SUCCESSION

I. General Provisions (774-782) Art. 774. Succession is a mode of acquisition by virtue of

which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n)

A. Only transmissible rights pass by succession. As a general rule,

if the right is personal, it is intransmissible. The causes of intransmissibility of obligations are: (1) the nature of the obligation; (2) stipulation; (3) law.

B. Personal obligations, where the personal requirements are

only required at the perfection of the contract, such as guaranty, are transmissible. Thus, in Estate of K.H. Hemady v. Luzon Surety, the heirs were held liable for the decedent’s guaranty obligations.

C. Money obligations of the deceased - Under the Rules of Court,

before the estate is delivered to the heirs, money obligations are satisfied. However, this can be understood in the sense that “whatever payment is thus made from the estate is ultimately a payment by the heirs … since the amount of the paid claim in fact diminishes [their share].” (Estate of K.H. Hemady v. Luzon Surety)

Diancin v. CA GR 119991, 20 Nov. 2000 After her husband’s death, the wife sold a leasehold right over a fishpond, including the share of their children, to Diancin. The sale was void for two reasons. First, the leasehold right could not be transferred without the Bureau of Agriculture’s approval and, even if such approval were obtained, “wife” could only dispose of her share, not her children’s. Alvarez v. CA

185 SCRA 8 (1990) An action for recovery of real property and damages was filed against the heirs of the person who allegedly sold the property without a right to do so. The petitioners won and the heirs were ordered to pay, even if they did not inherit the property, because they inherited the proceeds of the sale. Their obligation, however, is only to the extent of the value of the inheritance. Art. 775. In this Title, "decedent" is the general term applied

to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)

A. Testator - if a will was left; Intestate – if no will was left.

Art. 776. The inheritance includes all the property, rights

and obligations of a person which are not extinguished by his death. (659)

A. “Inheritance” refers to the property, rights, and obligations in

Article 774. B. It is also known as the estate.

Art. 777. The rights to the succession are transmitted from

the moment of the death of the decedent. (657a)

A. The rights are “vested” and not “transmitted.” B. The law in force at the time of death is controlling. In Uson v.

Del Rosario, the decedent’s illegitimate children could not claim successional rights granted to illegitimate children in the New Civil Code because the decedent died during the effectivity of the old code.

C. Ownership passes to the heir at the very moment of death,

who therefore, from that moment acquires the right to dispose of his share, even if the extent of his inheritance has not yet been determined. (De Borja v. Vda. de Borja)

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D. Where before the decedent dies, she files a complaint, the

court already acquires jurisdiction over her person and her heirs can be substituted in the action. (Bonilla v. Barcena)

Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. (n) Art. 779. Testamentary succession is that which results from

the designation of an heir, made in a will executed in the form prescribed by law. (n)

Art. 780. Mixed succession is that effected partly by will and

partly by operation of law. (n)

A. Types of succession: 1. Testamentary – that which results from the

designation of an heir in a will 2. Legal or intestate – that which takes place by

operation of law in the absence of a valid will 3. Mixed – that which is effected partly by will and partly

by operation of law 4. Compulsory succession – the framework of legitimes

under which the abovementioned types of succession must operate when there are compulsory heirs

Art. 781. The inheritance of a person includes not only the

property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)

A. Ignore this article. B. The rule is that “those which have accrued thereto…” belong to

the heirs by virtue of accession and not because they form part of the inheritance.

C. Q: If the assets left behind by the decedent are not sufficient to pay the debts, may the creditors claim the fruits produced by the decedent’s property after his death? Or do these fruits pertain to the heirs? A (mine): If you are the creditor, argue using Article 781. If you are the heir, argue using accession.

Art. 782. An heir is a person called to the succession either

by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and

personal property are respectively given by virtue of a will. (n)

A. More accurate definitions:

1. Heir – one who succeeds to the whole or an aliquot part of the inheritance;

2. Devisees/legatees – those who succeed to definite, specific, and individual properties.

B. The distinction is important in cases of preterition; the

institution of an heir is annulled while the institution of devisees/legatees remain effective to the extent that the legitimes are unimpaired.

II. Legitimes (886-914) except Reserva Troncal (891)

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. (806)

Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to

their legitimate parents and ascendants;

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(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower; (4) Acknowledged natural children, and natural children by

legal fiction; (5) Other illegitimate children referred to in article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not

excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be

duly proved. The father or mother of illegitimate children of the three

classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

Art. 888. The legitime of legitimate children and

descendants consists of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject

to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a)

Art. 889. The legitime of legitimate parents or ascendants

consists of one-half of the hereditary estates of their children and descendants.

The children or descendants may freely dispose of the other

half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a)

Art. 890. The legitime reserved for the legitimate parents

shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)

Art. 892. If only one legitimate child or descendant of the

deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same.

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. (834a)

Art. 893. If the testator leaves no legitimate descendants, 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.

(836a) 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. (n)

Art. 895. The legitime of each of the acknowledged natural

children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants.

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The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by 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. (840a)

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. (841a)

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. (n)

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. (n)

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-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)

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. (837a)

If the marriage between the surviving spouse and the

testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living 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. (n)

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.

(842a) Art. 902. The rights of illegitimate children set forth in the

preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

Art. 903. The legitime of the parents who have an

illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)

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A. Classification of the Compulsory heirs:

1. Primary – they exclude the secondary a. Legitimate children and/or descendants

2. Secondary – they receive legitimes only in default of the primary a. Legitimate parents/ascendants – in default of

legitimate children/descendants b. Illegitimate parents – only in default of any kind of

children/descendants 3. Concurring compulsory heirs – they succeed as

compulsory heirs together with primary or secondary heirs a. Surviving spouse; b. Illegitimate children and/or descendants (except that

illegitimate children/descendants exclude illegitimate parents)

B. The Compulsory heirs:

1. Legitimate children (including legitimated and adopted children) a. They share equally

2. Legitimate descendants a. Excluded by legitimate children and the nearer

exclude the more remote, subject to the right of representation

b. Legitimate children can only be represented by legitimate descendants

3. Legitimate parents 4. Legitimate ascendants

a. The nearer exclude the more remote b. There is no representation in the ascending line

5. Surviving spouse a. “Surviving spouse” refers to the decedent’s surviving

spouse, not the spouse of child who has predeceased the decedent.

b. The marriage between the decedent and his/her spouse must be valid or voidable. If voidable, there should have been no final decree of annulment at the time of the decedent’s death. i. Effect of legal separation

1. on the offending spouse – disqualification

2. on the innocent spouse – no effect ii. Death of a spouse [either spouse] during

pendency of legal separation proceedings results in dismissal

6. Illegitimate children a. The distinctions among illegitimate children have

been abolished in August 3, 1988 by the Family Code. b. If the decedent’s death occurred prior to the FC’s

effectivity, the spurious child will only get 4/5 of the natural child’s share i. Natural – illegitimate but recognized

ii. Spurious – illegitimate and unrecognized 7. Illegitimate descendants

a. The nearer exclude the more remote, subject to the right of representation

b. Illegitimate children can be represented by both legitimate and illegitimate descendants

8. Illegitimate parents a. Succession extends only to illegitimate parents,

illegitimate ascendants do not succeed b. They are excluded by any kind of children

[descendants]

C. Q: Do adopted children inherit from biological parents/ascendants? A: The law now [Domestic Adoption Act] is silent. The Family Code expressly provided for such inheritance. You can argue that the rule under the FC still exists because (1) resolve doubts in favor of the adopted child, and; (2) the severance of ties between the adopted child and his biological parents mentioned in the DAA refers only to parental authority. Q: Do biological parents inherit from children given up for

adoption? A: Probably not. Arguing for the adopted child’s right is

enough of a stretch. Besides, there is no rule on resolving doubts in favor of the biological parents.

D. Now to the meat (Articles 888-903)

1. General rule – ½ of the estate goes certain heirs 2. Exceptions:

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a. Surviving spouse (1/3) and the illegitimate children (1/3)

b. Surviving spouse in articulo mortis and not cohabiting for more than 5 years (1/3)

c. Surviving spouse (1/4) and illegitimate parents (1/4)

3. The different combinations: a. Legitimate children alone – ½ of the estate

divided equally b. Legitimate children and surviving spouse –

legitimate children (1/2); surviving spouse (equal to share of one child)

c. One legitimate child and surviving spouse – legitimate child (1/2); surviving spouse (1/4)

d. Legitimate children and illegitimate children – legitimate children (1/2); illegitimate children (1/2 of the share of each legitimate child)

e. Legitimate children, illegitimate children, and surviving spouse – legitimate children (1/2); illegitimate children (1/2 of the share of each legitimate child); surviving spouse (equal to share of one child; the share of the illegitimate children shall be reduced if necessary)

f. One legitimate child, illegitimate children, and surviving spouse – legitimate child (1/2); illegitimate children (1/2 of the share of each legitimate child); surviving spouse (1/4; the share of the illegitimate children shall be reduced if necessary)

g. Legitimate parents alone – (1/2) h. Legitimate parents and illegitimate children -

legitimate parents (1/2); illegitimate children (1/4)

i. Legitimate parents and surviving spouse – legitimate parents (1/2); surviving spouse (1/4)

j. Legitimate parents, illegitimate children, and surviving spouse – legitimate parents (1/2); illegitimate children (1/4); surviving spouse (1/8)

k. Surviving spouse alone – (1/2); if in articulo mortis and not cohabiting for more than five years (1/3)

l. Surviving spouse and illegitimate children – surviving spouse (1/3); illegitimate children (1/3)

m. Surviving spouse and illegitimate parents – surviving spouse (1/4); illegitimate parents (1/4)

n. Illegitimate children alone - (1/2) o. Illegitimate parents alone – (1/2)

The term “legitimate child” or “legitimate

children” shall, in the proper cases, include legitimate descendants

The term “legitimate parents” includes, in the proper cases, legitimate ascendants other than parents

Rosales v. Rosales 148 SCRA 69 (1987) “Surviving spouse” refers to the decedent’s surviving spouse, not the spouse of child who has predeceased the decedent. Lapuz v. Eufemio 43 SCRA 177 (1972) An action for legal separation is purely personal. Being personal in character, it follows that the death of one party to the action causes the death of the action itself - actio personalis moritur cum persona. The rights to have the offending spouse disqualified to inherit by intestacy, as well as the revocation of testamentary provisions made in favor of the same are rights which are difficult to conceive as assignable or transmissible. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

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Baritua v. CA 183 SCRA 565 (1990) Decedent was killed in a bus accident; he left a widow and a child. The bus owners settled with the widow. The parents of the decedent filed an action against the bus owners. It was held that the parents of the decedent had no cause of action because the claim was settled with the proper party – the widow in her own capacity and in her capacity as natural guardian of her and the decedent’s child. The parents are not compulsory heirs because they are excluded by their grandchild. Heirs of Pedro Cabais v. CA GRN 106314. October 8, 1999 An heir inherited from his grandmother by right of representation through his mother. After the property was adjudicated to him, a complaint for partition was filed on the ground that the heir’s mother was not really the decedent’s daughter. They presented a baptismal certificate to support this allegation. It was held that a baptismal certificate, a private document, which, being hearsay, is not a conclusive proof of filiation. It does not have the same probative value as a record of birth. Art. 904. The testator cannot deprive his compulsory heirs

of their legitime, except in cases expressly specified by law.

Neither can he impose upon the same any burden,

encumbrance, condition, or substitution of any kind whatsoever. (813a)

A. The only instance a testator can [by his own act] deprive his

compulsory heirs of their legitimes is in case of disinheritance. B. There are exceptions to the rule against burdens,

encumbrances, etc.

1. A parent/testator who wishes to keep an agricultural, industrial, or manufacturing enterprise intact can provide that the legitime of the other children to whom the property is not assigned by paid in cash. (Article 1080, par. 2)

2. A testator may prohibit partition, not to exceed 20 years. (Article 1083, par 1.)

3. The family home cannot be partitioned without court approval for ten years or for as long as there is a minor beneficiary. (Article 159, FC)

4. Reserva troncal. Art. 905. Every renunciation or compromise as regards a

future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816)

A. Prior to the decedent’s death, the right to the inheritance is

merely inchoate. B. If anything is delivered to the heir by virtue of a compromise,

it shall be considered an advance on his legitime.

