SUCCESSION 185 SCRA 8 (1990)
I. General Provisions (774-782) An action for recovery of real property and damages was filed against
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
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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.
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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.
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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)
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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
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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)
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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)
ƒ The term “legitimate child” or “legitimate
children” shall, in the proper cases, include
legitimate descendants
ƒ 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.
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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)
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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)
ƒ 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. 912. If the devise subject to reduction should consist of Art. 914. The testator may devise and bequeath the free
real property, which cannot be conveniently divided, it portion as he may deem fit. (n)
shall go to the devisee if the reduction does not absorb
one-half of its value; and in a contrary case, to the A. Superfluous.
compulsory heirs; but the former and the latter shall
reimburse each other in cash for what respectively
belongs to them. III. Capacity to Succeed (1024-1040)
The devisee who is entitled to a legitime may retain the
Art. 1024. Persons not incapacitated by law may succeed by
entire property, provided its value does not exceed that
will or ab intestato.
of the disposable portion and of the share pertaining to
him as legitime. (821)
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)
A. Restatement of the rules:
1. The devise [real property] must be reduced
A. The general rule is in favor of capacity to succeed. Incapacity must
2. It is indivisible
be based on some legal ground and must be shown.
3. How to resolve:
a. If the extent of the reduction is less than ½ of the
Art. 1025. In order to be capacitated to inherit, the heir,
value of the thing – it should be given to the devisee
devisee or legatee must be living at the moment the
b. If the extent of the reduction is ½ or more of the value
succession opens, except in case of representation, when
of the thing – it should be given to the compulsory
it is proper.
heir

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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
ƒ “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.
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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
10
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
ƒ 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
ƒ 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.
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Cayo 3D
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:
11
 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;
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Cayo 3D
(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
12
 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.
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Cayo 3D
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
13
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)
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Cayo 3D
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:
14
(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
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Cayo 3D
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)
15
 CAUSE CHILDREN/DESCENDANTS PARENTS/ASCENDANTS SPOUSE UNWORTHINESS
Convicted of an attempt X X X X
against the life of the
testator, his or her
spouse, ascendants, or
descendants
Accusation of testator of a X X X X
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)
By fraud, violence, X X X X
intimidation or undue
influence causes the
testator to make a will or
to change one already
made
Convicted of adultery or X X *this is a ground for legal X
concubinage with the separation and thus also
spouse of the testator a ground for
disinheritance
Unjustified refusal to The parent or ascendant who The children or descendants The children or the other
support disinherits spouse
Maltreatment by word or X
by deed
Conviction of a crime X
which carries with it the
penalty of civil
interdiction

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

Attempt by one parent X

against the life of the
other, unless there has
been reconciliation
between them
Loss of parental authority X *that grounds were given
is sufficient
Spouse has given cause X
for legal separation
(Article 55, FC)

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
Art. 923. The children and descendants of the person
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
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

Succession 17
Cayo 3D
 usufruct or administration of the property which which they are to take, when referred to by name, cannot
constitutes the legitime. (857) be left to the discretion of a third person. (670a)

A. The right of representation is granted only to descendants of Art. 786. The testator may entrust to a third person the
disinherited descendants. Don’t be misled. If the heir disinherited distribution of specific property or sums of money that
is an ascendant or a spouse, their descendants will not represent he may leave in general to specified classes or causes,
them. and also the designation of the persons, institutions or
establishments to which such property or sums are to be
given or applied. (671a)
V. Testamentary Succession (783-837) 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)
SUBSECTION 1. - Wills in General
A. What cannot be delegated?
Art. 783. A will is an act whereby a person is permitted, with 1. the designation of heirs, devisees, or legatees
the formalities prescribed by law, to control to a certain 2. the duration or efficacy of such designation (including such
degree the disposition of this estate, to take effect after things as conditions, terms, and substitutions)
his death. (667a) 3. the determination of the portions they are to receive
4. the operation of the testamentary disposition
A. Characteristics of wills
1. Purely personal B. What can be delegated?
2. Free and intelligent After the testator has determined (1) the property or amount of
3. Solemn and formal money to be given and (2) specified the class or cause to be
4. Revocable or ambulatory benefited, the third person may determine:
5. Mortis causa 1. the designation of persons, institutions, or establishment
6. Individual within the class or cause; and
7. Executed with animus testandi 2. the manner of distribution
8. Executed with testamentary capacity
9. Unilateral Art. 788. If a testamentary disposition admits of different
10. Dispositive of property interpretations, in case of doubt, that interpretation by
11. Statutory which the disposition is to be operative shall be
preferred. (n)
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 Art. 789. When there is an imperfect description, or when no
third person, or accomplished through the person or property exactly answers the description,
instrumentality of an agent or attorney. (670a) mistakes and omissions must be corrected, if the error
appears from the context of the will or from extrinsic
Art. 785. The duration or efficacy of the designation of heirs, evidence, excluding the oral declarations of the testator
devisees or legatees, or the determination of the portions 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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Cayo 3D
 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.
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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:
19
 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.
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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
20
 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.
Succession
Cayo 3D
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
ƒ The other person must write the testator’s name and need
not [but should] write his own
ƒ 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
ƒ Can these guidelines be used for the witnesses’ signatures as
well?
C. Location
1. At the physical end or at the logical end
ƒ It must be after the last disposition, otherwise the whole
will is void
2. Every page except the last page
ƒ 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
ƒ “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.
21

