELD: The properties were indubitably reservable properties in the hands of Mrs. Legarda (Filomena. wife of Benito, D.). The reservation became a certainty when at the time of her death, the reservees or relatives within the third degree of Filomena (child of Benito D.) were living. The reservable property is no part of the estate of the reservista who may not dispose of them by will, so long as there are existing -reservations. The reservista cannot make a disposition mortis causa of the reservable properties. She could not select the reservees to whom the reservable property should be given deprive the other reservees of their share therein._______ De Papa v. Camacho (1986) Baldovino had 4 children, one of whom was Toribia. The tatter is married to Eustacio and they had 2 children Faustino and Trinidad. Tnr.idad begot a child defendant Dplisay. Baldovino's sister, Romana donated land to Toribia. When Toribia died, the property was divided between the 2 children Faustino and Trinidad When Faustino died, his father Eustacio inherited his land. When Eustacio died, he disposed all his property to Oalisay. The grandaunts of Oalisay (sisters of her Grandma Toribia), opposed application for registration of registration of lands inherited by her father (Eustacio). from his son (Faustino). on the ground that it was reservable property for the relatives within the third degree of the prepositus (Faustino), and from whence the property came (origin: Toribia) HELD: Dalisay shall have absolute ownership over all the property because niece-nephews exclude grandaunts under the rules of intestate succession. Grandaunts must be held without any right to reservable property, as auntsuncles of prepositus are excluded from succession by niece although all of them are related to prepositus within the same degree. Reversion of reservable property is governed by intestate succession. The sole purpose of reserva is accomplished once property has revolved on specified relatives in line of origin. From this time on. there is no further application of reserva troncal. In relations between reservatarios and another of the same degree, there is no call for applying 891 and thus; the respective share of each in the reversionary property should by ordinary rules of succession. Proximity of degree, right of representation, the rule of double share for immediate collaterals of whole blood are applicable in the determination of Page 133 of 207
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2007A rights of reservatarios interse. Sumava v. IAC (1991) Upon the death of the prepositus, Raul Balanktakbo, the reservists. Consuelo vda. de Balanktakbo caused the registration of an affidavit of self adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr.. and from his maternal grandmother, Luisa Bautista. This was registered with the Register of Deeds. It was also admitted that the certificates of title covering the subject properties in question show that they were free from any liens and encumbrances at the time of the sale to petitioners. However after the death of the reservista, relatives of Raul Balanktakoo (brothers, nieces and nephews) filed an action to recover these properties which they claim were subject to reserva troncal in their favor. HELD: Petitioners are not innocent purchasers for value despite the fact that there was no notation in the certificates of title. The affidavit executed by the reservista was in its form, declaration and substance, a recording with the

Registry of Deeds of the reservable character of the properties. The affidavit which was registered with the Registry of Deeds serves as sufficient notice to the whole world. The properties are therefore subject to reserva troncal. (To appreciate better the lecture, illustrate all relationships involved). A reserve is designed to entail the property. This is to prevent the property from one family to another. There were different types of reserves under the Old Code, to wit: reserva troncal (RT). reserva viudal and some other reservaciones. Under PD 603 we have reserva adaptiva. This was repealed by the FC. Under Art. 891 of the NCC, we have RT. The original draft of the Code Commission did not contain art. 891 but some scheming solon inserted this article in the draft. ARH AO Page 134 of 207
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2007A XVII. RESERVA ADOPTIVA FAMILY CODE 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 end by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further. That any properly 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. ART 190. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. MAGIC NOTES: Q: Why was there reserve adoptiva (RA) under PD 603 A: Because under PO 603, the adopter was not considered a legal heir of the adopted although the adopted is always the legal heir of the adopter. The natural parents (NP) of the adopted is his legal heirs. The adopters will inherit only if the NP are both dead. This is unjust when the adopted's properties consist merely of properties donated to him by the adopter. Example: the adopter has a legitimate child and the adopted whose parents have an illegitimate child. Page 135 of 207 Jhe adopter and the NP are both dead. When the adopted die, Re was therefore survived by the legitimate son of his adopter and the illegitimate son of his natural parents. His estatv consists, nothing but the properties he received not a legal heir of the adopted because the relationship of adopted and .adopter is personal and extends only to the adopter and the adopted. The 1C will therefore inherit the property of the adopted. The 1C will therefore inherit the property of the adopted which came from the adopter. Hence, there is RA under the Child and Youth welfare Code. However, this RA was repealed by Art 25 of the FC. Q: Why was the reserva adoptiva abolished? A: Because under the FC, the adopter is now a legal heir of the adopted Hence, there is no more need for RA DLC: Siguro hindi rin dahil kalahati lang ang mamanahin ng adopters. The other half would be inherited by the NP. This portion should therefore be reserved. Banawa v. Mirano (1980) In 1911, 0. Banawa and Juliana Mendoza adopted (not legally) Juliana's niece, Maria Mirano. Later the spouses opened a general merchandise store from w/c they derived income and, enabled them to buy lands. The couple gave Maria money to buy 2lots, which was put ifi her name. In 1949, Maria died white still living with the couple. At that time, Maria left as her only relatives the plaintiffs, Primitiva (surviving sister), and Gregoria, Juana & Marciano (children of the deceasea brother). HELD: The P's (adopting parents) who know the facts surrounding the sale of the land, where they gave money to the adopted child to buy the lots, are estopped by denying the validity of the transfer io Maria. The submission of P's is that they are entitled to the land by virtue of Rule 100 of the old ROC. And also that extrajudicial adoption is within the contemplation and spirit of their rule of RESERVA ADOPTIIA. However, the rule involved specifically provides for the case of the JUDICIALLY ADOPTED child. Teotico v. Del Val (1965)

Maria Nortera y Salsalobre vda. de Aguirre left a will instituting her niece Josefina, as her sole and universal heir to all the remainder of her property not otherwise disposed of in the will. She named Rene Teotico, husband of Josefina, as among the many legatees and devises. She left the naked ownership of the Calvo Building to the spouse's children and made the spouses the usufructuaries. Ana del Val Chan, the adopted daughter of the deceased's sister, Francisca and the acknowledged natural child of the deceased's brother Jose, opposed probate of will. CFI admitted the will to probate but declared disposition for 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. HELD: An illegitimate child is prohibited by law from succeeding to the legitimate relatives of her natural father. She also cannot derive comfort from the fact that she's an adopted child of Francisca, because under our law, the relationship established by adoption is limited solely to the adopter and the adopted, and doesn't extend to the relatives of the adopting parent or of the adopted child except only if expressly provided by law. Hence no relationship is created between the adopted the collaterals of the adopting parents._____________
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2007A XVIII. DISINHERITANCE ART 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes ___expressly stated by law.__________________ TOLENTINO: Concept of Disinheritance. - Disinheritance may be defined as 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 Exclusion of Heir. - A disinheritance totally excludes the disinherited heir from the inheritance. He is deprived, not only of the legitime, but also of such part of the free portion that would have passed to him by a previous will (which is revoked by, as inconsistent with, the subsequent disinheritance) or by operation of the laws of intestacy. ART 916. Disinheritance can be affected only through a will wherein the legal cause therefor shall be specified. ART 917. The burden of proving the truth of the cause for inheritance shall rest upon the heirs of the testator, if the disinherited heir shouid deny it.___________ TOLENTINO: Requisites for Disinheritance. 1. That the heir disinherited must be designated by name or in such manner as to leave no room for doubt as to who is intended 2. that the disinheritance be for a cause designated by the law 3. thai rt be made in a will 4. that it be made expressly, stating the cause in the will itself 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. that it must be unconditional 7. that it must be total. Designation of Heir. - The heir disinherited must be designated in such a manner that there can be no doubt as to his identity. For this purpose, the rules for the designation of instituted heirs apply equally to the designation of disinherited heirs. Cause Provided By Law. - The law itself enumerates the legal cause: indusio unius est exclusio afterius. Made in a Will. - The will in which the disinheritance is made must have all the formal requisites for its validity. If the disinheritance is for legal cause, but the will itself in which it is made is void, there is no valid disinheritance. The same conclusion is reached when, the disinheritance being made in a valid will, the latter is subsequently revoked. Statement of Cause. - The disinheritance must always be express; the law does not admit tacit disinheritance. It is not essential, however, that the statement of the disinheritance and the cause therefor be made in a single will. The last will of a person may be expressed in a different statements. All of them combined being considered as one last expression of his will mortis causa. Page 136 of 207 There will be a valid disinheritance if the causa 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. Must be Conditional. - The disinheritance cannot be made subject to a suspensive condition which consists in the performance un the future of some offense or fault by the heir. The law contemplates that a cause has already been realized is known to the testator; the penalty of disinheritance cannot be provided for an act that has not yet occurred. But when the disinheritance is made in the form of a conditional pardon, it i generally considered as valid. In such a case, there is an existing legal cause for disinheritance, but the pardon for such cause is made dependent upon some condition. The condition however, should be related to the cause of disinheritance, and not be a mere caprice or whim of testator. For example, the testator may say: I hereby disinherit my daughter A for having used gravely insulting language against me; but if she shall remain in my house and serve me during the rest of my days, this disinheritance shall null void and of no effect. It is the conditional pardon and not the conditional disinheritance,

properly speaking, that is allowable. Must be Total. -There is either total disinheritance or total pardon. There is no middle ground. 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.______________ TOLENTINO: Where disinheritance is inetfective, the compulsory heir must be given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others. ART 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; (2) When a cMd 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; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator, (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; (6) Maltreatment of the testator by word or deed, by the child or descendant;
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2007A ARi (7) When a child or descendant leads a dishonorable or disgraceful life: (8) Conviction of a crime which carries with it the ___penalty of civil interdiction.______________ TOLENTINO: Attempt Against Life. Attempt against the life in this article includes all the different degrees of commission of the crime, such as attempted, frustrated, and consummated [bakit kasama ang consummated, i.e. sino pa ang mag didisinherit kung patay na ang kabayo, este, testator pala? Note that the attempt is not only against the life of the testator, kasama spouse, descendants and ascendants - DLC] The principal factor to be considered is the intention of the heir, even if the final conviction be only for the crime of physical injuries, especially when qualified as grave, unless it is clear that the intention against the life of the offended party is lacking. The heir may be disinherited, even if he be only an accomplice, provided he shares the intention to kill. But an accessory-after-the-fact cannot be disinherited on this ground, because his intervention is already subsequent to the Criminal act. Conviction Necessary. It is essential that the guilty heir be convicted. Prescription of the penalty, and pardon and amnesty, imply the final conviction; hence, disinheritance can still be based on this ground. False Accusation. False accusation as a ground for disinheritance has three elements: a. the act of accusing the testator b. the judicial dedaiatton that the accusation is false c. that the offense charged is punishable by imprisonment of 6 years or more. To accuse indudes not only the institution and prosecution of a criminal action, but every intervention in the criminal prosecution which clearly shows thai the testator is accused by the heir disinherited. Adultery or Concubinage. The heir convicted of adultery or concubinage with the spouse of the testator can be disinherited cniy by the latter (testator); but the terms of (he law do not allow his disinheritance by the person with whom he committed adultery or concubinage. The rule of strictly construing the grounds for disinheritance must be applied. However, he cannot succeed under the will of his paramour; he is disqualified by art. 1028 in relation to art. 739. Fraud or Coercion. Where the compulsory heir use fraud, violence, intimidation, or undue influence to cause the testator to make a will or to change one already made, such testator may again make a different will in which he disinherits such heir. The will or codicil which was obtained through any these means may be annulled or disallowed Refusal to Support. To justify disinheritance of a child or descendant for refusal to give support, it is not necessary that the parent or ascendant should have judicially demanded the support. The question of whether there has been a refusal to give such support without justifiable cause is open to proof if the disinherited child or descendant denies it. Maltreatment of Testator. Maltreatment by deed covers a'! acts of violence against the person of the testator, short of an attempt to take his life, whether physical injuries are produced or not. And maltreatment by word amounts to slander addressed directly and personally against the Page 137 of 207 testator himself. It is not necessary that there should first be a judgment finding the child or descendant guilty of these acts. It is necessary, however, that the acts be done intentionally or voluntarily. Disgraceful Life. A single or isolated act which may be reprehensible or unconventional will not be sufficient. The words used by the law are "leads a dishonorable or disgraceful life"; these words imply continuity or duration of

conduct which brings dishonor or disgrace. Civil Interdiction. The conviction for a crime which carries with it the penalty of civil interdiction must be by final judgment. .': ART 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; 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; 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 besn found to be false; 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; 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. TOLENTINO: Abandonment of Children. The meaning of abandonment should be understood in a general-sense, so as to include failure to give due care, attention, and support (and not merely as exposing the child in such a way that its life may be endangered) Inducing Immorality. Although the law mentions only daughters, we believe that this should be construed to mean all female descendants. But according to DLC. this should be construed as meaning children. Attempt against Virtue. For the disinheritance of a parent who has attempted against the virtue of his daughter, it is not necessary that there has been a final conviction. It is enough that he has committed acts which would have amounted to rape, seduction, or acts of lasciviousness, against such daughter; and it is immaterial whether the acts would legally constituted an attempted, frustrated, or consummated offense. Loss of Parental Authority. The causes for loss of Parental authority are provided in the Family Code, arts. 229 to 232; There are many causes specified by the
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2007A present Code for the loss of parental authority which would not constitute such an offense by the parent as to justify his being disinherited. For instance; when the parent consents to the adoption of his child by another, or when a widowed mother remarries, or when the mother of an illegitimate child marries a man other than it father. We see no reason why these should give rise to disinheritance but the law clearly provides that loss of parental authority for these causes would be a ground for disinheritance. Recovery of Authority. Some of the grounds for the loss of parental authority are temporary in nature, and, upon their cessation, patria potestas may be recovered. We are inclined to view that if the patria potestas is recovered before the death of the disinheriting child, the cause for disinheritance ceases, and the disinheritance already made is rendered void, inasmuch as the will takes effect only upon the death of the testator, at which time the parent has already regained parental authority and the cause for disinheritance no longor exists. This conclusion holds, whether or not at the time of recovering parental authority the child has already been emancipated. This view is better because it constates the law more strictly against the authority to disinherit. Attempt by Parent against Other. This does not require conviction of the offending parent; nor does it include attempts against the life of any other person, such as descendant or brothers of the other parent. Other Causes. The other causes are similar to those provided in art. 919 for disinheriting a child or descendant. They have, therefore, the same scope and interpretation. ART 922. A subsequent reconciliation between the offender and,the offended person deprives the latter of the right disinherit, and renders ineffectual any disinheritance that may have been made.__________ ART 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; (A) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the _____other spouse.___________________ TOLENTINO: Causes for Legal Separation. The law does not make legal separation as the ground for disinheriting the guilty spouse. It is the fact of having given cause of legal separation which is the ground; in other words, it is not necessary that legal separation be actually obtained. The causes for legal separation are now provided in Art. 55