C. This article proscribes only renunciations and compromises between the decedent and his compulsory heirs. Nevertheless, transactions [such as quitclaims] between compulsory heirs and other compulsory heirs/strangers are void because “no contract may be entered into upon future inheritance except in cases expressly authorized by law.” (Article 1347, par. 2)

Art. 906. Any compulsory heir to whom the testator has left

by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815)

A. This article says left by “any title.” It means left by “gratuitous

title.” This is because donations inter vivos are considered advances on the legitime.

B. This article should be read with Articles 855, 909, and 910

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C. Exceptions: 1. Donations inter vivos where the donor stipulates that it

shall not form part of the legitime. (Article 1062) 2. Testamentary dispositions, unless it is provided that it

shall form part of the legitime. (Article 1063) 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. (817)

A. This article should be read with Article 911.

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 added the

value of all donations by the testator that are subject to collation, at the time he made them. (818a)

A. The rules on legitimes in Arts. 888-903 only give fractional

proportions. This article provides the rule on giving those fractional proportions actual values.

B. There are generally three steps: 1. Inventory of all existing assets [gross assets]

a. Only transmissible assets 2. Deducting unpaid debts and charges [available assets]

a. Only obligations not extinguished by death 3. Adding the value of donations inter vivos [net hereditary

estate] a. Donations inter vivos are valued as of the time they

were made. Any increase in value is for the donee’s account.

C. Collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs. (Vizconde v. CA citing Article 1061)

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 disposed by his last will.

Insofar as they may be inofficious or may exceed the

disposable portion, they shall be reduced according to the rules established by this Code. (819a)

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 by this Code. (847a)

A. Articles 909 and 910 are not limited to children, they includes

all compulsory heirs (except the surviving spouse because donations between spouses are generally void to start with).

B. The articles will not apply if the donation contained a stipulation that it shall not form part of the legitime.

Art. 911. After the legitime has been determined in

accordance with the three preceding articles, the reduction shall be made as follows:

(1) Donations shall be respected as long as the legitime can

be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than

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that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

A. Order of reduction:

1. Reduce pro rata the non-preferred legacies, devises, and testamentary dispositions.

2. Reduce pro-rata the preferred legacies and devises 3. Reduce donations inter vivos reducing the later ones first.

B. If the usufruct or life annuity is greater than the free disposable portion, then the compulsory heirs have two choices: 1. Comply with the testamentary disposition or 2. Deliver the free portion (or a part proportional to the

legacy/devise, in case there are other dispositions) Art. 912. If the devise subject to reduction should consist of

real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.

The devisee who is entitled to a legitime may retain the

entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821)

A. Restatement of the rules:

1. The devise [real property] must be reduced 2. It is indivisible 3. How to resolve:

a. If the extent of the reduction is less than ½ of the value of the thing – it should be given to the devisee

b. If the extent of the reduction is ½ or more of the value of the thing – it should be given to the compulsory heir

There should be reimbursement in either case Art. 913. If the heirs or devisees do not choose to avail

themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822)

A. This article applies if neither party (compulsory heir/devisee)

elects to exercise his right under Article 912. B. How disposed:

1. any other heir/devisee may acquire the thing and pay the parties their respective shares in money

2. in default of #1, it shall be sold at public auction with the proceeds to be divided between the parties

Art. 914. The testator may devise and bequeath the free

portion as he may deem fit. (n)

A. Superfluous.

III. Capacity to Succeed (1024-1040)

Art. 1024. Persons not incapacitated by law may succeed by

will or ab intestato. The provisions relating to incapacity by will are equally

applicable to intestate succession. (744, 914) A. The general rule is in favor of capacity to succeed. Incapacity must be based on some legal ground and must be shown. Art. 1025. In order to be capacitated to inherit, the heir,

devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

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A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n) A. The heir must be alive when?

1. General Rule – Must be living at the decedent’s death 2. If institution is subject to a suspensive condition – Must be

living at the decedent’s death and upon the happening of the condition

3. If institution is subject to a suspensive term - Must be living at the decedent’s death

“Living,” of course, includes “conceived,” provided the child is born later…

B. Representation is not an exception; the rule that the heir must be

alive at the time of the decedent’s death is absolute. Representation applies only in [I think] predecease, disinheritance, and unworthiness. In predecease, the representing heir is alive at the time of the decedent’s death.

Parish Priest v. Rigor 89 SCRA 493 (1979) A will was left leaving a number of parcels of land to the testator’s nearest male relative who should study for the priesthood. The will also provided that the Parish Priest of Victoria, Tarlac would administer the property in two instances: (1) during the time from the testator’s death until a devisee should qualify and (2) if a devisee should qualify and later become excommunicated. The question is whether how long after the testator’s death would it be determined that he had a relative who would enter the priesthood. It was held that the testator’s devise contemplated only those relatives who were alive at the time of his death. Art. 1026. A testamentary disposition may be made to the

State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.

All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)

A. Organizations and associations without juridical personality

cannot succeed because they have no legal existence. B. It was asked whether what would happen to the disposition in

favor of an association without juridical personality. I remember it was said that the disposition would go to all the members.

Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator

during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;

(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;

(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)

A. Application

1. Pars. 1-5 establish conclusive presumptions against testamentary succession; the heir can still inherit under intestate or compulsory succession

2. Par. 6 is an absolute disqualification

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B. Disqualifications: 1. Priest who heard confession:

a. Will executed during testator’s last illness b. Spiritual ministration extended during last illness c. Will executed during or after ministration Applies to persons of all religions whose function it is to

extend ministrations 2. Relatives/community of priest:

a. Spouse should be included among the relatives b. Does this mean that the Catholic Church cannot receive a

testamentary disposition in case one of its priests is disqualified under par. 1?

3. Guardian: a. Will executed during effectivity of guardianship b. Applicable guardians over property and guardians over the

person c. Exception – if guardian is testator’s ascendant,

descendant, brother, sister or spouse 4. Witness:

a. Should be one of the three instrumental witnesses b. May kutob ako lalabas ito…

5. Physician, etc. a. Must have taken care of the testator means medical

attendance with some regularity Art. 1028. The prohibitions mentioned in article 739,

concerning donations inter vivos shall apply to testamentary provisions. (n)

A. Under this article, the following cannot testamentary dispositions

are void: 1. Those made between persons who were guilty of adultery or

concubinage at the time of the making of the will Guilt in a criminal action is not necessary, it may be

proved by a preponderance of evidence during the action for nullity

2. Those made between persons found guilty of the same criminal offense, in consideration thereof

3. Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in article 1013. (747a)

A. For this article to apply:

1. The disposition must be for prayers AND pious works 2. For the benefit of the testator’s soul 3. Without a specification of the application of the disposition

B. If this article applies, half will go to the church or denomination to

which the testator belonged and the other half will go to the State Art. 1030. Testamentary provisions in favor of the poor in

general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as

poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.

The preceding paragraph shall apply when the testator has

disposed of his property in favor of the poor of a definite locality. (749a)

A. The article covers two situations:

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1. The testamentary provision is in favor of the poor in general, without specifying specific persons or a particular community in which case it shall be deemed to be in favor of the poor in the domicile of the testator at the time of his death

2. The testamentary disposition is in favor of the poor of a definite locality

B. In both cases, the designation of who shall actually receive the

proceeds shall be made by (in descending order): 1. The person specified 2. The executor 3. The administrator (who will be appointed, thus boxing out the

justice of the peace, etc.) Art. 1031. A testamentary provision in favor of a disqualified

person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755)

A. It is void both as to the intermediary and the intended beneficiary. Art. 1032. The following are incapable of succeeding by

reason of unworthiness: (1) Parents who have abandoned their children or induced

their daughters to lead a corrupt or immoral life, or attempted against their virtue;

(2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

(5) Any person convicted of adultery or concubinage with the spouse of the testator;

(6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made;

(7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will;

(8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)

A. Unworthiness is disinheritance imposed by law. They have

identical consequences. B. The unworthy heir is deprived of all successional rights. Art. 1033. The cause of unworthiness shall be without effect

if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)

A. Unworthiness is set aside in two ways:

1. A written condonation, or 2. The execution by the offended party of a will, instituting the

unworthy heir or restoring him to capacity, with knowledge of the cause of the unworthiness.

B. Most of the grounds for unworthiness are grounds for

disinheritance – pars. 1, 2, 3, 5, and 6. A problem arises when a common ground occurs and the offended party disinherits the offender. How is capacity restored in such a case? Which rules for restoration are followed? Balane deftly reconciles – 1. If Offended Party does not make a will subsequent to the

common cause, only unworthiness sets in by operation of law. 2. If Offended Party makes a will subsequent to the common

cause: a. If he knew of the cause:

i. If he disinherits – reconciliation is sufficient ii. If he institutes or pardons the offender – offender is

restored to capacity iii. If the will is silent – unworthiness remains [even if

they have already reconciled because the rules on

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disinheritance cannot apply, there having been no disinheritance]

b. If he did not know of the cause – unworthiness stays Art. 1034. In order to judge the capacity of the heir, devisee

or legatee, his qualification at the time of the death of the decedent shall be the criterion.

In cases falling under Nos. 2, 3, or 5 of article 1032, it shall

be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.

If the institution, devise or legacy should be conditional, the

time of the compliance with the condition shall also be considered. (758a)

A. Capacity is to be determined when?

1. General rule – decedent’s death [this includes institutions with a period]

2. If institution is subject to a suspensive condition – a. Decedent’s death and b. Happening of the condition

3. If final judgment is a requisite of unworthiness [attempt against life, groundless accusation, adultery/concubinage] – at the time of final judgment

Art. 1035. If the person excluded from the inheritance by

reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.

The person so excluded shall not enjoy the usufruct and

administration of the property thus inherited by his children. (761a)

A. This article simply provides that the descendants of the

incapacitated descendant [whether by predecease, unworthiness, or disinheritance] shall be entitled to whatever the latter may have been entitled to.

B. Cross reference to Article 972, which provides for representation

in the collateral line but only in favor of the children of brothers or sisters, whether full or half.

Art. 1036. Alienations of hereditary property, and acts of

administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)

A. Good faith of the third party means that he acquired the thing for value and without knowledge of the transferor’s defect in title. Hence, a donee is technically not in good faith. Art. 1037. The unworthy heir who is excluded from the

succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (n)

A. Under property law, necessary expenses are recoverable, even by a possessor in bad faith. Art. 1038. Any person incapable of succession, who,

disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together with its accessions.

He shall be liable for all the fruits and rents he may have

received, or could have received through the exercise of due diligence. (760a)

A. The rules on possession in bad faith are:

1. The obligation to return the property and its accessions 2. Liability for fruits which were received of could have been

received with diligence

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B. The action for recovery [and the action for declaration of incapacity] should be filed by anyone interested in the succession within 5 years from the taking of possession by the disqualified person (Article 1040) Art. 1039. Capacity to succeed is governed by the law of the

nation of the decedent. (n) Cayetano v. Leonidas 129 SCRA 522 The decedent’s will preterited her father. Its probate was proper because the decedent was an US citizen. Article 1039 makes the law of the decedent’s nation controlling. Article 16 (2) similarly provides that

“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 tinder consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.”

The framework of legitimes does not exist in US law; the testator’s entire estate is the free disposable portion. Art. 1040. The action for a declaration of incapacity and for

the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (762a)

A. This is an exception to the general rules on acquisitive prescription

(8 yrs. / 30 yrs. if in bad faith).

IV. Disinheritance (915-923)

Art. 915. A compulsory heir may, in consequence of

disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a)

Art. 916. Disinheritance can be effected only through a will

wherein the legal cause therefor shall be specified. (849)

Art. 917. The burden of proving the truth of the cause for

disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850)

Art. 918. Disinheritance without a specification of the cause,

or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)

A. Disinheritance is a testamentary disposition by which a person is

totally deprived of, or totally excluded from, the inheritance to which he has a right.

B. Requisites of a valid disinheritance:

1. it must be made in a will 2. the heir disinherited must be designated by name or in such

manner as to leave no room for doubt as to who is intended; 3. it must be for a cause specified by law 4. the cause must be specified in the will 5. the cause must be true and if denied, it must be proved by the

proponent 6. it must be unconditional 7. it must be total

C. Effect of an ineffective disinheritance: a. The disinherited heir will be entitled to all that he would

have received if there had been no disinheritance at all.

Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:

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(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 child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(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;

(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. (756, 853, 674a)

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 been 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. (756, 854, 674a)

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;

(4) 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. (756, 855, 674a)

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CAUSE CHILDREN/DESCENDANTS PARENTS/ASCENDANTS SPOUSE UNWORTHINESS

Convicted of an attempt against the life of the testator, his or her spouse, ascendants, or descendants

X X X X

Accusation of testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless (no disinheritance if acquittal is by reasonable doubt)

X X X X

By fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made

X X X X

Convicted of adultery or concubinage with the spouse of the testator

X X *this is a ground for legal separation and thus also a ground for disinheritance

X

Unjustified refusal to support

The parent or ascendant who disinherits

The children or descendants The children or the other spouse

Maltreatment by word or by deed

X

Conviction of a crime which carries with it the penalty of civil interdiction

X

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(1) Abandoned children or (2) induced daughters to live a corrupt or immoral life or (3) attempted against their virtue

X X

Attempt by one parent against the life of the other, unless there has been reconciliation between them

X

Loss of parental authority X *that grounds were given is sufficient

Spouse has given cause for legal separation (Article 55, FC)

X

Art. 922. A subsequent reconciliation between the offender

and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)

A. Manner of reconciliation:

1. Express pardon – this must refer to the disinherited person and does not include a general pardon by the testator

2. Conduct – the intent to forgive must be clear; it is a question of fact to be determined by the courts

B. Effect of reconciliation:

1. If before disinheritance is made – the testator loses the right to make the disinheritance unless other grounds occur after the reconciliation

2. If after disinheritance is made – the disinheritance is set aside C. Most of the grounds for unworthiness are grounds for

disinheritance – pars. 1, 2, 3, 5, and 6. A problem arises when a common ground occurs and the offended party disinherits the

offender. How is capacity restored in such a case? Which rules for restoration are followed? Balane deftly reconciles – 3. If Offended Party does not make a will subsequent to the

common cause, only unworthiness sets in by operation of law. 4. If Offended Party makes a will subsequent to the common

cause: c. If he knew of the cause:

iv. If he disinherits – reconciliation is sufficient v. If he institutes or pardons the offender – offender is

restored to capacity vi. If the will is silent – unworthiness remains [even if

they have already reconciled because the rules on disinheritance cannot apply, there having been no disinheritance]

d. If he did not know of the cause – unworthiness stays Art. 923. The children and descendants of the person

disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the

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usufruct or administration of the property which constitutes the legitime. (857)

A. The right of representation is granted only to descendants of

disinherited descendants. Don’t be misled. If the heir disinherited is an ascendant or a spouse, their descendants will not represent them.

V. Testamentary Succession (783-837)

SUBSECTION 1. - Wills in General 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 this estate, to take effect after his death. (667a)

A. Characteristics of wills

1. Purely personal 2. Free and intelligent 3. Solemn and formal 4. Revocable or ambulatory 5. Mortis causa 6. Individual 7. Executed with animus testandi 8. Executed with testamentary capacity 9. Unilateral 10. Dispositive of property 11. Statutory

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

cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

Art. 785. The duration or efficacy of the designation of heirs,

devisees or legatees, or the determination of the portions

which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)

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

distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. (671a)

Art. 787. The testator may not make a testamentary

disposition in such manner that another person has to determine whether or not it is to be operative. (n)

A. What cannot be delegated?

1. the designation of heirs, devisees, or legatees 2. the duration or efficacy of such designation (including such

things as conditions, terms, and substitutions) 3. the determination of the portions they are to receive 4. the operation of the testamentary disposition

B. What can be delegated? After the testator has determined (1) the property or amount of money to be given and (2) specified the class or cause to be benefited, the third person may determine: 1. the designation of persons, institutions, or establishment

within the class or cause; and 2. the manner of distribution

Art. 788. If a testamentary disposition admits of different

interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n)

Art. 789. When there is an imperfect description, or when no

person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its

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provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)

Art. 790. The words of a will are to be taken in their ordinary

and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical

sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a)

Art. 791. The words of a will are to receive an interpretation

which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n)

Art. 792. The invalidity of one of several dispositions

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

Art. 793. Property acquired after the making of a will shall

only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n)

Art. 794. Every devise or legacy shall cover all the interest

which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

A. The seven preceding articles lay down the rules on interpretation

of wills. B. Testacy is preferred to intestacy.

C. There are two kinds of ambiguity referred to in Article 789:

1. Latent – not obvious on the face of the will Ex: As to persons – first cousin Jose – but no such first cousin As to property – my fishpond in Roxas City – but more than one fishpond in the locality

2. Patent Ex: As to persons – to some of my first cousins As to property – some of my fishpond in Roxas City

How are the ambiguities resolved? Any type of evidence, except for the oral declarations of the testator, are admissible. D. Invalid dispositions are severable and will not invalidate others

unless it is clear that the other dispositions were dependent on the invalid one.

E. Article 793 is a strange exception to Article 777, where the

decedent’s death is the operative act. In Article 793, the general rule is that only the property owned at the time the will was made will be transmitted by the will. Property acquired after its making will only be transmitted if it expressly appears in the will that it was the testator’s intention.

Art. 795. The validity of a will as to its form depends upon

the observance of the law in force at the time it is made. (n)

A. Aspects of validity of wills

1. Extrinsic or formal validity

a. Governing law as to time i. For Filipinos – the law in force when the will was

executed ii. For foreigners – same

b. Governing law as to place i. For Filipinos - either the law of:

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1. Citizenship 2. Domicile 3. Residence 4. Place of execution 5. Philippine law

ii. For foreigners – same

2. Intrinsic or substantive validity

a. Governing law as to time i. For Filipinos – the law as of the time of death

ii. For foreigners – their national law b. Governing law as to place

i. For Filipinos – Philippine law ii. For foreigners – their national law

SUBSECTION 2. - Testamentary Capacity and Intent

Art. 796. All persons who are not expressly prohibited by law

may make a will. (662) Art. 797. Persons of either sex under eighteen years of age

cannot make a will. (n) Art. 798. In order to make a will it is essential that the

testator be of sound mind at the time of its execution. (n) Art. 799. To be of sound mind, it is not necessary that the

testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of

making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)

Art. 800. The law presumes that every person is of sound

mind, in the absence of proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

Art. 801. Supervening incapacity does not invalidate an

effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

Art. 802. A married woman may make a will without the

consent of her husband, and without the authority of the court. (n)

Art. 803. A married woman may dispose by will of all her

separate property as well as her share of the conjugal partnership or absolute community property. (n)

A. Since the general presumption is in favor of capacity, it is better to

discuss who cannot make a will: 1. Minors cannot 2. Those without testamentary capacity cannot

B. The presumption is in favor of testamentary capacity and

soundness of mind means that the testator has the ability to dispose of his estate according to some plan and knows the following: 1. the nature of the estate to be disposed 2. the proper objects of his bounty 3. the character of the testamentary act and

There are, however, presumptions of insanity: 1. Testator, one month or less, before the execution of the will

was known to be insane 2. Testator executed the will after being placed under

guardianship for insanity or ordered committed for insanity and before the order was lifted

SUBSECTION 3. - Forms of Wills

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GENERAL RULES

Art. 804. Every will must be in writing and executed in a

language or dialect known to the testator. (n) A. Both notarial and holographic wills must be in writing and

executed in a language or dialect known to the person. B. This is not required by the attestation clause. It can be proved by

evidence. C. There is a presumption of compliance when:

1. the will was in a language generally spoken in the place of execution; and

2. the testator is a native or resident of the locality

NOTARIAL WILLS Art. 805. Every will, other than a holographic will, must be

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

The testator or the person requested by him to write his

name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon

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

If the attestation clause is in a language not known to the

witnesses, it shall be interpreted to them. (n) Signature A. Made by

1. Testator 2. In default of testator, by some other person in testator’s

presence and at testator’s express direction The other person must write the testator’s name and need

not [but should] write his own May the other person be an instrumental witness as well?

Unsure. 3. Three instrumental witnesses

B. How made

1. Customary signature 2. Thumbmark – even if literate 3. Other mark (cross) – only if it is the testator’s usual manner of

signature Can these guidelines be used for the witnesses’ signatures as

well? C. Location

1. At the physical end or at the logical end It must be after the last disposition, otherwise the whole

will is void 2. Every page except the last page

But if the document consists of only two pages, one containing the will and the other containing the attestation clause, the margins need not be signed

D. Presence requirement

1. Testator (or his agent) must sign in the presence of the instrumental witnesses

2. Instrumental witnesses must sign in presence of the testator and each other

“Presence” means that they could have seen each other sign, had they chosen to do so, considering their physical condition, their positions, and existing conditions.

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E. Order of signing

1. If one transaction, the order is immaterial 2. If separate transactions, the testator must sign first This does not obviate the rule that signing must be done in the

presence. Numbering requirement A. Need not be in letters as long as sequence can be shown. Attestation clause A. It must state:

1. The number of pages of the will 2. The fact that the testator or his agent under his express

direction signed the will and every page thereof in the presence of the witnesses; and

3. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another

B. It need not be signed by the testator. C. It must be signed at the end thereof by 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 office of the Clerk of Court. (n)

A. The certification of acknowledgement need not be signed by the

notary in the presence of the testator and the witnesses. [Javellana v. Javellana]

B. Acknowledgement by the testator and the witnesses before the

notary need not be at the same time. However, if it is done separately, each must retain capacity until the last one has acknowledged.

C. The notary cannot be counted as an acknowledging witness because he cannot acknowledge before himself. [Cruz v. Villasor]

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

personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n)

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

twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

A. If the testator is deaf or deaf-mute:

1. he must personally read the will or 2. designate two persons to read it and communicate to him, in

some practicable manner, the contents thereof

B. If the testator is blind, illiterate, or cannot otherwise read the will, it must be read to twice 1. Once by a subscribing witness 2. Again by the notary public before whom the will is

acknowledged This applies to testator’s with poor eyesight [Garcia v.

Vasquez] Where it was read once by the lawyer, in the presence of the

witnesses, the notary, and the testator – each with his own copy - there was deemed to be substantial compliance. [Alvarado v. Gaviola]

Art. 809. In the absence of bad faith, forgery, or fraud, or

undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805. (n)

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A. The substantial compliance rule operates only if it can be seen from an examination of the will itself that there has been substantial compliance with the requirements of Article 805.

Ex: Failure to state that the witnesses signed every page can be cured by checking to see whether they did or not Failure to state that the witnesses signed in the presence of one another cannot be cured by looking at the will. [Caneda v. CA]

HOLOGRAPHIC WILLS 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. (678, 688a)

Art. 812. In holographic wills, the dispositions of the testator

written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in a

holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

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. (n)

A. Dating requirement

1. FEB/61 was held to be sufficient dating because there were no other accompanying regularities; nor were there other wills alleged to have been executed on the same month. [Roxas v. De Jesus]

2. The date may be anywhere in the will [Labrador v. CA]

B. Signing requirement 1. Must be signed by the hand of the testator – this seems to

preclude thumbprints. 2. Must be at the end – Under Article 812, dispositions after the

signature must be signed and dated. Under Article 813, the last disposition which is dated and signed validates the preceding dispositions.

C. The “full signature” referred to in Article 814 refers to the

testator’s customary signature.

In Kalaw v. Relova, where the erasure and subsequent replacement of the sole heir was unsigned, and this was the only disposition, the entire will is void because nothing else remains. Q: Shouldn’t the cancellation have been disregarded in the first place, since it was not signed?

Art. 811. In the probate of a holographic will, it shall be

necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. 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. (619a)

A. This applies only to post-mortem probates. B. Azaola v. Singson says that the three witness requirement is

directory because the second paragraph of Article 811 makes reference to the court’s discretion in case of absence of witnesses.

Codoy v. Calugay says that the three witness rule is mandatory

because the word “shall” is used.

Reconcile: In Azaola, the authenticity of the will was not contested; it was merely alleged that the testator’s consent was vitiated.

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C. Gan v. Yap tells us that a lost holographic will cannot be probated. Nevertheless, Rodelas v. Aranza says that a photostatic copy of the will may be presented for probate.

The wisdom of the Rodelas doctrine is questioned, especially because of the advancements in technology which could easily be used to fabricate modified copies.

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. (n)

Art. 816. The will of an alien who is abroad produces effect in

the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n)

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. (n)

A. The preceding articles govern rules on formal validity in the

following instances: (1) Filipino abroad (2) alien abroad (3) alien in the Philippines. This does not apply to a Filipino in the Philippines.

