NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R.
GATCHALIAN
CIVIL CODE*
ART 2. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette,
unless it is otherwise provided.
This Code shall take effect one year after such
publication.
ART 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three
hundred sixty-five days each; months, of thirty days; days,
of twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded, and
the last day included.

All statutes, including those of local application and
private laws, shall be published as a condition for
their effectivity, which shall begin 15 days after
publication unless a different effectivity date is fixed
by the legislature.

Administrative rules and regulations must also be
published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal
in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
References

L. Rodriguez - Common Sources of Bar Questions
Persons and Family Relations
 Prof. Danilo Concepcion Lectures, Family Code, By
Justice A. Simpio-Diy & Reviewer in Civil Law,
Justice D. Jurado
Property
 Vol. II Civil Code of the Philippines, Justice
Edgardo Paras & Reviewer in Civil Law, Justice D.
Jurado
Wills & Succession
 Vol. III Civil Code of the Philippines, Justice
Edgardo Paras & Lectures of Prof. Danilo
Concepcion
 The codal provisions are arranged for easy reading
and mark with * to give emphasize to the most
common sources of BAR Questions.
To borrow Prof. A. Domondon “Unauthorized users shall be
punished by the law of karma and they will not pass the
examination they shall take or be unsuccessful and
unhappy in life”.
published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.

Even the charter of a city must be published
notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants
of that place. The circulars issued by the Monetary Board
must be published if they are meant not merely to
interpret but to "fill in the details" of the Central Bank Act
which that body is supposed to enforce.

The publication must be in full or it is no publication at all
since its purpose is to inform the public of the contents of
the laws. [TAÑADA v. TUVERA]
**ART 3. Ignorance of the law excuses no one from
compliance therewith.
ART 4. Laws shall have no retroactive effect, unless the
contrary is provided.
ART 6. Rights may be waived,
1. unless the waiver is
2. contrary to law, public order, public policy, morals,
or good customs, or
3. prejudicial to a third person with a right recognized
by law.
ART 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.
***ART 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
**ART 20. Every person who,
1. contrary to law,
2. wilfully or negligently causes damage to another,
3. shall indemnify the latter for the same.
***ART 21. Any person who wilfully causes loss or injury to
another
1. in manner that is contrary to morals, good customs
or public policy
2. shall compensate the latter for the damage.

Article 21 deals with acts contra bonus mores
ART 26. Every person shall respect the
1. dignity,
2. personality,
3. privacy and peace of mind of his neighbors and
other persons.
The following and similar acts,
a. though they may not constitute a criminal offense,
b. shall produce a cause of action for damages,
c. prevention and other relief:
1. Prying into the privacy of another's residence;
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

2. Meddling with or disturbing the private life
or family relations of another;
3. Intriguing to cause another to be alienated
from his friends;
4. Vexing or humiliating another on account
of his religious beliefs, lowly station in life,
place of birth, physical defect, or other
personal condition.
ART 31. When the civil action is based on an obligation
1. not arising from the act or omission complained
of as a felony,
2. such civil action may proceed independently of
the criminal proceedings and regardless of the
result of the latter.
**ART 33. In cases of defamation, fraud, and physical
injuries a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the
injured party.
Two attributes or elements of person
1. Juridical capacity or Juridical personality
2. Capacity to act

If these two attributes concur the entity who is holding
this two attributes is considered to have full civil capacity.

But while the code does not define who a natural person
is, the Civil Code’s underlying principle assumes that a
natural person is a human being.

The definition of a person in the Civil Code does not apply
to the Revised Penal Code.
ART 38. Minority, insanity or imbecility, the state of being a
deaf-mute, prodigality and civil interdiction
1. are mere restrictions on capacity to act, and
2. do not exempt the incapacitated person from certain
obligations,
3. as when the latter arise from his acts or from
property relations, such as easements.

Such civil action shall proceed independently of the
criminal prosecution, and shall require only a
preponderance of evidence.
ART 34. When a member of a city or municipal police
force refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace
officer shall be primarily liable for damages, and the city
or municipality shall be subsidiarily responsible therefor.
ART 39. The following circumstances, among others, modify
or limit capacity to act: age, insanity, imbecility, the state of
being a deaf-mute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are governed in this
Code, other codes, the Rules of Court, and in special laws.
Capacity to act is not limited on account of religious belief or
political opinion.

The civil action herein recognized shall be independent of A married woman, twenty-one years of age or over, is
any criminal proceedings, and a preponderance of qualified for all acts of civil life, except in cases specified by
evidence shall suffice to support such action. law.

ART 36. Pre-judicial questions, which must be decided **ART 40. Birth determines personality; but the conceived
before any criminal prosecution may be instituted or may child shall be considered born for all purposes that are
proceed, shall be governed by rules of court which the SC favorable to it, provided it be born later with the conditions
shall promulgate and which shall not be in conflict with specified in the following article.
the provisions of this Code.
**ART 41. For civil purposes,
CIVIL PERSONALITY
1. the foetus is considered born
2. if it is alive at the time it is completely delivered
**ART 37. Juridical capacity, from the mother's womb.
 which is the fitness to be the subject of legal
relations, is inherent in every natural person and However,
is lost only through death. 1. if the foetus had an intra-uterine life of less than 7
months,
Capacity to act, 2. it is not deemed born
 which is the power to do acts with legal effect, is 3. if it dies within 24 hours after its complete delivery
acquired and may be lost. from the maternal womb.
JURIDICAL CAPACITY CAPACITY TO ACT
Until a fetus is born it is not a person. It does not acquire
Active Passive juridical capacity. A fetus is merely part of the internal
Inherent Merely acquired organs of the mother.
Lost only through death Lost through death and may
be restricted by other causes
A fetus is completely separated from the mother’s womb
Can exist without capacity to The existence of which always when its umbilical cord was cut off or even though it was
act implies the existence of not cut off the placenta to which the umbilical cord was
juridical capacity attach was completely expelled from the mothers womb.

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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

The minimum award for the death of a person does
not cover the case of an unborn fetus that is not
endowed with personality and incapable of having
rights and obligations [GELUZ v. CA]
THE FAMILY CODE

Took effect on August 3, 1988.
***ART 15 CC. Laws relating to
1. family rights and duties, or
2. to the status,
3. condition and
4. legal capacity of persons
5. are binding upon citizens of the Philippines,
6. even though living abroad.
ART 1. Marriage is a special contract of permanent union
1. between a man and a woman
2. entered into in accordance with law
3. for the establishment of conjugal and family life.
It is the foundation of the family
1. and an inviolable social institution
2. whose nature, consequences, and incidents are
governed by law and not subject to stipulation,
3. except that marriage settlements may fix the
property relations during the marriage within the
limits provided by this Code.
***ART. 2. No marriage shall be valid, unless these
essential requisites are present:
1. Legal capacity of the contracting parties who
must be a male and a female; and
2. Consent freely given in the presence of the
solemnizing officer.
Essential Requisites of Marriage
1. Legal Capacity
2. Consent Freely Given
LEGAL CAPACITY
Elements
1. Age
2. Difference in sex
3. Absence of impediment.
Age
ART 5. Any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage.
RA 6809
SEC. 1. Emancipation takes place by the attainment of
majority. Unless otherwise provided, majority commences at
the age of eighteen years.
SEC. 3 Emancipation shall terminate parental authority over
the person and property of the child who shall then be
qualified and responsible for all acts of civil life, save the
exceptions established by existing laws in special cases.
*Contracting marriage shall require parental consent until the age
of twenty-one.
Nothing in this Code shall be construed to derogate from the duty
or responsibility of parents and guardians for children and wards
below twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 CC.
SEC. 4. Upon the effectivity of this Act, existing wills, bequests,
donations, grants, insurance policies and similar instruments
containing references and provisions favorable to minors will not
retroact to their prejudice.
*ART. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage: 1] That the party in
whose behalf it is sought to have the marriage annulled was
eighteen years of age or over but below twenty-one, and the
marriage was solemnized without the consent of the parents,
guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one,
such party freely cohabited with the other and both lived
together as husband and wife;

There is a defect in the consent of the party because the
law considers only those more than 21 as having the
capacity to give full consent to marriage. If a party is
below 21 he is not capable of giving full consent to his
marriage. For a party to have contracted a marriage, the
consent must be complemented by his parents. If there is
no consent from the parents the consent is defective and
the marriage is voidable.
ART. 14. In case either or both of the contracting parties,
1. not having been emancipated by a previous
marriage,
2. are between the ages of 18 and 21,
3. they shall, in addition to the requirements of the
preceding articles, exhibit to the local civil registrar,
4. the consent to their marriage of their father, mother,
surviving parent or guardian, or persons having legal
charge of them, in the order mentioned.
Such consent shall be manifested
1. in writing by the interested party, who personally
appears before the proper local civil registrar, or
2. in the form of an affidavit made in the presence of
two witnesses and
3. attested before any official authorized by law to
administer oaths.
4. The personal manifestation shall be recorded in both
applications for marriage license, and the affidavit,
if one is executed instead, shall be attached to said
applications.

Situation – Suppose the father, gave his consent but
before the Civil registrar issues a license the father went to
the civil registrar and he tried to withdraw the consent
given earlier. Can the father do that? Some authors
believe that once consent is given it can no longer
revoked or withdrawn. But Tolentino believes otherwise.

The parent consent must be for the child to marry a
specific person.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
ART. 15. Any contracting party between the age of 21
and 25
1. shall be obliged to ask their parents or guardian
for advice upon the intended marriage.
2. If they do not obtain such advice, or if it be
unfavorable,
3. the marriage license shall not be issued till after
three months following the completion of the
publication of the application therefor.
4. A sworn statement by the contracting parties to
the effect that such advice has been sought,
5. together with the written advice given, if any,
6. shall be attached to the application for marriage
license.
7. Should the parents or guardian refuse to give any
advice, this fact shall be stated in the sworn
statement.