of the Family Code. If any of the grounds for legal separation exits, the offended spouse may disinherit the guilty spouse even if he does not sue for legal separation. In case there is a decree of legal separation, the guilty spouse is disqualified to inherit from the innocent spouse by intestate succession, and the provisions in favor of the guilty spouse in the will of the innocent one are revoked by operation of law. Page 138 of 207 TOLENTINO: Meaning of Reconciliation. The terms "offender" and; "offended" in this article refer respectively to disinherited heir and testator. Frequently, upon the approach of death, a person makes a general pardon of all wrongs done to him by all persons; but'Jhis general pardon is not the reconciliation meant by the law as rendering ineffective a disinheritance already made. There must be a real reconciliation between the parties. No particular form is required. It may be express or tacit. -~7 Effect of Unworthiness. There are some grounds for '.-. disinheritance which are also causes for incapacity by \ reason of unworthiness. Under art. 1032, the ff. among "5*. others are incapable of succeeding because of CD unworthiness: a. parents who have abandoned their children or induced their -daughters to lead corrupt or immoral fife, or attempted against their virtue b. Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendant c. Any person who ha accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation was found groundless d. Any person convicted of adultery or concubinage with the spouse of the testator e. Any person who by fraud, violence, intimidation, or undue influence would cause the testator to make a will or to change one already made. The foregoing causes of unworthiness deprive the compulsory heir of his legitime. But under Art. 1033, these causes of unworthiness shall be without effect if these causes of unworthiness shall be without effect if the testator had knowledge thereof at the time he made his will, instituting the unworthy heir, or if having known of them subsequently, he should condone them in writing. These causes, however, may be used by the testator to disinherit the guilty or offending heir. Reconciliation deprives the testator the right to disinherit, and revokes a disinheritance already made. What then would be the effect of a subsequent reconciliation between the parties, if the disinheritance has already been made on any of the grounds which are also causes of unworthiness? We are inclined to the view that the moment the testator uses one of these causes of unworthiness as a ground for disinheritance, he thereby submits it to the rules on disinheritance, among which is that reconciliation renders the disinheritance ineffective. If the reconciliation renders ineffective the disinheritance already made, it seems illogical to assume that the heir will still be disqualified by operation of law on the ground of unworthiness. Incapacity by reason of unworthiness is merely an expression of the implied will of a person who has not expressed his intention in a will. If the express intention, manifested by the testator in a disinheriting clause in a will, is rendered ineffective by a subsequent reconciliation, how can the implied intention be logically held to exist.
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2007A If there has been no express disinheritance, however, either because the testator did not know the existence of the cause or because the ground of unworthiness takes place after the will has been executed, then the rule would, be different. The ground of unworthiness. in such case, has not been used as a cause of disinheritance; hence, it cannot be submitted to the rules thereof. The heir will continue to be incapacitated to succeed, even to his legitime, unless he is pardoned in writing or the testator makes a new will reinstituting him or reiterating the provisions of the former will wherein the heir is instituted. The testator was not able to disinherit the heir at the time the will was made; hence, the law effects the disinheritance for him. Rights After Reconciliation. If a disinheritance has been made, and then reconciliation takes place, it will be the saw as if there had been no disinheritance. The heir will receive everything that he would have received had there been no disinheritance, whether it be under the provisions of a will or by operation of law. Other Causes for Revocation. Aside from reconciliation, the disinheritance may be revoked or rendered ineffectual by: a. the subsequent institution of the disinherited heir, inasmuch a this will impliedly revoke the disinheritance clause in the earlier will b. the nullity of the will containing the disinheritance, such a when it is denied probate New Disinheritance. Once a disinheritance has been revoked or rendered ineffectual, it cannot be renewed except for causes subsequent to the revocation. Thus after a reconciliation, a new disinheritance can be based only on new grounds. ART 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the right of compulsory heirs with respect to the tegMme; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime._________________

TOLENTINO: Representation in Disinheritance. The causes of disinheritance are personal to the disinherited heir; he alone is at fault, and nobody else should suffer the effects of such culpability. His children and descendants, therefore, should not be penalized with want, for the guilty or fault is not imputable to them. This article allows the children and descendants of the person disinherited to take his place and retain the rights of compulsory heirs in respect to the legitime. It provides for representation. Under art. 1035, in connection with unworthiness, the right of representation is conceded to children and descendants of the incapacitated person, if the latter is a child or descendant of the deceased; and in art. 972, representation is allowed only in the direct descending line, and never in the ascending line. Considering these provisions, the disinherited person can be represented only if he is a child or descendant; a disinherited ascendant or spouse cannot be represented. To What Extent. The representation should extend to everything that would have passed to the disinherited heir Page 139 of 207 by operation of law; this includes the amount that pertains to him as intestate heir and not only that as compulsory heir. As art. 970 provides, the representatives acquire the rights which the person represented would have if he were living or if he could have inherited. MAGIC NOTES: The grounds for disinheritance are exclusive. It is an exception to the general rule and must be strictly construed. The Testator cannot add to the grounds provided for in the law, even by analogy. The CH is entitled io his legitime,- and the testator may not deprive him of such and any disposition in a will cannot apply to "* the legitime but only to the free portion. Q: How may the Testator disinherit his CH? A: In a will only. It must be expressly stated in a will, either holographic or notarial or codicil or main will. Q: Can he do it be verbally declaring it in public? A: No. This is not a valid disinheritance. Disinheritance can be effected only through a will wherein the legal cause therefore shall be specified (Art. 916). If Testator didn't state in his will that he is disinheriting his CH but merely omitted the name ot the CH, it may be a case of Preterition. Q: Suppose CH has offended the testator so much as when the CH has attempted on the life of the Testator, may the Testator deprive CH of his legitime? A: Yes. Disinheritance is an exception to the system of legitime. The CH is deprived of his legitime to which he has a right. NOTE: Disinheritance must always be total. Q: Can third party (strangers) be disinherited? A: No need for this. Just omit him in the will or revoke the provision in the will which institutes him as an heir. Disinheritance applies only to CH. Q: Under art. 915, CH is deprived of his legitime through a valid disinheritance. Suppose Testator has 3 children, A. B, and C. We executed a will disinheriting C and instituting A and B to 1/3 each of the estate. This institution applies only to the free portion, right. A: No. Now, since the legitime of the children should supposedly be divided in to 3 equal parts, C will not get his 1/3 share as he was disinherited. This portion' of the legitime will go to other CS through accretion which we shall discuss later. Q: As regards the institution of 1/3 each, there is a remaining 1/3 that was not taken up, isn't not? Now, may C participate in the distribution of this intestate portion? A: No. he cannot inherit by intestacy. If he is not worthy to receive his legitime, the more reason that he loses his intestate inheritance. Note: Art. 915 is inaccurate because it covers only the legitime. This must also cover all types of inheritance including intestate succession. Q: May Testator disinherit fora whimsical reason? A: No. Only those reasons provided for in the be grounds for disinheritance. Q: When must the ground for disinheritance exist? law can
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2007A A: At the time of the execution of the will, not death of the testator. Why? kasi, patay na ang Testator, paano pa magdidisinherit? Q: What are the grounds for disinheritance? A: If a child or descendant, whether legitimate or illegitimate is to disinherit the grounds are provided for in art. 919. These grounds are EXCLUSIVE. If the heir to be disinherited is an ascendant or parent, the grounds are listed in Art. 920. To disinherit a parent or ascendant the Testator must point a specific provision in Act 920. If the ground is not there, the disinheritance is ineffective. In other words, art. 920 is also EXCLUSIVE. If the heir to be disinherited is the surviving spouse, the grounds are in art. 921. This also EXCLUSIVE. The spouse referred to in this article must be the lawfully wedded wife. A common law wife is not included as she is not & compulsory heir Q: If there is no cause stated, is the disinheritance valid? A: No, it is ineffective. Q: If the ground is not in the enumeration of the law? A: It is also ineffective. Q: If the testator says that he disinherits him for a csuse which is included in the enumeration but it turned cut later the cause is not true, what is the effect of this? A: The disinheritance is ineffective. Whether the cause exists or not must be proved. Q: Who has the burden of proof then?

A: 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. (Art. 917) Q: Suppose the disinheritance is ineffective (e.g. I disinherit my son without stcting the ground therefor) what is the effect? A: The son is restored as an intestate heir. Q: What if there is a will (I disinherit my son C because he attempted my life therefore I give everything to my sons A and B). It turned out that C did not attempt on the life of the testator so that the disinheritance is ineffective. What will C get? A: C is entitled to a completion of his legitime under art. 917(7). Everyone will contribute to complete his legitime. GROUNDS FOR DISINHERITANCE Disinheritance of Children or Descendant: 1. when the child or descendant has been found guilty of an attempt again of the life of the testator: his or her spouse, descendants or ascendant Q: Is criminal conviction required before the testator can disinherit? Number 1. take note, merely says found guilty and did not use the word conviction as in numbers 3 and 8. A: Tolentino: there must be a conviction before the child can be disinherited. DanCon: there must be a final judgment because of the presumption of innocence. Take note that this provision says found guilty of an attempt presupposing willful or intentional acts, if the acts are through recklessness or negligence, then this is not included. Example: parricide through reckless imprudence. "Attempt" here covers all stages attempted, frustrated or consummated Q: Against whose'life A: The attempt need not be against the life of the Testator himself. It may be made against the life of the Testator's spouse, descendants or ascendants. Q: Are the lives of nieces, children, or descendants of the testator included? :. A: Yes, disinheritance is possible. Descendant of the testator includes uncles and aunties and nieces when the Testator is the grandpa. Q: What about an attempt on the life of the mistress or common law wife of your father? A: If spouse is to be construed as lawfully wedded wife, mistress or common law wife is not covered. If spouse is to construed as including not lawfully wedded wife, then the common law wife would be considered spouse. If we construe it this way. how about art. 921? How do we construe it? The spouse under this art. must necessarily be a lawfully wedded spouse because if otherwise, he/she is not a CH. Q: What about an attempt on the life of the spouse of the descendant? A: This is not included. Q: What is the effect of pardon and amnesty? A: When there is pardon, the Testator may still disinherit the heir because pardon does not obliterate the crime. On the other hand, amnesty obliterates the crime so when there is amnesty granted, there is no longer any ground to disinherit the heir. But note that Tolentino said that amnesty and pardon do not obliterate the crime. 2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment of 6 years or more, if the accusation has been found groundless: if the accusation is proven to be true, this is not a ground for disinheritance. Q: Must the heir be the complainant against the testator? A: No. This ground covers all instances where the heir participates in the accusation, he may be a complainant or a mere witness. The accusation need not be made in a criminal proceeding. It may be made in a civil proceeding. Take note that the accusation must be proven to be groundless to be a ground for disinheritance. Q: The heir was acquitted. Does this mean that there is no longer a ground for disinheritance A: Not necessarily. Note: According to Tolentino the court must pronounce a finding that the accusation was ground less. However, according to our DLC, this may prove impractical. The usual practice of courts is to acquit the accused/defendant. In most cases, the court merely declares that there was insufficient evidence to establish the guilt of the accused. Only in very rare situations do Courts make a pronouncement that the facts on which the charge based, did not exist. Page 140 of 207
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Q: Suppose the testator had a legitimate child A and take in a common law wife S after the death of A's mother. A is married to B. A and S however, had been found guilty of concubinage since A is married to B. May Testator disinherit A? A: No answer given. But maybe you can apply same answer as the next preceding question. Q: If however, the descendant is convicted of adultery with the spouse of his grandfather, may the father of the child disinherit him? A: Yes but not on the ground of adultery but on other grounds like leading a dishonorable life. 4. When a child or descendant bv fraud, violence intimidation or undue influence causes the testator to make a will or to change one already made. This is self-explanatory. 5. A refusal without justifiable cause to support the parent 0? ascendant who disinherits such child or descendant It is not necessary to have a judicial demand for support. Q: Grandfather GF had son F who is the father of S. Si F naghirap pero S refused to support him. GF supports him instead. GF disinherits S for this reason. Is the disinheritance effective? A: No because it is the testator who must be denied support. Here, F was the one denied support and not GF. Siguro sasabihin nya eh sir, if testator disinherits his child, then he will have money. Why does he need support then? Siguro nakaraos din sya at yumaman. 6. Maltreatment of the testator bv word or deed, bv the child or descendant. Maltreatment may constitute a crime. But conviction is not necessary. 7. When a child or descendant leads a dishonorable or disgraceful life. The law uses the word life." A single or isolated act of an heir is not sufficient. Q: Whose point of view should be taken in determining whetherornot the heir's life was dishonorable? A: Point of view of the community 8. Conviction of a crime which carries with it the penalty of civil interdiction. There:is a need for final judgment. Disinheritance of Parents or Ascendants Abandonment Q: If the parent refuses to give support to children, may the children disinherit? A: Yes. Article 920(7). Q: What is the difference between Article 920(1) and 920(7)? A:? Q: The law only uses the word "daughters." Paano kung call boy? A: daughters should be construed as children. Loss of Parental Authority o According to Toientino, this is harsh! Disinheritance of Spouse The spouse must be the lawfully wedded spouse. As regards the ground that the spouse had given cause for legal separation, it is not necessary that there has been a decree of legal separation. As to Article 921(6), unjustifiable refusal to support the children or the other spouse - the children referred to here are the common children of both spouses. Sir: In case of reconciliation between disinherited heir and testator, disinheritance. If already done, becomes ineffective or it will prevent testator from disinheriting the heir. There is reconciliation if the testator has the intention of restoring the disinherited heir to his original rights as if no disinheritance had happened. Page 141 of 207
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2007A 3. When a child or descendant has adultery or concubinage with been convicted the spouse of the testator, there most be a criminal proceeding. Q: Must the conviction be final? If the case was appealed, can the CH be disinherited? A: Take note that when an accused die in a criminal case, the action is abated so that if the CH dies before his conviction, there will be no ground for his disinheritance since no conviction is possible. Hence, his children (legal heirs of the CH)can represent him. Take note that the spouse in this paragraph should refer Ito the spouse of the testator. Q: Does spouse here include common law wife? A: No because there can be no adultery as the common law wife in not married to the Testator.

2007A XIX. LEGACIES AND DEVISES TOLENTINO: Mr xo I Concept of Legacies and Devises. - Legacies and devices are gifts of personal and real property, respectively, given by will. It is some specific property or portion of the estate which the testator separates from the universality of the inheritance to be given to some particular person or for some particular purpose. It is a means by which the testator is able to comply with certain duties, rewarding the affection of friends and relative, or compensating services rendered to him, or giving alms and facilities to institutions for social welfare. ART 924. All things and rights which are within the commerce of man may be bequeathed or devised. Within the commerce of man. - in order to be within the commerce of man. the thing should be: (a) susceptible of appropriation or of being subjected to property rights of natural or juridical persons, and (b) transmissible from one person to another, such that they may be disposed of as forming part of one's patrimony, by way of sale, barter, donation, etc. 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. ART 926. When the testator charges on of the heirs with s 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._______________________ Burden of Legacies or Devises. - Legacies and devises are. as a rule, a charge or a burden upon the estate itself and are to be paid by the executor or