Every testator, whether Filipino abroad or an alien, wherever he may be, has five choices to follow for the form of his will:

1. Citizenship 2. Domicile 3. Residence 4. Place of execution 5. Philippine law

SUBSECTION 4. - Witnesses to Wills

Art. 820. Any person of sound mind and of the age of

eighteen years or more, and not bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n)

Art. 821. The following are disqualified from being witnesses

to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a

document, perjury or false testimony. (n) Art. 822. If the witnesses attesting the execution of a will are

competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n)

Art. 823. If a person attests the execution of a will, to whom

or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

Art. 824. A mere charge on the estate of the testator for the

payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n)

A. There are six qualifications for witnesses [to be competent]:

1. sound mind 2. at least 18 years of age 3. not blind, deaf, or dumb 4. able to read and write 5. domiciled in the Philippines 6. must not have been convicted of falsification of a document,

perjury, or false testimony

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Competence is determined by Arts. 820 and 821. Their credibility depends on the evaluation of the probate court. [Gonzales v. CA]

B. The instrumental witness, his spouse, parent, and child cannot

receive anything under the will. However, his competency as a witness remains unaffected.

Q: What if there are four witnesses, each one receiving something under the will?

SUBSECTION 5. - Codicils and Incorporation by Reference Art. 825. A codicil is supplement or addition to a will, made

after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. (n)

Art. 826. In order that a codicil may be effective, it shall be

executed as in the case of a will. (n) Art. 827. If a will, executed as required by this Code,

incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:

(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;

(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and

(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)

SUBSECTION 6. - Revocation of Wills and Testamentary

Dispositions

Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

Art. 829. A revocation done outside the Philippines, by a

person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

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

cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as

provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will

with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

Art. 831. Subsequent wills which do not revoke the previous

ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n)

Art. 832. A revocation made in a subsequent will shall take

effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

Art. 833. A revocation of a will based on a false cause or an

illegal cause is null and void. (n)

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Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714)

SUBSECTION 7. - Republication and Revival of Wills

Art. 835. The testator cannot republish, without reproducing

in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n)

Art. 836. The execution of a codicil referring to a previous

will has the effect of republishing the will as modified by the codicil. (n)

Art. 837. If after making a will, the testator makes a second

will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a)

VI. Institution of Heirs (782, 840-856, 959)

Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law.

Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n)

Art. 840. Institution of heir is an act by virtue of which a

testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n)

Art. 841. A will shall be valid even though it should not

contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)

Art. 842. One who has no compulsory heirs may dispose by

will of all his estate or any part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate

provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a)

A. Any institution of heirs must be within the framework of legitimes

– if the testator has compulsory heirs, he can only dispose of by will that which is not reserved for satisfying the legitimes.

Art. 843. The testator shall designate the heir by his name

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

Even though the testator may have omitted the name of the

heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

Art. 844. An error in the name, surname, or circumstances

of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted.

If among persons having the same names and surnames,

there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

A. Ideally, the designation of the heir should be precise: name,

middle initial, last name. However, the heir may also be instituted by describing his circumstances. Ex:

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1. My cousin Larry [there is only one cousin named Larry] 2. My eldest cousin 3. My nephews who study law 4. Victor Cortez [there are 2 or more persons with the same name

known to the testator but one of them was the testator’s “best friend” and the other is merely the testator’s acquaintance]

B. How ambiguity may be resolved:

1. Both intrinsic and extrinsic evidence may be used 2. Oral declarations of the testator may not be used because dead

men tell no tales [or refute none told]. C. If it is impossible to know with certainty the person instituted, the

corresponding proportion of the estate will go to intestacy. Ex: 1. My cousin Larry [there are 2 cousins named Larry] 2. My cousin [there are multiple cousins] 3. Victor Cortez [there are 2 or more persons with the same name

both known to the testator and neither is particularly close or both are particularly close to him]

Art. 845. Every disposition in favor of an unknown person

shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

A. Who is an unknown person? – He is one whose identity cannot be

determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution. A perfect stranger is not necessarily an unknown person, provided his identity is clear.

Art. 846. Heirs instituted without designation of shares shall

inherit in equal parts. (765) Art. 847. When the testator institutes some heirs

individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)

Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

Art. 849. When the testator calls to the succession a person

and his children they are all deemed to have been instituted simultaneously and not successively. (771)

A. There is a general presumption of equal sharing in the portion

instituted to. B. There is also a general presumption of individuality in the

designation. C. Note that in Article 848, the equality applies only in cases where

brothers and sisters are instituted. If they inherit by intestacy, the rule is that half brothers or sisters get only half of what siblings of full blood receive.

Art. 850. The statement of a false cause for the institution of

an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

A. General Rule – The statement of a false cause for the institution of

an heir shall be disregarded Exception – The institution will be set aside if it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

Austria v. Reyes 31 SCRA 754 (1970) The testatrix instituted several heirs, referring to them as sapilitang tagapagmana and referring to their inheritance as sapilitang mana. The oppositors claim that the testatrix instituted them because she believed that their adoption was valid [it apparently wasn’t] and hence, they were compulsory heirs.

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The requisites for annulment of an institution are:

(1) The cause for the institution of heirs must be stated in the will; (2) The cause must be shown to be false (3) It must appear from the face of the will that the testator would

not have made such institution if he had known of the falsity of the cause.

In this case the institution is valid for two reasons. First, the will did not state in unequivocal terms the cause for their institution. Second, it did not appear from the face of the will that the testatrix would not have made such institution had she known of the falsity of the cause. An annulment cannot be made on the basis of guesswork or uncertain implications. Art. 851. If the testator has instituted only one heir, and the

institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate.

The same rule applies if the testator has instituted several

heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)

Art. 852. If it was the intention of the testator that the

instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

Art. 853. If each of the instituted heirs has been given an

aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)

A. If the institutions do not cover the whole disposable portion,

intestate succession will take place with respect to the remainder.

B. The formula to determine the proper amount of the share per heir,

as increased, is:

Share of instituted heir

X

Total amount covered by the institution

= Total disposable

portion Or [Share of instituted heir x total disposable portion]/total amount covered by the institution *See Jottings and Jurisprudence 214( 2000 ed.) Art. 854. The preterition or omission of one, some, or all of

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

If the omitted compulsory heirs should die before the

testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

A. Preterition –

1. It is the total omission from the inheritance 2. of a compulsory heir in the direct line without an express

disinheritance [a spouse cannot be preterited] 3. With the compulsory heir surviving the testator

B. For there to be preterition, the heir must have received nothing

from the testator by way of: 1. Testamentary succession 2. Legacy or devise 3. Donation inter vivos 4. Instestacy

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C. In Balane’s recapitulation on the effects of preterition: Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of heirs and there is preterition, total intestacy will result; if there are legacies or devises and there is preterition, the legacies or devises will stand, to the extent of the free portion (merely to be reduced, not set aside, if the legitimes are impaired) but the institution of heirs, if any, will be swept away.

Reyes v. Baretto-Datu 19 SCRA 85 (1967) Complicated case, simple message: Where the testator instituted a voluntary heir and such institution merely impinged on a compulsory heir’s legitime, there being no total omission, there was no preterition. The remedy is to complete the legitime. Aznar v. Duncan 17 SCRA 590 (1966) Where the compulsory heir received a legacy, there was no preterition and the remedy is merely to seek completion of the legitime. Acain v. IAC 155 SCRA 100 An adopted child is considered a compulsory heir in the direct line. He is given by law the same rights as a natural, legitimate child. Nuguid v. Nuguid 17 SCRA 449 (1966) The institution of the sister as sole heir preterited the parents. Since the only testamentary disposition was the institution, its nullification means that there is nothing left at all and hence, the will is a complete nullity. Also discussed was the differing effects of preterition and a disinheritance improperly made. Preterition annuls the institution of

heirs while ineffective disinheritance merely entitles the disinherited heir to the portion of the estate of which he has been illegally deprived. Art. 855. The share of a child or descendant omitted in a will

must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a)

A. This article is inaccurate. The proper rules on satisfying the

preterited heirs legitime are, in descending order: 1. Take from the undisposed portion 2. Reduce the share given to testamentary heirs, devisees and

legatees. The legitimes of the compulsory heirs cannot be impaired.

Art. 856. A voluntary heir who dies before the testator

transmits nothing to his heirs. A compulsory heir who dies before the testator, a person

incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

A. This article should read:

An heir – whether compulsory, voluntary, or legal – transmits nothing to his heirs in case of predecease, incapacity, renunciation, or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.

Art. 959. A disposition made in general terms in favor of the

testator's relatives shall be understood to be in favor of those nearest in degree. (751)

VII. Substitution of Heirs (857-870)

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

Broader and more accurate definition: Substitution is the act by which the testator designates the person or persons to take the place of the heir or heirs first instituted. Since substitution is merely a second institution, the principles and rules on institution of heir are applicable to substitution except in so far as they may be modified by the express provisions on substitution. Accretion: A right by virtue of which, when two or more persons are called to the same inheritance, device, or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. In case of conflict between a substitute and an heir entitled to accretion, the substitute should be preferred because his right springs from the express will of the testator, while the right of the heir entitled to accretion is derived only from the presumed will of the testator. Art. 858. Substitution of heirs may be: 1. Simple or common; 2. Brief of Compendious; 3. Reciprocal; or 4. Fideicommisary. There are really only two principal classes of substitution: the simple and the fideicommisary. The others are mere variations of these two. Art. 859. The testator may designate one or more persons to

substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

When simple substitution takes place: A. When the heir dies before the testator B. When he repudiates the inheritance; and C. When he is incapacitated to succeed. If the testator specifies the particular case when substitution shall take place, substitution cannot take place for any other cause not specified. But if the testator does not specify any of these causes but orders substitution in general terms, all the three causes are deemed included. If the heir for whom the substitute is appointed is a compulsory heir, the substitution cannot affect the legitime. The law prohibits the testator from imposing any charges, conditions, or limitations upon the legitime. Besides the power to appoint a substitute emanates only from the freedom to dispose by will. Simple substitution is extinguished by: A. the nullity of the will B. the annulment of the institution of heir C. the death of the substitute before the testator D. when the substitute himself is incapacitated to succeed the testator E. when the substitute repudiates or renounces the inheritance. Art. 860. Two or more persons may be substituted for one;

and one person for two or more heirs. Brief or Compendious substitution – That form of substitution which includes or may include all kinds of substitutions and all heirs, so that in a single testamentary provision, more than one kind of substitution is established for several heirs. If one person is named as substitute for two or more heirs, will there be substitution if only one of the instituted heirs 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.

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But if the substitute is named for any or all of several heirs, then 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. Art. 861. If heirs instituted in unequal shares should be

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

If two 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 are more than one substitute, they shall have the same shares in the substitution as in the institution. Art. 862. The substitute shall be subject to the same charges

and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted.

By virtue of the substitution, the substitute is subrogated in the rights of the heir. Exceptions: A. when the testator expressly provides the contrary; and B. when the condition is personal to the heir. Art. 863. A fideicommissary substitution by virtue of which

the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and

the second heir are living at the time of the death of the testator.

Requisites of fideicommissary substitution: A. a first heir called to the succession B. an obligation clearly imposing upon such first heir the

preservation of the property and its transmission to the second heir; and

C. a second heir to whom the property is transmitted by the first heir. The fiduciary The first heir, called the fiduciary, is not a mere administrator of the property. Neither is he a mere intermediary of agent of the deceased. He is an instituted heir and is entitled to the enjoyment of the property. However, he has no right to alienate it, except in favor of the second heir. The essential obligation of the fiduciary is to preserve and transmit the property to the second heir. 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 shall take place, it is understood to be at the death of the fiduciary. The fideicommissary heir The second heir to whom the property is transmitted by the fiduciary is called the fideicommissary heir. The fideicommissary heir must have the capacity to succeed the testator. He does not succeed the fiduciary, for he acquired his rights from the moment of the testator’s death. Requisites of fideicommissary heir: A. must not be beyond one degree from the heir originally instituted.

“degree” means related by one generation; B. must be living at the time of the death of the testator. Therefore, the fideicommissary heir can only be either a child or a parent of the first heir.

