Wills and Succession
Case Doctrine
N.B. Italicized preface corresponds to RFB’s notes before each case. “[ ]” refers to
book page number.
Art. 774
Estate of K. H. Hemady v. Luzon Surety (1956) [6]
 The responsibility of the heirs for the debts of their decedent cannot exceed the
value of the inheritance they receive from him. Heirs succeed not only to the rights of
the deceased but also to his obligations.
 General rule: a party’s contractual rights and obligations are transmissible to the
successors.
 Exceptions under Art. 1311:
1) Nature of the obligation
2) Intransmissibility by stipulation of the parties
3) Obligation is not transmissible by operation of law
Art. 777
Unson v. Del Rosario (1953) [12]
The law in force at the time of the decedent’s death will determine who the heirs
should be.
 Art. 2253 provides that rights which are declared for the first time by the new Civil
Code shall have retroactive effect even though the event which gave rise to them may
have occurred under the former legislation, but this is so only when the new rights do
not prejudice any vested or acquired right of the same origin. In instant case, M’s right
of ownership over the lands became vested in 1945 upon the death of her husband.
The new right in favor of the illegitimate children by the deceased cannot be asserted
to the impairment of the vested right of M over the lands in dispute.
De Borja v. Vda de Borja (1972) [14]
Ownership passes to the heir at the very moment of death, who therefore, from that
moment acquires the right to dispose of his share
 Hereditary share in a decedent’s estate is transmitted or vested immediately from
the moment of the death of such causante or predecessor in interest. Thus, there is
no legal bar to a successor (with requisite contracting capacity) disposing his
hereditary share immediately after such death, even if the actual extent of such share
is not determined until the subsequent liquidation of the estate.
Bonilla v. Barcena (1976) [16]
The heirs have the right to be substituted for the deceased as party on an action that
survives.
 While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion.
 The moment of death is the determining factor when the heirs acquire a definite
right to the inheritance whether such right be pure or contingent. Thus, when F died,
her claim or right to the parcel s of land in litigation was not extinguished by her death
but was transmitted to her heirs upon her death. Her heirs have thus acquired interest
in the properties in litigation and became parties-in-interest in the case.
 The question as to whether an action survives or not depends on the nature of
the action and the damage sued for.
1) Survive: wrong complained of affects primarily and principally property and
property rights, the injuries to the person being merely incidental
2) Not survive: injury complained of is to the person, the property and rights of
property affected being incidental.
 In instant case, an action to quiet title over land in litigation affects primarily and
principally property and property rights, and therefore is one that survives even after
F’s death.
Art. 804
Suroza v. Honrado (1981) [41]
Art. 804 provisions are mandatory. Consequently, failure to comply with the two
requirements nullifies the will.
 The will on its face is void because it is written in English, a language not known
to the illiterate testatrix, and which is probably a forged will because she and the
attesting witnesses did not appear before the notary as admitted by the notary
himself.
 A judge who admits to probate such a will should face disciplinary action. In the
absence of opposition, the judge should have personally conducted the hearing on
the probate of the will so that he could have ascertained whether the will was validly
executed.
Abangan v. Abangan (1919) [46]
It may sometimes be presumed that the testator knew the language in which the will
was written.
 The circumstance appearing in the will itself that the same was executed in Cebu
and in the dialect of this locality where the testatrix was a neighbor [sic] is enough, in
the absence of any proof to the contrary, to presume that she knew this dialect in
which the will was written.
RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases it
seems that, in order for the presumption to apply, the following must appear:
1) The will must be in language or dialect generally spoken in the place of
execution; and
2) The testator must be a native or resident of said locality
Art. 806
Payad v. Tolentino (1936) [49]
Thumb mark as signature.
 Testatrix, assisted by counsel, placed her thumb mark on each and every page of
the questioned will and that said counsel merely wrote her name to indicate the place
where she placed said thumb mark. In other words, counsel did not sign for the
testatrix. She signed by placing her thumb mark on each and every page thereof. “A
statute requiring a will to be ‘signed’ is satisfied if the signature is made by the
testator’s mark.” It is clear, therefore, that it was not necessary that the attestation
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clause in question should state that the testatrix requested her counsel to sign her
name inasmuch as the testatrix signed the will in question in accordance with law.
Matias v. Salud (1958) [50]
 The legal requisite that the will should be signed by testator is satisfied by a
thumbprint or other mark affixed by him; and that where such mark is affixed by the
decedent, it is unnecessary to state in the attestation clause that another person
wrote the testator’s name at his request.
 In the instant case, it was shown that the herpes zoster that afflicted the right arm
and shoulder of the testatrix made writing a difficult and painful act, to the extent that,
after writing one signature on the second page, she dropped the pen because of an
attack of pain that lasted many minutes, and evidently discouraged attempts to sign.