Art. 15 does not exempt a widowed person form this
requirement. Reason – The basis for the welfare of
the party concerned as well as the recognition of his
or her never ending obligation to honor his or her
parent [Simpio – Diy]
Absence of impediment
ART 5. Any male or female of the age of eighteen
years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract
marriage.
A] Incestuous Relationship
*ART. 37. Marriages between the following are
incestuous and void from the beginning, whether the
relationship between the parties be legitimate or
illegitimate:
1. Between ascendants and descendants of any
degree; and
2. Between brothers and sisters, whether of the
full or half blood.
B] Prior subsisting marriage
ART 40. The absolute nullity of a previous marriage
may be invoked
1. for purposes of remarriage
2. on the basis solely of a final judgment declaring
such previous marriage void.

Under Article 40, the absolute nullity of a previous
marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such
previous marriage void. Meaning, where the absolute
nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the
sole basis acceptable in law, for said projected
marriage to be free from legal infirmity, is a final
judgment declaring the previous marriage void.
However, for purposes other than remarriage, no
judicial action is necessary to declare a marriage an
absolute nullity [NIÑAL v. BAYADOG]

A judicial declaration of nullity of a previous marriage
is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of
bigamy. This principle applies even if the earlier union is
characterized by statute as void [MERCADO v. TAN]
*ART 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
1. unless before the celebration of the subsequent
marriage,
2. the prior spouse had been absent for four
consecutive years and
3. the spouse present has a well-founded belief that
the absent spouse was already dead.
4. In case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph,
1. the spouse present must institute a summary
proceeding as provided in this Code
2. for the declaration of presumptive death of the
absentee,
3. without prejudice to the effect of reappearance of
the absent spouse.
*ART. 42. The subsequent marriage referred to in the
preceding Article
1. shall be automatically terminated
2. by the recording of the affidavit of reappearance
of the absent spouse,
3. unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance
1. shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage
at the instance of any interested person,
2. with due notice to the spouses of the subsequent
marriage and
3. without prejudice to the fact of reappearance
being judicially determined in case such fact is
disputed.
Requisites in order that a subsequent bigamous marriage may
exceptionally be considered valid
1. The prior spouse of the contracting party must have
been absent for four consecutive years, or two years
where there is danger of death under the
circumstances stated in Art. 391 of the CC at the time
of disappearance
2. The spouse present has a well-founded belief that the
absent spouse is already dead
3. There is a judicial declaration of presumptive death of
the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that
declaration [MANUEL v. PEOPLE GR 165842 November
29, 2005]
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

There must be other facts other than mere absence
from which it can be deduce that the husband is
missing because he is dead. If there is no such facts
the court cannot declare a person presumptively
dead [REPUBLIC v. NOLASCO]

The termination of the subsequent marriage by
affidavit provided in Art. 42 does not preclude the
filing of an action in court to prove the reappearance
of the absentee and obtain a declaration of
dissolution or termination of the subsequent
marriage [SSS v. BAILON GR 165545 March 24, 2006]

If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by
affidavit or by court action, such absentee’s mere
reappearance, even if made known to the spouses in
the subsequent marriage, will not terminate such
marriage. Since the second marriage has been
contracted because of a presumption that the
former spouse is dead, such presumption continues
inspite of the spouse’s physical reappearance, and
by fiction of law, he or she must still be regarded as
legally an absentee until the subsequent marriage is
terminated as provided by law [supra]

If the subsequent marriage is not terminated by
registration of an affidavit of reappearance or by
judicial declaration but by death of either spouse,
generally if a subsequent marriage is dissolved by
the death of either spouse, the effects of dissolution
of valid marriages shall arise. The good or bad faith
of either spouse can no longer be raised, because, as
in annullable or voidable marriages, the marriage
cannot be questioned except in a direct action for
annulment [supra]

Consequently, such marriages can be assailed only
during the lifetime of the parties and not after the
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. Upon the death of either, the
marriage cannot be impeached, and is made good ab
initio [supra]
***ART 26. All marriages solemnized outside the
Philippines,
1. in accordance with the laws in force in the
country where they were solemnized, and
2. valid there as such,
3. shall also be valid in this country,
4. except those prohibited under Articles 35 (1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage
1. between a Filipino citizen and a foreigner is
validly celebrated and
2. a divorce is thereafter validly obtained abroad
by the alien spouse
3. capacitating him or her to remarry,
4. the Filipino spouse shall have capacity to
remarry under Philippine law.
Related Provision
ART. 21. When either or both of the contracting parties are
citizens of a foreign country, it shall be necessary for them before
a marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of
the certificate of legal capacity herein required, submit an
affidavit stating the circumstances showing such capacity to
contract marriage.

The rationale behind the 2nd par. of the is to avoid the
absurd and unjust situation of a Filipino citizen still being
married to his or her alien spouse, although the latter is
no longer married to the Filipino spouse because he or
she has obtained a divorce abroad.
Elements of par. 2
1. There is valid marriage that has been celebrated between
a Filipino citizen and a foreigner
2. A valid divorce is obtained by the alien spouse
capacitating him or her to remarry
3. The divorce obtain by the foreigner spouse will
capacitate the foreigner spouse to remarry [REPUBLIC v.
ORBECIDO GR 154380 October 5, 2005]

The reckoning point is not the citizenship of the parties at
the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by
the alien spouse capacitating the latter to remarry [supra]

Respondent must prove his allegation that his wife was
naturalized. Likewise, before a foreign divorce decree can
be recognized by our own courts, the party pleading it
must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it. Such foreign law
must also be proved as our courts cannot take judicial
notice of foreign laws. Furthermore, respondent must
also show that the divorce decree allows his former wife
to remarry as specifically required in Art. 26 [supra]

When a divorce was obtain abroad by a foreigner, in order
for the spouse present to contract a subsequent marriage
does he have to file an action to declare null and void under
Art. 40? No. Art. 26 does not make the first marriage null
and void. There is nothing in the law, which says that the
first marriage with a foreigner was dissolved by recognition
of the foreign divorce. We always follow the interpretation
in favor of the validity of the marriage. It was provided
under Art. 220 CC.
C] Public Policy
*ART 38. The following marriages shall be void from the
beginning for reasons of public policy:
1. Between collateral blood relatives whether
legitimate or illegitimate, up to the fourth civil
degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parent
and the adopted child;
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
6. Between the surviving spouse of the adopted
child and the adopter;
7. Between an adopted child and a legitimate child
of the adopter;
8. Between adopted children of the same adopter;
and
9. Between parties where one, with the intention to
marry the other, killed that other person's spouse,
or his or her own spouse.
Between the adopting parent and the adopted child

The relationship created is exclusively between, the
adopter and the adopted, and does not extend to the
relatives of either [TEOTICO v. DEL VAL]
Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse.
1. The killing must be intentional
2. The killing must be for the purpose of eliminating him
so he can marry the surviving spouse.
Psychological Incapacity
***ART 36. A marriage contracted by any party who,
1. at the time of the celebration,
2. was psychologically incapacitated to comply
with the essential marital obligations of
marriage,
3. shall likewise be void
4. even if such incapacity becomes manifest only
after its solemnization.
Related Provision
ART. 39. The action or defense for the declaration of absolute
nullity shall not prescribe.
*ART. 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article
36 has become final and executory shall be considered
legitimate.
Children conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate.

Psychological incapacity is an impediment.

Unlike in the case of voidable marriage where only
the aggrieved party may file an action, to annul the
marriage, in the case of a marriage void ab initio
anyone may file an action even if party himself who is
psychologically incapacitated.
Psychological Incapacity

It is a serious mental condition to prevent a party
from performing his marital obligation.

Suppose a marriage was annulled on the ground of
the psychological incapacity of one of the parties? The
party who was found psychological incapacitated,
may he contract another marriage after the nullity of
the first? He may contract a subsequent marriage.
The status of the 2nd marriage is maybe valid because
psychological incapacity is relative. A party maybe
psychologically incapacitated towards one but not
towards another.
**ART. 51. In said partition,
1. the value of the presumptive legitimes of all
common children,
2. computed as of the date of the final judgment of
the trial court,
3. shall be delivered in cash, property or sound
securities,
4. unless the parties, by mutual agreement judicially
approved,
5. had already provided for such matters.
The children or their guardian or the trustee of their
property may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall
1. in no way prejudice the ultimate successional
rights of the children accruing upon the death of
either or both of the parents;
2. but the value of the properties already received
under the decree of annulment or absolute nullity
3. shall be considered as advances on their legitime.
ART. 52.
1. The judgment of annulment or of absolute nullity
of the marriage,
2. the partition and distribution of the properties of
the spouses, and
3. the delivery of the children's presumptive
legitimes
4. shall be recorded in the appropriate civil registry
and registries of property;
5. otherwise, the same shall not affect third persons.
**ART. 53. Either of the former spouses may marry again
1. after compliance with the requirements of the
immediately preceding Article;
2. otherwise, the subsequent marriage shall be null
and void.

When the marriage was declared null and void but the
parties to that marriage failed to settle their property
relationship and then contracted a subsequent marriage.
The subsequent marriage is void ab initio.

There is an impediment because there was failure to
settle the property relationship between the parties to
the prior to the marriage declare null and void.
Consent Freely Given

When the consent of one or both of the parties was
vitiated the status of the marriage is voidable because
consent an essential requisite was defective.

But when there was total absent of consent the marriage
is void ab initio.