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Palacios v. Ramirez 111 SCRA 704 In this case, the fideicommissary heirs were not related to the fiduciary heir. Hence, the fiduciary heir had no obligation to transmit the property. PCIB v. Escolin [unassigned but enlightening] 56 SCRA 266 (1974) Where there was no obligation imposed on the first heir to preserve and transmit the property to the second heir, there was no fideicommissary substitution. Neither was there a vulgar substitution because no such substitution was imposed and neither did the first heir predecease, repudiate, or lose capacity. It was held that the first heir and the second heirs were simultaneously instituted, with the second heirs inheritance merely subject to a suspensive condition [or a term?], that condition [term] being the death of the first heir. It was also held that the first heir’s inheritance was subject to a resolutory term. Though he could dispose of the properties during his lifetime, there being no obligations to preserve and transmit, he could not dispose of the mortis causa. Art. 864. A fideicommissary substitution can never burden

the legitime. Art. 865. Every fideicommissary substitution must be

expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to

the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.

The law does not favor fideicommissary substitution because it locks up property within a family and suspends its alienability. Hence, the law requires that the substitution be made expressly. The testator must either indicate in his will the substitution by its name, or expressly impose upon the first heir the absolute obligation to deliver the property to a second heir.

Permitted deductions: A. legitimate expenses B. credits C. improvements legitimate expenses – do not refer to those occasioned by the use or enjoyment of the property but to those which have been made for the acquisition and preservation of the inheritance. Improvements – only when necessary for the preservation of the property or when they constitute useful expenses. Art. 866. The second heir shall acquire a right to the

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

The rights of the fideicommissary are transmitted to him direct from the testator himself. The fiduciary does not acquire the absolute ownership but only the usufruct of the inheritance. The naked ownership pertains to the fideicommissary. Upon the death of the fideicommissary, he transmits his right to his heirs in whom shall consolidate the absolute dominion upon the death of the fiduciary or until such time as the latter’s right to the usufruct terminates. However, the fideicommissary must survive the testator. If he dies before the testator, no rights are transmitted to his heirs since the substitution is extinguished. Art. 867. The following shall not take effect: 1. Fideicommissary substitutions which are not made in an

express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;

2. Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863;

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3. Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;

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

Art. 868. The nullity of the fideicommissary substitution

does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786)

Art. 869. A provision whereby the testator leaves to a person

the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (787a)

Art. 870. The dispositions of the testator declaring all or part

of the estate inalienable for more than twenty years are void. (n)

VIII. Conditions and Terms (870-885)

Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)

Art. 872. The testator cannot impose any charge, condition,

or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a)

Art. 873. Impossible conditions and those contrary to law or

good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)

Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants.

Nevertheless, the right of usufruct, or an allowance or some

personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a)

Art. 875. Any disposition made upon the condition that the

heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a)

Art. 876. Any purely potestative condition imposed upon an

heir must be fulfilled by him as soon as he learns of the testator's death.

This rule shall not apply when the condition, already

complied with, cannot be fulfilled again. (795a) Art. 877. If the condition is casual or mixed, it shall be

sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

Should it have existed or should it have been fulfilled at the

time the will was executed and the testator was unaware thereof, it shall be deemed as complied with.

If he had knowledge thereof, the condition shall be

considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796)

Art. 878. A disposition with a suspensive term does not

prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a)

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Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a)

Art. 880. If the heir be instituted under a suspensive

condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.

The same shall be done if the heir does not give the security

required in the preceding article. (801a) Art. 881. The appointment of the administrator of the estate

mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a)

Art. 882. The statement of the object of the institution, or the

application of the property left by the testator, or the charge imposed by him, shall not be considered

as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at

once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a)

Art. 883. When without the fault of the heir, an institution

referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a)

Art. 884. Conditions imposed by the testator upon the heirs

shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a)

Art. 885. The designation of the day or time when the effects

of the institution of an heir shall commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to

the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805)

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SUCCESSION POST MT

IX. Devises and Legacies Art. 924. All things and rights which are within the

commerce of man be bequeathed or devised. (865a) A. Definitions:

1. Legacy – testamentary disposition of personal property by particular title

2. Devise – testamentary disposition of real property by particular title

B. Importance of distinction – effects of preterition – where there is

preterition, devises and legacies stand insofar as they do not exceed the free portion

C. Anything within the commerce of man can be devised or

bequeathed. It is not necessary that the thing belong to the testator.

Art. 925. A testator may charge with legacies and devises not

only his compulsory heirs but also the legatees and devisees.

The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a)

Art. 926. When the testator charges one of the heirs with a

legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable

in the same proportion in which they may inherit. (859) A. Who is charged with the legacy?

1. GR: The estate Exception: The testamentary heir or legatee or devisee may be charged [mode] with delivering another legacy or devise to a specified person. This is a mode and the Articles on modes

apply. Remember caucion muciana? The devisee, legatee, or heir charged must give a bond.

2. A compulsory heir, if he is also a testamentary heir, can be charged with making a legacy or devise but not so as to impair his legitime

3. The heir charged is bound only to the extent of the benefit received from the testator.

Art. 927. If two or more heirs take possession of the estate,

they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n)

A. The liability imposed is based on malice, fault, or negligence. B. In certain cases, the liability will also attach to the executor or

administrator. C. Can the person liable satisfy the liability out of the estate?

Probably not. Art. 928. The heir who is bound to deliver the legacy or

devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860)

A. Who is liable in case of eviction?

GR: The estate. Exception: The heir charged with the subsidiary legacy or devise – if the thing is indeterminate and indicated only by its kind.

B. Ex: X, a devisee of 10 real properties, was charged by the decedent with delivering one of those properties to Y without specifying which one. If Y is evicted from the one delivered, X shall be liable.

Art. 929. If the testator, heir, or legatee owns only a part of,

or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a)

Art. 930. The legacy or devise of a thing belonging to another

person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed,

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though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

Art. 931. If the testator orders that a thing belonging to

another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a)

Art. 932. The legacy or devise of a thing which at the time of

the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein.

If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a)

Art. 933. If the thing bequeathed belonged to the legatee or

devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him.

If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a)

Art. 934. If the testator should bequeath or devise something

pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.

The same rule applies when the thing is pledged or mortgaged after the execution of the will.

Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a)

Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator.

In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a)

Art. 936. The legacy referred to in the preceding article shall

lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death.

The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)

Art. 937. A generic legacy of release or remission of debts

comprises those existing at the time of the execution of the will, but not subsequent ones. (872)

Rules on ownership etc. of thing devised or bequeathed: A. Thing partly-owned by the testator

GR: Conveys only the interest owned by testator Exception: If the testator provides otherwise, he may (1) convey less than he owns or (2) convey more than he owns – the estate should try to acquire the part owned by others and if it cannot do so, it should give the money equivalent

B. Thing owned by another

1. Testator ordered the acquisition – the estate should try to acquire the part owned by others and if it cannot do so, it should give the money equivalent

2. Testator knew he did not own but did NOT order acquisition – this is an implied order to acquire; doubts should be resolved in favor of testacy

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3. Testator erroneously believed the thing belonged to him – legacy/devise is void. But if the thing is subsequently acquired by the testator, the disposition is validated.

C. Thing already belonging to devisee or legatee or subsequently

acquired by him 1. Thing already belonged to devisee/legatee at time of execution

of will – void and no subsequent validation 2. Thing owned by another person at time of execution of will

and later acquired by devisee/legatee – a. If testator thought it belonged to him – void b. If testator was not in error

i. Acquired onerously by devisee or legatee – entitled to reimbursement

ii. Acquired gratuitously by devisee of legatee – nothing more due.

D. Thing owned by testator at time of making of will but subsequently

acquired by the legatee/devisee 1. Devise/legacy deemed revoked by alienation of the thing by

the testator

E. Legacy or devise to remove an encumbrance over a thing belonging to the legatee/devisee is valid if the encumbrance can be removed for a consideration

F. Legacy/devise of a thing mortgaged or pledge – person charged

with making the device/legacy should remove encumbrance unless testator intended otherwise

G. Legacy of credit or remission

1. Applies only to amount unpaid at testator’s death 2. Revoked if testator subsequently sues debtor for collection 3. If generic, applies only to those existing at the time of the

execution of the will, unless otherwise provided Ex: Debts incurred by the legatee-debtor after the execution of the will are not covered by the testamentary remission, unless otherwise provided

Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (837a)

Art. 939. If the testator orders the payment of what he

believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.

A. Legacy/Devise to a creditor

GR: Will not be imputed to the debt Exception: Will be imputed if the testator expressly declares. If the legacy/devise exceeds the debt, the legatee/devisee shall be entitled to the excess

B. Testamentary instruction to pay a debt 1. Not a testamentary disposition; merely an instruction 2. If there is no debt, disregard the instruction – solution indebiti 3. If instruction to pay more than what is due, excess not paid

unless the latter constitutes fulfillment of a natural obligation Art. 940. In alternative legacies or devises, the choice is

presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.

If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs.

Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein

provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

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A. Who chooses?

GR: The (1) estate or (2) the heir, devisee, or legatee charged Exception: Where the testator gives the choice to the devisee/legatee

B. If the person who is to choose dies before the choice is made: 1. If the choice belongs to executor/administrator – right

transmitted to successor in office 2. If the choice belongs to an heir, legatee, or devisee – right

transmitted to his heirs C. The choice is irrevocable Art. 941. A legacy of generic personal property shall be valid

even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if

there be immovable property of its kind in the estate. The right of choice shall belong to the executor or

administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

Art. 942. Whenever the testator expressly leaves the right of

choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

Art. 943. If the heir, legatee or devisee cannot make the

choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

Generic legacies/devises A. Rules on validity

1. Generic legacy – Valid even if no such personal property exists in testator’s estate upon his death. Estate shall acquire what is given.

2. Generic devise – valid only if there exists such an immovable in the testator’s estate upon his death.

B. Right of choice

1. Choice belongs to GR: Exec/admin Exception: Testator gives right to devisee/legatee

2. Limitation on choice – must be neither inferior nor superior in quality – this applies regardless of to whom the right to choose is given

3. Choice is irrevocable 4. Right to choose passes to successors in office or heirs, as the

case may be Art. 944. A legacy for education lasts until the legatee is of

age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.

A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.

If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate.

If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

Art. 945. If a periodical pension, or a certain annual,

monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

A. Legacy for education

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1. Duration – age of majority or completion of a professional, vocational or general course provided he pursues his course diligently

2. Amount i. Primarily – fixed by the testator

ii. Secondarily – that which is proper as determined by (1) social standing of legatee and (2) value of the disposable portion of the estate

B. Legacy for support

1. Duration – Legatee’s lifetime, unless otherwise provided 2. Amount

i. Primarily – fixed by the testator ii. Secondarily – that which the testator used to give to the

legatee by way of support unless markedly disproportionate to the value of the disposable portion

iii. Tertiarily – that which is proper as determined by (1) social standing of legatee and (2) value of the disposable portion of the estate

C. Periodical pension

1. Demandability – upon the testator’s death, and the succeeding ones at the beginning of the period without duty to reimburse should the legatee die before the end of the period.

Art. 946. If the thing bequeathed should be subject to a

usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

Art. 947. The legatee or devisee acquires a right to the pure

and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a)

Art. 948. If the legacy or device is of a specific and

determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or

devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)

Art. 949. If the bequest should not be of a specific and

determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a)

A. Demandability, Ownership, and Fruits of Legacies/Devises Demanda

bility Ownership Fruits

Pure & Det. Death Death DeathPre & Generic

Death If found in estate – death If to be acquired - acquisition

Determination, unless otherwise provided

Susp. Term Term Term, but right vests upon death

Term

Susp. Cond. Condition When fulfilled,retroacts to death

Condition, unless otherwise provided

Art. 950. If the estate should not be sufficient to cover all the

legacies or devises, their payment shall be made in the following order:

(1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be

preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which

forms a part of the estate; (6) All others pro rata. (887a)

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Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows:

(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

A. Article 950 contains an order of preference among legacies and

devises in case the estate is not sufficient for all of them but no legitimes have been impaired; e.g., there are no compulsory heirs or legitimes have already been satisfied by donation inter vivos.

B. The rule for reduction in Art 911 applies if reductions have to be

made because legitimes have been impaired. Art. 951. The thing bequeathed shall be delivered with all its

accessories and accessories and in the condition in which it may be upon the death of the testator. (883a)

A. Deliver the thing

1. With all accessions and accessories 2. In the condition it is in upon the death of the testator

B. If thing has deteriorated since testator’s death? [My answers]

1. If normal wear & tear – no problem 2. If not normal – person charged [whether exec/admin or heir,

legatee, devisee charged with subsidiary legacy/devise] must pay damage [probably answered for with a bond]

Art. 952. The heir, charged with a legacy or devise, or the

executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.