 It is to be conceded that where a testator employs an unfamiliar way of signing,
and both the attestation clause and the will are silent on the matter, such silence is a
factor to be considered against the authenticity of the testament; but the failure to
describe the unusual signature by itself alone is not sufficient to refuse probate when
the evidence for the proponent fully satisfies the court that the will was executed and
witnessed as required by law.
Garcia v. Lacuesta (1951) [54]
A cross as signature.
 It is not here presented that the cross appearing on the will is the usual signature
of the testator or even one of the ways by which he signed his name. The mere sing
of a cross cannot be likened to a thumbmark, because the cross cannot and does not
have the trustworthiness of a thumbmark.
Barut v. Cabacungan (1912) [56]
When agent must write.
 As regards the validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her express direction in the
presence of the three witnesses and that they attested and subscribed it in her
presence and in the presence of each other.
 It may be wise, as a practical matter that the one who signs the testator’s name
signs also hi own; but that is not essential to the validity of the will.
Nera v. Raymundo (1911) [61]
Signing in the presence of witnesses
 Jaboneta v. Gustilo: “The true test of presence of the testator and the witnesses
in the execution of a will is not whether they actually saw each other sign, but whether
they might have seen each other sign, had they chosen to do so, considering their
mental and physical position with relation to each other at the moment of inscription
of each signature.”
 The position of the parties with relation to each other at the moment of the
subscription of each signature must be such that they may see each other sign if they
choose to do so. Jaboneta doctrine: the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each
Wills and Succession
Case Doctrine
other does not depend upon proof of the fact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that by
merely casting their eyes in the proper direction they could have seen each other
sign.
Icasiano v. Icasiano (1964) [64]
 The inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. That the failure of the witness to sign
page three was entirely through pure oversight is shown by his own testimony as well
as by the duplicate copy of the will, which bears a complete set of signatures in every
page.
RFB: The Icasiano holding cannot, and should not, be taken as a departure from the
rule that the will should be signed by the witnesses on every page. The carbon
duplicate was regular in all aspects. A cavalier disregard of the formal requirements
of wills in reliance on Icasiano is not recommended.
Cagro v. Cagro (1953) [68]
The signatures of the witnesses must be at the bottom of the attestation clause.
 Fact: signature of the three witnesses do not appear on the bottom of the
attestation clause, but the page containing the clause is signed by the witnesses on
the left-hand margin.
 The attestation clause is “a memorandum of the facts attending the execution of
the will” required by law to be made by the attesting witnesses, and it must
necessarily bear their signature. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signature at the bottom thereof
negatives their participation.
 The signatures on the left-hand margin cannot be deemed as their signature to
the clause because said signatures are in compliance with the legal mandate that the
will be signed on the left-hand margin of all its pages. If an attestation clause not
signed by the witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
 Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) the
uncontradicted testimony of the witnesses that the clause was already written in the
will when the same was signed obviates fear of the majority that the clause may have
been only added on a subsequent occasion and not at the signing of the will.
Javellana v. Ledesma (1955) [70]
Acknowledgement before a notary public.
 Fact: Codicil signed by testatrix and witnesses at the hospital; the notary public
brought the codicil to his office, and signed and sealed it there.
 Whether or not the notary signed the certification of acknowledgement in the
presence of the testatrix and the witnesses does not affect the validity of the codicil.
The Civil Code does not require that the signing of the testator, witnesses and notary
should be accomplished in one single act.
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 The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is not part of the
acknowledgement itself nor of the testamentary act.
RFB: (a) ratio: The certification of acknowledgement need not be signed in the
presence of the testator and the witnesses; (b) obiter: Art. 806 does not require that
the testator and the witnesses must acknowledge on the same day that it was
executed.
Cruz v. Villasor (1973) [72]
The notary public cannot be counted as one of the attesting witnesses.
 The notary public before whom the will was acknowledged cannot be considered
as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. If the third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the will in front of himself. This
cannot be done because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the making of the will.
 Furthermore, the function of the notary public is, among others, to guard against
any illegal or immoral arrangement. That function would be defeated if the notary
public were one of the attesting or instrumental witnesses. For then he would be
interested in sustaining the validity of his own act.
 To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the Article 805 requiring at
least three credible witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the notary public
to acknowledge the will.
Art. 808
Garcia v. Vasquez (1970) [75]
Provision of Article 808 mandatory.
 Fact: testatrix’s vision was mainly for viewing distant objects and not for reading
print.