Consent is given by “the appearance of the contracting
parties before the solemnizing officer and their personal
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
declaration that they take each other as husband and
wife in the presence of not less than two witnesses of
legal age.”
Related Provision
ART 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

Under Philippine law, marriage by proxy is not
allowed because it requires the parties to
personally appear before the solemnizing officer
however if the marriage was solemnized abroad,
and there it was valid, it shall be valid in the
Philippines.
Formal Requisites
***ART. 3. The formal requisites of marriage are:
1. Authority of the solemnizing officer;
2. A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
3. A marriage ceremony which takes place
with the appearance of the contracting
parties before the solemnizing officer and
their personal declaration that they take
each other as husband and wife in the
presence of not less than two witnesses of
legal age.
***ART. 4. The absence of any of the essential or
formal requisites shall render the marriage void ab
initio, except as stated in Article 35 (a).
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect
the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly,
criminally and administratively liable.
1] Marriage License
ART. 9. A marriage license shall be issued by the local
civil registrar of the city or municipality where either
contracting party habitually resides, except in marriages
where no license is required in accordance with Chapter
2 of this Title
*ART. 10.
1. Marriages between Filipino citizens abroad
2. may be solemnized by a consul-general,
consul or vice-consul of the Republic of the
Philippines.
3. The issuance of the marriage license and the
duties of the local civil registrar and of the
solemnizing officer with regard to the
celebration of marriage shall be performed by
said consular official.
ART. 20. The license shall be valid
1. in any part of the Philippines
2. for a period of 120 from the date of issue, and
3. shall be deemed automatically cancelled at the
expiration of the said period if the contracting
parties have not made use of it.
4. The expiry date shall be stamped in bold
characters on the face of every license issued.

A marriage license after the 120 days from its issue is
an invalid marriage license. The falsification does not
make it a valid license.

The license must be existing at the time of the
celebration of marriage. If there is no license, the
subsequent issuance of the marriage license will not
make the marriage valid [People v. Lara, CA]

The license must be issued by the proper government
authority under Art. 9 or Art. 10.

Use of an alias or fictitious name in acquiring the
marriage license will not invalidate the marriage on
that ground alone. What is important is you married a
person you consented to get married with.
ART 18. In case of any impediment known to the local civil
registrar or brought to his attention,
1. he shall note down the particulars thereof and his
findings thereon in the application for marriage license,
2. but shall nonetheless issue said license after the
completion of the period of publication,
3. unless ordered otherwise by a competent court at his
own instance or that of any interested party.
4. No filing fee shall be charged for the petition nor a
corresponding bond required for the issuances of the
order.
Marriages Exempted from License Requirement
1. Marriages in articulo mortis or at the point of death [27]
2. Marriages in remote places [28]
3. Marriages between Muslims and among members of the
ethnic cultural communities provided they are solemnized
in accordance with their customs, rites or practices [33]
4. Legal ratification of marital cohabitation [34]
5. Marriages solemnized outside the Philippines where no
marriage license is required by the country where it was
solemnized
ART 27. In case
1. either or both of the contracting parties are at the
point of death,
2. the marriage may be solemnized without necessity
of a marriage license and
3. shall remain valid even if the ailing party
subsequently survives.

In order to classify the marriage in articulo mortis, it is
necessary is that the parties, including the person
solemnizing the marriage, must be convinced that there
was imminent danger of death [Simpio –Diy]

At the point of death should be distinguish from in danger
of death.
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NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
ART. 28. If the
1. residence of either party is so located that
there is no means of transportation
2. to enable such party to appear personally
before the local civil registrar,
3. the marriage may be solemnized without
necessity of a marriage license.
ART 29. In the cases provided for in the two preceding
articles,
1. the solemnizing officer shall state in an
affidavit executed before the local civil
registrar or any other person legally
authorized to administer oaths
2. that the marriage was performed in articulo
mortis or
3. that the residence of either party, specifying
the barrio or barangay, is so located that there
is no means of transportation to enable such
party to appear personally before the local
civil registrar and
4. that the officer took the necessary steps to
ascertain the ages and relationship of the
contracting parties and the absence of legal
impediment to the marriage.

The affidavit of the solemnizing officer takes the place
of the marriage license and constitute an assurance
that the parties are of the proper ages and there is no
impediment to their marriage. Lack of which does not
invalidate the marriage in articulo mortis.
*ART 31. A marriage in articulo mortis
1. between passengers or crew members may
also be solemnized
2. by a ship captain or by an airplane pilot
3. not only while the ship is at sea or the plane is
in flight,
4. but also during stopovers at ports of call.
*ART. 32. A military commander of a unit,
1. who is a commissioned officer,
2. shall likewise have authority to solemnize
marriages in articulo mortis
3. between persons within the zone of military
operation,
4. whether members of the armed forces or
civilians.
*ART. 34. No license shall be necessary for the
marriage of a
1. man and a woman who have lived together as
husband and wife for at least five years and
2. without any legal impediment to marry each
other.
3. The contracting parties shall state the
foregoing facts in an affidavit before any
person authorized by law to administer oaths.
4. The solemnizing officer shall also state under
oath that he ascertained the qualifications of
the contracting parties and found no legal
impediment to the marriage.
Requisites
1. The man and woman must have been living together as
husband and wife for at least five years before the
marriage
2. The parties must have no legal impediment to marry each
other
3. The fact of absence of legal impediment between the
parties must be present at the time of marriage
4. The parties must execute an affidavit stating that they
have lived together for at least five years
5. The solemnizing officer must execute a sworn statement
that he had ascertained the qualifications of the parties
and that he had found no legal impediment to their
marriage [MANZANO v. SANCHEZ]

The rationale why no license is required in such case is to
avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to
the publication of every applicant’s name for a marriage
license [NIÑAL v. BAYADOG]

This 5-year period should be the years immediately
before the day of the marriage and it should be a period
of cohabitation characterized by exclusivity – meaning no
third party was involved at any time within the 5 years
and continuity – that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without any
distinction as to whether the parties were capacitated to
marry each other during the entire five years, then the
law would be sanctioning immorality and encouraging
parties to have common law relationships and placing
them on the same footing with those who lived faithfully
with their spouse [supra]

If the affidavit is perjured by the parties, the status of the
marriage is void ab initio because there is an absence of
formal requisite.
2] Authority of the Solemnizing officer
***ART. 7. Marriage may be solemnized by:
1. Any incumbent member of the judiciary within the
court's jurisdiction;
2. Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his church or
religious sect and registered with the civil registrar
general, acting within the limits of the written
authority granted by his church or religious sect and
provided that at least one of the contracting parties
belongs to the solemnizing officer's church or
religious sect;
3. Any ship captain or airplane chief only in the cases
mentioned in Article 31;
4. Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the
cases mentioned in Article 32;
5. Any consul-general, consul or vice-consul in the
case provided in Article 10.
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NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
Related Provisions
*RA 7160 SEC. 444 & SEC. 455. A mayor may
solemnize marriages, any provision of law to the
contrary notwithstanding.
**ART. 3 CC. Ignorance of the law excuses no one
from compliance therewith.
ART 8 FC. The marriage shall be solemnized
publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office
the consul-general, consul or vice-consul, as the case
may be, and not elsewhere,
1. except in cases of marriages contracted on
the point of death or
2. in remote places in accordance with Article
29 of this Code, or
3. where both of the parties request the
solemnizing officer in writing in which case
the marriage may be solemnized at a house
or place designated by them in a sworn
statement to that effect.
*ART. 35 FC The following marriages shall be void
from the beginning: 2] Those solemnized by any
person not legally authorized to perform marriages
unless such marriages were contracted with either or
both parties believing in good faith that the
solemnizing officer had the legal authority to do so;

Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the
judiciary within the court's jurisdiction." Article 8,
which is a directory provision, refers only to the
venue of the marriage ceremony and does not alter
or qualify the authority of the solemnizing officer as
provided in Art. 7 [NAVARRO v. DOMAGTOY]

Judges who are appointed to specific jurisdictions,
may officiate in weddings only within said areas and
not beyond. Where a judge solemnizes a marriage
outside his court's jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Art. 3,
which while it may not affect the validity of the
marriage, may subject the officiating official to
administrative liability [supra]

Can a mayor solemnized marriage outside of its
territorial jurisdiction? According to Prof. Concepcion,
since the authority of the mayor to solemnize
marriage is not define under the LGC, a mayor can
solemnize marriage even outside of its territorial
jurisdiction. In fact he can even solemnize throughout
the Philippines.

Suppose the governor solemnize marriage, may the
parties claim that they believing in good faith that the
governor was authorize to solemnize the marriage to
make it valid under Art. 35? No. There is a distinction
between mistake of fact and mistake of law because
under Art. 3 CC “Ignorance of the law excuses no one
from compliance therewith”. This is a mistake of law,
since the governor is not one of those enumerated
authorize to solemnize marriage under the law.

To be in good faith it must be a mistake of fact not of law.

There is mistake of fact when the parties got married to
their parish priest whose authority was already expired.
The parish priest is of those persons authorized to
solemnize the marriage under the law, and therefore the
parties have reason to believe that the parish priest had
the legal authority to solemnize the marriage.

What if the retired judge solemnized marriage? According
to Prof. Concepcion, this is a mistake of law.
Par. 2

If one of the parties is not a member of the solemnizing
officer's church or religious sect the same is a mistake of
law according to Prof. Concepcion. Since the same is a
requirement of the law.
Par. 4

If to his unit or command no chaplain was assigned the
military commander cannot solemnize marriage. He can
only solemnize marriage if there is a chaplain assigned to
his unit and that the same was absent.
3] Ceremony

According to Simpio-Diy and Vitug the declaration by the
spouses /parties that they take each other as husband
and wife is the essence of the ceremony. The presence of
the witnesses is not part of the essence of ceremony.

