Section 2.

Institution of Heir
[Memorize] The estate of a decedent must pass to his heirs in the
following order:
1. Institution
2. Substitution
3. Representation
4. Accretion
5. Intestate
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 right and obligations.
A. 'Institution of Heir' defined
a) institution being a voluntary act, cannot be allowed to affect
the legitime.
b) in general, the provision on 'institution' are applicable to
devises & legacies.
c) there can be an instituted heir only in testamentary
succession (for the heir in intestate succession is called legal or
intestate heir).
d) a conceived child may be instituted, if the conditions in
Articles 40 & 41 are present.
[Memorize]
B. Requisites of a VALID Institution
a) the will must be EXTRINSICALLY VALID. (Testator must be
capacitated, the formalities must be observed, there must be no
vitiated consent, the will must have been duly probated, the will
must have been the personal act of the testator)
b) the institution must be valid INTRINSICALLY. (The legitime
must not be impaired, the heir must be certain or ascertainable;
there should be no preterition)
c) the institution must be EFFECTIVE. (No predecease, no
repudiation by the heir, no incapacity of the heir)
C. Adjudication by an heir of the decedent's entire estate to himself by
means of an affidavit is allowed only if he is the sole heir of the estate.
(Delgado Vda. de Dela Rosa v. Heirs of Marciana Vda. De Damian)
ART. 841. A will shall be valid even though [1] it should not contain
an institution of an heir, or [2] such institution should not compromise
the entire estate, and even though [3] the person so instituted should
not accept the inheritance or [4] should be incapacitated to succeed.
In which case, the testamentary disposition made in accordance
with law shall be complied with and the remainder of the estate shall
pass to the legal heirs{by intestacy}.
A. A will, unless otherwise defective, is valid, even if:
a) there is no institution of heir {a will made with only one
provision which is designation of who shall be the executor with
instruction to distribute his estate in accordance with law. This
will result to intestate succession under Art. 779.}
b) the instituted heir is given only a portion of the estate
c) the heir instituted should repudiate or be incapacitated to
inherit

ART. 842. One who has no compulsory heirs{Art. 887 in the case of
testamentary succession and Art. 978 and 979 in the case of intestate
succession} may dispose by will all his estate or any part of itin 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.
A. Rules for Freedom of Disposition of Estate:
a) if there are no compulsory heirs, he can give his estate or any
portion thereof to anybody qualified to inherit from him, but he
must respect the restrictions imposed by special laws.
b) if there are compulsory heirs:
he must respect the legitimes, unless there be a valid
cause for an express disinheritance
the free portion, however, can be given to anybody,
provided always that restrictions of special laws are
complied with.
B. Even if only one heir is instituted, there must still be a judicial order
of adjudication the judicial regonition that in instituting an heir, the
deceased did not contravene the law, & that the heir was in no way
disqualified to inherit.
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 circumstances 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.
A. If there is doubt as to who is being instituted, no one inherits.
Giving half to each is wrong because only one was intended. Moreover,
he would be giving one-half to a person to whom the testator intended
to give nothing.
[JRT] ART. 844. An error in the name,surname or circumstance 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 other proof, the person instituted cannot be identified, none of them
shall be an heir.[JRT]
A. Mere error in designation of name or circumstances in NOT
important as long as the intent is clear, and there is positive
identification.
B. Misdescription may be corrected by extrinsic evidence but not by
oral declaration of the testator.
C. Example for the 2nd paragraph:
If there be 3 stout cousins named George, the impossibility of
identification renders the institution void. Hence, no one will get.
If there are no other legal heirs, except the 3 cousins they will
still get not as instituted heirs but as legal heirs provided they are
within the fifth degree of relationship.