Legacies of money must be paid in cash, even though the heir or the estate may not have any.

The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

A. Rule on Identity of Obligations. Art. 953. The legatee or devisee cannot take possession of the

thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

A. Self-explanatory. Art. 954. The legatee or devisee cannot accept a part of the

legacy or devise and repudiate the other, if the latter be onerous.

Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

Art. 955. The legatee or devisee of two legacies or devises,

one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both.

Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a)

Rules on Acceptance and Repudiation of Devises and Legacies

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A. One Legacy/devise

GR: Acceptance may be total or partial Exc: If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous part. Any other combination is permitted.

B. Two legacies/devises

GR: May accept or renounce both. Exc: If one is gratuitous and the other is onerous; the recipient cannot accept the gratuitous part and renounce the onerous part. Any other combination is permitted.

C. Legacy/devise to compulsory heir – may accept or renounce either or both the legitime and the devise or legacy

D. Testator provides 0therwise – testator’s wishes are always

supreme. Art. 956. If the legatee or devisee cannot or is unwilling to

accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a)

A. Where the devisee/legatee repudiates or is incapacitated, or if the

legacy is ineffective the following rules apply, in order: 1. Substitution 2. Accretion 3. Intestacy

Is there no representation in this case? No there is no representation in testamentary succession.

Art. 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a

manner that it does not retain either the form or the denomination it had;

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise

shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928. (869a)

Enumeration of instances when legacy or devise is REVOKED by operation of law: A. Transformation – according to Tolentino, it is the impossibility of

identifying the thing which renders the legacy or devise ineffective B. Alienation – may be onerous or gratuitous

GR: It is considered revoked even if the thing reverts to the testator Exc: (1) If it reverts because of the annulment of the alienation due to vice of consent on the grantor’s part (2) if the reversion is due to redemption in pacto de retro

C. Total loss

1. only if it takes place before the testator’s death 2. if it takes place after the testator’s death

a. Fortuitous – res perit domino b. Fault of person charged with delivery – person liable c. Warranty against eviction – if the thing is

indeterminate Art. 958. A mistake as to the name of the thing bequeathed

or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

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A. Any evidence, excluding the oral decalarations of the testator, may be presented.

Art. 959. A disposition made in general terms in favor of the

testator's relatives shall be understood to be in favor of those nearest in degree. (751)

X. Right of Representation Art. 856. A voluntary heir who dies before the testator

transmits nothing to his heirs. A compulsory heir who dies before the testator, a person

incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

Art. 889-892. Art. 902. The rights of illegitimate children set forth in the

preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

A. Balane gives a better restatement:

An heir – whether compulsory, voluntary, or legal – transmits nothing to his heirs in case of predecease, incapacity, renunciation, or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.

B. There is no representation in the ascending line. C. Where all the children predecease or are incapacitated and

grandchildren inherit by representation, the share of the surviving spouse is still equal to what each child would have received.

D. What if in (C), all children renounce? Same rule probably.

E. Legitimate children can be represented only be their legitimate descendants. Illegitimate children can be represented by both legitimate and illegitimate descendants. Dura lex sed lex.

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

by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a)

Art. 971. The representative is called to the succession by the

law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n)

Art. 972. The right of representation takes place in the direct

descending line, but never in the ascending. In the collateral line, it takes place only in favor of the

children of brothers or sisters, whether they be of the full or half blood. (925)

Art. 973. In order that representation may take place, it is

necessary that the representative himself be capable of succeeding the decedent. (n)

Art. 974. Whenever there is succession by representation,

the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a)

Art. 975. When children of one or more brothers or sisters of

the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)

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

has renounced. (928a)

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

represented. (929a) A. Definition

1. Should be called successional subrogation instead because the person “representing” succeeds in his own right.

2. There is no legal fiction. Succession is statutory and the law has the authority to determine who will inherit.

B. When does representation operate?

1. Predecease 2. Incapacity or Unworthiness 3. Disinheritance 4. NEVER In Renunciation

C. In what kind of succession does representation operate? 1. Legitime 2. Intestacy 3. NEVER IN TESTAMENTARY

D. In what lines does representation obtain?

1. Legitime – direct descending line only 2. Intestacy –

a. Directing descending line b. In one instance in the collateral – nephew and nieces

representing brothers and sisters of the deceased

E. Representation of illegitimate children 1. If child being represented is legitimate – only legitimate

children/descendants can represent 2. If child being represented is illegitimate – both legitimate and

illegitimate children/descendants can represent F. Adopted child can neither represent nor be represented. Teotico v. Del Val 13 SCRA 406 Sayson v. CA G.R. Nos. 89224-25. January 23, 1992.

The relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. The adoptees are complete strangers to the relatives of the adopter. There can be no representation because there is no relationship - Article 971 provides that “The representative does not succeed the person represented but the one whom the person represented would have succeeded.” G. A renouncer cannot be represented. He may, however, represent

the person whose inheritance he has renounced because the representative does not succeed the person represented but the one who the person represented would have succeeded.

H. How representation operates?

Per stirpes – the representatives receive only what the person represented would have received. If more than one representative in the same degree, the portion shall be divided equally, without prejudice to the distinction between legitimate and illegitimate children.

I. Rules on qualification 1. The representative must be qualified to succeed the decedent

because it is the latter who is being succeeded. 2. The representative need not be qualified to succeed the person

being represented. 3. The person represented need not be qualified to succeed the

decedent – these are the instances of representation – predecease, incapacity, disinheritance

J. IMPT: Representation by grandchildren and representation by

nephews and nieces: Difference in rule: 1. If all children are disqualified – the grandchildren still inherit

by representation – per stirpes 2. If all brothers and sister are disqualified – the nephews and

nieces inherit per capita K. Q&A

1. What happens if all children renounce, do the grandchildren get anything?

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Yes. Not by representation because there can be none if there is repudiation. The will succeed under intestacy. Make the distinction clear - Where there is repudiation, there is definitely no more representation. Nevertheless, there may be succession by intestacy.

2. This should be under revocation, but anyway… Valid will was revoked by second will. First will torn. Second will void upon probate. What happens? First will not revoked. In Molo v. Molo, it was stated that a revoking will must comply with all formal requirements and the testator must have capacity. In this case, the will was denied probate – this shows that formal requirements were not complied with or that the testator did not have capacity. Hence, there was no revocation by will. But was there revocation by tearing? Was there animus revocandi? Certainly there was intent to revoke when the second will was executed. But it can be argued that there was no intent to revoke when the first will was destroyed because the testator thought that the will had already been revoked. How could he intend to revoke it again. 3. What is the doctrine of dependent relative revocation? It states: “The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.” This seems to apply to Q2.

XI. Intestate Succession Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one

which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of

all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

Art. 961. In default of testamentary heirs, the law vests the

inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

Art. 962. In every inheritance, the relative nearest in degree

excludes the more distant ones, saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a)

A. When does intestate succession take place? (1) If a person dies without a will, or with a void will, or one which

has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the

property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

B. Who are the intestate heirs and in what order?

1. Legitimate children/descendants 2. Illegitimate children/descendants 3. Legitimate parents/ascendants

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4. Illegitimate parents 5. Surviving spouse 6. Brothers, sisters, nephews, nieces 7. Other collaterals – to the 5th degree 8. State

C. What are the combinations/shares in intestate succession?

1. legitimate children alone – whole estate, divided equally; 2. legitimate children and illegitimate children – the whole

estate, each illegitimate child getting ½ the share of a legitimate child;

3. legitimate children and surviving spouse –whole estate, divided equally (surviving spouse counted as one child);

4. legitimate children, surviving spouse, and illegitimate children – the whole estate, the surviving spouse counted as one legitimate child and the illegitimate children receiving ½ the share of a legitimate child;

5. legitimate parents alone – the whole estate, divided equally; 6. legitimate ascendants (other than legitimate parents) – the

whole estate, observing the rules on division by line; 7. legitimate parents and illegitimate children – legitimate

parents get ½; illegitimate children get the other 1/2; 8. legitimate parents and surviving spouse – legitimate parents

get ½; surviving spouse gets the other 1/2 ; 9. legitimate parents, surviving spouse, and illegitimate children

– legitimate parents get ½; surviving spouse gets ¼, illegitimate children get ¼;

10. illegitimate children alone – whole estate, divided equally; 11. illegitimate children, surviving spouse – illegitimate children

get ½; surviving spouse gets the other ½; 12. surviving spouse along – whole estate; 13. surviving spouse and illegitimate parent – surviving spouse

gets 1/2; illegitimate parents get ½ - by analogy; 14. surviving spouse and legitimate

brothers/sister/nephews/nieces – surviving spouse gets ½; legitimate brothers/sister/nephews/nieces get ½ (nephews and nieces inheriting by representation in proper cases);

15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces – surviving spouse gets ½; illegitimate brothers/sister/nephews/nieces get ½ (nephews and nieces inheriting by representation in proper cases);

16. illegitimate parents alone – the whole estate; 17. illegitimate parents and children of any kind – illegitimate

parents excluded; children inherit in accordance with previously stated rules;

18. legitimate brothers and sisters alone – – the whole estate, observing the 2:1 proportion of full and half-blood fraternity;

19. legitimate brothers and sisters, nephews and nieces – the whole estate, observing the 2:1 proportion of full and half-blood fraternity and the nephews and nieces inheriting by representation in proper cases;

20. nephews and nieces with uncles and aunts – uncles and aunts excluded – nephews and nieces inheriting the whole estate, per capita, but observing the 2:1 proportion of full and half-blood;

21. illegitimate brothers and sisters alone - the whole estate, per capita, but observing the 2:1 proportion of full and half-blood;

22. illegitimate brothers and sisters with nephews and nieces – the whole estate, observing the 2:1 proportion of full and half-blood fraternity and the nephews and nieces inheriting by representation in proper cases;

23. nephews and nieces alone - the whole estate, observing the 2:1 proportion of full and half-blood;

24. other collaterals – the whole estate, per capita, the nearer in degree excluding the more remote

25. State – the whole estate a. Assignment and disposition of property

GR: Personal and real property – where situated Exc: If decedent was resident of Phils. at any time and personal property – municipality where last resided

b. How property to be used i. For the benefit of public educational and

charitable institutions in the respective municipalities/cities;

ii. Alternatively, at the instance of an interested party, or motu proprio, the court may order the creation of a permanent trust for the benefit of the institutions concerned.

Sayson v. CA G.R. Nos. 89224-25. January 23, 1992.

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Adopted children are entitled to inherit from their adoptive parents. They are not allowed to inherit by representation from the relatives of their adoptive parents. Corpus v. Administrator 85 SCRA 567 Diaz v. IAC 150 SCRA 645 Leonardo v. CA 120 SCRA 890 This is the principle of absolute separation between the legitimate family and the illegitimate family. Article 992 provides that “an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father of mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.” The rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the legitimate child. In Re: Santillon v. Miranda G.R. No. L-19281. June 30, 1965. Article 996 seems unfair because in testate succession, where there is only one child of the marriage, the child gets one-half, and the widow or widower one-fourth. But in intestate succession, if Article 996 is applied, the child gets one-half, and the widow or widower one-half. The Court, however, is not called upon to judge the wisdom of the law. And besides, the surviving spouse need not always get ¼ in testamentary succession, the decedent may have allotted for a greater share in the will. Armas v. Calisterio 330 SCRA 201 Brothers and sisters exclude nephews and nieces – the latter may inherit by representation in proper cases, however Bacayo v. Boromeo

145 SCRA 986 Nephews and nieces exclude uncles and aunts [of the decedent].

XII. Special Concepts A. 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. (871)

A. Requisites for operation of reserva troncal

1. The property was acquired by a person [prepositus] from an ascendant or from a brother or sister [origin] by gratuitous title;

2. The descendant [prepositus] died without legitimate issue; 3. The property is inherited by another ascendant [reservor] by

succession, either to the legitime or intestacy; 4. There are relatives [reservees] within the third degree from the

prepositus belonging to the line from which the property came.