In MARTINEZ v. TAN 12 PHIL 731 – The SC impliedly ruled
that the declaration of the parties may be express or
implied. In that case “A man and woman appeared before
a justice of the peace and there signed a statement
setting forth that they had agreed to marry each other
and asked the justice to solemnize the marriage. Another
document was then signed by them, by the justice and by
two witnesses, stating that the man and woman appeared
before the justice and ratified all that was contained in the
preceding instrument and insisted upon the marriage.
After the signing of these documents the justice
announced to the man and woman that they were
married.”
VOID MARRIAGE VOIDABLE MARRIAGE
Nature - Inexistent from time of Valid until annulled by
performance competent court
As To Susceptibility Of Can be convalidated either by
Convalidation - Cannot be free cohabitation or
convalidated prescription
As To Effect On Property - No Absolute community exist
community property only co- unless another system is
ownership [Art. 147] agreed upon in marriage
settlement
As To Effect On Children - Children are legitimate if
Children are illegitimate under conceived before decree of
Art. 165 subject to exceptions annulment
under Art. 54.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

As To How Marriage May Be Cannot be attacked collaterally, For the purpose of contracting the subsequent marriage
Impugned - May be attacked only directly i.e., there must be under the preceding paragraph,
directly or collaterally, but for a decree of annulment 1. the spouse present must institute a summary
the purpose of remarriage, proceeding as provided in this Code for the
there must be judicial declaration of presumptive death of the absentee,
declaration of nullity [Art. 40] 2. without prejudice to the effect of reappearance of
Can still be impugned even Can no longer be impugned the absent spouse.
after death of parties after death of one party
ART. 42. The subsequent marriage referred to in the
VOID MARRIAGE preceding Article
1. shall be automatically terminated
***ART 35. The following marriages shall be void from 2. by the recording of the affidavit of reappearance
the beginning: of the absent spouse,
1. Those contracted by any party below eighteen 3. unless there is a judgment annulling the previous
years of age marriage or declaring it void ab initio.
 even with the consent of parents or
guardians; A sworn statement of the fact and circumstances of
2. Those solemnized by any person not legally reappearance
authorized to perform marriages 1. shall be recorded in the civil registry of the
a. unless such marriages were contracted residence of the parties to the subsequent marriage
b. with either or both parties believing in at the instance of any interested person,
good faith 2. with due notice to the spouses of the subsequent
c. that the solemnizing officer had the marriage and
legal authority to do so; 3. without prejudice to the fact of reappearance
3. Those solemnized without license, except those being judicially determined in case such fact is
covered the preceding Chapter; disputed.
4. Those bigamous or polygamous marriages not
falling under Article 41;
GR - When a spouse has been declared presumptively
5. Those contracted through mistake of one dead, by the court, and the spouse present contracted a
contracting party as to the identity of the other; second marriage that second marriage is voidable and it
and maybe terminated upon the recording of an affidavit of
6. Those subsequent marriages that are void under reappearance of the absentee spouse.
Article 53.

But when both spouses to the second marriage are in bad
Related Provisions faith that second marriage is void ab initio. In fact they
*ART 54. Children conceived or born maybe prosecuted for the crime of bigamy.
1. before the judgment of annulment or absolute
nullity of the marriage under Article 36 has
Both parties are in bad faith when both of them knew
become final and executory that the absentee spouse is still alive, but despite of such
2. shall be considered legitimate. knowledge they went on with the second marriage.
3. Children conceived or born of the subsequent

But when only one of them is in bad faith the marriage
marriage under Article 53 shall likewise be
remains voidable except that there are some effects as
legitimate.
provided in Art. 43.
ART. 39. The action or defense for the declaration of
**ART 43. The termination of the subsequent marriage
absolute nullity shall not prescribe.
referred to in the preceding Article shall produce the
following effects:
ART. 41. A marriage
1. The children of the subsequent marriage
1. contracted by any person during subsistence
a. conceived prior to its termination
of a previous marriage shall be null and void,
b. shall be considered legitimate, and
2. unless before the celebration of the subsequent
c. their custody and support in case of
marriage,
dispute shall be decided by the court
3. the prior spouse had been absent for four
in a proper proceeding;
consecutive years and
2. The absolute community of property or the
4. the spouse present has a well-founded belief
conjugal partnership, as the case may be,
that the absent spouse was already dead.
a. shall be dissolved and liquidated,
5. In case of disappearance where there is danger
b. but if either spouse contracted said
of death under the circumstances set forth in
marriage in bad faith,
the provisions of Article 391 of the Civil
Code, an absence of only two years shall be
sufficient.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
c. his or her share of the net profits
of the community property or
conjugal partnership property shall
be forfeited
d. in favor of the
 common children or, if there
are none,
 the children of the guilty
spouse by a previous
marriage or
 in default of children, the
innocent spouse;
3. Donations by reason of marriage
a. shall remain valid,
b. except that if the donee contracted
the marriage in bad faith,
c. such donations made to said donee
are revoked by operation of law;
4. The innocent spouse may
a. revoke the designation of the other
spouse
b. who acted in bad faith as
beneficiary in any insurance
policy,
c. even if such designation be
stipulated as irrevocable; and
5. The spouse who contracted the subsequent
marriage in bad faith
a. shall be disqualified to inherit
b. from the innocent spouse by
testate and intestate succession.
ART 44. If both spouses of the subsequent marriage
1. acted in bad faith,
2. said marriage shall be void ab initio and
3. all donations by reason of marriage and
testamentary dispositions made by one in
favor of the other are revoked by operation of
law.
Voidable Marriage
***ART 45. A marriage may be annulled for any of the
following causes,
 existing at the time of the marriage:
1. That the party in whose behalf
a. it is sought to have the marriage
annulled
b. was 18 years of age or over but below
21,
c. and the marriage was solemnized
without the consent of the parents,
guardian or person having substitute
parental authority over the party, in that
order,
d. unless after attaining the age of 21,
such party freely cohabited with the
other and both lived together as
husband and wife;
2. That either party was of unsound mind,
a. unless such party after coming to reason,
b. freely cohabited with the other as husband
and wife;
3. That the consent of either party was obtained by
fraud,
a. unless such party afterwards, with full
knowledge of the facts constituting the
fraud,
b. freely cohabited with the other as husband
and wife;
Related Provision
***ART 46. Any of the following circumstances shall
constitute fraud referred to in Number 3 of the preceding
Article:
1. Non-disclosure of a previous conviction
a. by final judgment of the other party
b. of a crime involving moral turpitude;
2. Concealment by the wife
a. of the fact that at the time of the marriage,
b. she was pregnant by a man other than her
husband;
3. Concealment of sexually transmissible disease,
a. regardless of its nature,
b. existing at the time of the marriage; or
4. Concealment of drug addiction, habitual alcoholism
or homosexuality or lesbianism
a. existing at the time of the marriage.
No other misrepresentation or deceit as to
a. character,
b. health,
c. rank,
d. fortune or
e. chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
4. That the consent of either party was obtained by
force, intimidation or undue influence,
a. unless the same having disappeared or
ceased,
b. such party thereafter freely cohabited with
the other as husband and wife;
5. That either party was physically incapable of
consummating the marriage with the other, and
 such incapacity continues and appears to
be incurable; or
6. That either party was afflicted with a sexually-
transmissible disease
a. found to be serious and
b. appears to be incurable.
***ART. 47. The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:
1. For causes mentioned in number 1 of Article 45
11
 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
a. by the party whose parent or guardian
did not give his or her consent,
 within 5 years after attaining the
age of 21, or
b. by the parent or guardian or person
having legal charge of the minor,
 at any time before such party has
reached the age of 21;
2. For causes mentioned in number 2 of Article
45,
a. by the same spouse, who had no
knowledge of the other's insanity or
b. by any relative or guardian or person
having legal charge of the insane, at
any time before the death of either
party, or
c. by the insane spouse during a lucid
interval or after regaining sanity;
3. For causes mentioned in number 3 of Articles
45,
a. by the injured party,
b. within 5 years after the discovery of the
fraud;
4. For causes mentioned in number 4 of Article
45,
a. by the injured party,
b. within 5 years from the time the force,
intimidation or undue influence
disappeared or ceased;
5. For causes mentioned in number 5 and 6 of
Article 45,
a. by the injured party,
b. within 5 years after the marriage.

The action for annulment in a voidable marriage must
be filed only by the aggrieved party.
Par. 1

The effect of the law lowering the age of majority to
18, the party who was below 21 when he contracted
the marriage, may himself or herself file the action to
annul the marriage and he has from the time the
marriage was celebrated to five years after attaining
the age of 21 to file it [Opinion of Prof. Concepcion]

Suppose the parents wants to file the action but the
aggrieved party doesn’t want to file it? The law
lowering the age of majority, expressly removes from
its coverage those which have to do with marriage. If
the party lacks parental consent, the party does not
really know what he do when it comes to marriage.
But he may institute the action [Opinion of Prof.
Concepcion]

Cohabitation – means marital consortium; sexual
intercourse. A single act of marital consortium is
enough to validate the marriage.
Par. 2

Insanity is different from unsound mind. To be of unsound
mind the party should have no capacity to deliberate on
his action or his decision to contract marriage. The
consent was vitiated by the unsoundness of mind.

If the party knows that he married somebody who is of
unsound mind he cannot be considered as an aggrieved
party. He has the right to file an action for annulment only
if he did not know of such insanity.

Suppose if the sane spouse did not know about the
insanity and learn only after the celebration of the
marriage and yet despite having known the insanity of the
other spouse, he freely cohabited with the insane spouse?
Does he still have right to file an action for annulment?
Like in another cause of voidable marriage, the cause of
action maybe waived or it can be ratified.

In ratifying the marriage both of them must ratify at the
same time.
Par. 3

Non-disclosure is different from concealment.
Concealment presupposes an intentional active
intervention on the part of the party to hide the facts
from somebody. Non-disclosure means the party did not
say.

Even if pardon, such non-disclosure will give raise an
action for annulment.

A crime of moral turpitude is necessarily connected with
your sense of right or wrong. If it is morally wrong to do it,
that it is a crime involving moral turpitude.

A party cannot conceal something which he do not know.

Sexually transmissible disease – a disease that is
transmitted by sexual intercourse.
Par. 4

The force in order that the marriage maybe held voidable
must be of such nature, so as to coerce the person to give
his consent to the contract.

The force or intimidation must be of such nature as to
give you reasonable ground to believe that it will be
carried out and the threat should cause your life or limb.

The law does not tell who must exert the force to vitiate
the consent of the party. The force maybe applied by the
father of the complaining party herself. It does not who
force the party to contract the marriage for as long as his
or her consent was vitiated by force, then his consent is
defective and therefore the marriage is voidable.

Only the aggrieved party has the right to file.

If the party fails to file within the prescriptive period the
marriage becomes convalidated by prescription.
Par. 5

May the husband who is impotent file an action for the
annulment of the marriage? If depends on whether he is
12
 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
an aggrieved party or not. If he is an aggrieved party
he can file an action. He is considered an aggrieved
party, if he himself did not know that he was
impotent.