If the 3 are first cousins they are legal heirs because they are
fourth degree relatives.
If they are second cousins or beyond they are not legal heirs
because second cousins are sixth degree relatives.
ART. 845. Every disposition in favor of an unknown person shall be
void, unless by some event or circumstance{which does not appear
on the face of the will sometimes called extrinsic evidence such as
private writing}, his identity becomes certain. However, a disposition in
favor of a definite class or group of persons shall be valid.
A. Unknown Person one who cannot be identified from the will; not
one who is a stranger to the testator.
B. Special Kinds of Class Institutions
a) the poor in general (Art. 1030)
b) relatives of the testator (Art. 959)
c) a person & his children (Art. 849)
d) brothers & sisters of the full & half blood (Art. 848)
ART. 846. Heirs instituted without designation of shares shall inherit in
equal parts. {This provision applies if all the instituted heirs are
compulsory heirs or all are voluntary heirs. If some are compulsory
and the others are voluntary or although all are compulsory but some
are legitimate and the others are illegitimate children, give first the
legitimes of the compulsory heirs and the remainder shall be divided
among the compulsory and voluntary heirs equally.}
A. Exception to the Rule
This rule cannot be applied absolutely in case one of those
instituted is a compulsory heir, inasmuch as institution in general
refers merely to the free portion. Hence, the legitime must first be
removed & what remains will be divided equally.
B. Examples:
1.
The hereditary estate of X is P10M. In his will, it is stated
thus: I designate A, B, C, D, and E as my heirs. A, B, C, D, and
E are the legitimate children and the only compulsory of X.
Distribute the P10M.
ANS: A, B, C, D, and E will each inherit (P10M/5} P2M. (All
the instituted heirs are compulsory heirs)
2.
The hereditary estate of X is P10M. In his will, it is stated
thus: I designate A, B, C, D, and E as my heirs. A, B, C, D, and
E are the brothers and sisters of X because he has no
compulsory heirs.
Distribute the P10M.
ANS: A, B, C, D, and E will each inherit (P10M/5) P2M. (All
the instituted heirs are voluntary heirs)
3.
The hereditary estate of X is P10M. In his will, it is stated
thus: I designate A, B, C, D, and E as my heirs. A and B are
the legitimate children, and the only compulsory heirs of X, while
C, D, and E are the brothers of X.
Distribute the P10M.
ANS: The legitimes of A and B must first be given to them,
and said legitimes amount to of P10M or P5M at P2.5M each.
The remaining P5M will be divided among A, B, C, D, and E
equally or at P1M each, Therefore, A and B will each inherit
P3.5M. C, D, and E will each inherit P1M.

4.
The hereditary of X is P12M. In his will, it is stated thus: I
designate Y, A, B, C, and D as my heirs. Y is the wife of X. A, B,
and C are the legitimate children of X and Y, and D is the
illegitimate child of X.
Distribute the P12M.
ANS: The legitimes of A, B, and C must first be given to
them, and said legitimes to (P12M/2) P6M at P2M each. The
legitime of Y which is the same as the legitime of one legitimate
child or P2M must be given to Y. The legitime of D must be given
to him which is of the legitime of the one legitimate child or
P1M. The remainder which is (P12M P9M) P3M will be divided
among the five heirs equally, or P600k each. Therefore, A, B, C
and Y will each inherit P2.6M, while D will inherit P1.6M.
5.
The hereditary estate of X is P20M. In his will, it is stated
thus: I designate Y, A, B, C, D, E, F, G, H, and I as my heirs. Y
is the wife of X, A, B, C, D, and E are the legitimate children of X
and Y, G and H are the illegitimate children of X, and I is the
brother of X.
Distribute the P20M.
ANS: The legitimes of A, B, C, D and E must first be given
to them and said legitimes amount to of P20M or P10M at P2M
each. The legitime of Y must also be given to her which is the
same as the legitime of one legitimate child or P2M. The
legitimes of F, G, and H must also be given to them and the
legitime of an illegitimate child is of the legitime of a
legitimate child or P1M each. The remainder is (P20M P15M)
P5M which shall be divided among the 10 heirs equally or P500k
each. Therefore, A, B, C, D, E and Y will inherit P2.5M each,
while F, G, and H will inherit P1.5M, and I will inherit P500k.
{Note: If the decedent has no surviving spouse nor illegitimate
children, the second half of his estate is known as free portion and at
the same time free disposal. If the decedent has surviving spouse and
illegitimate children, the second half of his estate is called free portion
and after deducting the legitimes of the spouse and illegitimate
children from said free portion, the remainder is called free disposal.}
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{they are all voluntary heirs},"
those{children of C} collectively designated shall be considered as
individually instituted, unless it clearly appears that the intention of
the testator is otherwise.
A. Example
I institute as my heirs A, B, and the 3 children of C to my estate
of P1ook. How much would each of the 3 children get? P20k each.
Reason: Although collectively designated, they shall be
considered individually instituted unless it clearly appears that the
intention of the testator was otherwise.
[IMPORTANT] 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{if they are instituted without
designation shares}, unless a different intention appears.
A. In intestate succession, the brother of the full blood get double of
the share of the brother of the half-blood. (Art. 1006)