administrator, unless the testator expressly burdens a particular heir, legatee, or devisee with their payment. Specific heir or legatee. - An heir, devisee or legatee is said to be charged with a legacy or devise, when upon the property or portion given to him by the testator the latter has imposed a charge or burden in favor of another person, or when he is personally charged with certain duties or obligations by reason of the legacy or device given to him, even if it involves the delivery to others of things belonging to him. When such a charge is expressly imposed upon a particular heir, devisee or legatee, he alone bears the burden of the legacy or devise. Art. 925, however, provides that the legatees or devisees 'shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. This provision should be understood as applicable also to voluntary heirs who have been expressly charged with legacies by the testator. Sub-legacies or Sub-devises. - The devise or legacy to a third person of a thing belonging to a particular heir, Page 142 of 207 devisee or legatee would be valid only: (a) if the testator makes the charge expressly upon the heir, legatee, or devisee, or (b) if the testator orders that the thing be acquired by his estate and delivered to the third party beneficiary. But if the testator did not know that the thing belonged to his heir, devisee or legatee, then the disposition of such thing in favor of a third person would be void under Art. 930. ART 927. If two or more heirs take possession of the estate, they shall be solidarity liable for the loss or destruction of a thing devised or bequeathed, even though only one of thern;should have been negligent. 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._____ When warranty exists. The heir, devisee or legatee is made a warrantor, if the legacy or devise imposed upon him is generic; there is no such warranty if the legacy or devise refers to a specific thing. Other warrants. -^.-Although the law is silent on the point, it is generally admitted that in legacies or devises of generic objects, there are also warranties against hidden encumbrances or defects, just as against eviction. 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.______________ Things owned by owners. - The presumption of the law is that a testator desires to bequeath only that which belongs to him Hence, if the property is partly owned by a third person, the legacy or devise shall be understood as limited only to the part belonging to the testator. The same rule is laid down with respect to the part that may belong to an heir, devisee, or legatee; the sublegacy will be valid with respect to such part but not with respect to that owned by a stranger. This general rule applies, whether or not the testator knew that the thing was partly owned by a stranger. Exception to the rule. - To the above general rule however, the law makes an exception: when the testator expressly declares that he bequeaths the thing as a whole. It is not enough that the testator say that he bequeaths the whole thing; it must expressly appear that such is his intention; that is, with knowledge of his limited right or the limited right of the heir, devisee, or legatee, he expressly wills that the whole property should pass to the person favored. That knowledge must either appear in the will itself or be proved by competent evidence, the burden being upon the devisee or legatee favored with such property. Unlike Art. 931. however, the present article does not require that the testator order the acquisition of the part which does not belong to him. Effect of partition. - A division or partition of the property owned in common does not affect the application of the rules stated above. When, however, the property is not divisible or is inconvenient of division, and it is adjudicated to one of the part owners upon reimbursement of the
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20C7A shares of the others, distinction should be made. If the entire property is adjudicated to the testator or to the heir, devisee or legatee charged, the subsequent acquisition does not affect the legacy or devise. It will be effective only as to the part formerly belonging to the testator or the heir, devisee or legatee charged, if the testator has not expressly declared his desire to bequeath the entire property; in the latter case, the whole property passes to the devisee or legatee favored. But if the property which is indivisible is adjudicated to the third person, the solution depends upon whether or not the testator has expressly bequeathed the entire property. If he has not bequeathed the entire property, the transfer to the third person of the part corresponding to him in the property revokes the legacy or devise under Art. 957. On the other hand, if he expressly declared that he bequeathed the entire property, the transfer of his interest in such property to the third person annuls the legacy or devise only as to the part which formerly belonged to him and which has passed to the third person, but leaves effectively the legacy or devise with respect to the part belonging to the third person and which continues to so belong to such third person. Naked ownership bequeathed. When the legacy or devise consists of the naked ownership of property, the full dominion vests in the legatee or devisee upon the expiration of the usufruct, inasmuch as the naked ownership carries with it he right to be reincorporated with the usufruct when this is extinguished.

ART 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that ihe 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. Things belonging to another. - This article refers to a legacy or devise of a determinate and specific thing totally belonging to a stranger at the time the will was made. The ignorance of the testator is presumed by law. Subsequent change of ownership. - If the testator did not know, at the time of making the will, that the thing belonged to another, but subsequently is acquired either by himself or by an heir, devisee or legatee, the devise or legacy becomes valid. But 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. 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. Testator orders acquisition. - Unlike Art. 930, which contemplates a case where the testator did not know that the thing belonged to another at the time he made his will, the present article presupposes that the testator knew that the things was not his. But it is important or essential that the testator must have ordered in his will that such thing Page 143 of 207 be acquired in order that it may be given to the legatee or devisee. Who will acquire- The obligation to acquire the property or pay its just value is placed by the law upon "the heir" or "the estate." If the testator has selected a particular heir, devisee or legatee to comply with the obligation, only such heir, devisee or legatee will bear the charge, always subject to the rule that it should never impair the legitime (if a compulsory heir) or exceed the value of the obligor's legacy or devise. Subsequent change of title. - If it is the testator himself who acquires the property; and it remains in his estate at the time of his death, then the legacy or devise will be carried out. If the thing is transferred to another person, . the provisions of the present article apply. But if the thing is acquired by the very person to whom it is being given as : a devise or legacy, the second paragraph of art. 933 applies. ,' No order to acquire. - Where the testator knew, at the time of making the will, that the thing he was bequeathing was not his, but he did not expressly order that it be acquired for the legatee or devisee, what would be the status of such devise or legacy? The solution must depend upon a forced construction. Under Art. 930. if the testator did not know that the thing belonged to a stranger, the legacy or devise is void; conversely, if he knew that fact, the legacy or devise 1 cannot be void. The present article, based on the supposition that the testator knew that the thing belonged to a stranger, considers the bequest as valid and requires that the thing be acquired for the legatee or devisee if the testator so ordered. The law does not clearly require that such order must be express. If the testator knew that what he was bequeathing did not belong to him, it must be presumed that he wanted the heir, devisee or legatee charged with such legacy or devise to acquire the property and convey it to the legatee or devisee of such thing The order to acquire may, therefore, be implied from the very act of disposing the property belonging to a stranger with knowledge of such fact. This solution may not fall within the letter of the present article, but certainly, it is the closest to the will or intention of the testator making such a disposition. 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. 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. ____ The first paragraph of each article states the same rule, and the 2 articles could have been conveniently consolidated into one.
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2007A Ownership at date of will. The moment to be considered in determining the validity of the legacy or devise is the date of the execution of the will. If at such time the thing already belonged to the legatee or devisee, the legacy or devise is void, regardless of whether the legacy or devise is pure, conditional, or with a term. Even if subsequent to the execution of the will the thing is alienated by the legatee or devisee, the legacy or devise remains void. The only exception to this rule is the case when the thing is alienated by the legatee or devisee to the testator himself and it continues in the latter's possession at the time of his death. This solution is sustained, either by virtue of the provisions of the second part of art. 930, or because the subsequent acquisition of the thing by the testator indicates his intention thai the legacy or devise be complied with. Existence of encumbrance. - If the thing which already belonged to the legatee or devisee at the time of the execution of the will is burdened by a charge or encumbrance in -favor of a third person, legacy or devise is void. But

if the testator expressly states that the charge or encumbrance shall be extinguished, then the legacy or devise to such extent shall be valid. Part ownership of thing. The legacy or devise wil' always be void with respect to the undivided part belonging to the legatee or devisee himself. The validity of the legacy or devise with respect to the part belongii ig to the third person depends upon whether or not the testator knew of such part ownership by another, under the provisions of arts. 930 and 931. If the part owner should be the testator or an heir or another legatee or devisee, the legacy or devise is valid with respect to the part betanging to those persons, under the provisions of art. 929. Acquisition by beneficiarv. - If at the time the will was made, the thing did not belong to the legatee or devisee who is favored under the will, but it is subsequently acquired by him before the death of the testator, the right of the legatee or devisee depends upon the circumstance. If the thing ordinarily belonged to a third person at the time the will was made, and the testator did not know of such fact, the legacy or devise is void, and it continues to be void, even if the legatee or devisee subsequently acquires it by any title whatsoever. If the testator knew that it belonged to a third person, the legacy is valid, and the subsequent acquisition of such thing by the legatee or devisee brings art. 933 par 2 into operation. This distinction is in consonance with the rules in arts. 930 and 931. Amount reimbursed. - In those cases where the legatee is entitled to reimbursement, the measure of the recovery is the price of the sale, or the value of the thing given in barter, or the amount of the credit, interest and costs in case of adjudication en pago. The expenses are also, generally reimbursed. it to the legatee or devisee. ART 934. // 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 Page 144 of 207 Payment of credit - The general rule is that when the thing bequeathed has been given as security for a recoverable debt, the legatee or devisee should receive it free from the encumbrance. The general rule may be varied by the express will of the testator. He may provide in his will that the credit secured by the mortgage or encumbrance shall be paid by the legatee or devisee of the encumbered property, or by any particular heir or other legatee or devisee. It is to be understood, however, that in such case the secured credit should not exceed the value of the inheritance, devise or legacy of the person charged with its payment. What encumbrances respected - The law refers only to pledge or mortgage, but this should be understood to include all kinds of security for the payment of debts, such as antichresis or other kinds cf liens. These must be extinguished by the estate. All other burdens or encumbrances, which do not have for their purpose to secure the payment of demandable debts, fall under the classification of "any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee." They must be respected by the legatee or devisee until they are legally extinguished. 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 thct part of the credit or deb! existing at the time of the death cf 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. 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. 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.______ Legacy of credit - The legacy of credit takes place when the testator bequeaths to another a credit against a third person. In effect, it is a novation of the credit by the subrogation of the legatee in the place of the original creditor (the testator). The executor or administrator has the option either of collecting the credit and delivering the proceeds to the legatee or assigning to the legatee all the actions he may have in connection with such credit so that the legatee himself may do the collecting. If the executor or administrator chooses the latter method, he is not a
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2007A warrantor for the existence and legality of the credit; it is the same as if the legacy is of a specific thing, for which no warranty exists. Extent of Legacy - The legacy is valid only to the extent of the amount of the credit existing at the time of the testator's death. The credit carries with it all the guaranties, whether real or personal, for the payment of such credit, such as bonds, pledges, or mortgages. Legacy of waiver of Credit The legacy of waiver has its real equivalent in the remission of the debt. It should not be confused with an acknowledgment by the testator in his will that a particular debt has been paid. The legacy constitutes a real waiver or remission of a debt

existing at the time the will was made and in the amount outstanding at the time of the death of the testator. An acknowledgement of payment prevents the credit from being computed as part of the assets of the estate because it no Songer exists; but the legacy of waiver of an existing credit does not prevent its inclusion in the assets of the estate, and is furthermore subjected to the rules of inofficious dispositions as a real remission. Kinds of Waiver. - When the waiver is specific, only the debt specifically mentioned is remitted, and not any other. When it is generic, the law provides that only those existing at the time the will was made is remitted, but not those which may subsequently be contracted. The generic waiver includes all debts, whether pure, conditional or with a term. Effect of Payment - Like the legacy of a credit against a third person, the legacy of waiver of a debt or debts of the legatee is effective only as to the amount of such debt or debts still unpaid at the time of the testator's death, including interests. Effect of Judicial Action - Whether the legacy is of a credit against the third person or is of a waiver of a debt or debts of the legatee, it shall be revoked rf the testator, after the will has been made, brings a judicial action for the recovery of the credit or debt. The testator, however, may validly provide that a subsequent judicial demand by him shal! not extinguish the legacy; his will must be respected, to the extent of the amount that may still be unpaid at the time to his death. Legacy of Security - The second paragraph of Art. 936 provides that only the right of pledge is waived by the legacy made to the debtor of the thing pledged. Although the law refers to pledge only, this should be understood to include also mortgage and antichresis. The legacy of the thing given as security is a remission of the guaranty only, but not on the principal obligation, which remains subsisting. 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.____________________ Creditor as Devisee or Legatee - The mere fact that a 'creditor is given a legacy or devise by the testator does not change the relation between creditor and debtor; it merely adds a new relation of legatee or devisee and testator. The credit subsists as an obligation which must CD be paid and the legacy or devise subsists independently thereof as an act of liberality of the deceased. Bequest applied to Credit - When the testator expressly declares that he bequeaths the very same thing that he owes his creditor, the legacy or devise must be applied to the payment of the debt. If the debt of the testator is secured by pledge or mortgage, and he expressly bequeaths the thing pledged or mortgaged as payment of his debt, the acceptance by the creditor of such legacy or devise will constitute, payment by dacion en pago, and will extinguish the testator's debt. When the testator does/not expressly state that he leaves a legacy to the creditor, but merely directs his executor to pay a debt which he recognizes as existing in favor of a person named in the will, there is no 'egacy in favor &f the creditor, who is not thereby relieved of the duty of presenting his claim to the probate court for allowance. If it clearly appears that a legacy is made in the will in favor of a creditor of the amount owing him, there would be no'necessity of presenting the creditor's daim to the probate court. But he will have to wait until all the debts and expenses of administration have been paid, before he can claim the payment of the legacy. On the other hand, the mere fact that the creditor is named as a legatee does not deprive him of the right to have his credit paid before the estate is distributed among the heirs and other legatees. The option would pertain to him to daim as creditor or as legatee, or as both in case the value of the legacy exceeds the credit. 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.__________ Natural obligations - A mistake of fact, in ordering the payment of what is not owing, vitiates the testamentary disposition. But if the obligation is a natural one, and it is paid according to ths order of the testator in his will, that which has been paid can no longer be recovered. ART 940. In alternative legacies or clevises, 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. __ _______ Alternative legacies or devises - The legacy or devise is alternative when the testator bequeaths one of two or more things that he designates Page 145 of 207
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2007A The selection of the thing to be delivered shall, as a rule, be upon the debtor; that is, upon the executor or administrator, with the approval of the court, or

upon the heir, legatee or devisee whom the testator may have expressly charged with the alternative legacy or devise. Although the things are specified by the testator, there is really in effect a legacy or devise of generic objects before the selection is made, inasmuch as up to that moment it is not the rules regarding the extent of the right to select in generic legacies or devises should be applied to alternative ones. 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. 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. 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. Generic legacy or devise - In order to be considered a generic legacy, the genus or species of the object should be determined, and the quantity should be specified. The time considered in determining whether the property exists in the estate of the testator is the moment of his death; the existence of the property of the kind bequeathed before such time is immaterial, if none actually exists at the moment of death. When, in a generic legacy or devise, only one of the species mentioned is found in the hereditary estate, the legacy or devise is in effect converted into a specific legacy or devise, and that one found in the estate should be delivered. Right of Selection - Unless the testator has expressly given the right of selection either to the executor or administrator or heir or legatee or devisee charged, on one hand, or to the legatee or devisee favored, on the other, the former shall have the choice. Such right to choose, however, is not absolute, inasmuch as he musi give "a thing which is neither of inferior nor of superior quality." When the option to choose is expressly granted by the testator to any of the said parties, however, the person designated may choose whichever he may desire. In alternative legacy or devise, the choice is limited to the things given alternatively. In generic devises of immovables, it is limited to those that are in the hereditary estate; if none exists in the estate, the devise is inoperative, and the right to choose cannot be exercised. If the generic legacy is of movables, and there are none of the kind in the estate, the selection may be among any Page 146 of 207 outside the estate; but if there are any of the kind in the estate, the right of selection is limited to them. If the party to whom the right of selection has been expressly granted by the testator should die before having exercised his option, "his right shall pass to his heirs." The heirs referred to here are those of the person entitled to choose. Irrevocability of Choice. - Once the selection has been made, it shall be irrevocable. The election may be made in any form which shows clearly the conscious and deliberate exercise of the right granted by the testator to the person allowed choose. The form in which the election is manifested cannot affect the irrevocability of such election. 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 shalfbe 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. Legacy for Education and Support - These legacies are strictly personal, and cannot be transmitted to the heirs unless the testator expressly so provides. In such case, the testator should clearly designate the person or persons to whom the legacy shall pass. Amount of Legacy - The amount of either legacy may be fixed by the testator in his will. The amount fixed by the testator should not exceed the free portion of his hereditary estate. If the testator has not fixed the amount of the legacy, it shall be fixed in accordance with the social standing and circumstances of the legatee, which should be understood to mean his necessities, and with the value of the estate. Literally construed, the value of the estate is the entire residue of the estate after paying all debts and expenses. But if there are compulsory heirs, and since only the free portion is available for legacies, it seems that "estate" should mean the free portion. On the other hand, if the obligation to give the support or education has been imposed as a charge upon some particular heir or legatee, the estate should be the amount of the share of such heir or legatee who is charged, excluding his legitime as compulsory heir. Extinguishment - The provisions of art. 303 of the Code, on the causes for the extinguishment of the obligation to give support, are applicable to legacies. These are (a) the death of the recipient or legatee; (b) when the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own needs and those of his family (c) when the recipient or legatee may engage in a trade profession or industry, or has obtained work,