Impotent is relative.
Doctrine of Triennial Cohabitation

As applied in the US and England, is that if the wife
remains a virgin after 3 years of cohabitation, the
husband is presumed impotent and he will have the
burden to overcome the presumption.

What is the effect if both parties where afflicted with
sexually transmissible disease and both of them
concealed from each other the fact that they were
affected with sexually transmissible disease? The
marriage is voidable. There is a defect in the consent.
LEGAL SEPARATION VOIDABLE MARRIAGE
The marriage is not defective The marriage is defective
The grounds arise only after The grounds must exits at
the celebration of the the time of or before the
marriage marriage
The spouses are still married The spouse can marry again
to each other and cannot as the marriage is set aside
remarry
***ART 55. A petition for legal separation may be filed
on any of the following grounds:
1. Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner;
2. Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
3. Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
4. Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
5. Drug addiction or habitual alcoholism of the
respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the
petitioner; or
10. Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include
a child by nature or by adoption.
*ART. 56. The petition for legal separation shall be
denied on any of the following grounds:
1. Where the aggrieved party has condoned the
offense or act complained of;
2. Where the aggrieved party has consented to the
commission of the offense or act complained of;
3. Where there is connivance between the parties in the
commission of the offense or act constituting the
ground for legal separation;
4. Where both parties have given ground for legal
separation;
5. Where there is collusion between the parties to
obtain the decree of legal separation; or
6. Where the action is barred by prescription.
Condonation

The forgiveness or pardon of the guilty spouse by the
aggrieved party spouse. May be express or implied, as
sleeping together with the unfaithful wife after full
knowledge of her infidelity.

Condonation comes after not before the commission of
the offense. Each sexual intercourse by the wife with
another man is a separate act of adultery.
Consent

May be express or implied. It is prior to the act.
Mutual Guilt

Based on the principle that a person must come to court
with clean hands.
Prescription

Even if not alleged courts can take cognizance, because
actions seeking a decree of legal separation, or annulment
of marriage, involve public interest, and it is the policy of
our law that no such decree be issued if any legal
obstacles thereto appear upon the record.

Under par.4 the law does not require that the grounds
committed by both spouses must be of the same nature.
The grounds maybe of different nature.
**ART 57. An action for legal separation shall be filed within
five years from the time of the occurrence of the cause.
ART. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of
the petition.
ART. 65. If the spouses should reconcile, a corresponding
joint manifestation under oath duly signed by them shall be
filed with the court in the same proceeding for legal
separation.
ART. 63. The decree of legal separation shall have the
following effects:
1. The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
severed;
2. The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net
profits earned by the absolute community or the
conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
3. The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
4. The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the
innocent spouse shall be revoked by operation
of law.
Property Relations Between Husband and Wife
ART. 74. The property relationship between husband and
wife shall be governed in the following order:
1. By marriage settlements executed before the
marriage;
2. By the provisions of this Code; and
3. By the local custom.

Local custom means absolute community of property.
*ART 75. The future spouses may,
1. in the marriage settlements,
2. agree upon the regime of absolute community,
conjugal partnership of gains, complete
separation of property, or any other regime.
1. In the absence of a marriage settlement, or
2. when the regime agreed upon is void,
 the system of absolute community of
property as established in this Code
shall govern.
Marriage Settlement

The contract entered into by a man and a woman
who intend or plan to get married fixing the property
regime that will govern their present and future
properties during their marriage.

There are many things that can be included in the
marriage settlement such as recognition of an
illegitimate child, donation propter nuptias, on how
will the property relations governed among others.
ART. 77. The marriage settlements and any modification
thereof shall be
1. in writing,
2. signed by the parties and
3. executed before the celebration of the marriage.
4. They shall not prejudice third persons
5. unless they are registered in the local civil
registry where the marriage contract is recorded
as well as in the proper registries of properties.

Marriage settlement is not required to be notarized in
order to be valid but it must be recorded.

The parties can amend the marriage settlement
before the celebration of the marriage but after the
celebration of the marriage, the parties can no longer
modified the marriage settlement that they have
executed.
*ART 78. A minor who according to law may contract
marriage
1. may also execute his or her marriage settlements,
2. but they shall be valid
3. only if the persons designated in Article 14 to give
consent to the marriage are made parties to the
agreement,
4. subject to the provisions of Title IX of this Code.

Consent of the parent to the marriage settlement is not
enough. The parent or the person who is required by law
to give consent to the marriage of such party should not
only give his consent but must be made also a party.
Otherwise, the marriage settlement of the minor is void
[MIRASOL v. LIM]

A person can become a party to the marriage settlement
if signs the marriage settlement even if he signed only as
a witness.
ART 79. For the validity of any marriage settlement
1. executed by a person upon whom a sentence of civil
interdiction has been pronounced or
2. who is subject to any other disability,
3. it shall be indispensable for the guardian appointed
by a competent court to be made a party thereto.
ART 81.
1. Everything stipulated in the settlements or
contracts referred to in the preceding articles in
consideration of a future marriage,
2. including donations between the prospective
spouses made therein,
 shall be rendered void if the marriage does
not take place.
3. However, stipulations that do not depend upon
the celebration of the marriages shall be valid.
Donations by Reason of Marriage
ART. 82. Donations by reason of marriage
1. are those which are made before its celebration,
2. in consideration of the same,
3. and in favor of one or both of the future spouses.
ART. 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
articles.
PROPETER NUPTIAS ORDINARY DONATIONS
Does not require express Express acceptance is necessary
acceptance
May be made by minors Cannot be made by minors
May include future property Cannot include future property
If present property is donated No limit to donation of property
and property regime is not provided legitimes are not
absolute community, limited impaired
to 1/5
Grounds for revocation are Grounds for revocation are found
found in Art. 86 in law of donations
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
*ART 84. If the future spouses
1. agree upon a regime other than the absolute
community of property,
2. they cannot donate to each other in their
marriage settlements
3. more than 1/5 of their present property.
4. Any excess shall be considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities
of wills.

Donation of future property can only be donation
mortis causa and the form must be in the form of
donation mortis causa. A person can only donate to
the extent, you are allowed to dispose by will.
**ART 86. A donation by reason of marriage
 may be revoked by the donor in the following
cases:
1. If the marriage is not celebrated or
a. judicially declared void ab initio
b. except donations made in the marriage
settlements, which shall be governed
by Article 81;
2. When the marriage takes place
 without the consent of the parents or
guardian, as required by law;
3. When the marriage is annulled,
 and the donee acted in bad faith;
4. Upon legal separation,
 the donee being the guilty spouse;
5. If it is with a resolutory condition
 and the condition is complied with;
6. When the donee has committed an act of
ingratitude as specified by the provisions of the
Civil Code on donations in general.
ART. 87. Every donation or grant of gratuitous
advantage, direct or indirect,
a. between the spouses
b. during the marriage shall be void,
c. except moderate gifts which the spouses may
give each other on the occasion of any family
rejoicing.
d. The prohibition shall also apply to persons living
together as husband and wife without a valid
marriage.
Related Provision
ART. 1490. The husband and the wife cannot sell property to
each other, except:
1. When a separation of property was agreed upon in
the marriage settlements; or
2. When there has been a judicial separation of property
under article 191.
System of Absolute Community
ART. 88. The absolute community of property between
spouses
1. shall commence at the precise moment that the
marriage is celebrated.
2. Any stipulation, express or implied, for the
commencement of the community regime
3. at any other time shall be void.
**ART 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter.
**ART. 91. Unless otherwise provided in this Chapter or in
the marriage settlements,
1. the community property shall consist
2. of all the property owned by the spouses at the time
of the celebration of the marriage or
3. acquired thereafter.
**ART. 92. The following shall be excluded from the
community property:
1. Property acquired during the marriage
a. by gratuitous title
b. by either spouse, and the fruits as well as
the income thereof, if any,
c. unless it is expressly provided by the
donor, testator or grantor that they shall
form part of the community property;
2. Property for personal and exclusive use of either
spouse.
 However, jewelry shall form part of the
community property;
3. *Property acquired before the marriage
a. by either spouse who has legitimate
descendants
b. by a former marriage,
c. and the fruits as well as the income, if any,
of such property.
Par. 2

The principle of substitution of value is applicable. Thus,
if the income is separate property and whatever property
is acquired with that separate property [for example
jewelry] remains separate property.

While the money that he used was community [for
example his salary] the property became separate
because he used exclusively by him in his person.
However when it comes to jewelry that’s form part of
absolute community of property even that is for exclusive
and personal use.
Par. 3

It is intended to protect the rights of legitimate children
and descendant of the 1st marriage. The rule is intended
merely to prevent the merger of the properties of a
spouse acquired during a former marriage with his or her
absolute community in the second marriage if said spouse
has legitimate children or descendants by his or her first
marriage.
ART. 93. Property acquired during the marriage
1. is presumed to belong to the community,
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
2. unless it is proved that it is one of those
excluded therefrom.
***ART. 94. The absolute community of property shall
be liable for:
1. The support of the spouses,
a. their common children, and
b. legitimate children of either spouse;
c. however, the support of illegitimate
children shall be governed by the
provisions of this Code on Support;
2. All debts and obligations
a. contracted during the marriage by the
designated administrator-spouse for the
benefit of the community, or
b. by both spouses, or
c. by one spouse with the consent of the
other;
3. Debts and obligations
a. contracted by either spouse
b. without the consent of the other
c. to the extent that the family may have
been benefited;
4. All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
property;
5. All taxes and expenses for mere preservation
a. made during marriage
b. upon the separate property of either
spouse used by the family;
6. Expenses to enable either spouse to commence
or complete a professional or vocational course,
or other activity for self-improvement;
7. Antenuptial debts of either spouse
 insofar as they have redounded to the
benefit of the family;
8. The value of what is donated or promised by
both spouses in favor of their common legitimate
children
 for the exclusive purpose of
commencing or completing a a. the separate property of both spouses shall
professional or vocational course or
other activity for self-improvement;
9. Antenuptial debts of either spouse
a. other than those falling under
paragraph (7) of this Article,
b. the support of illegitimate children of
either spouse, and
c. liabilities incurred by either spouse by
reason of a crime or a quasi-delict,
d. in case of absence or insufficiency of
the exclusive property of the debtor-
spouse,
e. the payment of which shall be
considered as advances to be deducted
from the share of the debtor-spouse
upon liquidation of the community;
and
10. Expenses of litigation between the spouses
unless the suit is found to be groundless.
If the community property is insufficient to cover the
foregoing liabilities,
a. except those falling under paragraph (9),
b. the spouses shall be solidarily liable for the unpaid
balance with their separate properties.