B. Transfers in reserva troncal:

1. First transfer – by gratuitous title, from a person [origin] to his descendant, brother, or sister [prepositus];

2. Second transfer – by intestate or compulsory succession, for the transferee in the first transfer [prepositus] to another ascendant [reservor], creating the reserva;

3. Third transfer – from the transferee in the second transfer [reservor] to the relatives [reservees].

C. Parties in reserva troncal

1. The Origin a. may be an ascendant of any degree of the prepositus

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b. may be a brother or sister of the prepositus must be half-blood – otherwise there would be no

change in lines full or half-blood – the law does not distinguish; the

purpose of reserva troncal is not only curative but also preventive

2. The Prepositus

a. The arbiter of the reserva troncal – he may prevent it from arising by:

i. Substituting or alienating the property ii. By bequeathing or devising it either to the

potential reservor or to third persons (subject to the constraints of the legitime)

iii. By partitioning in such a way as to assign the property to parties other that the potential reservista(subject to the constraints of the legitime)

3. The Reservor

a. he is an ascendant of the prepositus of whatever degree other than the origin

4. The Reservees [a class of persons]

a. Within the third degree of consanguinity from the prepositus

b. Must belong to the line from which the property came; the line to which the origin belonged

c. Sanchez Roman says that the reservees must be related to the origin, otherwise the results would be contrary to the purpose of reserva troncal.

d. They inherit from the prepositus and not from the reservor.

e. Though they inherit from the prepositus, they need not be conceived or born during the prepositus’s lifetime because they are instituted as a class. Nevertheless, they must be alive at the time of the reservor’s death, even if conceived and born after the prepositus’s death.

D. Rules of succession among reservees:

1. The rules of intestate succession apply – the nearer exclude the more remote;

2. The rule on proximity is subject to representation, the only case being where the prepositus is survived by brothers/sister and children of a predeceased or incapacitated brother/sister. REMEMBER THAT THE REPRESENTATIVE MUST ALSO BE WITHIN THE THIRD DEGREE FROM THE PREPOSITUS.

3. The reservor cannot choose who among the reservees will get the property. It passes by strict operation of law to the reservees closest in degree [Gonzales v. CA].

E. Nature of Rights of the reservor

1. Right of ownership 2. Right is subject to a resolutory condition – the existence of

reservees upon the reservor’s death 3. Right is alienable, but subject to same resolutory condition 4. Right is registrable

F. Nature of Rights of the reservees

1. Right of expectancy 2. Right of expectancy subject to a suspensive condition – ripens

to ownership if reservees survive reservor 3. Right is alienable, but subject to same suspensive condition 4. Right is registrable

G. Corresposponding rights and obligations of the reservor/reservee 1. To inventory the reserved properties 2. To annotate the reservable character in the

Registry of Property within 90 days from acceptance by the reservista;

3. To appraise the movables; 4. To secure by means of mortgage: (a) the

indemnity for any deterioration of or damage to the property occasioned by the reservor’s fault or negligence and (b) the payment of the value of such reserved movables as may have been alienated by the reservista onerously or gratuitously.

H. Property Reserved

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1. Any kind of property 2. Effect of substitution – the rule is that the very same property

which came from the Origin must be transferred from the prepositus to the reservor in order for a reserva to arise. If the property is different, there is no reserva created.

3. Effect of sale by prepositus of property pacto de retro and subsequent redemption – JVCG says the redeemed property is reservable.

4. The reserved property is NOT part of the reservor’s estate at the time of his death if there are reservees present – not being part of the estate, it is not taken into consideration when computing legitimes of the reservor’s compulsory heirs [Cano v. Director]. Remember that the reservor’s ownership is subject to the resolutory condition.

5. Ryan Castillo question: If property is charged with a condition – ex. Origin bequeaths to prepositus P100k car with condition to pay P50k loan – only the gratuitous portion [P50k] is reservable.

I. Problem: What if the prepositus institutes the reservor, who is a

compulsory heir, to half of the estate and the estate is comprised of both reservable and non-reservable properties?

It is clear that half of the estate passes to the reservor by operation of law as his legitime and the other half by the decedent’s will. The problem is determining over which properties the reserva is created. The rule in the Philippines, in line with the social justice philosophy, is the reserva minima. Tolentino’s example: X inherited from his mother a parcel of land worth P10k. He also owns P20k worth of corporation stock. Upon his death, without issue, he institutes his father as his sole heir. He is survived also by two brothers. In the total estate of X, worth P30k, the legitime of the father is ½ or P15k. Reserva Minima Only one half of the parcel of land acquired by X from his mother will be considered as reservable.

Reserva Maxima Since the value of the parcel of land acquired by X from his mother can be included within that legitime, it must be considered as wholly subject to reserva. JVCG’s example: X’s estate is comprised of reservable property worth P100k and other properties worth P200k. Upon his death, without issue, he institutes his father to ¾ of his estate. In the total estate of X, worth P300k, the legitime of the father is ½ or P150k. Reserva Minima Only ¼ of the reservable property will be considered reservable. It seems that the extent that the property is reservable depends on the extent to which the reservor inherited by operation of law. Reserva Maxima The entire reservable property will be considered reservable.

J. Extinguishment of reserva troncal by: 1. Death of the reservor 2. Death of all the reservees 3. Renunciation by all the reservees, provided none are born

later 4. Total fortuitous loss of the property 5. Confusion or merger of rights as when the reservees acquire

the reservista’s right by contract 6. Prescription or adverse possession by the reservor

K. Some Q&A 1. Is property inherited by reservor as part of his legitime reservable?

Yes. This is not against the provision that the legitime cannot be made subject of burdens, conditions, etc. In this case, it is the law that imposes the condition.

2. If Prepositus receives Lot A from Origin and subsequently devises the exact same property, nothing more and nothing less, to Reservor, is a reserva created? This is an open question. I think that the reserva is negated. The prepositus is the arbiter right?

3. The property from the Origin consists of P1m in cold cash. What happens if:

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a. The cash is totally squandered by the prepositus and then earned back – no reserva

b. The cash is deposited – maybe reserva

B. Accretion

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

more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)

Art. 1016. In order that the right of accretion may take place

in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same

inheritance, or to the same portion thereof, pro indiviso; and

(2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (928a)

Art. 1017. The words "one-half for each" or "in equal shares"

or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion.

In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a)

A. When does accretion operate?

1. Renunciation 2. Predecease 3. Incapacity

These are the same occasions for substitution. But substitution is preferred over accretion because it is the express will of the decedent; accretion is merely the presumed will.

In representation, the occasions are predecease, incapacity, and disinheritance. Accretion includes renunciation and excludes disinheritance because in disinheritance, the heir is never called to the inheritance.

B. What are the elements of accretion?

1. Two ore more persons are called to the same inheritance, or to the same portion thereof, or devise or legacy, pro indiviso. All that the law requires is that the result of the institution

is co-ownership. 2. Renunciation, predecease, or incapacity of one or more, but

not all of the instituted heirs. Art. 1018. In legal succession the share of the person who

repudiates the inheritance shall always accrue to his co-heirs. (981)

A. In intestacy, accretion occurs:

1. In repudiation or renunciation; 2. In predecease, where there is no representation; 3. In incapacity, where there is no representation.

Art. 1019. The heirs to whom the portion goes by the right of

accretion take it in the same proportion that they inherit. (n)

Art. 1020. The heirs to whom the inheritance accrues shall

succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984)

A. Accretion is proportional. B. GR: Accretion includes all rights or obligations which would have

gone to the heir. Exceptions: (1) if the testator provides otherwise; (2) if the obligation is purely personal and intransmissible.

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Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.

Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985)

A. The second paragraph is important only in a technical sense; if

JVCG asks: “A and B are the only children of X. B predeceased X. Is A correct in saying that he succeeded to the portion of B by accretion?” No. A succeeded to it in his own right.

Art. 1022. In testamentary succession, when the right of

accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986)

A. If the part is left vacant it goes to intestacy. Art. 1023. Accretion shall also take place among devisees,

legatees and usufructuaries under the same conditions established for heirs. (987a)

C. Collation

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815)

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. (817)

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 added the value of all donations by the testator that are subject to collation, at the time he made them. (818a)

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 disposed by his last will.

Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)

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 by this Code. (847a)

Art. 911. After the legitime has been determined in

accordance with the three preceding articles, the reduction shall be made as follows:

(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will;

(2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever.

If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

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Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; A. B. What are the three types of collation and give an example of each.

a. Collation as computation. This is a simple mathematical process whereby the value of all donations inter vivos made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate.

Ex. The value of a donation made by the decedent to a stranger is added to the assets of the former in order to determine the net hereditary estate.

b. Collation as imputation. This is the process by which

donations inter vivos made by the decedent are correspondingly charged either to the donee’s legitime or against the disposable portion.

Ex. The value of the donation made by the decedent in (a) above is charged to the disposable portion.

c. Collation as return. This takes place when a donation inter

vivos is found to be inofficious and so much of its value is returned to the estate to satisfy the legitimes.

Ex. In the event that the legitimes are impaired, the value of the donation spoken of in (a) and (b) is paid to the estate in order to satisfy the legitimes.

COMPUTATION

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (1035a)

A. This refers to the addition of all donations inter vivos made by

decedent to determine the net hereditary estate. B. All donations inter vivos, whether to strangers or compulsory

heirs are included in the computation. C. The value to be computed is the value of the property at the time of

the donation. That is when ownership is transferred; any subsequent appreciation or depreciation is for the account of the owner/donee.

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

heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036)

Rules on imputation of donations inter vivos: A. To compulsory heirs:

GR: Imputed to legitime Exceptions: (a) testator provides otherwise; (2) donee renounces inheritance – imputed to free portion

B. To strangers – imputed to free portion C. Imputation is to free portion when:

1. To strangers 2. To compulsory heirs and testator provides so 3. To compulsory heirs who renounce inheritance 4. To compulsory heirs but in excess of legitime

IMPUTATION

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Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (1037)

A. Rule on testamentary dispositions to compulsory heirs:

GR: Not imputed to legitime – received in addition to legitime Exc: If testator provides otherwise – imputed to legitime – disposition is illusory

IMPUTATION Art. 1064. When the grandchildren, who survive with their

uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property.

They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (1038)

This covers the situation where grandchildren inherit from their grandparents by representation, and they concur with their uncles or other grandchildren. A. The grandchildren inheriting by representation will have imputed

to their legitime: 1. Whatever the parent they are representing would have had to

collate and 2. Whatever they have received by gratuitous title from their

grandparent (subj. to Article 1062) IMPUTATION Art. 1065. Parents are not obliged to bring to collation in the

inheritance of their ascendants any property which may have been donated by the latter to their children. (1039)

A. The donation to the grandchild is a donation to a stranger –

imputed to the free portion.

IMPUTATION Art. 1066. Neither shall donations to the spouse of the child

be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040)

A. A donation to a son/daughter-in-law is a donation to a stranger –

imputed to the free portion. B. If the donation was made jointly to the child and his spouse, the

child’s (presumably ½) share is imputed to the legitime; the in-law’s share is imputed to the free portion.

COMPUTATION Art. 1067. Expenses for support, education, medical

attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041)

A. Expenses for the following are not included in the decedent’s net

hereditary estate: 1. Support - [SCEDMAT] but expenses for further education are

treated in Article 1068. 2. Education 3. Medical attendance, including extraordinary illness 4. Apprenticeship 5. Ordinary equipment 6. Customary gifts

B. What are customary gifts?

Some say that these are the ones given on occasions of family joy and thanksgiving. It depends on the wealth and social standing of the donor.

IMPUTATION Art. 1068. Expenses incurred by the parents in giving their

children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their

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collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a)

A. Are expenses incurred by parents in giving their children a

professional, vocational, or other career imputed to the child’s legitime? GR: No. Exceptions: 1. They impair others’ legitimes 2. The parents provide that they shall be subject to collation

In this case, the child can deduct an amount equal to what his parents would have spent had he stayed home and loafed.

IMPUTATION Art. 1069. Any sums paid by a parent in satisfaction of the

debts of his children, election expenses, fines, and similar expenses shall be brought to collation. (1043a)

A. These are donations to the child. IMPUTATION and RETURN [this is according to me] Art. 1070. Wedding gifts by parents and ascendants

consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (1044)

A. If the value of the present exceeds 1/10th of the value disposable

by will: 1. donee is a compulsory heir - the excess shall be imputed to the

legitime 2. donee is a stranger (daughter-in-law) – the excess shall be

inofficious B. This is strange. Why consider it inofficious – it hasn’t exceeded the

free portion, only 1/10 of the free portion. The donee would be better off characterizing the donation as a birthday gift instead of a wedding gift so that the entire free disposable portion can be donated instead of a measly 1/10th.