or has improved his fortune in such a way that he no longer needs the allowance for his subsistence;
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2007A (d) when the recipient or legatee has committed some act which gives rise to disinheritance; and (e) when the recipient or legatee is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by lack of application to worK, so long as this cause subsists. 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. Demand for Payment of Pension - The legatee cannot demand the delivery to him of the legacy or any part thereof until after the debts and expenses of administration have been paid, unless he gives a bond with sureties approved by the court to secure the payment of such debts and expenses or any part thereof as may remain unpaid. The legatee of a pension may demand the payment for the first period only after the court has issued the order of distribution, or from such time as the distribution of legacies should have been made, if no such order is issued. This principle applies, even if the pension is constituted as a charge imposed upon some particular heir, devisee, or legatee. 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. ___________ This article is related to the- last paragraph of Art 934. which it should logically follow. ART 947. The legatee or devisee acquires a right to the pum and simple legacies or devises from the death of the testator, and transmits it to his heirs.______' When right vests - This article refers to the definite right to the legacy or devise, not merely to an eventual right; hence, ot specifically mentions only pure and simple legacies and devises, inasmuch as in conditional legacies and devises, the right acquired from the moment of the testator's death is merely eventual and does not become definite except from the compliance with the condition, if it is suspensive. It should be noted also, that the article refers to the right to the legacy or devise and not to the thing itself given as legacy or devise. That is so because the right to the thing itself depends upon the nature of the legacy or devise, whether it is of a specific or of a generic thing. If the thing is specific and owned by the testator, the right to such thing is acquired as of the moment of death cf the testator, but if the thing is not determined, or, although determined, it does not belong to the testator, the right to the same does not vest until after the thing has become determined, in case of generic legacy or devise, or until the selection has been exercised in case of alternative legacies or devises, or until the thing has been acquired from the third person or its value ascertained, in case the legacy or devise is of a thing belonging to a stranger. Page 147 of 207 This article is also applicable to those with a term or with a condition, if the suspensive condition happens or the resolutory condition does not happen. Liability for debts - Under the code of civil procedure, "the estate, real or personal, given by will to the devisees or legatees, shall be liable for the payment of (he debts, expenses of administration, and family expenses, in proportion to the amount of the several legacies or devises, except that specific devises and legacies may be exempted if it appears to the court necessary to carry into effect the intention of the testator and if there is sufficient other estate." '."It is submitted that the rule still applies. The testator, however, may by will expressiy designate the property that shall respond for the payment of debts and expenses. There are at least two restrictions imposed by law upon the power of the testator to dispose of his property, and which pro tanto restrict the maxim that the will of the testator is law: (a) his estate is liable for all legal Obligations incurred by him; and (b) he cannot dispose of or encumber the legal portion due his heirs by force of law. 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 latte^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, ana shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. Ownership of Specific Thing - This article presupposes that the legacy or devise is pure or until a day certain. If it is subject to a suspensive condition or is one from a day certain, it is obvious that the ownership does not pass to the legatee or devisee except from the happening of the condition or the arrival of the day fixed. But if the condition is resolutory. the provisions of the present article are applicable, without prejudice to the resolution if it should subsequently take place. Right to Fruits - If the legacy or devise is not impaired by the debts and expenses of administration, the legatee or devisee acquires its ownership as of the moment of the testator's death. He becomes entitled to its fruits, meaning

industrial, natural and civil fruits, from such moment, provided they are still ungathered or uncollected. because they pass to the legatee as accessories of the legacy or devise. Improvements and Deteriorations - The general rute that the thing perishes for its owner; hence, the legatee or devisee shall suffer the losses and deteriorations of the thing as well as benefit from its earnings and improvements, after the testator's death. However, if the losses or deteriorations should be due to the fault or negligence of the person obliged to deliver the legacy or devise, the latter must be liable in damages to the legatee or devisee for such losses and deteriorations.
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2C07A IIIIIIIIIIIII1III L 1 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.____________ Fruit of the generic thing - In the legacy or devise of a generic thing, the person bound to pay the legacy or devise does not have an obligation to deliver the same except from the time of such selection when the thing to be delivered becomes specific. It is from this moment that the fruits and interests belong to the legatee or devisee. However, by express provision in the will, the testator may provide that the legatee or devisee shall be entitled to the fruits and interest from the moment of his death, and not from the time the election is made. These rules should be without prejudice to the provisions of the rules of court on the payment of debts of deceased persons. Legacy of money - If the legacy should be of a sum of money, the interest that may be recovered for delay in delivery of the same to the legatee is the legal rate, or 6 per centum per annnum. This interest should be paid from the time of default, which occurs when the legatee demands the delivery of the legacy, judicially or extrajudicially. When there are administration proceedings, the legatee is entitled to demand delivery of the legacy only after the payment of the debts and expenses of administration and the issuance of an order of distribution by the court. Orrfy a demand after such order can constitute the executor or administrator, or the heir, devisee or legatee charged, in default and make them liable for interest. ART 950. // 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) Ail others pro rata.___________ Application of article - When the question of reduction is exclusively among legatees and devisees themselves, article 950 governs. But when there is a conflict between compulsory heirs and devisees and legatees, art. 911 applies. Insufficiency of assets - The present article contemplates an order of preference in the payment of legacies and devises when the estate destined for legacies and devises should not be sufficient to cover all of them. Those first in order of payment must be paid in full, and if nothing remains for those following, then these are rendered inoperative for lack of sufficient property. Shortage may arise (a) when the total of the estate left at the time of the testator's death should not be enough to cover the total of the legacies and devises, even when there are no debts against the estate, or (b) when the gross estate left by the testator would have been sufficient to cover the legacies and devises, but the payment of debts and expenses of administration has Page 148 of 207 reduced the net remainder such that it can no longer cover the original amount of the legacies and devises as given in the will. Under the first situation, the application of art. 950 is clear. The legatees and devisees must receive their legacies and devises in the order given. The second situation may arise from either one of two circumstances: (a) The testator may have provided for the payment of debts and expenses or designated the property for such payment, and after such payment has been made, the estate left is found insufficient to cover the 5=" total amount of the legacies. In such case, the order of "^2. payment of legacies given in this article can also be .\ applied without difficulty, (b) The testator may not have 5>; made provisions for the payment of debts and expenses O Under such circumstances, sec. 729 of the Code of Civil Procedure provides that "the estate...given by will to the devisees or legatees, shall be liable for the payment of debts, expenses of administration, and family expenses, in proportion to the amount of the several legacies or devises, except that specific devises and legacies may be exempted if it appears to the court necessary to carry into effect the intention of the testator, and if there is sufficient other estate." This principle is still applicable. This principle, referring to the payment of debts, must have a preferential application over the present article, which refers to the payment of legacies and

devises, inasmuch as legacies and devises are paid only after the debts and expenses have been covered. Thus, the amount of the legacies and devises are first reduced to cover the debts. Remuneratorv Legacies or Devises - By remuneratory legacies or devises are meant those which are given in recompense for services rendered to the testator or his family, provided such services do not constitute recoverable debts. The fact of being remuneratory may be expressly stated in the will itself, or it may be proved by the legatee or devisee if such fact is questioned. Specific Things in Estate - The reason for the preference given to legacies and devises cf specific things found in the estate of the deceased is that, by the express designation of the thing itself, the testator shows his intention to have the legatee or devisee alone benefit from such things specified. 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.___ 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 "Accessories" is used in this article in a broad sense. It is enough that it is made dependent upon another, from which it should not be separated and with which it should go, even if it can be separated, inasmuch as it is the intention of the testator that the properties so related should pass jointly to the devisee or legatee. Accessories include also those things which are necessary for the use of the thing bequeathed.
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2007A thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime.___ This article merely lays down general rules. It does not preclude agreement of the parties interested to effect payment of the legacy or devise in some other way. Expenses of delivery - The expense for the payment of the legacy or devise must be borne by the estate itself, and not by the particular devisee or legatee who may have been charged with is payment. The expenses must be necessary expenses, which refer to voluntary delivery of the property. If there should be a litigation to compel delivery of the legacy, the court should determine who shall bear the costs and expenses of the suit. ART 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. ART 954. 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. Partly burdened bequests - It is presumed by the law that the testator would not have given the legacy or devise of the gratuitous portion without the onerous part; hence, the provisions forbidding the acceptance of that which is gratuitous and the repudiation of that which is onerous. ff the legatee or devisee should die before having accepted the legacy or devise, partial acceptance is allowed to his heirs, each of whom may accept or repudiate that part corresponding to him. 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. 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.________ Ineffective bequest - This article covers all cases in which a legacy or devise validly made foils to have effect, such as by the prior death of the legatee or devisee, incapacity or repudiation, transformation of the thing Page 149 of 207 bequeathed, and any other cause which may render ineffective a legacy or devise of a thing in the possession of the testator at the time his death. Charges and conditions - The property remains burdened with the charges and conditions which the testator may have imposed upon it, unless the conditions are purely personal to the legatee or devisee who does not succeed, in which latter case the conditions are extinguished. 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 theifiafter 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._________ Transformation In order to constitute transformation such as is sufficient to revoke the legacy or devise, it must be both in form and in denomination. The form is the external appearance o the object; while the denomination is the name by which it is known by all, according to its nature and class This cause of revocation, therefore, does not apply to things which have no definite form or name, such as a mass of material, like gold, silver, etc. There are objects which cannot be transformed, like large cattle and fungibles. Therefore, legacies or devises of such things cannot be considered revoked by this first cause. However, such legacies or devises may be revoked under the third cause or by the loss of the thing, if the legacy or devise is specific. Alienation - When the testator, after having made a will bequeathing some particular property, subsequently alienates that property, there arises a presumption that he has changed his intention, and the legacy or devise has been revoked. The alienation, in order to constitute a revocation, however, must be voluntary on the part of the testator. If the alienation is subject to a suspensive condition, the mere fact of alienation does not revoke the legacy or devise. The effectiveness of the legacy or devise depends upon the happening of the condition. However, if the condition is resolutory, the legacy or devise is automatically revoked, because there is a valid and effective alienation. The happening of the resolutory condition and the return of the property to the testator will not revive the legacy or devise.
REVIEWER IN SUCCESSION

2007A If the alienation is only partial, the legacy or devise subsists with respect to that part which remains or which was not alienated. Loss - The thing is considered lost when it perished, or disappears or goes out of the commerce of man. The loss referred to as sufficient to revoke a legacy of a specific thing, however, is not only material loss; it includes juridical or legal loss, in the sense that the thing is no longer in the estate of the testator at the time of his death or subsequent thereto without the fault of the heir, executor or administrator. If the loss takes place after the testator's death, by any cause imputable to the heir, executor, or administrator obliged to deliver the thing, then the latter shall pay its just value to the legatee or devisee. Other causes of revocation - The causes of revocation enumerated in this article are not the only causes rendering legacies and devises ineffectual. There are others, such as the nullity of the will, noncompliance with suspensive conditions affecting the bequest, sale of the thing to pay the debts of the deceased during the settlement of his estate, etc. because the will of the testator is the supreme law in succession. ART 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. ART 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree.____________ Scope of the article - This article is broad enough to cover all testamentary dispositions, including the institution of heirs, and should have been placed immediately after art 847 as it is a rule of interpretation of testamentary dispositions. Not identical to intestacy - The legal reason for this provision is the same underlying intestate succession; namely, that the affections of tne testator are stronger for those nearest to Nm in degree of relationship. But it should not be understood that the institution contemplated in this article is governed by the rules of intestacy. Not being governed by such rules, the right of representation does not exist in this institution. The institution governed by this article favors, not the relatives with the better right, but those nearer in degree; hence, those in the first exclude those in the second, and so on. It necessarily follows that preference between lines should also be disregarded in this institution. Thus, all relatives within the first degree, whether in the descending or ascending line, exclude all others in the next degree. And since the law speaks of relatives in general, no distinction is to be made among them based on the nature of the relationship. Relatives of testator - The relatives referred to ton the present article are only those within the degree recognized by the law of intestate succession, or those within the fifth degree from the testator. Contrary intent of testator - The provisions of this article will not apply in cases where it clearly appears that the intention of the testator is otherwise, for if that contrary intent is sufficiently manifest, it must be complied with. Page 150 of 207 PCIB v. Escolin, supra HELD: The provision is a simple case of conditional simultaneous institution of heirs, whereby the institution of Mr. Hodges is subject to a partial resolutory condition, the operative contingency of which is coincidental with that of the suspensive condition of the institution of his siblings-in-law, which manner of institution is not prohibited by law._______ Fernandez v. Dimaqiba (1967)

A will was executed by Benedicts on Oct. 22, 1930, designating Ismaela as the sole heir. Ismaela Oimagiba submitted to the CFI a petition for the probate of the purported will of Benedicts de los Reyes. Fernandez et.al. claiming to be intestate heirs, opposed ihe probate on the ground that the will has been revoked by an antecedent act of Benedicta (testatrix) when she executed 2 deeds of conveyance of the major portion of the estate in favor of Ismaela. The conveyances were later on set aside by the SC. Held: The issue of revocation is predicated on Art. 957 (2), CC in that "the legacy or devise shall be without effect if...one testator by any title or for any cause alienates the thing bequeathed or any part..." In upholding the validity of the will. SC noted that unlike the French or Italian codes, the basis of the provision, is a PRESUMED CHANGE IN THE INTENTION ON THE PART OF THE TESTATOR. Art. 957 is not applicable here. Here, the intention of the testatrix seems not to have changed in spite ot the conveyances she executed. This was gleaned from the fact that the conveyances were executed in favor of the legatee herself (i.e. Isabel a Dimagiba), and that no consideration whatever was paid by the latter. It would seem that the testatrix merely intended to comply in advance with what she ordained in her testament, rather than an alteration or departure therefrom. Even if article 957 was applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies. The annulment was supposedly due to undue influence which would imply that the testatrix wasn't expressing her own free will and intent in making the conveyances. It cannot be concluded that such conveyances established a decision on her part to abandon the original legacy._______ Belen v. Bank of PI (1960) Benigno Oiaz made a codicil naming Filomena Diaz as one of the legatees. Benigno died and his will was admitted for probate, and the estate was put under administration of BPI as trustee. Filomena died, leaving behind 2 legitimate children. Milagros (with 7 children) and Onesima. Onesima fited petition asserting amount.due to Filomena from Benigno's will should now be divided between her and Milgaros equally, to the exclusion of the 7 legitimate children of Milagros. CFI held that children should be included. Onesima invokes Art. 959 where "a distribution made in general terms in favor of the testator shall be understood as made in favor of those nearest in degree." Held: SC said that 959 is specifically limited to the case where the beneficiaries are relatives of the testator, not those of the legatee. The ratio legis. that among the testator's relatives the closest are the dearest, doesn't apply where the beneficiaries are relatives of another person (the legatee) & not of the testator. The word "descendant" (as used in will) must be interpreted, in
REVIEWER IN SUCCESSION

2007A that, in the absence of other indications of contrary intent, the proper rule to apply is that the testator, by designating a class or group of legatees, intended all members to succeed per capita. Hence, original legacy should be equally divided among her surviving children and grandchildren.______________ MAGIC NOTES: (CH - compulsory heir. FP - free portion) There is a difference between a legacy and a devise. But for purposes of discussion when I refer to legacy, it includes devise. Under Art.924, all things and rights which are within the commerce of man may be bequeathed or devised. Now, remember our discussion on a person donating parts of his body in a will. As a general rule, any legacy of a part of human body may be invalid as a legacy because parts of a human body are outside the commerce of man. Take note, however, of the exception in the law. This is with regards to a special law allowing a donation with parts of human body. However, this should comply with the requirements laid down by that Jaw. If it does not comply therewith, the donation is invafid. The legacies and devises made by the testator shall be chargeable against the free portion because the testator has no control ever the legitime. But if the testator has no compulsory heir, then he is at liberty to give all his estate by way of legacies and devises under art. 714. This article says that the testator may devise and bequeath the free portion as he may deem fit (This is not actually in point). In 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." "One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the tegitime of said heirs." When he has no compulsory heirs, then his entire estate is free. It is at his disposal. But when he has a CH, he is only free to dispose the FP. This is provided for in art. 91<*. Under art 925, a testator may charge with legacies and devises not only his CH but also his legatees and devises. What does this mean? For example I gave my coconut plantation to A with a condition that for the first year of harvest that the property is with A, A will deliver P 10,000 to B. So a legacy was given to B but this did not come from the FP of the estate. It comes from the fruits of the property given to A. In reality, this is an institution with a mode. Perhaps, this is the devise referred in the first par. of art. 925. Technically speaking, however, this is not a devise or legacy because the property is no longer owned by the testator but by A so that the devise to B is not actually a devise. Q: How about if the legacy is as follows: 'I hereby give to A my coconut plantation except the harvest for the first year from my death which shall pertain to B." Is this a devise or legacy? A: Insofar as the land is concerned, there is no question that it is a devise. Q: How about the fruits given to B? Is that a legacy? A: No answer given.