 For all intents and purposes of the rules on probate, the testatrix was not unlike a
blind testator, and the due execution of her will would have required observance of
Article 808. The rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will himself (as when he is illiterate) , is to make
the provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes.
Alvarado v. Gaviola (1993) [80]
The requirement has been liberally applied, the SC declaring substantial compliance
to be sufficient.
 Facts: The lawyer who drafted the will and subsequent codicil read them aloud in
the presence of the testator, the three instrumental witnesses and the notary public.
The latter four followed the reading with their own respective copies previously
furnished them.
Wills and Succession
Case Doctrine
 Substantial compliance is acceptable where the purpose of the law has been
satisfied, because the solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are never intended to be so
rigid and inflexible as to destroy testamentary privilege.
 It was not only the lawyer who read the documents. The notary public and the
three instrumental witnesses likewise read the will and codicil, albeit silently. With four
persons following the reading word with their own copies, it can be safely concluded
that the testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually appearing
in the typewritten documents.
Art. 809
Caneda v. CA (1993) [87]
 Fact: petitioners aver that the attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the will and all the pages
thereof in the presence of the testator and of one another.
 SC agrees with petitioners. The absence of a statement that the witnesses
signed the will and every page thereof in the presence of the testator and of one
another is a fatal defect which must necessarily result in the disallowance of the will.
Such defect in the attestation clause cannot be characterized as merely involving
form of the will or the language used therein which would warrant the application of
the substantial compliance rule contemplated in Art. 809. The defect is not only in the
form or the language of the attestation clause but the total absence of a specific
element required by Art. 805 to be specifically stated in the attestation clause.
 Proper interpretation of the substantial compliance rule in Art. 809: Omission
which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde (“from another
source, from elsewhere, from outside source”) would result in the invalidation of the
attestation clause and ultimately, of the will itself.
Art. 810
Roxas v. De Jesus (1985) [103]
 Issue: whether “FEB./61” appearing in the holographic will is a valid compliance
with Art. 810.
 A complete date is required to provide against such contingencies as that of two
competing wills executed on the same day, or of a testator becoming insane on the
day on which a will was executed. There is no contingency in this case.
 As a general rule, the “date” in a holographic will should include the day, month,
and year of its execution. However, when, as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the authenticity of
the will is established and the only issue is whether or not the date “FEB./91” is a
valid compliance with Art. 810, probate of the holographic will should be allowed
under the principle of substantial compliance.
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Labrador v. CA (1990) [105]
 Fact: date appears in the body of the holographic will.
 The law does not specify a particular location where the date should be placed in
the will. The only requirements are that the date be in the will itself and executed in
the hand of the testator. Both requirements are present in the subject will.
Art. 811
Azaola v. Singson (1960) [110]
The three-witness provision in case of contested holographic wills is directory, not
mandatory.
 Since the authenticity of the will was not contested, proponent was not required
to produce more than one witness; but even if the genuineness of the holographic will
were contested, Art. 811 cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under the
penalty of having the probate denied.
 Since no witness may have been present at the execution of a holographic will,
none being required by law, it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the
proponent.
 Art. 811 foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will, and provides for resort to expert evidence to supply the
deficiency. Such resort to expert evidence is conditioned by “if the Court deem it
necessary,” which reveal that what the law deems essential is that the Court should
be convinced of the will’s authenticity. Since the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be drawn from a
party’s failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
 SC’s conclusion: the rule of Art. 811, par. 1, is merely directory and is not
mandatory.
Codoy v.Calugay (1999)
 Fact: holographic will challenged for forgery. 6 witnesses of proponent did not
categorically state that they know the handwriting and signature of the testatrix;
whereas, 2 did so.
 Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate of
contested holographic will at least three witnesses explicitly declare the signature in
the will is the genuine signature of the testator.
 SC (Pardo): “We are convinced, based on the language used, that Article 811…is
mandatory. We have ruled that ‘shall’ in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is
that the word ‘shall’ when used in a statute is mandatory.” Case remanded because
the Court found that the testimony of the aforesaid 2 witnesses was not convincing.
Query: has this ruling reversed Azaola, supra.?
1) Azaola is not on all fours with this case. Here, the will was contested (ground:
forgery), in Azaola the will was not contested.
Wills and Succession
Case Doctrine
2) RFB’s personal view: No, because the basis of the remand—that the Court did
not find the testimony of the 2 witnesses satisfactory—is perfectly consistent with
Azaola that QUALITY of the testimony, not the quantity of the witnesses, is the
criterion. Thus, SC’s statement that three-witness rule is mandatory is an obiter. We
can read Azaola and Godoy together.
Gan v. Yap (1958) [114]
In the probate of a holographic will, the document itself must be produced. Therefore,
a lost holographic will cannot be probated.