The same principle with respect to conjugal partnership of
gains.

With respect to administration the same principle with
respect to conjugal partnership of gains.

With respect to liquidation and forfeiture provisions the
same principle with respect to conjugal partnership of
gains.

With respect to termination of the absolute community of
property provisions the same principle with respect to
conjugal partnership of gains.
ART. 95. Whatever may be lost
1. during the marriage
2. in any game of chance, betting, sweepstakes, or any
other kind of gambling,
3. whether permitted or prohibited by law,
4. shall be borne by the loser and shall not be charged
to the community
5. but any winnings therefrom shall form part of the
community property.
ART. 100. The separation in fact between husband and wife
shall not affect the regime of absolute community except that:
1. The spouse who leaves the conjugal home or refuses
to live therein,
a. without just cause,
b. shall not have the right to be supported;
2. When the consent of one spouse to any transaction
of the other is required by law,
 judicial authorization shall be obtained in a
summary proceeding;
3. In the absence of sufficient community property,
be solidarily liable for the support of the
family.
b. The spouse present shall, upon proper
petition in a summary proceeding,
c. be given judicial authority to administer or
encumber any specific separate property of
the other spouse and
d. use the fruits or proceeds thereof to satisfy
the latter's share.
ART. 101. If a spouse
1. without just cause
2. abandons the other or
3. fails to comply with his or her obligations to the
family,
the aggrieved spouse
1. may petition the court for receivership,
2. for judicial separation of property or
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

3. for authority to be the sole administrator of the
In conjugal partnership of gains there are three separate
absolute community, and distinct patrimonies
4. subject to such precautionary conditions as the 1. Capital of the husband
court may impose. 2. Paraphernal property of the wife
3. Conjugal partnership
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
Until the conjugal partnership is dissolved, the husband
and the wife are not co-owners of the conjugal
partnership property which can be levied by the creditors
A spouse is deemed to have abandoned the other when
of the husband or the wife.
her or she has left the conjugal dwelling without intention
of returning.
The right of the husband and the wife on a conjugal
partnership asset is inchoate because the conjugal
The spouse who has left the conjugal dwelling partnership property is answerable first to the liabilities of
1. for a period of 3 months or conjugal partnership. If at the time the conjugal
2. has failed within the same period to give any partnership was dissolved, the conjugal partnership are
information as to his or her whereabouts more than the assets, nothing will be left for the husband
3. shall be prima facie presumed to have no and the wife to divide between them.
intention of returning to the conjugal dwelling.
ART. 116. All property acquired during the marriage,
CONJUGAL PARTNERSHIP OF ABSOLUTE COMMUNITY OF 1. whether the acquisition appears to have been made,
GAINS PROPERTY contracted or registered in the name of one or both
BASIS - The exclusive All properties acquired by the spouses,
properties of the spouses are spouses even before the 2. is presumed to be conjugal unless the contrary is
kept entirely separate and marriage become community proved.
distinct from the benefits property
which they acquired during
ART. 109. The following shall be the exclusive property of
the marriage
each spouse:
RETENTION OF PROPERTY - The spouses do not retain any
Each spouse retains his/her property acquired before
1. That which is brought to the marriage as his or her
properties acquired prior to marriage and all properties own;
the marriage but the fruits they own at the time of the 2. That which each acquires during the marriage by
and income of such properties marriage become part of the gratuitous title;
from part of the conjugal community property 3. That which is acquired by
properties during the a. right of redemption,
marriage b. by barter or
METHOD OF LIQUIDATION – It It would be easier to liquidate c. by exchange with property belonging to
will entail identification and the community property since only one of the spouses; and
return of the exclusive its net remainder is merely 4. That which is purchased with exclusive money of
properties of the spouses divided equally between the the wife or of the husband.
spouses or their heirs.
**ART 117. The following are conjugal partnership
Conjugal Partnership of Gains properties:
1. Those acquired by onerous title
ART. 105. In case the future spouses a. during the marriage
1. agree in the marriage settlements that the regime b. at the expense of the common fund,
of conjugal partnership of gains shall govern whether the acquisition be for the
their property relations during marriage, partnership, or for only one of the spouses;
2. the provisions in this Chapter shall be of 2. Those obtained from the labor, industry, work or
supplementary application. profession of either or both of the spouses;
3. The fruits, natural, industrial, or civil, due or
The provisions of this Chapter shall also received
1. apply to conjugal partnerships of gains already a. during the marriage from the common
established between spouses property,
2. before the effectivity of this Code, b. as well as the net fruits from the exclusive
3. without prejudice to vested rights already property of each spouse;
acquired in accordance with the Civil Code or 4. The share of either spouse in the hidden treasure
other laws, as provided in Article 256. which the law awards to the finder or owner of the
property where the treasure is found;

It is called conjugal partnership of gains because there 5. Those acquired through occupation such as fishing
is partnership not on the separate properties of the or hunting;
spouses but there is partnership only on the gains of
those separate properties.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
6. Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
7. Those which are acquired by chance, such as
winnings from gambling or betting. However,
losses therefrom shall be borne exclusively by
the loser-spouse.
**ART. 120. The ownership of improvements,
1. whether for utility or adornment,
2. made on the separate property of the spouses
3. at the expense of the partnership or through the
acts or efforts of either or both spouses
4. shall pertain to the
a. conjugal partnership, or
b. to the original owner-spouse,
 subject to the following rules:
When the cost of the improvement made by the conjugal
partnership and any resulting increase in value
1. are more than the value of the property at the
time of the improvement,
2. the entire property of one of the spouses shall
belong to the conjugal partnership,
3. subject to reimbursement of the value of the
property of the owner-spouse at the time of the
improvement;
otherwise,
4. said property shall be retained in ownership by
the owner-spouse,
5. likewise subject to reimbursement of the cost of
the improvement.
In either case,
1. the ownership of the entire property shall be
vested
2. upon the reimbursement,
3. which shall be made at the time of the
liquidation of the conjugal partnership.
Reverse Accession

Until reimbursement is done, the land does not
become conjugal. Implying that the building must be
there at the time the conjugal partnership is
dissolved. If the building is no longer there, at the
time the conjugal partnership is dissolved,
reimbursement is no longer necessary because there
is no more building to pay.
ART. 124. The administration and enjoyment of the
conjugal partnership
1. shall belong to both spouses jointly.
2. In case of disagreement,
3. the husband's decision shall prevail,
4. subject to recourse to the court by the wife for
proper remedy,
5. which must be availed of within 5 years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties,
1. the other spouse may assume sole powers of
administration.
2. These powers do not include disposition or
encumbrance without authority of the court or the
written consent of the other spouse.
3. In the absence of such authority or consent,
4. the disposition or encumbrance shall be void.
5. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse
and the third person, and
6. may be perfected as a binding contract
7. upon the acceptance by the other spouse or
8. authorization by the court
9. before the offer is withdrawn by either or both
offerors.

May the partiers agree in their marriage settlement that a
third party will be the administrator of the conjugal
partnership? The spouses cannot make as an
administrator a third party.

Situation – The wife has a separate property, an hacienda,
in that hacienda there are apartment units earning
monthly income. Later the husband and the wife
quarreled. Can the husband demand as an administrator
of conjugal partnership for the income of the apartments
since the income is conjugal? Can the husband do that?
The owner of the separate property is the one entitled to
receive the fruits because the owner of the property is
the administrator of the separate property. The husband
is the administrator of the conjugal partnership not of the
apartment units. The husband should wait that the net
income minus expenses should be given to him by his
wife. If the wife does not want to turn over the net
income, the husband can file an action against the wife
not against the apartment tenants [SC case]
Dissolution of Conjugal Partnership Regime
ART. 126. The conjugal partnership terminates:
1. Upon the death of either spouse;
2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void; or
4. In case of judicial separation of property during the
marriage under Articles 134 to 138
Liquidation of the Conjugal Partnership Assets and Liabilities
ART. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
1. An inventory shall be prepared,
a. listing separately all the properties of the
conjugal partnership
b. and the exclusive properties of each
spouse.
2. Amounts advanced by the conjugal partnership
a. in payment of personal debts and
obligations of either spouse
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NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
b. shall be credited to the conjugal
partnership as an asset thereof.
3. Each spouse shall be reimbursed
a. for the use of his or her exclusive funds
in the acquisition of property or for the
value of his or her exclusive property,
b. the ownership of which has been
vested by law in the conjugal
partnership.
4. The debts and obligations of the conjugal
partnership shall be paid out of the conjugal
assets.
a. In case of insufficiency of said assets,
b. the spouses shall be solidarily liable for
the unpaid balance
c. with their separate properties, in
accordance with the provisions of
paragraph (2) of Article 121.
5. Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each
of them.
6. Unless the owner had been indemnified from
whatever source,
a. the loss or deterioration of movables
used for the benefit of the family,
b. belonging to either spouse, even due to
fortuitous event,
c. shall be paid to said spouse from the
conjugal funds, if any.
7. The net remainder of the conjugal partnership
properties shall constitute the profits,
a. which shall be divided equally between
husband and wife,
b. unless a different proportion or division
was agreed upon in the marriage
settlements or
c. unless there has been a voluntary
waiver or forfeiture of such share as
provided in this Code.
8. The presumptive legitimes of the common
children shall be delivered upon the partition in
accordance with Article 51.
9. In the partition of the properties,
a. the conjugal dwelling and the lot on
which it is situated shall,
b. unless otherwise agreed upon by the
parties,
c. be adjudicated to the spouse with
whom the majority of the common
children choose to remain.
d. Children below the age of 7 years are
deemed to have chosen the mother,
e. unless the court has decided otherwise.
f. In case there is no such majority, the
court shall decide, taking into
consideration the best interests of said
children.