Page 151 of 207 Q: Is it necessary that the property bequeathed be owned by the testator? A: Look at 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." So the general rule is that when the testator bequeaths something he does not own, believing it to be his, the legacy is void. Q: Suppose the testator was aware that the thing was not his and despite his knowledge, he nonetheless gave it as a legacy, what is the status of that legacy? A: According to the authorities, when the testator knew the thing not to be his, and despite that knowledge he gave that thing to a legatee, there is an implied order for the estate to acquire the thing. This is in consonance with art. 931 which says that "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..." Q: How about if the testator did not know that the thing was not his He thought it was his What is the status? A: VOID if the testator erroneously believed that the thing pertains to him (art. 930). Q: Suppose he later on acquirao' the property before dying, what happens? A: The disposition shall take effect. (Akala niya kanya pero hind naman pala kanya) So acting on an erroneous belief that the thing was his. he gave the property as his legacy, the legacy is void. But if after the execution of the will the testator acquired the same property, the disposition will take effect Q: Why? A: Because th<> tact that he acquired the property is an acknowledgement o1 his eTor that what he gave he thought was his. We can infer that the subsequent acquisition of the property was intended by the testator to validate that legacy which is otherwise void. Q: Suppose the testator knew all along that the property was his and despite this, he gave it to another, what is the status of the property? Art 931 says that he will order that the thing be acquired and be given to his legatee: This is valid under art. 931. Suppose he did not order the acquisition of the thing? A: According to authorities, the fact that he gave something he knew wasn't his to another implies that he ordered the acquisition of the thing. This is valid. It will only become void if he erroneously believes it was his (930). You follow? Q: How about if the testator alienated the property after making a will and before dying, what happens to the legacy? A: Look at art. 957 nos. 1 and 2. Under no. 1, the legacy or devise shall be without effect "If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had." For example a gold ring transformed to a gold necklace, a car transformed into a jeepney. The legacy will be deemed to
REVIEWER IN SUCCESSION

2007A be without effect. Or if for example he sells them. He gave it to A in a will but after executing the will, he sold the property, the legacy is without effect. Thus under no. 2, the legacy is without effect. 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..." Q: Suppose the testator reacquires the property after selling it, what happens to the legacy? A: The 2nd sentence of number 2 state that if after the alienation the thing should again belong to the testator, even if 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. Q: A has a house and lot. The house and lot was donated to B. Later on A forgot that the property was donated. In her will, she devised the property to B without remembering that the property was donated earlier to B (B was already the owner of the property at the time the devise was made). After the devise, B sold the land to a 3rd party. Upon A's death. B is no longer the owner. Is the legacy effective? A: No. Under 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 been subsequently alienated by him." Q: A has a lot. She made a will giving it to B. Before A's death however, she sold the land to B. When A died, they discovered that the land sold to him was given to him in the will. Is the legacy effective? If the legacy is still effective, then B may get the value of the property from the estate. A: Now look at the second paragraph of art. 933. The first paragraph refers to the situation that the property was already belonging to the legatee at the time of the making of the will. The second paragraph refers to the situation when the legatee is not the owner of the property at the time of making of the will but before the death of the testator. Solution: "If the legatee or devisee acquires it gratuitously after such time (after the making of the will), he can claim nothing by virtue of the property. However, if the property has been acquired by onerous title he can demand reimbursement from the heir or estate. Q: What amount can the legatee ask for reimbursement? A: The amount he paid for the property and not the value of property at the time of succession. Q: Art. 932 is a modification of art. 933. Art 932 provides that "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 interest therein. * Example: the property belonged to the legatee and then the testator bequeathed it, this is ineffective. But if the legatee has mortgaged the property in the meantime, the second paragraph of art 932 tells us that if the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that Page 152 of 207 o extent. Take note: the testator must expressly order it in the will. If there is no express order then the legacy is without effect. Q: How about the fruits? A: There are 2 kinds of fruits. One type refers to fruits from the execution of will to the death of the testator which we shall designate as Fl. Another refers to the fruits after the death of the testator until the property is delivered to the legatee F2. To whom will these fruits belong? There is no question that F2 should belong to the legatee because his ownership over the thing has become vested. Under art. 948, "if the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon 3 the death of the testator, as well as any growing fruits, or 7 unborn offspring of animals, or uncollected income; but not ^ the income which was due and unpaid before the latter's death." So income before the death of the testator but after the making of the will shall not pertain to the legatee if the devise is a specific and determinate thing. There is an accompanying provision in 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 the making of the will, should it expressly appear by the will that such was his intention." Hence, for Fl to belong to the legatee, it must expressly appear in the will that this is the intention of the testator. Q: How about if the property is generic, to whom will the fnjits go? (If specific and determinate, F2 wilt go to the legatee under art. 948 and art. 781. F1 will go the estate under art. 948. A: If generic property, as a general rule, it will go to the estate. Art. 949 provides that "if the bequest should not be of specific and determinate thing, but is geneiic or of quantity, its fruits and interest from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered." F2 will only go to the legatee if expressly provided for in the will under art. 949, unlike in the case of specific and determinate thing wherein the F2 will pertain to the legatee even in the absence of a provision in the will to that effect. Can you follow? If the property is generic, then F2 will not go the legatee as a matter of general rule. It will only go to the legatee if the testator had made a provision to that effect. Q: What about Fl where will it go? A: There is no provision in the Code but applying by analogy, this will go the estate and not to the legatee. If specific, obviously it will go the estate. Q: Take note that legacies and devises are chargeable to the FP. If the testator has no CH, then all of the estate is free. If he has CH, legitime will come in so that only a portion of the estate is free. From this portion, the legacies and devises will be charged. Suppose the FP (estate 100.000. LC-50,000) is 50.000 and he gave 10,000 each to 7 persons, how will the estate be divided? Who will suffer reduction if there are preferred legatees in the will?
REVIEWER IN SUCCESSION

2007A A: Under 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. Renumeratory 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. However, under art. 911 (2), it provides that "the reduction of the devises or legacies shall be pro rata without any distinction whatever." Authorities harmonized these 2 provisions by applying art. 911 if there are legitimes for CH. This is designed so that the legitimes of the CH will not be impaired. Here, all the legatees will suffer a reduction pro rata. Art. 950, on the other hand, is applicable if there are no CH so that no legitimes will be impaired. Here, there will be preferences so tiiat not all will suffer reduction. If after giving the remuneratory legacies and nothing is left, the other legatees of different categories will not receive anything. If after giving the remuneratory legacies and there remains of the estate, this will be given to the next preferred legatee in Art. 950. The difference between the 2 articles is that in art. 950, there are no compulsory heirs so that the entire estate is free. However, the legacies and devises exceeded the estate. There will be reduction by preference under art. 950. But if there are CH and the legacies and devises merely impair the legitimes, reduction will be pro rata among all kinds of legatees under art. 911. Q: Suppose all the legatees where there are no CHs are remuneratory legatees, who will suffer reduction? A: It will be pro rata reduction of all of them. Q: As an institution, "the legatee or devisee cannot accept part of a legacy or devise and repudiate the other, if the latter be onerous" (art. 954). "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.'fpar. 2 same) When he accepts, all must be accepted, whether ft is onerous and unencumbered or unconditional. But if both legacies are onerous can he repudiate one and accept the other? A: DLC: Art. 955. Here, there are 2 legacies, one is onerous and the other is not. In art. 954, there is one legacy of 2 parts. Tandaan ninyo iyan. Under 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. (This rule will apply if there are 2 legacies). But if the testator intended the 2 legacies or devises should be inseparable from each other, the legatee or devise must either accept or renounce or 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." (Kung CH. pwede lang kumuha ng legitime intestate devise). inheritance and legacy or Q: Suppose the repudiation is not qualified, which part did he repudiate, the legacy or the inheritance? A: The presumption is that he repudiated both. Q: What happens if the legatees renounce the legacy? To whom will the property subject of legacy go? A: That is provided for in Art 956. Hence, "If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy orr 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." So as general rule, the property will become vacant. Q: To whom will that property go? A: We apply the rule: I S R A I I - if there is an institution, apply it. But here, we cannot apply it since the instituted heir repudiated it. We will look for a substitute. S - if there is a substitute, the property will go to the substitute. If there is none, we will go to the next one. R - representation. This is not applicable in the case at bar because there is no representation in voluntary succession. Pupunta ka ngayon sa accretion. A - if there is an accretion by the co-heir, the property will go to the co-heir. Accretion is applicable. If accretion is not applicable, then the property will go to the intestate heirs. I - the property will go by way of intestacy to the legal heirs. NOTE: Dannycon advised students to get hold of Jurado's Civil law Reviewer and try to look at the problems therein. Page 153 of 207
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2007A

INTESTATE SUCCESSION XX. GENERAL PROVISION'S""

ARHAO A. 1. When does it take place 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 th3 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. TOLENTINO: The phrase 'without a will" exdudes the case when a person dies with a will that lacks the legal requisites or a will the wheieabouts of which are not known. A void will has no legal existence. A will can be said to be void if there exists any cause for disallowing it. A void will and a will that later lost its validity are essentially the same. The only difference is that the first refers to a will that has never been valid; the latter to a valid will which iater lost its validity. Validity should be interpreted as efficacy. Loss of validity does not refer to a will revoked by a subsequent will for in that case, there would be no intestate succession because of the existence of a second valid will and because the first will is not invalidated by the second heir but only made ineffective. Absence of institution of heirs includes cases where the institution of heirs is void. In view of the rule in this jurisdiction that there is no legal difference between heir and devisee, or legatee, the term "heir" should be understood to include all persons benefited under the will. Legal succession will take place only as to that part of which the testator has not disposed. This cause includes cases where the dispositions of certain property or portions do not become effective because they are void according to law. The condition referred to is suspensive. The nonfulfillment of resolutory condition does not give way to intestacy. On the contrary, the rights of the instituted heir or legatee are maintained so long as the resolutory condition

does not happen. When the event upon which a conditional legacy does not happen, the legacy passes to the persons named by the law to succeed the testator: that is to say, legal or intestate succession takes place as to that legacy. There will be no intestacy, however, although the suspensive condition does not arise if a substitute has been appointed or the right of accretion exists between the conditional heir or legatee or devisee and another. In these cases, the property or portion of the conditional heir Page 154 of 207 or legatee or devisee who does not succeed passes to the substitute or co-heir. . -!fli?stacy wil) no' follow from the prior death of the heir or his renunciation of the inheritance if the testator has provided for substitution or when there is a co-heir in whose favor the right of accretion exists Incapacity of the heir instituted will lead to intestacy unless the right of accretion or substitution obtains. There are other causes of intestacy not mentioned in Art 960. Examples are the happening of a resolutory condition, expiration of the term or period of the institution under Art. 885, and by the noncompliance or the impossibility of complying with the will of the testator. 2. who are the intestate heirs 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. Unlike the disinheritance of compulsory heirs, this exclusion does not require any legal cause but depends solely upon the will of the testator. It may be tacit or express and purely negative. This is admissible only when the intent of the testator to exclude is indisputable. There are two notable features of this express exclusion in German law: (1) the State as intestate heir cannot be excluded by this method, but only by naming a voluntary heir, because a person cannot be totally without a successor mortis causa; (2) the exclusion of a person does not extend to his descendants and successors unless the will provides for such extension. The effect of the exclusion of an intestate heir is to make his share accrue to the other heirs of the same degree. If he is the only one nearest in degree, then those next in degree will succeed. Resales v. Resales (1987) HELD: The surviving spouse is considered a 3rd person as regards the estate of the parent-in-law, because there is no filiation by blood._________________________ 3. order of and share in intestate succession ART 962. In every inheritance, the relative nearest in degree exdudes 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_______ The relatives nearest in degree exclude the more remote. This, should there be relatives of the first degree, the relatives of the second degree cannot inherit. This rule of proximity in relationship is also found in testamentary successions. To the rule of proximity, the present article excepts the cases in which the right of representation obtains. In
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2007A reality however, representation does not contradict the general rule of proximity. Its grammatical meaning suggests that the person having this right inherits in the place of the person under the same conditions as (he latter. In legal contemplation, the one who inherits is the same person represented. There are other exceptions to the rule of proximity. The law calls first the descendants, then the ascendants and finally, the collaterals. The general rule will apply, therefore, to relatives within the same degree except in the case when the relatives are found in different lines, in which case the order of preference between lines must first be observed and within each line, the rule of proximity applies. There is also the rule of equal division, that is, relatives who are in the same degree shall inherit in equal shares. The rule of equal division must be applied only in the same manner as the rule of proximity: that is the order of preference between lines should first be observed, and within each line, all relatives in the same degree, which must be the nearest, share equally. To the rule of equal division, there are three exceptions: (1) the division between whole and halfblood relatives, (2) the division in representation, and (3) the division in the ascending line. De los Santos v. De la Cruz (1971) Plaintiff Gertrudes de los Santos and several co-heirs including the defendant Maximo dela Cruz executed an extra-judicial agreement which was for the purpose of distribution of lands for the heirs of Pelagic dela Cruz. In the agreement, they agreed to adjudicate 3 lots to the defendant in addition to his corresponding share, on condition that he would undertake the development and subdivision of the estate. He refused to perform his obligation. Thus, plaintiff brought this action for specific performance. Defendant admits execution of saJ agreement but alleged that agreement is void as to plaintiff because she is not an heir of Pelagic dela Cruz. Defendant is the nephew of the deceased white plaintiff is the grandniece of said Pelagio. Marciana dela Cruz, mother of plaintiff and niece of Pelagic, predeceased Pelagio. Lower court held that D ic estopped fron raising the issues and was ordered to perform his obligation. Hence this appeal.