E. Order of signing
1. If one transaction, the order is immaterial
2. If separate transactions, the testator must sign first
ƒ 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.
Succession
Cayo 3D
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
ƒ This applies to testator’s with poor eyesight [Garcia v.
Vasquez]
ƒ 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)
22
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]
Succession
Cayo 3D
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.
23
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
Succession
Cayo 3D
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
24

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
Succession
Cayo 3D
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)
25
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.
Succession
Cayo 3D
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:
26
 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)
Succession
Cayo 3D
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.
27
The requisites for annulment of an institution are: B. The formula to determine the proper amount of the share per heir,
as increased, is:
(1) The cause for the institution of heirs must be stated in the will;
(2) The cause must be shown to be false Share of instituted
X
(3) It must appear from the face of the will that the testator would heir
=
not have made such institution if he had known of the falsity of Total amount covered Total disposable
the cause. by the institution portion

In this case the institution is valid for two reasons. First, the will did Or
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 [Share of instituted heir x total disposable portion]/total amount
have made such institution had she known of the falsity of the cause. covered by the institution
An annulment cannot be made on the basis of guesswork or uncertain
implications. *See Jottings and Jurisprudence 214( 2000 ed.)

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. 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

Art. 853. If each of the instituted heirs has been given an B. For there to be preterition, the heir must have received nothing
aliquot part of the inheritance, and the parts together from the testator by way of:
exceed the whole inheritance, or the whole free portion, 1. Testamentary succession
as the case may be, each part shall be reduced 2. Legacy or devise
proportionally. (n) 3. Donation inter vivos
4. Instestacy
A. If the institutions do not cover the whole disposable portion,
intestate succession will take place with respect to the remainder.
Succession 28
Cayo 3D
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
Succession
Cayo 3D
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)
29
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.
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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
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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.
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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;
32
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)
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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)
33
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)
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)

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.

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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
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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,
35
 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)
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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
36
 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
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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)
37
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.
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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
38
 1. Duration – age of majority or completion of a professional, devisee, who shall, therefore, bear its loss or
vocational or general course provided he pursues his course deterioration, and shall be benefited by its increase or
diligently improvement, without prejudice to the responsibility of
2. Amount the executor or administrator. (882a)
i. Primarily – fixed by the testator
ii. Secondarily – that which is proper as determined by (1) Art. 949. If the bequest should not be of a specific and
social standing of legatee and (2) value of the disposable determinate thing, but is generic or of quantity, its fruits
portion of the estate and interests from the time of the death of the testator
shall pertain to the legatee or devisee if the testator has
B. Legacy for support expressly so ordered. (884a)
1. Duration – Legatee’s lifetime, unless otherwise provided
2. Amount A. Demandability, Ownership, and Fruits of Legacies/Devises
i. Primarily – fixed by the testator
ii. Secondarily – that which the testator used to give to the Demanda Ownership Fruits
legatee by way of support unless markedly bility
disproportionate to the value of the disposable portion Pure & Det. Death Death Death
iii. Tertiarily – that which is proper as determined by (1) Pre & Death If found in estate – Determination,
social standing of legatee and (2) value of the disposable Generic death unless
portion of the estate If to be acquired - otherwise
acquisition provided
C. Periodical pension Susp. Term Term Term, but right vests Term
1. Demandability – upon the testator’s death, and the succeeding upon death
ones at the beginning of the period without duty to reimburse Susp. Cond. Condition When fulfilled, Condition,
should the legatee die before the end of the period. retroacts to death unless
otherwise
Art. 946. If the thing bequeathed should be subject to a provided
usufruct, the legatee or devisee shall respect such right
until it is legally extinguished. (868a) Art. 950. If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in the
Art. 947. The legatee or devisee acquires a right to the pure following order:
and simple legacies or devises from the death of the (1) Remuneratory legacies or devises;
testator, and transmits it to his heirs. (881a) (2) Legacies or devises declared by the testator to be
preferential;
Art. 948. If the legacy or device is of a specific and (3) Legacies for support;
determinate thing pertaining to the testator, the legatee (4) Legacies for education;
or devisee acquires the ownership thereof upon the (5) Legacies or devises of a specific, determinate thing which
death of the testator, as well as any growing fruits, or forms a part of the estate;
unborn offspring of animals, or uncollected income; but (6) All others pro rata. (887a)
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
Succession 39
Cayo 3D
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.
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Cayo 3D
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
40