There are forfeiture provisions in case the dissolution
of the conjugal partnership was occasioned by legal
separation, the guilty spouse loses his right, his share in
the net fruits.

Same also if the marriage was annulled, the guilty spouse
losses its right to the conjugal partnership.

To whom the forfeited share go? To the common children
or if there is none to the children of the guilty spouse by a
prior marriage, if he has no children by prior marriage it
will go to the innocent spouse.

All are net fruits because the conjugal partnership is zero
to begin with. The properties of the husband before they
got married are all separate property.
Presumptive Legitime

It is the legitime that the legitimate children are entitled
assuming or on the assumption that the parent has died.
**ART. 121. The conjugal partnership shall be liable for:
1. The support of the spouse,
a. their common children, and
b. the legitimate children of either spouse;
c. however, the support of illegitimate
children shall be governed by the
provisions of this Code on Support;
2. All debts and obligations
a. contracted during the marriage by the
designated administrator-spouse
b. for the benefit of the conjugal partnership
of gains, or
c. by both spouses or by one of them
d. with the consent of the other;
3. Debts and obligations contracted by either spouse
a. without the consent of the other
b. to the extent that the family may have been
benefited;
4. All taxes, liens, charges, and expenses, including
major or minor repairs upon the conjugal partnership
property;
5. All taxes and expenses for mere preservation made
during the marriage upon the separate property of
either spouse;
6. Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity
for self-improvement;
7. *Antenuptial debts of either spouse
 insofar as they have redounded to the
benefit of the family;
8. The value of what is donated or promised by both
spouses
a. in favor of their common legitimate
children
b. for the exclusive purpose of commencing
or completing a professional or vocational
course or other activity for self-
improvement; and
9. Expenses of litigation between the spouses unless
the suit is found to groundless.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

If the conjugal partnership is insufficient to cover the If no judicial settlement proceeding is instituted,
foregoing liabilities, the spouses shall be solidarily liable 1. the surviving spouse shall liquidate the community
for the unpaid balance with their separate properties. property
2. either judicially or extra-judicially

When a debt is contracted by both spouses there is a 3. within 6 months from the death of the deceased
conclusive presumption that debt redounded to the spouse.
benefit of the family. 4. If upon the lapse of the 6 months period, no
liquidation is made,

The debt is chargeable against the conjugal 5. any disposition or encumbrance involving the
partnership even it is contracted without the consent community property of the terminated marriage shall
of the wife, if the debt redounded to the benefit of
be void.
the family, and only to the extent that it has
redounded to the benefit of the family.
Should the surviving spouse contract a subsequent marriage

There is no presumption that the debt contracted by
1. without compliance with the foregoing
the husband redounded to the benefit of the family. requirements,
He who alleges proves it. 2. a mandatory regime of complete separation of
property shall govern the property relations of the
Par. 3 subsequent marriage.
1. If the husband himself is the principal obligor in the
contract, i.e., he directly received the money and
The same provision applies with respect to conjugal
services to be used in or for his own business or his partnership of gains.
own profession, that contract falls within the term
obligations for the benefit of the conjugal ART 134. In the absence of an express declaration in the
partnership. marriage settlements,
2. If the money or services are given to another person 1. the separation of property between spouses during
or entity, and the husband acted only as a surety or the marriage shall not take place
guarantor, that contract cannot, by itself, alone be 2. except by judicial order.
categorized as falling within the context of 3. Such judicial separation of property may either be
"obligations for the benefit of the conjugal voluntary or for sufficient cause.
partnership [AYALA INVESTMENT v. CA]
ART. 138. After dissolution of

The contract of loan or services is clearly for the 1. the absolute community or
benefit of the principal debtor and not for the surety 2. of the conjugal partnership,
or his family. No presumption can be inferred that, 3. the provisions on complete separation of property
when a husband enters into a contract of surety or
shall apply.
accommodation agreement, it is "for the benefit of
the conjugal partnership." Proof must be presented
ART. 141. The spouses may, in the same proceedings where
to establish benefit redounding to the conjugal
partnership. There must be the requisite showing of
separation of property was decreed,
some advantage which clearly accrued to the welfare a. file a motion in court for a decree
of the spouses" or "benefits to his family" or "that b. reviving the property regime that existed between
such obligations are productive of some benefit to them before the separation of property in any of the
the family." [supra] following instances:
1. When the civil interdiction terminates;

For a charge to be a liability of the conjugal 2. When the absentee spouse reappears;
partnership, the benefit that the family must have 3. When the court,
received should be direct and not speculative. a. being satisfied that the spouse granted
the power of administration in the
ART. 108. The conjugal partnership shall be governed marriage settlements
1. by the rules on the contract of partnership b. will not again abuse that power,
2. in all that is not in conflict with what is c. authorizes the resumption of said
expressly determined in this Chapter or administration;
3. by the spouses in their marriage settlements. 4. When the spouse who has left the conjugal
home without a decree of legal separation
Separation of Property of the Spouses and Administration of resumes common life with the other;
Common Property by One Spouse During the Marriage 5. When parental authority is judicially restored to
the spouse previously deprived thereof;
ART. 103. Upon the termination of the marriage by death, 6. When the spouses who have separated in fact
1. the community property shall be liquidated for at least one year, reconcile and resume
2. in the same proceeding for the settlement of the common life; or
estate of the deceased.

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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

7. When after voluntary dissolution of the
absolute community of property or conjugal
partnership has been judicially decreed
upon
a. the joint petition of the spouses, t
b. hey agree to the revival of the
former property regime.
c. No voluntary separation of
property may thereafter be
granted.
The revival of the former property regime shall be
governed by Article 67.
Property Regime of Unions Without Marriage
*****ART 147. When a man and a woman
1. who are capacitated to marry each other,
2. live exclusively with each other as husband and
wife
a. without the benefit of marriage or
b. under a void marriage,
3. their wages and salaries shall be owned by them
in equal shares and
4. the property acquired by both of them through
their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary,
1. properties acquired
2. while they lived together
3. shall be presumed to have been obtained by their
joint efforts, work or industry, and
4. shall be owned by them in equal shares.
For purposes of this Article,
 a party who did not participate in the acquisition
by the other party of any property
1. shall be deemed to have contributed
jointly in the acquisition thereof
2. if the former's efforts consisted in the
care and maintenance of the family and
of the household.
4. each vacant share shall belong to the respective
surviving descendants.
5. In the absence of descendants, such share shall
belong to the innocent party.
 In all cases, the forfeiture shall take place upon
termination of the cohabitation.
Unions Governed by this Article
1. When man and a woman capacitated to marry each
other live exclusively with each other as husband and
wife without the benefit of marriage - The cohabitation
of the parties must be exclusive. The idea is to encourage
the parties to eventually legalize their union.
2. A man and a woman living together under a void
marriage -This applies to void marriages where the
parties or either of them does not have an existing valid
marriage with anyone else like incestuous marriage
Requisites
1. The man and a woman must be capacitated to marry each
other and who are living exclusively with each other as
husband and wife, but they are not married or even if
they are married, their marriage is void from the
beginning.
2. That during the period of their cohabitation, properties
should have been acquired by either or both of them
through their work or industry or their wages and salaries
3. That the relationship between the man and the woman
should not be adulterous; neither should it be bigamous.

The regime is Special Co-Ownership. Reason - Usually
under the rules on co-ownership for somebody to
become co-owner he must contribute to the acquisition
of the property. His acquisition should be capable of
pecuniary estimation. If the party does not contribute
something of value, in the acquisition of the property,
that party is not a co-owner. The interest of party in co-
ownership is in proportion to the value he contributed.

However under Art. 147 the party did not contribute in
the co-own property if it came from wages and salary
because wages and salaries shall be owned by them in
equal shares. Applying therefore the principle of
substitution of value, whatever property that the party
buys using his wages and salary are co-owned.

Neither party can
The wages and salaries shall be co-owned only up to the
1. encumber or time they cohabited.
2. dispose by acts inter vivos of his or her share in
the property acquired during cohabitation and *****ART. 148. In cases of cohabitation not falling under the
owned in common, preceding Article,
3. without the consent of the other, 1. only the properties acquired by both of the parties
4. until after the termination of their cohabitation. 2. through their actual joint contribution of money,
property, or industry
When only one of the parties to a void marriage is in 3. shall be owned by them in common in proportion to
good faith, their respective contributions.
1. the share of the party in bad faith in the co-
ownership In the absence of proof to the contrary,
2. shall be forfeited in favor of their common 1. their contributions and corresponding shares are
children. presumed to be equal.
3. In case of default of or waiver by any or all of 2. The same rule and presumption shall apply to joint
the common children or their descendants, deposits of money and evidences of credit.

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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

If one of the parties is validly married to another,
1. his or her share in the co-ownership
2. shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage.
3. If the party who acted in bad faith
4. is not validly married to another,
5. his or her shall be forfeited in the manner
provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even
if both parties are in bad faith.
Application of this Article
1. Bigamous marriage
2. adulterous relationships
3. Relationship in a state of concubinage
4. Relationship where both man and woman are
married to other person
5. Multiple alliance of the same married man.
The Family
1. constituted jointly by the husband and the wife or
2. by an unmarried head of a family,
3. is the dwelling house where they and their family
reside,
4. and the land on which it is situated.
Limitations on constitution of Family Home
1. Each family can only have one home
2. The family can be constituted only on the dwelling place
3. The value of the family home exempt from seizure of
creditors cannot exceed the limits fixed by law

Family home must be actually used as residence of the
family
*ART 161. For purposes of availing of the benefits of a
family home as provided for in this Chapter, a person may
constitute, or be the beneficiary of, only one family home.
Paternity & Filiation
Paternity

Civil status of the father with respect to the child

ART 149. The family, being the foundation of the nation, Maternity

Civil status of the mother with respect to the child.
is a basic social institution which public policy cherishes
and protects. Consequently, family relations are governed
Filiation
by law and no custom, practice or agreement destructive

The status of the child in relation to the father or the
of the family shall be recognized or given effect. mother

ART 150. Family relations include those:

ART 163. The filiation of children may be by nature or by
1. Between husband and wife;
adoption.
2. Between parents and children;
3. Among other ascendants and descendants; and
Natural filiation may be legitimate or illegitimate.
4. Among brothers and sisters, whether of the full
or half-blood.
*ART 164. Children conceived or born during the marriage
of the parents are legitimate.