Held: Plaintiff Gertrudes is not an heir of the decedent. Being a mere grandniece of Pelagio, she cannot inherit from the latter by right of representation (under Art 972). much less could she inherit in her own right (Art 962). Relatives nearest in degree exclude the more distant ones. Here, the nephew and nieces excluded the grandniece. The fact that she was included in the extrajudicial agreement did not confer upon her the right to institute this action. Its express purpose was to divide the estate among the heirs of Pelagio, which she is not. Thus, she not being an heir, the partition is void with respect to her._______________ MAGIC NOTES: Properties of decedent that aren't disposed of by will shall be disposed of in accordance with the rules on intestacy. Art 960 - instances when legal succession takes place; no definition of intestate succession, o Why is there no definition? Because framers couldn't agree on a definition, o Proposed definition in Code Commission: Mode of succession that wHI govern when decedent dies without a valid will. Page 155 of 207 A: Q: Not accurate because the testator can leave a will but properties will be disposed by way of intestacy (example: If the testator leaves a will with only one provision disinheriting the heir, his properties will be disposed by intestacy.) Spanish Civil Code rules of succession 1. the direct line excludes the collateral line 2. the descending direct line excludes the ascending - why? Because the love of persons is like the flow of the river (the normal behavior of persons is to love more .his descendants than ascendants) 3. (he nearer excludes the more remote In the new civil code, illegitimate children are given rights even in intestacy. This tempered the rule on exclusion and concurrence among legal heirs. However, in the old Civil code, exclusion is favored, rather than concurrence. Before, the spouse is excluded by the children (because the spouse is only a relative by affinity) and the illegitimate relatives are excluded (even if recognized by illegitimate parents). Legal heirs o Legitimate ascendants o Illegitimate parents o Legitimate children o Illegitimate children o Surviving spouse o Brothers, sisters, nephews and nieces (BSNN) o Other collateral relatives c State If one of the legitimate ascendants, illegitimate parents, legitimate children or illegitimate children survives, the brothero. sisters, nephews and nieces and the state are excluded. If one of the legitimate ascendants, illegitimate parents, legitimate children, illegitimate children or surviving spouse survives, the other collateral relatives and the state are excluded. If they concur in legitimes. they concur in intestacy. Legitimate ascendants, surviving spouses and brothers, sisters, nephews and nieces concur. Who are the legal heirs? Only legitimate ascendants and surviving spouse. BSNN are excluded by legitimate ascendants. Surviving spouse and illegitimate children concur. One half by legitime and one half by intestacy (only for free portion). Ex. X estate = 120 Heirs Intestate Legitime Free Portion X Y 60 60 30 30 30 30

Q: surviving spouse and children of nephews and nieces concur. Who will inherit? A: only the surviving spouse will inherit Q: legitimate children and surviving spouse concur. How will they share? A: All are intestate heirs. The surviving spouse will get a share equal to the intestate share of a legitimate child. Ex. estate = 240 7\ B Heirs Intestate Legitime I Free Portion A B Y 80 80 80 60 60 60 20 20 20

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion. Q: only 1 legitimate child and surviving spouse concur, will they share? Ex. H How A: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy. Ex Estate = 240 Supreme Court Jurado Caguioa Heirs Y Intestate 120 Intestate 80(60 legitime. 20 free portion) 160(120 legitime, 40 free portion) Intestate 90(60 Legitime, 30 free portion) 150(120 legitime. 30 free portion)

120

o In intestacy, apply interest given by law to estate, important to know free portion because he who gets the free portion will be the one to suffer.
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2007A Q: Legitimate ascendants and legitimate children concur. Who are the legal heirs? A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion) Q: Legitimate ascendant (1/2) and illegitimate child (1/2) concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 by intestacy; the illegitimate child will get 1/4 by legitime and 1/4 by intestacy. Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion? A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8. Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class. Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNN

oo CD If you literally apply the provision on intestacy, Y (the surviving spouse) will get the entirety of the free portion.,, Tolentino: so be it, apply the provision Padilla: the spouse is excluded. Since the concurrence provision is only for children and not just 1 child, everything goes to the child Jurado's solution is equitable but has no legal basis. The Supreme Court, citing Tolentino in the case of Santillan v. Miranda, held that the provision should be literally applied. That is, in the example above, both Y and 2 will receive 120 each. Q: If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion Collateral relatives will inherit if there is nobody in the direct line. BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse. The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009) The nearer excludes the more remote. Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood. If O dies, B and C will inherit; E. F. G excluded Page 156 of 207
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2007A Q: Legitimate ascendants and legitimate children concur. Who are the legal heirs? A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion) Q: Legitimate ascendant (1/2) and illegitimate child (1/2) concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 by intestacy; the illegitimate child will get 1/4 by legitime and 1/4 by intestacy. Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion?

A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8. Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class. Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNN Q: surviving spouse and children of nephews and nieces concur. Who will inherit? A: only the surviving spouse will inherit Q: legitimate children and surviving spouse concur. How will they share? A: All are intestate heirs. The surviving spouse will get a share equal to the intestate share of a legitimate child. Ex. estate = 240 7\ B Heirs Intestate Legitime I Free Portion A B Y 80 80 80 60 60 60 20 20 20

concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 by intestacy; the illegitimate child will get 1/4 by legitime and 1/4 by intestacy. Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion? A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8. Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class. Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNN Q: surviving spouse and children of nephews and nieces concur. Who will inherit? A: only the surviving spouse will inherit Q: legitimate children and surviving spouse concur. How will they share? A: All are intestate heirs. The surviving spouse will get a share equal to the intestate share of a legitimate child. Ex. estate = 240 7\ B Heirs Intestate Legitime I Free Portion A B Y 80 80 80 60 60 60 20 20 20

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion. Q: only 1 legitimate child and surviving spouse concur, will they share? Ex. H How A: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy. Ex Estate = 240 Supreme Court Jurado Caguioa Heirs Y Intestate 120 Intestate 80(60 legitime. 20 free portion) 160(120 legitime, 40 free portion) Intestate 90(60 Legitime, 30 free portion) 150(120 legitime. 30 free portion)

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion. Q: only 1 legitimate child and surviving spouse concur, will they share? Ex. H How A: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy. Ex Estate = 240 Supreme Court Jurado Caguioa Heirs Y Intestate 120 Intestate 80(60 legitime. 20 free portion) 160(120 legitime, 40 free portion) Intestate 90(60 Legitime, 30 free portion) 150(120 legitime. 30 free portion)

120

oo CD If you literally apply the provision on intestacy, Y (the surviving spouse) will get the entirety of the free portion.,, Tolentino: so be it, apply the provision Padilla: the spouse is excluded. Since the concurrence provision is only for children and not just 1 child, everything goes to the child Jurado's solution is equitable but has no legal basis. The Supreme Court, citing Tolentino in the case of Santillan v. Miranda, held that the provision should be literally applied. That is, in the example above, both Y and 2 will receive 120 each. Q: If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion Collateral relatives will inherit if there is nobody in the direct line. BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse. The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009) The nearer excludes the more remote. Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood. If O dies, B and C will inherit; E. F. G excluded Page 156 of 207
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120

2007A Q: Legitimate ascendants and legitimate children concur. Who are the legal heirs? A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion) Q: Legitimate ascendant (1/2) and illegitimate child (1/2)

oo CD If you literally apply the provision on intestacy, Y (the surviving spouse) will get the entirety of the free portion.,, Tolentino: so be it, apply the provision Padilla: the spouse is excluded. Since the concurrence provision is only for children and not just 1 child, everything goes to the child Jurado's solution is equitable but has no legal basis. The Supreme Court, citing Tolentino in the case of Santillan v. Miranda, held that the provision should be literally applied. That is, in the example above, both Y and 2 will receive 120 each. Q: If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion Collateral relatives will inherit if there is nobody in the direct line. BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse. The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009) The nearer excludes the more remote. Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood. If O dies, B and C will inherit; E. F. G excluded Page 156 of 207
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2007A Q: can H inherit from D (as half brother)?

A: NO (barred by Art 992). An illegitimate child is disqualified to inherit from legitimate relatives of parents and vice versa. Q: Is D a legitimate relative of the parent? A: Yes. H cannot inherit from D and D cannot inherit from H. Illegitimate children are not relatives. If H dies, B cannot inherit, but I can inherit from H because it is not covered by Art. 992 (applies only to intestacy) People v. Mendoza 1st marriage 2nd marriage while 1st subsisting 2nd marriage biagamous y1 marriage valid 3rd marriage yitug: not all void marriages should be brought to court. Only those ostensibly valid marriages. Quisumbing: no bigamy in 3rd marriage because the RPC has not yet been amended. There must be a prior subsisting marriage before one can be charged with bigamy. The court does not dissolve a marriage null and void ab initio. It only declares the nullity of such marriage. This is still the controlling doctrine (en bane decision will control over a division decision). People v. Aragon: A voidable marriage can be dissolved by the court. It is still bigamy. A voidable marriage is valid until annulled. . 6. Relationships ARHM) ART 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. ART 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. ART 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. ART 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. ART 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. ART 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 Page 157 of 207
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2007A the others of the same degree, save the right of representation when it should take place________ This article presupposes the case where there are several relatives of the same degree and one or more of them repudiate their share or are incapacitated to inherit. In such case the shares that would pertain to those who repudiated or are incapacitated pass to relatives of the next degree, but are retained by the other relatives of the same degree through the right of accretion, with the exception of the cases where the right of representation obtains. The right of representing a living person obtains only in cases of disinheritance and incapacity. When the fact which prevents a living person from succeeding is his repudiation, he cannot be represented. The right of accretion takes place with respect to his share; and if there are no other co-heirs, Art. 969 will apply. ART 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance._____ The present article presupposes a case where only the nearest relative or relatives repudiate the inheritance, leaving none of the same degree to succeed. In such case, it is dearly provided that those of the next degree shall inherit in their own nght. Art 977 provides that heirs who repudiate may not be represented. Accretion is not possibte. Incapacity of the nearest relative - The present article does not provide for the case where only an heir or all the heirs called by law are incapacitated; it deals only with repudiation. The right of representation may or may not obtain. Should the incapacitated heir be a child or descendant of the deceased, and he in turn has children or descendants, the latter may represent the incapacitated heir. The same ride obtains when children of an incapacitated brother or sister survive with uncles and aunts with whom they concur in succession. In all other cases, no representation can obtain; the heirs next in degree shall succeed in their own right C. Representations \ L., I 4/.

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._______ Concept of representation - The idea of the right of representation is equivalent to the idea of subrogation. Thus, legal heirs fan into two groups: those who inherit by their own right, and those who inherit by the right of representation. By fiction of law, the latter are placed in the same degree as the former. Effect of representation - In the first place, a relative of a more remote degree of relationship is placed in the degree which entitles him to the right to inherit. Page 158 of 207 In the second place, the sole representative or all the representatives merely take the place of the person represented. The person representing does not succeed the person represented, but some other person. This in turn has its consequences. In the first place, the son who repudiates the inheritance from his father does not lose the right to represent the latter in the inheritance from the grandfather. In the second place, a greatgrandson may be called to the inheritance of his great-grandfather even if the grandfather should die before the great-grandson has been conceived. In the-.third place, a son who cannot inherit from his father on f/ie ground of unworthiness can still inherit from his grandfather by representing the latter, provided he himself is not unworthy with regard to the said grandfather. In the fourth place, since the person representing virtually succeeds to an inheritance, he must be possessed of all the qualities necessary for the right to inherit: he must not therefore, be incapacitated or disinherited by the person to whom he succeeds. Lastly, he succeeds not only to the rights but also to the obligations which are transmissible. One characteristic of the right of representation is that subrogation or trie, representation obtains degree by degree, the inferior one representing the relative immediately higher in degree. No jump is made. Finally, the right of representation is one conceded by law for certain purposes and for certain limited application. The provision therefore, conceding this right must be strictly interpreted and applied. Limited to transmission by law - There is representation only with respect to inheritance conferred by law. Thus, only in legal or intestate succession, and in testamentary succession only with respect to the legitime. The title in testamentary succession is voluntary and personal in character, the institution is individualized, and is thus destroyed by the prior death or incapacity of the heir. Hence, there can be no representation. Maura and Castan believe that representation may take place in testamentary succession by the will of the testator himself, but this seems to be essentially a case of substitution and not representation. The law, however, does not preclude the succession of an illegitimate child to an illegitimate relative of his father or mother. There are provisions of the Code recognizing the right of representation by an illegitimate child, provided that the parent he represented is himself of illegitimate filiation. While a legitimate child can always represent, whether succeeding to a legitimate or an illegitimate ascendant or its parent the illegitimate child can represent only when the parent to be represented is himself an illegitimate child of the decedent. In other words, representation is permissible when the line is completely illegitimate, that is, the representative, the person to be represented, and the decedent are all related to each other by illegitimate filiation. Representation in adoption - If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from the parents of ascendants of the adopter. The filiation created by fiction of law is exclusively between the adopter and the adopted. But can the adopted child be represented by his legitimate children in the succession to the estate of the adopting parent?
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2007A Under our law, it seems that the children and descendants of the adopted child cannot represent him. Art 971 provides that "the representative does not succeed the person represented but the one whom the person represented would have succeeded" and under Art 973, " in order that the representation may take place, it is necessary that the representative himself be capable of succeeding the decedent." These provisions preclude representation of an adopted child, because there is no legal relation between the adopter and the children of the adopted; the legal tie of adoption is personal, an exclusively between the adopter and the adopted. 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.__________ Liability for debts - The inheritance received by the right of representation is inherited directly by the representative from the person from whom the one represented would have received ft. Hence, it is not liable for the payment of the debts of the person represented. Not affected by will - Because the property inherited by representation does not come from the person represented, it is not affected by his will or testament. ART 972. The right of representatiori 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. The law uses the emphatic *rever in the ascending." In the descending line, the right of representation is unlimited with regard to the descendants who may

succeed. It obtains till the infinite. Hence, in the same succession, various persons may be represented by one person who is raised through all the intervening vacant degrees which separate him from the deceased. Collateral line - Only the children of brothers or sisters have the right of representation. Art 975 authorizes this right only in case such children of brothers and sisters concur with uncles and aunts. Representation of illegitimate - Can an illegitimate child be represented? Under the old Civil Code, illegitimate cannot be represented in the collateral line. Under the present Code, however, the rule seems to have changed. The second paragraph of Art 994 of the Code provides that if the surviving spouse of an illegitimate child should survive with brothers and sisters, nephews and nieces, he or she shall inherit one half of the estate and the latter the other half. The "nephews and nieces" are this, expressly mentioned in the present Code. From this, it follows that an illegitimate brother or sister of the deceased can be represented by his children, without prejudice to the provisions of Art 992. ART 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent._______________ Page 159 of 207 Incapacity or disinheritance - The capacity of the representative and his right to succeed must be determined in relation to the decedent and not the person represented. Hence, even if he is incapacitated to succeed, or has been disinherited by the person represented by him. he can still represent so long as he has the capacity to succeed the decedent. 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._________ Division per stirpes - When the right of representation obtains, the division of the estate is made per stirpes alone, or per stirpes and per capita combined. In the division per capita, the estate is divided in to 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. On the other hand, division per stirpes is made when one sole descendant or a group of descendants represent a person in the intestate succession. The sole representative or group of representatives are counted as one head. "Estirpes" is the series of relatives who represent one person in the succession. The reason for the division per stirpes in case the inheritance is taken by the right of representation is that, in the first place, the person representing a relative in the succession steps into the place of the person represented. They should, therefore, get only what the person represented would have received. In the second place, it would be unjust to the persons who succeed in their own right should division per capita be adopted because the number of representatives will directly affect the proportion that the heirs will receive in their own right. 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. ART 976. A person may represent him whose inheritance he has renounced. '___ Representation after repudiation - The present article presupposes a case where the person who is to inherit in his own right has predeceased the decedent whose succession is in question, and his children or descendants or some of them have renounced their share in the inheritance from him. In this case, the children or descendants who repudiated their inheritance from the person who has predeceased the decedent can still represent him un the succession to the tatter's estate. The present article is but a logical consequence flowing from the very nature of the right of representation. The person representing does not succeed the person represented, but simply takes his place and succeeds in the inheritance of other relatives. Failure to succeed included - This article expressly mentions only the case of repudiation. The cases of
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2007A Under our law, it seems that the children and descendants of the adopted child cannot represent him. Art 971 provides that "the representative does not succeed the person represented but the one whom the person represented would have succeeded" and under Art 973, " in order that the representation may take place, it is necessary that the representative himself be capable of succeeding the decedent." These provisions preclude representation of an adopted child, because there is no legal relation between the adopter and the children of the adopted; the legal tie of adoption is personal, an exclusively between the adopter and the adopted. 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.__________ Liability for debts - The inheritance received by the right of representation is inherited directly by the representative from the person from whom the one represented would have received ft. Hence, it is not liable for the payment of the debts of the person represented. Not affected by will - Because the property inherited by representation does not come from the person represented, it is not affected by his will or testament. ART 972. The right of representatiori 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.