 When the will itself is not submitted, the means of opposition and of assessing
the evidence, are not available. And then, the only guaranty of authenticity—the
testator’s handwriting—has disappeared.
 The execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will.
 Ordinary vs. holographic wills. The difference lies in the nature of wills. In
holographic wills, the only guarantee of authenticity is the handwriting itself; in
ordinary wills, the testimony of the subscribing or instrumental witnesses and of the
notary. The loss of the holographic will entails the loss of the only medium of proof; if
the ordinary will is lost, the subscribing witnesses are available to authenticate.
Rodelas v. Aranza (1982) [122]
Exception to the Gan ruling.
 Issue: whether a lost holographic will can be proved by means of a photostatic
copy.
 Evidently, the photostatic or xerox copy of the lost or destroyed holographic will
may be admitted because the authenticity of the handwriting of the deceased can be
determined by the probate court (i.e., comparison can be made with the standard
writings of the testator.
Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
 Issue: whether the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by full signature of
the testatrix, should be probated or not.
 Velasco v. Lopez: when a number of erasures, corrections, and interlineations
made by the testator in a holographic will have not been noted under his signature,
the will is not thereby invalidated as a whole, but at most only as respects the
particular words, erased, or interlined.
 However, when as in this case, the holographic will in dispute had only one
substantial provision, which was altered by substituting the original heir with another,
but which alteration did not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the entire will is voided or revoked for
the simple reason that nothing remains in the will after that which could remain valid.
To state that the will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given
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effect because she failed to authenticate it in the manner required by lay by affixing
her full signature.
 Velasco ruling must be held confined to such insertions, cancellations, erasures
or alterations in a holographic will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the will itself.
Subsection 4-Witnesses to Wills
Article 821
Gonzales vs. CA
Under the law, there is no mandatory requirement that the witness testify
initially or at any time during the trial as to his good standing in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness in order
that his testimony may be believed and accepted by the trial court. It is enough that
the qualifications enumerated in Article 820 of the Civil Code are complied with, such
that the soundness of his mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as well as the fact that he is
not blind, deaf or dumb and that he is able to read and write to the satisfaction of the
Court, and that he has none of the disqualifications under Article 821 of the Civil
Code. The attributes of the good standing of the witness in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness are
presumed of the witness unless the contrary is proved otherwise by the opposing
party.
In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution.
‘Credible witnesses' mean competent witnesses and not those who testify to
facts from or upon hearsay.
Subsection 6
Article 830
Maloto vs. CA
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It may be performed by another
person but under the express direction and in the presence of the testator. Of course,
it goes without saying that the document destroyed must be the will itself."Animus
revocandi is only one of the necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his express direction.
Gago vs. Mamuyac
The law does not require any evidence of the revocation or cancellation of
the will to be preserved. It therefore becomes difficult at times to prove the
cancellation or revocation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence showing that
Wills and Succession
Case Doctrine
after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the
presumption is in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be found after his death. It will not
be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator.
Subsection 8- Allowance and Disallowance of Wills
Article 838
Guevara vs. Guevara
The proceeding for the probate of a will is one in rem, with notice by
publication to the whole world and with personal notice to each of the known heirs,
legatees, and devisees of the testator. Although not contested, the due execution of
the will and the fact that the testator at the time of its execution was of sound and
disposing mind and not acting under duress, menace, and undue influence or fraud,
must be proved to the satisfaction of the court, and only then may the will be legalized
and given effect by means of a certificate of its allowance, signed by the judge and
attested by the seal of the court; and when the will devises real property, attested
copies thereof and of the certificate of allowance must be recorded in the register of
deeds of the province in which the land lies. It will readily be seen from the above
provisions of the law that the presentation of a will to the court for probate is
mandatory and its allowance by the court is essential and indispensable to its
efficacy.
The heirs may not disregard the provisions of the will unless those
provisions are contrary to law. Neither may they do away with the presentation of the
will to the court for probate, because such suppression of the will is contrary to law
and public policy. The law enjoins the probate of the will and public policy requires it,
because unless the will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be rendered nugatory,
De la Cerna vs. Potot
In a case where a joint will between husband and wife was executed and the
will was probated when the husband died before the effectivity of the Civil Code, the
final decree of probate has conclusive effect as to the last will and testament, despite
the fact that even then the Civil Code already decreed the invalidity of joint wills. A
final judgment rendered on a petition for the probate of a will is binding upon the
whole world and public policy and sound practice demand that at the risk of
occasional errors, judgment of courts should become final at some definite date fixed
by law. The probate decree of the will of the husband could only affect the share of
the deceased husband. It could not include the disposition of the share of the wife
who was then still alive, and over whose interest in the conjugal properties the
probate court acquired no jurisdiction, precisely because her estate could not then be
in issue. It follows that the validity of the joint will, in so far as the estate of the wife
was concerned, must be, on her death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator. Thus, probate of the wife’s will
is denied as joint wills are now prohibited by the Civil Code.