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
Succession
Cayo 3D
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)
41
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.
Succession
Cayo 3D
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)
42
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.
Succession
Cayo 3D
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?
43
 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;
Succession
Cayo 3D
(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
44
 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);
Succession
Cayo 3D
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.
45
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
Succession
Cayo 3D
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
46
 b. may be a brother or sister of the prepositus
ƒ must be half-blood – otherwise there would be no
change in lines
ƒ 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:
Succession
Cayo 3D
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
47
 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.
Succession
Cayo 3D
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:
48
 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.
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Cayo 3D
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.
ƒ 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.
49
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.
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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)
50
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
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Cayo 3D
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.
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Cayo 3D
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
52
 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
ƒ 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.
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Cayo 3D
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.
53
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)
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Cayo 3D
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
54
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
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Cayo 3D
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
55
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 XIII. Allowance of Wills
title thereto, but such determination is provisional, not conclusive, and
is subject to the final decision in a separate action to resolve title. Art. 1058. All matters relating to the appointment,
powers and duties of executors and administrators and
Llorente v. CA concerning the administration of estates of deceased
GRN 124371 November 20, 2000. persons shall be governed by the Rules of Court. (n)
The will was executed by an American in the Philippines. Art. 1059. If the assets of the estate of a decedent which
Whether the will is intrinsically valid and who shall inherit from can be applied to the payment of debts are not sufficient
Lorenzo are issues best proved by foreign law which must be pleaded for that purpose, the provisions of articles 2239 to 2251
and proved. Whether the will was executed in accordance with the on Preference of Credits shall be observed, provided that
formalities required is answered by referring to Philippine law. the expenses referred to in article 2244, No. 8, shall be
those involved in the administration of the decedent's
Reyes v. CA estate. (n)
GRN 124099. October 30, 1997.
Art. 1060. A corporation or association authorized to
The probate court erroneously determined the relationship between conduct the business of a trust company in the
the testator and his alleged wife. Nepomuceno v. CA does not apply Philippines may be appointed as an executor,
because in that case, the face of the will admitted the illegality of the administrator, guardian of an estate, or trustee, in like
relationship. manner as an individual; but it shall not be appointed
guardian of the person of a ward. (n)
When probate court may determine intrinsic matters:
1. preterition
Cases:
2. doubtful legality of testamentary provisions
3. parties agree
CIR v. CA and Pajonar
4. exceptional circumstances
GRN 123206. March 22, 2000.
Art. 839. The will shall be disallowed in any of the following cases:
Funeral expenses, judicial expenses, and expenses for administration
(1) If the formalities required by law have not been complied with;
are deductible from the gross estate. Administration expenses are
(2) If the testator was insane, or otherwise mentally incapable of
limited to such administration expenses as are actually and necessarily
making a will, at the time of its execution;
incurred in the collection of the assets of the estate, payment of the
(3) If it was executed through force or under duress, or the influence of
debts, and distribution of the remainder among those entitled thereto.
fear, or threats;
(4) If it was procured by undue and improper pressure and influence,
This includes guardianship fees, where the decedent was an
on the part of the beneficiary or of some other person;
incompetent at the time of his death and expenses for extra-judicial
(5) If the signature of the testator was procured by fraud;
settlement of the estate.
(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
Luy Lim v. CA
signature thereto. (n)
Succession 56
Cayo 3D
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.
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Cayo 3D
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:
57
 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)
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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)
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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;
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(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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