COMPUTATION and IMPUTATION Art. 1071. The same things donated are not to be brought to

collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed.

A. Only the value of the thing at the time it was donated should be

computed or imputed. COMPUTATION and IMPUTATION Art. 1072. In the collation of a donation made by both

parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. (1046a)

A. A joint donation shall be treated, upon dissolution of the marriage,

as pertaining in equal shares to the estate of each parent. IMPUTATION Art. 1073. The donee's share of the estate shall be reduced by

an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047)

Art. 1074. Should the provisions of the preceding article be

impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction.

If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (1048)

A. Anything received by the donee shall be considered as an advance

on his legitime.

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B. His co-heirs are entitled, as much as possible, to property of the same value and nature as that received by the donee inter vivos.

C. If equivalence is not possible the ff. rules apply: 1. if the property donated was immovable – the other heirs are

entitled to an equivalent value in cash or securities 2. if the property donated was movable – the other heirs have a

right only to select an equivalent of other personal property of the inheritance

D. The heirs can disregard the rules if they all agree to another method of distribution.

RETURN Art. 1075. The fruits and interest of the property subject to

collation shall not pertain to the estate except from the day on which the succession is opened.

For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (1049)

A. If the donation is inofficious and subject to return, the obligation

to return it arises upon the death of the decedent. From that time, the compulsory heir is entitled to the fruits.

RETURN Art. 1076. The co-heirs are bound to reimburse to the donee

the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value.

The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected.

As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (n)

A. This contemplates the situation where the donee ,who has made improvements on the thing donated, is subsequently required to return the thing due to the inofficiousness of the donation.

B. The rules on reimbursement are: 1. Necessary and useful expenses still existent at partition – full

reimbursement 2. Ornamental expenses – no reimbursement but donee may

remove them if without injury to the property. Art. 1077. Should any question arise among the co-heirs

upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050)

A. If there is controversy as to what is subject to collation and what is

not, the distribution of the estate shall continue for those items that are not controverted.

B. The controverted items may be distributed provided a bond is furnished.

CASES: Imperial v. CA G.R. No. 112483. October 8, 1999. The prescriptive period to annul or reduce donations which impair the legitime must be brought within 10 years. The ten year period is counted from the death of the donor-decedent. A claim for legitime does not amount to a claim of title. In the recent case of Vizconde vs. Court of Appeals, it was held that what is brought to collation is not the donated property itself, but the value of the property at the time it was donated. The rationale for this is that the donation is a real alienation which conveys ownership upon its acceptance, hence, any increase in value or any deterioration or loss thereof is for the account of the heir or donee. Zaragoza .v CA GRN No. 106401. September 29, 2000

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In a petition for delivery of inheritance, collation could not be done because only one of the other three compulsory heirs was impleaded. The others are indispensable parties. De Roma v. CA 152 SCRA 205 The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061.

XIII. Allowance of Wills

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

A. The probate of a will is mandatory.

Guevara v. Guevara 74 Phil. 479 A natural child of the decedent presented the will, but only to have her acknowledgement as a child proved. She contented that the testamentary provisions should not be given effect because the will had not been probated. The will was ordered probated. B. There are two kinds of probate:

1. Post-mortem – after the testator’s death

2. Ante-mortem – during his lifetime [it is easier to determine validity and due execution if testator appears before court]

C. Once a decree of probate becomes final and executory, it is res

judicata as to the formal validity of the will. De la Cerna v. Potot 12 SCRA 567 The court admitted to probate a joint will. This was an error of law that did not affect the jurisdiction of the court or the conclusive effect of its final decision, however erroneous. A final judgment on probate is binging on the whole world. Public policy demands that, at the risk of occasional errors, judgments of courts should become final at some definite date. D. The final decree of probate is conclusive only as to the will’s

extrinsic validity. This includes: 1. testamentary capacity; 2. freedom; 3. formal requirements; 4. genuineness.

Exception: Where practical considerations demand that intrinsic validity be passed upon, the probate court may address the same.

Nepomuceno v. CA 139 SCRA 206 Where the will stated on its face that the sole heir was the concubine of the decedent, the probate court correctly passed upon its intrinsic invalidity, the latter being patent. Estate of Ismael Reyes v. Reyes GRN 139587. November 22, 2000. The jurisdiction of the probate court merely relates to matters having to do with the settlement of the estate and the probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees. The question of ownership is as a rule, an extraneous matter which the Probate Court

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cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate proceeding, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. Llorente v. CA GRN 124371 November 20, 2000. The will was executed by an American in the Philippines. Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. Reyes v. CA GRN 124099. October 30, 1997. The probate court erroneously determined the relationship between the testator and his alleged wife. Nepomuceno v. CA does not apply because in that case, the face of the will admitted the illegality of the relationship. When probate court may determine intrinsic matters: 1. preterition 2. doubtful legality of testamentary provisions 3. parties agree 4. exceptional circumstances Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of

fear, or threats; (4) If it was procured by undue and improper pressure and influence,

on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the

instrument he signed should be his will at the time of affixing his signature thereto. (n)

XIII. Allowance of Wills Art. 1058. All matters relating to the appointment,

powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n)

Art. 1059. If the assets of the estate of a decedent which

can be applied to the payment of debts are not sufficient for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses referred to in article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n)

Art. 1060. A corporation or association authorized to

conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. (n)

Cases: CIR v. CA and Pajonar GRN 123206. March 22, 2000. Funeral expenses, judicial expenses, and expenses for administration are deductible from the gross estate. Administration expenses are limited to such administration expenses as are actually and necessarily incurred in the collection of the assets of the estate, payment of the debts, and distribution of the remainder among those entitled thereto. This includes guardianship fees, where the decedent was an incompetent at the time of his death and expenses for extra-judicial settlement of the estate. Luy Lim v. CA

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GRN 124715. January 24, 2000. The surviving spouse, who was also the administrator, argued that properties held by certain corporations should be part of the decedent’s estate – by piercing the veil of corporate fiction. It was held that there was no basis to pierce the veil. The probate court, is competent to issue orders involving inclusion or exclusion of certain properties in the inventory of the estate of the decedent, and to adjudge, albeit, provisionally the question of title over properties, it is no less true that such authority conferred upon by law and reinforced by jurisprudence, should be exercised judiciously, with due regard and caution to the peculiar circumstances of each individual case. Alipio v. Jaring GRN No. 134100. September 29, 2000. A creditor of the conjugal partnership cannot sue the surviving spouse of a decedent in an ordinary proceeding for the collection of a sum of money. The proper remedy is for him to file a claim in the settlement of the estate of the decedent. When petitioner's husband died, their conjugal partnership was automatically dissolved and debts chargeable against it are to be paid in the settlement of estate proceedings. Ventura v. Militante GRN 63145. October 5, 1999. A complaint for collection of a conjugal loan filed against the estate of the deceased represented by his surviving spouse should be dismissed because neither a dead person nor his estate may be a party plaintiff in a court action. Moreover, the claim should be brought in the settlement of the estate. Alsua-Betts vs. Court of Appeals GRN L-46430. July 30, 1979.

Children agreed that their father would be the administrator of the estate of their mother. Subsequently, father died testate. Some children questioned his capacity to execute a will. HELD: They were not estopped from questioning his capacity by the mere fact that they agreed to his being the executor of their mother’s will. Generally, there is no estoppel in probate proceedings. Dimayuga, et al. vs. CA, et al. GRN L-48433. April 30, 1984. A partition inter vivos generally requires that there be an existing valid will. The partition is void if the will is void or if there is no will. Chavez v. IAC 191 SCRA 211 A partition, even without a supporting will, can be valid provided it follows strictly the intestate portions provided by law. The partition does not dispose mortis causa, it merely allocates. Disposition is by force of the law on intestacy.

IX. Partition and Distribution A. Partition can be done through two methods:

1. Judicial 2. Extrajudicial

Art. 1078. Where there are two or more heirs, the whole

estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)

Art. 1079. Partition, in general, is the separation, division

and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n)

A. Prior to partition, there is co-ownership. B. Partition ends the co-ownership. There are two kinds:

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1. Actual – physical division 2. Constructive – any other act which terminates co-ownership

such as sale to a stranger. Art. 1080. Should a person make partition of his estate by an

act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)

A. The decedent can make the partition inter vivos. It will take effect

only upon his death and is revocable during his lifetime. B. The decedent can make the partition either:

1. By will 2. By act inter vivos

a. In this case the partition should be in writing and in a public instrument [Chavez says oral is OK]

b. GR: There must be a prior valid will – a partition cannot make testamentary dispositions without complying with the formalities of a will Exception: A partition, even without a supporting will, can be valid provided it follows strictly the intestate portions provided by law. The partition does not dispose mortis causa, it merely allocates. Disposition is by force of the law on intestacy.

Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs.

The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a)

Art. 1082. Every act which is intended to put an end to

indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n)

A. A mandatary – the one who makes the partition after the

decedent’s death, upon the latter’s instruction – cannot be a co-heir for reasons of fairness and impartiality.

B. Article 1082 deals with constructive partition. Tuason v. Tuason & Araneta 88 Phil. 428 Co-heirs who entered into a contract with each other for the subdivision, development, and sale of an inherited property are deemed to have constructively partitioned. One co-heir cannot claim that she is obliged to remain a co-owner because the contract precisely facilitates liquidation. Art. 1083. Every co-heir has a right to demand the division of

the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a)

GR: Partition is generally a matter of right. Exceptions:

1. When co-heirs agree on indivision for a period not exceeding 10 years

2. When forbidden by the testator for a period not exceeding 20 years 9can cover legitime)

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a. But not where any causes for dissolution of a partnership occur

b. But not where the court finds compelling reasons for partition

Art. 1084. Voluntary heirs upon whom some condition has

been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a)

A. Heir whose inheritance is subject to a voluntary condition cannot

demand partition. B. Other heirs may demand partition upon giving a bond. Art. 1085. In the partition of the estate, equality shall be

observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061)

A. The Rule In Equality Of Partition provides, not for absolute

equality in the portions to be distributed, but for quantitative equality, wherein the shares of the co-heirs are not necessarily equal in value, but are determined by law and by will; and qualitative equality, where the heirs are entitled, as much as possible, to properties which are of the same kind, nature, and quality.

Art. 1086. Should a thing be indivisible, or would be much

impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash.

Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062)

Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063)

Art. 1088. Should any of the heirs sell his hereditary rights to

a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a)

A. Successional rights vest upon the decedent’s death. Consequently,

an heir may dispose of his aliquot share after that time. B. Where a co-heir sells his aliquot portion to a STRANGER, any co-

heir can redeem the portion sold 1. Before partition 2. Within one month from notice of the sale in writing [with

exceptions for actual notice in extraordinary circumstances] 3. By reimbursing the amount of the sale.

Art. 1089. The titles of acquisition or ownership of each

property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a)

Art. 1090. When the title comprises two or more pieces of

land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a)

SUBSECTION 2. - Effects of Partition

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Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068)

Art. 1092. After the partition has been made, the co-heirs

shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a)

Art. 1093. The reciprocal obligation of warranty referred to

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

Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071)

Art. 1094. An action to enforce the warranty among heirs

must be brought within ten years from the date the right of action accrues. (n)

Art. 1095. If a credit should be assigned as collectible, the co-

heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made.

The warranty of the solvency of the debtor can only be enforced during the five years following the partition.

Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a)

Art. 1096. The obligation of warranty among co-heirs shall

cease in the following cases: (1) When the testator himself has made the partition, unless

it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;

(2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a)

SUBSECTION 3. - Rescission and Nullity of Partition Art. 1097. A partition may be rescinded or annulled for the

same causes as contracts. (1073a) Art. 1098. A partition, judicial or extra-judicial, may also be

rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a)

Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075)

Art. 1100. The action for rescission on account of lesion shall

prescribe after four years from the time the partition was made. (1076)

Art. 1101. The heir who is sued shall have the option of

indemnifying the plaintiff for the loss, or consenting to a new partition.

Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff.

If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a)

Art. 1102. An heir who has alienated the whole or a

considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of

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lesion, but he shall have a right to be indemnified in cash. (1078a)

Art. 1103. The omission of one or more objects or securities

of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a)

Art. 1104. A partition made with preterition of any of the

compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080)

Art. 1105. A partition which includes a person believed to be

an heir, but who is not, shall be void only with respect to such person. (1081a)

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