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Gallanosa vs. Arcangel
A decree of probate is conclusive as to the due execution or formal validity
of a will. That means that the testator was of sound and disposing mind at the time
when he executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal action
for the forgery of the will. After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore.
The following are included in the term formal validity and therefore are
conclusively settled by a final decree of probate:
i. that the testator was of sound and disposing mind
ii. that his consent was not vitiated
iii. that the will was signed by the requisite number of witnesses
iv. that the will is genuine
Nepomuceno vs. CA
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The rule,
however, is not inflexible and absolute. Given exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will. The probate of a will might become an idle ceremony if
on its face it appears intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue.
SECTION 2- Institution of Heir
Article 850
Austria vs. Reyes
Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the institution of heirs
must be stated in the will; second, the cause must be shown to be false; and third, it
must appear from the face of the will that the testator would not have made such
institution if he had known the falsity of the cause.
Article 854
Reyes vs. Barretto-Datu
If there is a compulsory heir in the direct line, such heir is instituted in the
will, and the testamentary disposition given to such heir is less than her legitime,
there is no preterition. There is no total omission, inasmuch as the heir received
something from the inheritance. The remedy is for completion of legitime under
Articles 906 and 907.
Aznar vs. Duncan
Manresa defines preterition as the omission of the heir in the will, either by
not naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of the
properties. In a case where the testator left to one who was a forced heir a legacy
Wills and Succession
Case Doctrine
worth less than the legitime, but without referring to the legatee as an heir or even as
a relative, and willed the rest of the estate to other persons, it was held that Article
815 applied, and the heir could not ask that the institution of heirs be annulled
entirely, but only that the legitimate be completed.
Acain vs. IAC
An adopted child, if totally omitted in the inheritance, is preterited and can
invoke its protection and consequences. Since an adopted child is given by law the
same rights as a legitimate child, the adopted child can, in proper cases, invoke
Article 854 in the same manner a legitimate child can.
Nuguid vs. Nuguid
To 'annul' means to abrogate, to make void. The word annul employed in the
statute (Article 854) means that the universal institution of petitioner to the entire
inheritance results in totally abrogating the will. Because, the nullification of such
institution of universal heir — without any other testamentary disposition in the will —
amounts to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. (Note that what was
involved here was a universal institution of a sole heir, nothing more. Article 854
annuls his institution, thus no more heirs are left. Hence, the entire will is void.)
SECTION 3-Substitution of Heirs
Article 863
Palacios vs. Ramirez
What is meant by "one degree" from the first heir is explained by Tolentino
as follows:
"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or
transmission. The Supreme Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one transmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell, and Sanchez Roman,
however, construe the word 'degree' as generation, and the present Code has
obviously followed this interpretation, by providing that the substitution shall not go
beyond one degree 'from the heir originally instituted.' The Code thus clearly indicates
that the second heir must be related to and be one generation from the first heir.
"From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary."
PCI Bank vs. Escolin
If there is no absolute obligation imposed upon the first heir to preserve the
property and transmit it to a second heir, there is no fideicomisaria. The institution is
not necessarily void; it may be valid as some other disposition, but it is not a
fideicomisaria.
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SECTION 5- Legitime
Article 887
Rosales vs. Rosales
The surviving spouse referred to in Article 887 who is entitled to the legitime,
is the spouse of the decedent and not the spouse of a child who has predeceased the
decedent.
Lapuz vs. Eufemio
An action for legal separation which involves nothing more than the bed-
and-board separation of the spouses (there being no absolute divorce in this
jurisdiction) 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. Thus, death of either party during the pendency of a petition for legal
separation results in the dismissal of the case.
Niñal vs. Badayog
May the heirs of a deceased person file a petition for the declaration of
nullity of his marriage after his death? Petitions for the declaration of the voidability of
a marriage can only be brought during the lifetime of the parties and not after the
death of either. A void marriage, on the other hand, can be brought even after the
death of either party. The Code is silent as to who can file a petition for declaration of
nullity of marriage. Any proper interested party (heirs of the deceased husband) may
attack a void marriage.
Baritua vs. CA
Legitimate ascendants (parents of the deceased) succeed only when the
descendant dies without a legitimate ascendant. The surviving spouse concurs with
all classes of heirs. Thus, where an obligation has been paid to the spouse and
descendants, the obligation is extinguished and the legitimate ascendants have no
right to claim upon the obligation.