The law uses the emphatic *rever in the ascending." In the descending line, the right of representation is unlimited with regard to the descendants who may succeed. It obtains till the infinite. Hence, in the same succession, various persons may be represented by one person who is raised through all the intervening vacant degrees which separate him from the deceased. Collateral line - Only the children of brothers or sisters have the right of representation. Art 975 authorizes this right only in case such children of brothers and sisters concur with uncles and aunts. Representation of illegitimate - Can an illegitimate child be represented? Under the old Civil Code, illegitimate cannot be represented in the collateral line. Under the present Code, however, the rule seems to have changed. The second paragraph of Art 994 of the Code provides that if the surviving spouse of an illegitimate child should survive with brothers and sisters, nephews and nieces, he or she shall inherit one half of the estate and the latter the other half. The "nephews and nieces" are this, expressly mentioned in the present Code. From this, it follows that an illegitimate brother or sister of the deceased can be represented by his children, without prejudice to the provisions of Art 992. ART 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent._______________ Page 159 of 207 Incapacity or disinheritance - The capacity of the representative and his right to succeed must be determined in relation to the decedent and not the person represented. Hence, even if he is incapacitated to succeed, or has been disinherited by the person represented by him. he can still represent so long as he has the capacity to succeed the decedent. 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._________ Division per stirpes - When the right of representation obtains, the division of the estate is made per stirpes alone, or per stirpes and per capita combined. In the division per capita, the estate is divided in to 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. On the other hand, division per stirpes is made when one sole descendant or a group of descendants represent a person in the intestate succession. The sole representative or group of representatives are counted as one head. "Estirpes" is the series of relatives who represent one person in the succession. The reason for the division per stirpes in case the inheritance is taken by the right of representation is that, in the first place, the person representing a relative in the succession steps into the place of the person represented. They should, therefore, get only what the person represented would have received. In the second place, it would be unjust to the persons who succeed in their own right should division per capita be adopted because the number of representatives will directly affect the proportion that the heirs will receive in their own right. 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. ART 976. A person may represent him whose inheritance he has renounced. '___ Representation after repudiation - The present article presupposes a case where the person who is to inherit in his own right has predeceased the decedent whose succession is in question, and his children or descendants or some of them have renounced their share in the inheritance from him. In this case, the children or descendants who repudiated their inheritance from the person who has predeceased the decedent can still represent him un the succession to the tatter's estate. The present article is but a logical consequence flowing from the very nature of the right of representation. The person representing does not succeed the person represented, but simply takes his place and succeeds in the inheritance of other relatives. Failure to succeed included - This article expressly mentions only the case of repudiation. The cases of
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2007A unworthiness, incapacity and disinheritance should, however, be deemed included. The person representing may be unworthy, incapacitated or disinherited, with regard to the person to be represented, but so long as he is not so with regard to the decedent to whom he succeeds, he retains the right of representation and succeeds to the inheritance of the latter. ART 977. Heirs who repudiate their share may not be represented.________________________ Justification of representation - The principal justification for the right of representation is death of a son or of a brother or sister. In these cases, the surviving father or brother naturally looks to the welfare of the unfortunate orphans. The general rule, therefore, is that representation can take place only in case of death. Our law, however, to lessen the rigor of this rule, has provided certain exceptions: disinheritance and incapacity. Incapacity here is equivalent to unworthiness and is applicable both to the son and to the brother. Disinheritance can refer only to the descendants. Repudiation bars representation - A person who has repudiated an inheritance from a decedent cannot be represented by his children. In case some heirs repudiate the inheritance, their share shall accrue to the others, and if all of them repudiate, those of the next degree shali succeed in their own right.

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._________________ Art 982 contemplates a case where the survivors are all grandchildren and other descendants of the deceased. The right of representation obtains, the division of the estate will be per estirpes. 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. (for Tolentino's comments, please see Chapter XIV on Legitime, No. 2) ART 992. An illegitimate child has no right to inherit sb 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.__________________ Legitimate and Illegitimate families - The illegitimate child is not a relative of the legitimate children and relatives of his father or mother. They may have a natural tie of blood, but this tie is not recognized by law. Because of the rule in this article, the illegitimate child of one who is a legitimate child cannot represent the latter in the succession to the estate of eh grandfather (legitimate father of the illegitimate parent). Extent of disqualification - This deprivation of right extends to the legitimate descendants of the illegitimate child, and is reciprocal, that is, the persons whom the Page 160 of 207 illegitimate child cannot succeed are also disqualified to succeed him. Hence, relatives on the legitimate line have no right to inherit ab intestate from an illegitimate relative ART 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. ART 1006. Should brother_and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. ART 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. ART 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes. in accordance wifh'the rules laid down for the brothers and sisters of the full blood. Full and half-blood relation - Brothers of the wnole blood are those proceeding from the same father and mother, they inherit in equal shares. Second and subsequent marriages result in the formation of half-blood relationship of brothers and sisters In case of the concurrence of half brothers or sisters alone, Art 1007 applies. They inherit in equal shares, without distinction of property. When full and half blood brothers or sisters survive, the former shall take a portion in the inheritance double that of the latter. When brothers and sisters concur with nephews and nieces. Art 1005 provides that the brothers and sisters shall inherit per capita and the nephews and nieces per stirpes. In other words, correlating Art 1005 with 975. the brothers or sisters inherit in their own right, while the nephews or nieces, children of brothers or sisters, inherit by tight of representation. under Art 1008, the same rule applies in case children of brothers or sisters of the half blood concur in the succession. That is, the brothers whether of whole or half blood will inherit in their own right the whole blood taking a double portion, while the nieces and nephews whether or whole or half blood naturally taking the portion of their father which is double that pertaining to the father of the half-blood nephews and nieces Teotico v. Del Val. supra Held: Chan, though claiming to be an acknowledged natural daughter of the decedent's brother, cannot inherit. As per Art. 992, an illegitimate child is prohibited by law from succeeding to the legitimate relatives of her natural father. As the adopted child of the decedent's sister, she also cannot inherit. The relationship established by adoption is limited solely to the adopter and the adopted. Hence, ric 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.________ _
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2007A Diazv. IAC(1990) Simona Pamuti vda de Santero died intestate and wwas survived by her niece and the illegitimate (natural) children of her son. The issue is whether the illegitimate grandchildren can represent their father in the inheritance from Simona. Held: NO. Arts. 902, 989 and 990 are clear on the matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. While the new civil code has granted successional rights to illegitimate children, those articles, however, in conjunction with Art. 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that

only his legitimate descendants may exercise the right of representation by reason of the barrier imposed by Art. 992. De los Santos v. De la Cruz, supra Held: In an intestate succession, a grandniece of the deceased cannot participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line, the right of representation does not obtain beyond sons and daughters of Ihe brothers and sisters. __ __ Abellana-Bacavo v. Ferraris-Borromeo (1965) Melodia Ferraris died and was survived only by collateral relatives - an aunt (half-sister of her father) and her nieces and nephews (children of her full blood deceased brother). The issue is whether or not the aunt is excluded from the inheritance. Held: Under our laws of succession, a decedent's uncles and aunts may not inherit ab intestate so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. Although the aunt is of the same or equal degree of relationship as the nephews and nieces, our law states that in case of intestacy, nephews and nieces exclude all other collaterals (aunts, uncles, first cousins etc.). Under Art. 1009, the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, aunts, cousins, etc.) being called to succession. Corpuz v. Corpuz (1978) Spouses Bemarda Mantite and Francisco Corpuz owned a parcel of land. Upon the death of Bemarda, Francisco sold the said lot to Spouses Domingo Cruz and Eugenia Riga!. Domingo died. This dispute is between the heirs of the vendors (represented by Evaristo Corpuz. son of Francisco) and the heirs of the vendees (Susana Santiago, daughter-in-law of Domingo). Evaristo claims that Francisco had no authority to sell the land because the said land was conjugal property and since Bemarda died intestate before the sate, he and his siblings had by operation of law become the owners of 1/2 of the land in question through inheritance from their deceased mother. Held: The sale made by Francisco corpus of the land should be held to have conveyed title only to his share in said land, with the result that the legal heirs (Evaristo et al) of Bernarda Mantile cannot be deemed to have been divested of their title to her share of the property. The title to the property should be recorded in the joint names of both set of heirs as co-owners. Sayson v. CA (1992) Spouses Eleno and Rafaela Sayson had 5 children, one of which was Teodoro. Eleno and Rafaela died. Teodoro married Isabel. They died and were survived by two adopted children. Delia and Edmundo. and one legitimate child, Doribel. The dispute is regarding the matter of who can inherit from Teodoro and Isabel, and whether their surviving children can represent Teodoro in the inheritance from his parents Eleno and Rafaela Held: With regard to the right of representation, Doribel, as the legitimate daughter of Teodoro and thus the grandchild of Eleno and Rafaela, has a right to represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, she is entitled to the share her father would have directly inherited had he survived, which shall be equal to the shares .of her grandparents' other children. However, Delia and Edmundo, cannot represent Teodoro. While it-is -true that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party. Since Delia and Edmundo are considered strangers to Eleno and Rafaela, they cannot be allowed to represent Teodoro. Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and Edmundo. as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the following Article 979 of the Civil Code which states that "Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child."_________________________ MAGIC NOTES: Right of Representation A right created by fiction of law by virtue of which the representative is raised to the place and degree of the' person represented and acquires the rights which the latter would have if he were living or if he would have inherited. Q: When is representation allowed? A: Only with respect to inheritance conferred by law (legitime and intestacy) in cases of: incapacity, disinheritance, predecease. A voluntary heir who dies before the testator transmits nothing to his heir (Art 856) Rules: 1. Page 161 of 207 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 of the full or half blood (Art 972).
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2007A 3. 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 survive alone, they shall inherit IN EQUAL PORTIONS (per capita) (Art 975).

4. An heir who has repudiated his inheritance may not be represented (Art 977). Limitations on Right of Representation in Collateral Line: 1. Right of representation can be exercised only by the nephews and nieces of the decedent. (Art 972) Right of representation can be exercise by nephews and nieces of the decedent only if they concur with at least one brother or sister of said decedent (Art 975); otherwise, if they alone survive, they shall inherit IN THEIR OWN RIGHT and not by representation. Right of representation in collateral line is possible only in INTESTATE SUCCESSION. It cannot take place in testamentary succession (art 856). Q: A: oooo 2. 3. In representation, the representative is entitled to receive what the represented will get. The representative will get the tegitime and the intestate share (Art. 989, 990 and 998) There is no representation in voluntary succession (by will) There is no representation in favor of the ascending line; only in descending line. The representative must be the legal heir of the person he is representing, but he must also be the legal heir of the decedent - DOUBLE HEIRSHIP TEST are illegitimate children a/towed to represent illegitimate parents? It depends. Illegitimate children can represent illegitimate parents in inheritance from illegitimate grandparents. Ex. IH G can represent C in inheritance of A F can represent C in inheritance of A D can represent B in inheritance of A E cannot represent B in inheritance of A. He is barred by Art. 992 because A is a legitimate relative of the illegitimate parent. o H can represent G in the inheritance of A o I cannot represent F in the inheritance of A. He is barred by Art. 992. He cannot represent in inheritance of C, so he also cannot represent in inheritance of A. There is no representation in repudiation o If E repudiates the inheritance of C, E can still represent C in inheritance of A. o BUT. if E repudiate the inheritance of C, F cannot represent E in inheritance of C because the line has already been broken. May an adopting child represent the adopting parent in the adopting parent's ascendant? Ex. B predeceased A and A dies. C cannot represent B in tne inheritance of A. C is the legal heir of B BUT C is not the heir of A (double heirship test). C is a stranger to A Ex. Q May C represent B in the A: 6 predeceased A, inheritance of A? NO. C is not the legal heir of A (case of Teotico del Val). Adoption creates a personal relationship between the adopting parent and the adopting child. Q: Is there representation in the collateral line? A: YES. Art. 875. but it is limited in favor of nephews and nieces. Page 162 of 207
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o if A is dead and B repudiates, only O and E will inherit F is barred (no representation in repudiation) Manahan is only until the 5th civil degree of consanguinity. M Page 163 of 207
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2907A w o If C dies, W, A and B are his heirs (share: W=1/2, A=1/4, B=1/4) o W (surviving spouse) concurs with BSNN. If A and B are dead, D, E and F inherit in their own right. G, H and I cannot inherit anymore because W will exclude them. Remember Art. 1009 and the case of Papa v. Camacho. Among collateral relatives, the descending line excludes the ascending. Ex. B(3) o E will inherit. o If E is dead, G and H will inherit because they exciude b and C. B and C will only inherit if there are no nephews and nieces. Page 164 of 207
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2007A ex. I J K o B and C are legal heirs of D, they will receive the free portion. o E and F can represent B in the inheritance of D. * o BUT H and I cannot represent E in inheritance of D because representation is limited. o But if B, C and D are dead, E, F and G will inherit in their own right (1/3 each) because they are the only surviving relatives of D. They (EFG) wil! only inherit by representation if they survive with one aunt/uncle, o L cannot represent C. o If D is an illegitimate child of A. C cannot inherit from D. so L cannot represent C. o If C and B repudiate, E, F and G will inherit in their own right as the nearest, surviving collateral relatives. They will not inherit by representation. "survive" means concurrence in the inheritance and NOT physical survival. o If A is dead, D and E may represent A. o If A and B are dead, D, E and F will inherit