B. Problem
I instituted the following as my heirs: [A, my full-blood brother,
B, my half-blood brother, C, my step-brother, D, my brother-in-law, E,
my illegitimate brother]{voluntary heirs}. How much will each get if
the estate is P100k?
ANS: Each gets P20k. While the law only mentions the full and
half brother, it is evident that the others may be considered in the
same category as strangers {voluntary heirs}, making Art. 846
applicable.
[Note: Had this been a case of legal/intestate succession, only the full
and brothers would inherit. The others will not inherit, being not legals
heirs. Hence, the full brothers will get P66.666k and the half brothers
get P33.333k. E, although he is also a half brother, is not a legal heir
because the law provides that an illegitimate child has no right to
inherit ab intestado from the legitimate relatives of his father or
mother. (Art. 992)]
ART. 849. When the testator calls to a succession a person and
his{the person's} children {voluntary heirs}, they are all deemed to
have been instituted simultaneously {& individually, not collectively}
and not successively.
A. "His children" children of the person instituted as heir
B. "Deemed" means presumed here, hence, if a contrary intention is
present (that is, to institute successively), said intention must prevail,
for the testator's will, if not illegal, must be followed
ART. 850. The statement of a false cause of an institution of an heir
shall be considered as not written, unless it appears in the will that
the testator would not have made such institution if he had known the
falsity of such cause.
A. Under the present law, it is believed that a distinction must be
made:
1. If the real motive was illegal, the institution must be void
e.g. I hereby institute X because I want him to kill Y.
2. If the real motive is generosity, liberty, or affection & the
illegal cause is only incidental, the institution should be
considered valid
e.g. I hereby institute my cousin X because during the election
he was a flying voter.
ART. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part{definite part or definite
portion of the whole} 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.
A. This applies when there is a remainder or balance & there is NO
INTENT to give all to the instituted heir/s. If there is such INTENT, the
remainder should be divided proportionally, applying Article 852.
ART. 852. If it was{were} the intention of the testator that the
instituted heirs should become solo heirs to the whole estate, or the
who free portion, as the case may be, and each of them has been
instituted to an aliquot part of the inheritance, or the whole free

portion, each part shall be increased proportionally {in accordance

with their designated shares}.
A. This Article provides the exception to the previous Article
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.
A. This is the counterpart of the previous Article
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 heirs{intestate succession results}, but the devises
and legacies shall be valid insofar as they are not{devises and
legacies are not inofficious if they do not exceed the free disposal}
inofficious{or excessive}.
If the omitted compulsory heir should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.
A. Preterition or Pretermission the omission, whether intentional or
not, of a compulsory heir in the inheritance of a person
B. Requisites:
1. There is a TOTAL omission in the inheritance
if a compulsory heir is named in the will, but not given any
share, although there is no express disinheritance, there is
preterition
if a compulsory heir is given a share in the inheritance no
matter how small, there is no preterition, for here, under Article
906, he is entitled only to the completion of his legitime
if the compulsory heiris not given anything in the will, but has
already received a donation from the testator, there is NO
preterition because after all, a donation to a compulsory heir is
considered an advance of the inheritance or legitime (Art. 1073)
2. Omission must be of a COMPULSORY heir
3. The compulsory heir omitted must be in the DIRECT line
there is no preterition of a surviving spouse, for though a
compulsory heir, she is not in the direct line
Bahanay Jr. V. Martinez
64 SCRA 452
If a spouse is preterited in a will, this will not annul the institution of
heirs, and it will not be necessarily true that intestacy will follow. This
because a spouse is not in the direct line.
C. Effects of Preterition
a) the institution of heirs is annulled
e.g. T has 3 sons A, B, & C. T made a will instituting A, b,
and a friend F. C was omitted. If the estate was P90,000,
how should it be distributed?
ANS: Since the institution was annulled, it is as if
there was no institution, hence, intestate succession takes
place. A, B, & C will get P30,000. F will get nothing.

[Note: in this problem, it is clear that F was not

being made a legetee merely, he was indeed
instituted as an heir. It will be an error to consider
all bequest in favor of strangers as legacies or
devises, otherwise there would have been no need of
the distinction, in effect, made in Article 854. (Neri
v. Akutin)]
b) although the institution of heirs is annulled, the legacies &
devises shall remain valid insofar as they are not inofficious.
e.g.
1. T has 2 sons, A & B. In T's will, he gave F, a friend,
P10,000 as a legacy out of an estate of P1000,000. A & B
were omitted. How should the estate on T's death be
distributed?
Answer: Since the estate is worth P100,000, the free
portion is P50,000. Therefore, the legacy of P10,000 is not
inofficious, & should remain effective. The remaining
P90,000 will be divided equally between the 2 children.
Hence, the estate will be distributed as follows:
A=
P45,000
B=
P45,000
F=
P10,000
Total = P100,000
2. Same problem with no. 1 but only B was omitted and
the legacy is P60,000. How would the estate be
distributed?
Answer: The estate being P1000,000, the free portion then
is P50,000, hence, the legacy of P60,000 should be
reducedby P10,000,having the distribution as follows:
A = P25,000
B = P25,000
F = P50,000
P100,000
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
may; if that is not sufficient, so much as may be necessary must be
taken proportionally from the shares of the other compulsory heirs
A. This provision does not apply in case of preterition. (Note:
According to Atty. Bolivar)
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 rights to his heirs except in cases expressly provided in
the Civil Code.
A. A & B are legitimate children of T. C is the legitimate child of A. The
estate is P100,000. A & B were instituted heirs.
a) if A dies before T, how much, if any, will C & B get?
Answer: A was a compulsory heir to the legitime of P25,000.
Therefore, C will get only P25,000 (the legitime of A) in representation
of A. The remaining P75,000 will all go to B.
b) if A is incapacitated, same answer as (a). (Art. 972, 698, 1031)

c) if A renounces the inheritance, C gets nothing since a person who

renounces an inheritance cannot be represented. (Art. 997) Therefore,
everything goes to B. (Art. 986)