Article 891
Solivio vs. CA
The reserva troncal only applies to properties inherited by an ascendant or a
brother or sister. It does not apply to property inherited by a descendant from his
ascendant, the reverse of the situation covered by Article 891.
Padura vs. Baldovino
The reserva troncal is a special rule designed primarily to assure the return
of the reservable property to the third degree relatives belonging to the line from
which the property originally came, and avoid its being dissipated into and by the
relatives of the inheriting ascendant.
The reserva merely determines the group of relatives to whom the property
should be returned; but within that group the individual right to the property should be
decided by the applicable rules of ordinary intestate succession, since Article 891
does not specify otherwise. (RFB: Those reservatarios nearer in degree to the
prepositus will exclude the more remotely related.)
Wills and Succession
Case Doctrine
Florentino vs. Florentino
I Any ascendant who inherits from his descendant any property, while there
are living, within the third degree, relatives of the latter, is nothing but a life
usufructuary or a fiduciary of the reservable property received. He is, however, the
legitimate owner of his own property which is not reservable property and which
constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards,
all of the relatives, within the third degree, of the descendant (from whom came the
reservable property) die or disappear, the said property becomes free property, by
operation of law, and is thereby converted into the legitime of the ascendant heir who
can transmit it at his death to his legitimate successors or testamentary heirs. This
property has now lost its nature of reservable property, pertaining thereto at the death
of the relatives, called reservatarios, who belonged within the third degree to the line
from which such property came.
The right of representation cannot be alleged when the one claming same
as a reservatario of the reservable property is not among the relatives within the third
degree belonging to the line from which such property came, inasmuch as the right
granted by the Civil Code in article 811 is in the highest degree personal and for the
exclusive benefit of designated persons who are the relatives, within the third degree,
of the person from whom the reservable property came. Therefore, relatives of the
fourth and the succeeding degrees can never be considered as reservatarios, since
the law does not recognize them as such.
(RFB: Actually there will be only one instance of representation among the
reservatarios, i.e., a case of the Prepositus being survived by brothers/sisters and
children of a predeceased or incapacitated brother or sister.)
Edroso vs. Sablan
1. The reservista’s right over the reserved property is one of ownership.
2. The ownership is subject to a resolutory condition, i.e. the existence of
reservatarios at the time of the reservista’s death.
3. The right of ownership is alienable, but subject to the same resolutory
condition.
4. The reservista’s right of ownership is registrable.
The conclusion is that the person required by article 811 to reserve the right
has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the
reasons set forth, the legal title and dominion, although under a condition
subsequent. Clearly he has, under an express provision of the law, the right to
dispose of the property reserved, and to dispose of is to alienate, although under a
condition. He has the right to recover it, because he is the one who possesses or
should possess it and have title to it, although a limited and revocable one. In a word,
the legal title and dominion, even though under a condition, reside in him while he
lives. After the right required by law to be reserved has been assured, he can do
anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor the
right is reserved cannot dispose of the property, first because it is no way, either
actually, constructively or formally, in their possession; and, moreover, because they
have no title of ownership or of fee simple which they can transmit to another, on the
hypothesis that only when the person who must reserve the right should die before
7

them will they acquire it, thus creating a fee simple, and only then will they take their
place in the succession of the descendant of whom they are relatives within the third
degree, that is to say, a second contingent place in said legitimate succession in the
fashion of aspirants to a possible future legacy.
Sienes vs. Esparcia
1. The reservatarios have a right of expectancy over the property.
2. The right is subject to a suspensive condition, i.e. the expectancy ripens
into ownership if the reservatarios survive the reservista.
3. The right is alienable, but subject to the same suspensive condition.
4. The right is registrable.
(Query: Edroso case says reservatarios right is not alienable, Sienes says it is.
Resolve. Personally, I think Sienes is right.)
Gonzales vs. CFI
Can a reservista convey by will, reservable property to relervatarios in the
third degree and by-pass those in the second? NO. Article 891 clearly indicates that
the reservable properties should be inherited by all the nearest relatives within the
third degree from the prepositus. She could not select the reservees to whom the
reservable property should be given and deprive the other reservees of their share
therein.
The reservable property does not form part of the reservista’s estate and
should be given to all the seven reservatarios or nearest relatives of the prepositus
within the third degree. While it is true that by giving the reservable property to only
one reservatario, it did not pass into the hands of strangers, nevertheless, it is
likewise true that the reservista was only one of the reservatarios and there is no
reason founded upon law and justice why the other reservatarios should be deprived
of their shares in the reservable property. The property passes by strict operation of
law.