2007A NOW, deduct from the Estate the legacy. The difference. 54,000 is now what should be distributed according to 805 (kuha niyo - hirap noh?) So out of 54,000, the shares should be such that the illegit gets Vi of legit's share. In this case, it's going to be: Legit = 36,000; Illegit =18,000. I have devised a formula in applying 895. For some people, they just divide the remaining disposable portion by 3 and apply the quotient to the principle of 895. But a more scientific formula is at hand. Let X represent the share of the legitimate and X/2 represent the illegitimate. The equation is X -=-X/2 = remainder of the estateafter subtracting the legacies. ART 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. ART 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. ART 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shot inherit by right of reprehension from their TOLENTINO The old civil code said that only legitimate descendants can represent the illegitimate child. This interpretation can no longer control under the NCC. Illegitimate children can now represent their parents, if the latter are also of illegitimate filiation. In easy words (sa madaling salita), an illegitmate grandchild can represent his illegitimate father in his illegitimate grandfather's estate. 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._______ ESTATE Page 166 of 207 90.000 TOLENTINO The above article talks of the illegitimate inheriting the ENTIRE estate. It should be noted that this article presupposes that there is no concurring intestate heir, for once there are other intestate heirs who concur a different rule is had, i.e. illegit children concurs with surviving spouse, hati sila according to 988. Also remember that the distinction made by the Civil Code as to the different illegitimate children has been abrogated by the Family Code. Parepareho na silang lahat. TOLENTINO Situation: illegitimate children concurring with legitimate parents or grandparents. The sharing will be one half each. Partial Intestacy. How are we to compute the shares when the deceased has disposed of a part of his estate by will and there is a remainder. For instance: Legacy to a friend 10,000 Survived by Legitimate parent and Illegitimate Children There are three possible solutions (this is getting to be confusing): (1) FIRST Theory: 1s' Deduct the legacy of 10,000 from the estate, leaving 70,000 for the intestate heirs. 2nd Divide the leftover by two (since the article said that one-half each). So parents and illegitimate children will have, 35,000 as their intestate inheritance, to be divided equally among them. Criticism. Though the solution is in accordance with the literal terms of the present article, in relation to article 960(2), which provides that where the testator has disposed of some part of his property, legal succession shall take place only with respect to the property which he has not yet disposed of. BUT this solution impairs the legitime of the legitimate parents. Remember that they inherit one-half of the estate, which in this case is 40.000. This solution is therefore invalid since intestate succession cannot impair the legitime. ''?. (2) SECOND Theory: "* 1s* Give out the LEGITIMES. Parents = V4 of estate = 40.000. Illegit children = Y> = 20,000 2nd Subtract the legacy from the leftover or disposable portion 20,000 -10,000 = 10,000 . 3rd The balance above shall be divided into two, one

part going to the legit parent and the other to the illegit Children. Criticism: Unduly favors the parents, violating the intent of the present article. (3) THIRD Theory 1S| Determine how much of disposable portion goes by intestacy to the concurring heirs 2nd Deduct the legacy from such portion, to be borne proportionately by the concurring heirs. In this case, the parents get by intestacy no more than their legitime of one-half of the estate. Hence, the entire disposable portion goes by intestacy to the illegitimate children. They are the only ones who should suffer the burden of the legacy. Parents = 40,000 Legacy = 10,000 Illegitimate Children = 30,000 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.______________ TOLENTINO Article prohibits absolutely intestate succession between the illegit child and the legit children and relatives of the father or mother. The illegit child is not a relative of the legitimate children and relatives of his father or mother. They may have a natural blood tie, such is not recognized
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2007A by the law. The law presumes that there is an intervening antagonism and incompatibility between the two. On the basis of the above article, an illegit child of one who is a legitimate child cannot represent the latter in the succession to the estate of the grandfather (okay talaga mang-lito si Tole). Miro will attempt to illustrate: A is grandfather. B is his legitimate son, X is B's illegitimate child. The law prohibits X from representing B in the estate of grandfather A. But bear in mind that if B was also an illegitimate child of A, X will have right of representation by virtue of Art. 989 and 990. Extent of Disqualification. First, it extends to legitimate descendants of the illegitimate child, and Second, it is reciprocal, wherein persons whom the illegit cannot inherit from are also disqualified to inherit from him. When however, there is property whose ownership has already passed to the illegitimate parent before his death, illegitimate child may lay claim on said property, not an illegitimate relative, but as heir of his illegi :imate parent and thus entitled to whatever the illegitimate parent may have left at the time of his death. At most, petitioner Would be an illegitimate child who has no right to inhterit ab intestate from the legitimate children and relative of his father, the deceased Francisca Reyes.______ Corpus v. Corpus (1978) Teoc'oro Yangco died leaving no forced heirs. His nearest relatives were his naif brother Luis. his half sister Paz. the children of his half brother Psblo, ?n_ Juantta. 'he daughter of his half-brother Jose. Teodoro. Luis. and Paz were the acknowledged natural children (hence, illegitimate) of Luis Yangco. Pablo and Jose were the legitimate children of Teodoro's mom Ranona and her first husband Tomas. The wilt of Teodoro was submitted for probate but this was contested and he was declared to have died intestate. The legal heirs filed a compromise agreement which was agreed to by the court. Later on, Tomas the sole hew oi Juanrta -filed a case to recover his mother's share m tte estate of Teodoro. ISSUE: WON Tomas. the legitimate grandson, can inherit from his illegitimate granduncle HELD: NO. The illegitimacy of Teodoro was shown in the authenticated will of his father Luis. On the other hand, the legitimacy of his half brothers Jose (the lolo of Tomas) and Pedro was presumed. Since Teodoro was an acknowledged natural child and since Juanrta was the legitimate child of Jose, himseff a legitimate child. Tomas has no cause of action for the recovery of the supposed share of his mother as a legal heir. Juanita is not a legal heir of Teodoro because there is no reciprocal succession between legitimate and illegitimate relatives under Art. 992. Leonardo v. CA (1983) Francisca Reyes died intestate in 1952 and was survived by two daughters and a grandson. In 1964, petitioner Crescendo Leonardo, dawning to be a son of the late Sotero Leonardo (Francisca's grandson) filed a complaint for ownership of properties and sums of money and accounting of all income derived from the properties. Maria Cailless on the other hand asserted full and exdusive ownership over the contested properties and alleged that the petitioner is an Htergitimate son who cannot succeed by right of representation. ISSUE: WON petitioner, an illegitimate child, may inherit by right of representation. HELD: NO. 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 outside wedlock as shown by the fact that when he was bom in 1938, his alleged putative father and mother were not yet married and that his alleged father's first marriage was still subsisting at such tine. Page 167 of 207 Pascual v. Pascual-Bautista (1992) Petitioner Olivia and Hermes, both Pascual. are the acknowledged natural children of the late Eligio Pascual. who in turn was the full blood brother of the decedent Don Andres Pascual. Don Andres died intestate without any issue,

survived by the following: surviving spouse Adela. children of his full blood brother Wenceslao, children of his brother of half blood Pedro, .and the two, acknowledged naturai children of Eligio(petitioners in-this case). Petitioners claim that they have hereditary rights in the intestate estate of Don Andres. The oppositors claim that they are not among the known heirs of the deceased. ISSUE: Won Art 992 excludes recognized natural (illegitimate) children from the inheritance of the deceased. HELD: YES. Applying the doctrine laid down in Diaz vs. IAC, petitioners cannot represent their father in the succession of. the latter to the intestate of the decedent Don Andres, the full blood brother of their father. An illegitimate child has no right to inherit ab intestate from the legitimate children and relative of his father or mother, nor shall such children, or relatives inherit in the same manner from the illegitimate children. Illegitimate means both natural and spurious children. Summary: Illegitimate nephews/nieces cannot inherit from legitimate uncle.________________________________________ 2. estate of an illegitimate decedent a. legitimate children and descendants ART 903. The leg/time 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_______________ TOLENTINO and MIRO This article refers to the legitime which the illegitimate parent may receive in case of the death of the illegitimate child, and the different permutations of said legitime when there is a concurrence with other legal heirs. So take note, ang parent ang nagmamamana from the illegitimate child, sa provision na ito. Not all ascendants may inherit from the illegitimate child Only parents may do so. Grandparents are excluded, even when the parents have predeceased them. REMEMBER, in illegitimate filiation, the right to succeed in the ascending line terminates with the parent of the deceased illegitimate child. There is no reciprocity of successional rights between the illegitimate grandparent and the illegitimate grandchild. Let me illustrate: Lola Thea has two children: legitimate Paul and illegitimate Ryan. Tatay Paul in turn has two legitimate children Sahlee and Vissia. But Erpat Ryan has an illegitimate child. Choi. Tatay Paul and Erpat Ryan die ahead of Lola Thea (masamang damo. matagal ma-matay) and is survived by all their children. Lola Thea then dies later (nabaril sa Disco). Sahlee and
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2007A Vissia succeed Lola Thea bv representing their father Tatav Paul, and illegitimate Choi also succeeds Loia Thea representing Erpat Rvan under An 902. But if the descendants die ahead of Lola Thea (talaFanc masamang cogon grass na ito ah), she mav succeed apo Sahlee and apo Vissia but she cannot succeed apo Choi because in the ascending line only the parents of the illegitimate child are entitled to legitime. Respective Shares when the Illegitimate Child Dies (1) Illegit parent only - compulsory heir to V4 (2) Illegit parent & Surviving Spouse - % each (3) Illegit parent &. Any Child or Descendant - the illegit parent is excluded with child getting 7i (Immaterial whether the illegitimate deceased child or descendant is legitimate or not) (4) The rest is obvious: free portion or disposable property. ART 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895. ART 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption shall be his legal heirs.________________________ TOLENTINO Above is merely a reiteration of rule in Art 342 that the adopter shall not be a legal heir of the person, whose natural parents shall inherit from him. Art 342 has however been omitted, hence implied repealed by the Family Code. The above article is not affected by the repeal of 342, and remains in force except in so far as modified by Article 190 of Family Code Family Code ART 190 Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession: (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire state, onehalf to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire state in equal shares, onethird to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adapter.

(5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rule of legal or ______intestate succession shall apply._______________ So now with the Family Code, the adopter is no longer totally excluded from the hereditary estate of the adopted The adopter now concurs with the parents and ascendants, the illegitimate children, and the surviving spouse of the adopted, and divide the estate with (hem in proportions established by Art 190 of the FC. Bj( Tolentino hastens to add that, the adopter should be present at the time of the adopted's death, otherwise the present article, 984 , will apply, meaning that the adopted's natural parents and relatives by consanguinity shall be his legal heirs. Also.-it would seem that there is no provision for the case of concurrence of the adopter with the collateral relatives of the adopted. There is no rule when both of them survive the adopted. Tolen'.ino suggests that the same sharing be done as in Art 190 FC, where they shall divide equally. Another situation not covered is when the parents and ascendants surviving alone without the adopter. Tole suggests tha: in said ca the parents and ascendants will get the entire estate, assuming the adopted leaves no children or descendants No reversion to Adopter- the old Rules of Court although providing that the legal heirs of the adopted shall be his relatives by nature, also furnished an exception. It said that any property donated inter yivos by the adopter tc tiie adopted shall become property of the adoptor and his relatives, who shall participate in the order establish by the Civil Code. In short, if property was donated inter vivos, such property reverts back to the donor-adoptor at the death of the adopted. This exception has been omitted by the new Rules of Court. Hence, even if the property left by the deceased adopted person came from the adopter, the parents and relatives by consanguinity of the adopted will inherit such property by intestate succession. 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 TOLENTINO Direct Ascending Line - there being no more relatives in the descending line, the law always takes into consideration the law of affection has chosen the relatives in the ascending line to succeed. The ascendants called by the law are the legitimate ones. The succession of NATURAL illegitimate parents is covered by Art. 993 & 994. 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. _ Page 168 of 207 TOLENTINO Father and Mother being the nearest relatives in the ascending line, are the first to be called in the absence of legitimate children and descendants. Being in the same degree and being equally entitled to the gratitude of their children, they inherit in equal shares. Should only one of the parents survive, succeeds to the entire estate of the child. This is so because right of representation does not obtain in ascending line. Si lolo walang karapatan na i-represent and anak niya sa estate ng kanyng apo kapag * REVIEWER IN SUCCESSION 2007A buhay pa isang magulang nito, kasi lahat ng estate will go to the surviving parent. 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.________ ART. 992. An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives cf his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.____________________ b. illegitimate children and descendants 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._________________ ART 992. An illegitimate chid has no right to inherit ab intestate 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.____________________ 6. Surviving Spouse ART 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their Page 169 of 207 descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the right of brothers and sisters, nephews and nieces, should there be any, under article 1001. TOLENTINO When the decedent dies without children and descendants and parents predecease him, grandparents succeed, not by representation, but in their own right as intestate successors. Rules: 1. Fi.'st. follow the rule that the nearest excludes the more remote. 2. If after #1, there are several who are of equal degree,

then we must divide the inheritance a. If they all belong to one side of the marriage line -divide the inheritance per capita b. If some of them of equal degree are located on both sides of the marriage line, then the estate be divided equally, one part to the paternal and the other to the maternal line. And afterwards, they shall be divided per capita among the members of the lire. TOLENTINO The principle in Art 990 is not carried into effect in so far as intestate succession is concerned. Hence when a person is married to another in articulo mortis, and said ailing spouse dies witiiout a will within three months from _B. the celebration of the marriage, the surviving spouse TO inherits the entire estate,:.- Tolentino however disagrees "H} with this distinction. He feels like there none in the first __,.; place. =* A surviving spouse is not an intestate heir of his or her parent-inlaw. TOLENTINO Just note that an illegitimate child may exercise his right of representation in the estate of his illegitimate grandfather, if his father, which is the person be is representing, is also an illegitimate offspring of the grandfather. Naturally, a legitimate child of an illegitimate father may also represent the father in the estate of the grandfather, even if the father is an illegitimate child of the grandfather. ART 996. If the 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. .TOLENTINO: ;^ The basis of the spouses share is always that of the child, even if only grandchildren and other descendants are the only ones left If only one legitimate child survives along with ihe spouse, they share equally: one-half of estate to each of them. Although the law refers to "children or descendants", the lule in statutory construction that the plural can be understood to include the singular is applicable in this case. Under 892, where there is also a concurrence of one surviving child and spouse, the legitime of the child is % of the estate, and that of the surviving spouse is only V.. In intestate succession, however, the child is limited to his legitime but the surviving spouse gets double his legitime. It may be unfair, but it is the law. (Dura lex sed lex). In case of Partial Intestacy, in the above situation (1 child -spouse), the testamentary dispositions must be taken from the share of the surviving spouse, without impairing his legitime. 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 of the other half. TOLENTINO Partial Intestacy- the testamentary dispositions must likewise be taken from the intestate share of the surviving spouse, without prejudice to his legitime. ART 998. If a widow/er survives with illegitimate children, such widow/er shall be entitled to One-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. ___ TOLENTINO Partial Intestacy- in 894, in the situation contemplated by the present article, the legitime of the surviving spouse is 1/3 of the estate, and that of the illegitimate children, also 1/3. It case of partial intestacy, therefor, the legacies, devises, and other testamentary dispositions must be
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2007A taken equally from the intestate shares provided by this article, without impairing legitimes. share of the surviving spouse, without impairing the latter's legitime. ART 999. When the widow/er 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.________ TOLENTINO This article is applicable where there is a concurrence of several legitimate children with illegitimate children and the widow/er. It would however he impossible to apply the terms of this article when there is only one legitimate child, concurring with illegitimate children and the spouse. EXAMPLE: Estate 70,000 Application 1 legit child (A) 2 illegitimate Children (X & Y) widower (S) Total 35,000 17.500/each(2) 35,000 105.000 Obviously if we apply the terms of this article, it will not be possible to satisfy the shares of all the intestate heirs, because the total of such would be far in excess of the estate, as seen above. There must therefore be a reduction of the

intestate shares. As for any reduction, we should first go after those who receive more than their legitimes. Spouse share be reduced first to the amount of her legitime (17,500), since the share of A and X&Y are equal to their legitimes. Further reductions shall be made since the amount will still exceed the estates total. Following the rule on the law of legitimes, namely, that the tegrtime of the legitimate and that of the surviving spouse shall be preferred, and the reduction must be suffered by the children. Thus: Estate 70,000 Application 1 legit child 2 illegitimate children widower Total 35,000 8,750/each 17,500 70,000 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/er shall have one-fourth of the estate, and the illegitimate children the other fourth.__________ TOLENTINO Partial intestacy. Under 899, the legitimes of the above concurring heirs are Legit C = V4. Illegitimate = %. Spouse = 1/8. In intestate succession, surviving spouse gets a bigger share, double his/her legitime. Hence, in case there are legacies and devises and other testamentary dispositions, their amounts must be charged against the Page 170 of 207 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. TOLENTINO Partial Intestacy. In the case contemplated by article. ONLY the surviving spouse is a compulsory heir. His legitime is V4 of the estate. Hence, if there are devises, legacies, and other dispositions, they must be taken from the intestate share of the brothers and sisters or their children, even to the extent of exhausting such share. ART1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall net have any of the rights granted in the preceding articles. Eraso v. Hansen Julia Galang and Henry (Hansen were married on June of 1914. Ana Hansen was the legitimated daughter of the spouses They separated in 1915. On Jan of 1920, Julia married Cripin Fontanilla. During their marriage, they acquired a house and lot. Crispin died in 1944 without any children with Julia. In 1947, Julia again married (ibang klase talaga!) this time to Eusebio Eraza. They never had children. After Julia's death. Ana claiming to be the only cnild and legal heir of the deceased, adjudicated to herself the house and lot procured by Crispin and Julia. Eusebio, Julia's brother and Sister and their children filed a complaint against Ana which prayed to declare them the sole owners of the house and lot. HELD: Eusebio Erazo is declared owner of the Yi interest of the