Cano vs. Director
Upon the death of the reservista, the reservatario nearest to the prepositus
becomes, automatically and by operation of law, the owner of the reservable property.
That property is no part of the estate of the reservista, and does not even answer for
the debts of the latter. Hence, its acquisition by the reservatario may be entered in the
property records without necessity of estate proceedings, since the basic requisites
therefor appear of record. It is equally well settled that the reservable property cannot
be transmitted by a reservista to her or his own successors mortis causa, so long as
a reservatario within the third degree from the prepositus and belonging to the line
whence the property came, is in existence when the reservista dies.
Chapter 3 Legal or Intestate Succession
Article 977
Section 1 General Provisions
Subsection 2 Right of Representation
Teotico vs. Del Val
Wills and Succession
Case Doctrine
The relationship established by adoption is limited solely to the adopter and
the adopted does not extend to the relatives of the adopting parents or of the adopted
child except only as expressly provided for by law. Hence, no relationship is created
between the adopted and the collaterals of the adopting parents. As a consequence,
the adopted is an heir of the adopter but not of the relatives of the adopter. Thus, an
adopted can neither represent nor be represented.
Section 2 Order of Intestate Sucession
Subsection 1 Descending Direct Line
Article 979
Sayson vs. CA
The philosophy underlying this article is that a person's love descends first to
his children and grandchildren before it ascends to his parents and thereafter spreads
among his collateral relatives. It is also supposed that one of his purposes in
acquiring properties is to leave them eventually to his children as a token of his love
for them and as a provision for their continued care even after he is gone from this
earth.
There is no question that a legitimate daughter of a person who
predeceased his parents, and thus their granddaughter, has a right to represent her
deceased father in the distribution of the intestate estate of her grandparents. Under
Article 981, she is entitled to the share her father would have directly inherited had he
survived, which shall be equal to the shares of her grandparents' other children.
But a different conclusion must be reached for persons to whom the
grandparents were total strangers. While it is true that the adopted child shall be
deemed to be a legitimate child and have the same right as the latter, these rights do
not include the right of representation. The relationship created by the adoption is
between only the adopting parents and the adopted child and does not extend to the
blood relatives of either party.
Subsection 3 Illegitimate Children
Article 992
Corpus vs. Administrator
There is a successional barrier between the legitimate and illegitimate
relatives of the deceased. The rule in article 943 is now found in article 992 of the
Civil Code which provides that "an illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is disgracefully looked upon
by the legitimate family while the legitimate family is, in turn, hated by the illegitimate
child. The law does not recognize the blood tie and seeks to avoid further grounds of
resentment
Leonardo vs. CA
An illegitimate cannot, by right of representation, claim a share of the estate
left by the legitimate relatives left by his father considering that, as found again by the
Court of Appeals, he was born outside wedlock as shown by the fact that when he
was born on September 13, 1938, his alleged putative father and mother were not yet
married, and what is more, his alleged father's first marriage was still subsisting. At
8

most, petitioner would be an illegitimate child who has no right to inherit ab intestato
from the legitimate children and relatives of his father.
Diaz vs. CA
Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother of said legitimate child. They
may have a natural tie of blood, but this is not recognized by law for the purposes of
Art. 992. Between the legitimate family and the illegitimate family there is presumed
to be an intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the family is in turn, hated by
the illegitimate child; the latter considers the privileged condition of the former, and
the resources of which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish broken
in life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. So that while Art, 992 prevents the illegitimate issue of a legitimate child
from representing him in the intestate succession of the grandparent, the illegitimates
of an illegitimate child can now do so.
Diaz vs. CA
The right of representation is not available to illegitimate descendants of
legitimate children in the inheritance of a legitimate grandparent. It may be argued, as
done by petitioners, that the illegitimate descendant of a legitimate child is entitled to
represent by virtue of the provisions of Article 982, which provides that "the
grandchildren and other descendants shall inherit by right of representation." Such a
conclusion is erroneous. It would allow intestate succession by an illegitimate child to
the legitimate parent of his father or mother, a situation which would set at naught the
provisions of Article 992. Article 982 is inapplicable to instant case because Article
992 prohibits absolutely a succession ab intestato between the illegitimate child and
the legitimate children and relatives of the father or mother. It may not be amiss to
state that Article 982 is the general rule and Article 992 the exception.
The word "relative" as used in Article 992 is broad enough to comprehend all
the kindred of the person spoken of. The word "relatives" should be construed in its
general acceptation. Amicus curiae Prof. Ruben Balane has this to say:
According to Prof. Balane, to interpret the term relatives in Article 992 in a
more restrictive sense than it is used and intended is not warranted by any rule of
interpretation. Besides, he further states that when the law intends to use the term in
a more restrictive sense, it qualifies the term with the word collateral, as in Articles
1003 and 1009 of the New Civil Code.
Subsection 4 Surviving Spouse
Article 996
Santillon vs. Miranda
There is a conflict with what the Civil Code provides as legitime of a spouse
and what he or she may receive by way of intestacy. Art. 892 of the New Civil Code
falls under the chapter on Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Art. 892 merely fixes the legitime of the
surviving spouse and Art. 888 thereof, the legitime of children in testate succession.
Wills and Succession
Case Doctrine
While it may indicate the intent of the law with respect to the ideal shares that a child
and a spouse should get when they concur with each other, it does not fix the amount
of shares that such child and spouse are entitled to when intestacy occurs. Thus,
upon intestacy, the provisions of Art. 996 applies.
Chapter 4 Provisions Common to Testate and Intestate Succession
Section 2 Capacity to Succeed by Will or by Intestacy
Article 1025
Parish Priest of Roman Catholic Church vs. Rigor
Where a priest makes a provision in his will that certain legacies shall pass
to his nearest male relative who pursues priesthood, it is said to be limited to those
living at the time of the execution of the will. We hold that the said bequest refers to
the testator's nearest male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens, except in case of
representation, when it is proper" (Art. 1025, Civil Code).
Section 5 Collation
Article 1061
Vizconde vs. CA
Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator. Collation is only required of compulsory
heirs succeeding with other compulsory heirs and involves property or rights received
by donation or gratuitous title during the lifetime of the decedent. The purpose is to
attain equality among the compulsory heirs in so far as possible for it is presumed
that the intention of the testator or predecessor in interest in making a donation or
gratuitous transfer to a forced heir is to give him something in advance on account of
his share in the estate, and that the predecessors will is to treat all his heirs equally, in
the absence of any expression to the contrary. Collation does not impose any lien on
the property or the subject matter of collationable donation. What is brought to
collation is not the property donated itself, but rather the value of such property at the
time it was donated, the rationale being 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.
Thus, it is an error to require a son-in-law of the decedent to be included in
the collation as he is not a compulsory heir.
Section 6 Partition and Distribution of the Estate
Subsection 1 Partition
Fajardo vs. Fajardo
There are only two ways in which said partition could have been made: By
an act inter vivos, or by will. In either case there were formalities which must be
followed. If the partition was made by an act inter vivos, it should have been reduced
in writing in a public instrument, because it was a conveyance of real estate. If by last
will and testament, the legal requisites should have been observed.
Chavez vs. IAC
9
 Wills and Succession
Case Doctrine
Art. 1080 of the Civil Code clearly gives a person two options in making a
partition of his estate; either by an act inter vivos or by will. When a person makes a
partition by will, it is imperative that such partition must be executed in accordance
with the provisions of the law on wills; however, when a person makes the partition of
his estate by an act inter vivos, such partition may even be oral or written, and need
not be in the form of a will, provided that the partition does not prejudice the legitime
of compulsory heirs. (RFB: This ruling should not be used as it raises eyebrows very
high. It gives a partition an irrevocable character and allows a conveyance of the
compulsory heirs of their legitimes even during their lifetimes.)

Legasto vs. Verzosa

A testator may, by an act inter vivos, partition his property, but he must first
make a will with all the formalities provided for by law. And it could not be otherwise,
for without a will there can be no testator; when the law, therefore, speaks of the
partition inter vivos made by a testator of his property, it necessarily refers to that
property which he has devised to his heirs. A person who disposes of his property
gratis inter vivos is not called a testator, but a donor. In employing the word "testator,"
the law evidently desired to distinguish between one who freely donates his property
in life and one who disposes of it by will to take effect after his death.

Article 1082
Tuason vs. Tuason Jr.
Where heirs contracted with a third person to develop their co-owned lot,
with the stipulation that the co-ownership shall subsist until all the lots have been
sold, is not a violation of Art. 400, and is only a mere incident to the main object of the
partnership, which is to dissolve the co-ownership.

Article 1088
Garcia vs. Calaliman
Written notice is required for the period of onemonth for the other co-heirs to
redeem begins to run. Both the letter and spirit of the new Civil Code argue against
any attempt to widen the scope of the notice specified in Article 1088 by including
therein any other kind of notice, such as verbal or by registration. Written notice is
indispensable, actual knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted
by the Code, to remove all uncertainty as to the sale, its terms and its validity, and to
quiet any doubt that the alienation is not definitive. The law not having provided for
any alternative, the method of notifications remains exclusive, though the Code does
not prescribe any particular form of written notice nor any distinctive method for
written notification of redemption

10