In order that a suit between the members of the
same family may prosper, it must appear from the
verified complaint that earnest efforts towards a Children conceived as a result of artificial insemination
compromise must have been made but the same 1. of the wife
have failed. The allegation is jurisdictional. 2. with the sperm of the
a. husband or
ART 151. No suit between members of the same family b. that of a donor or
shall prosper unless it should appear from the verified c. both
complaint or petition that earnest efforts toward a 3. are likewise legitimate children of the husband and
compromise have been made, but that the same have his wife,
failed. If it is shown that no such efforts were in fact 4. provided, that both of them
made, the same case must be dismissed. a. authorized or
b. ratified such insemination
This rules shall not apply to cases which may not be the 5. in a written instrument executed and signed by them
subject of compromise under the Civil Code. 6. before the birth of the child.
7. The instrument shall be recorded in the civil registry
Members of the Same Family together with the birth certificate of the child.

Refers to the husband and wife, parents and children,
ascendants and descendants, and brothers and Artificial Insemination
sisters, whether full or half-blood. Brothers and
The impregnation of a female with semen from a male
sisters as members of the same family does not without sexual intercourse.
comprehend "sisters-in-law [SPS. HONTIVEROS v.
RTC]
The donor must be unknown since no donor would want
his identity known to avoid paternity suits in the future.
*ART 152. The family home, The recording is made for the protection of the doctor

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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
who did the artificial insemination and also to protect
the wife in case the husband dies before the birth of
the child.

The fact that the child was born of artificial
insemination should not appear in the birth certificate
so that the child would not know that he or she was
born of artificial insemination. Also the husband
would like the public to believe that he is the father
of the child.

A child born and conceived during a valid marriage is
presumed to be legitimate. The presumption is
grounded in a policy to protect innocent offspring
from the odium of illegitimacy [LIYAO v. LIYAO 378
SCRA 563]
ART 165. Children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in
this Code.
ART 166. Legitimacy of a child may be impugned only
on the following grounds:
1. That it was physically impossible for the
husband
a. to have sexual intercourse with his wife
b. within the first 120 days of the 300
days which immediately preceded the
birth of the child because of:
a. the physical incapacity of the husband to
have sexual intercourse with his wife;
b. the fact that the husband and wife were
living separately in such a way that sexual
intercourse was not possible; or
c. serious illness of the husband, which
absolutely prevented sexual intercourse;
2. That it is proved that for biological or other
scientific reasons,
a. the child could not have been that of
the husband,
b. except in the instance provided in the
second paragraph of Article 164; or
3. That in case of children conceived through
artificial insemination,
a. the written authorization or ratification
of either parent
b. was obtained through mistake, fraud,
violence, intimidation, or undue
influence.

The period referred to is considered the period of the
child’s conception i.e., the child could have been
conceived at any time within said first 120 days of the
300 days immediately preceding the birth of the child.

The period is applicable even if the child is premature.

Although the husband was already suffering from
tuberculosis and his condition then was so serious,
yet that is no evidence of impotency, nor does it
prevent carnal intercourse. There are cases where
persons suffering from this sickness can do the carnal act
even in the most crucial stage because they are more
inclined to sexual intercourse [ANDAL v. MACARAIG]
ART 167. The child shall be considered legitimate although
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.

Reason – The child’s legitimacy, which is established by
the FC at the moment and by the fact of his birth, should
not be affected by the mere declaration of the mother
against its legitimacy nor her mere conviction as an
adulteress
*ART 168. If the marriage is terminated and
a. the mother contracted another marriage
b. within 300 days after such termination of the former
marriage,
c. these rules shall govern in the absence of proof to
the contrary:
1. A child born before 180 days after the
solemnization of the subsequent marriage is
a. considered to have been conceived
during the former marriage,
b. provided it be born within 300 days
after the termination of the former
marriage;
2. A child born after 180 days following the
celebration of the subsequent marriage is
a. considered to have been conceived
during such marriage,
b. even though it be born within the 300
days after the termination of the
former marriage.
ART. 169. The legitimacy or illegitimacy of a child born after
300 days following the termination of the marriage shall be
proved by whoever alleges such legitimacy or illegitimacy.
*ART. 170. The action to impugn the legitimacy of the child
shall be brought
1. within one year from the knowledge of the birth or
its recording in the civil register,
a. if the husband or,
b. in a proper case, any of his heirs,
c. should reside in the city or municipality
where the birth took place or was recorded.
2. If the husband or, in his default,
a. all of his heirs do not reside at the place of
birth as defined in the first paragraph or
where it was recorded,
b. the period shall be two years if they should
reside in the Philippines; and
3. three years if abroad.
4. If the birth of the child has been concealed from or
a. was unknown to the husband or his heirs,
b. the period shall be counted from the
discovery or knowledge of the birth of the
child or of the fact of registration of said
birth, whichever is earlier.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Reason - The periods are short so that the status of a
legitimate child will not be in a state of uncertainty
for a long period of time.

Registration of the birth of the child in the civil
registrar is not considered as constructive notice of
such birth. There must be actual knowledge of such
registration by the husband or in proper cases his
heirs.
ART 171. The heirs of the husband
1. may impugn the filiation of the child
2. within the period prescribed in the preceding
article only in the following cases:
1. If the husband should die
 before the expiration of the period fixed for
bringing his action;
2. If he should die
 after the filing of the complaint without
having desisted therefrom; or
3. If the child was born after the death of the
husband.

Impugning the legitimacy of the child is a strictly
personal right of the husband, or in exceptional cases,
his heirs for the simple reason that he is the one
directly confronted with the scandal and ridicule
which the infidelity of his wife produces and he
should be the one to decide whether to conceal that
infidelity or expose it in view of the moral and
economic interest involved [LIYAO v. LIYAO 378 SCRA
563]

It is only in exceptional cases that his heirs are
allowed to contest such legitimacy. Outside of these
cases, none - even his heirs - can impugn legitimacy;
that would amount to an insult to his memory [supra]
Proof of Filiation
**ART 172. The filiation of legitimate children is
established by any of the following:
1. The record of birth appearing in the civil register
or
 a final judgment; or
2. An admission of legitimate filiation in a public
document or
 a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
1. The open and continuous possession of the status
of a legitimate child; or
2. Any other means allowed by the Rules of Court
and special laws.
Two forms of acknowledgment
1. VOLUNTARY
a. The parent signed the birth certificate of the
child as a parent - it is not enough that the
father signed the birth certificate of the child; it
should be shown that the father signed the birth
certificate of the child knowing that it was the birth
certificate of the child, and that he was signing as a
parent.
b. When the parent execute a public document of
acknowledgment.
c. Private handwritten document signed by the parent
where he acknowledge the child as his illegitimate
child
d. By virtue of a final judgment - The issue in the case
where the judgment was promulgated was paternity
of the child. If not is the issue then that is not a
voluntary acknowledgement.
2. INVOLUNTARY - by court action
ART 173. The action to claim legitimacy may be brought
1. by the child during his or her lifetime and
2. shall be transmitted to the heirs should the child die
during minority or in a state of insanity.
3. In these cases, the heirs shall have a period of 5
years within which to institute the action.
ART 174. Legitimate children shall have the right:
1. To bear the surnames of the father and the mother,
in conformity with the provisions of the Civil Code
on Surnames;
2. To receive support from their parents, their
ascendants, and in proper cases, their brothers and
sisters, in conformity with the provisions of this
Code on Support; and
3. To be entitled to the legitime and other successional
rights granted to them by the Civil Code.
Illegitimate Children
*ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
The action must be brought
1. within the same period specified in Article 173,
2. except when the action is based on the second
paragraph of Article 172,
3. in which case the action may be brought during the
lifetime of the alleged parent.

An illegitimate child becomes entitled to support and
inheritance rights only when the child is acknowledge.
**ART 176. Illegitimate children shall use
1. the surname and
2. shall be under the parental authority of their mother,
and
3. shall be entitled to support in conformity with this
Code.
4. However, illegitimate children may use the surname
of their father
5. if their filiation
a. has been expressly recognized by the
father through the record of birth appearing
in the civil register, or
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
b. when an admission in a public
document or
c. private handwritten instrument is made
by the father.
6. Provided, the father has the right to institute an
action before the regular courts to prove non-
filiation during his lifetime.
7. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate
child.

Took effect on 19 March 2004.

The law has retroactive application.

The mother has to give consent that the illegitimate
child shall use the surname of the father because of
the word may as use in the law and since the child is
under the parental authority of the mother. But when
the child is of legal age then, the child can decide to
use the surname of his father.

Since there is no law prohibiting an illegitimate child
adopted by her natural father, to use, as middle name
her mother’s surname, we find no reason why she
should not be allowed to do so [IN THE MATTER OF
THE ADOPTION OF STEPHANIE ASTORGA GARCIA GR
148311 March 31, 2005]
Legitimated Children
*ART. 177. Only children
1. conceived and born outside of wedlock of
parents
2. who, at the time of the conception of the former,
3. were not disqualified by any impediment to
marry each other may be legitimated.
Requisites
1. The child was conceived and born outside wedlock
2. The parent’s at the time of the child’s conception
were not disqualified by an impediment to marry
each other.
3. The parents must subsequently enter into a valid
marriage

Only natural children are legitimated by the
subsequent marriage of the parents.
Natural child –

One who was conceived outside a valid marriage, by
parents who, could have married each other at that
time because there was no impediment for them to
marry each other.
Situation –

Suppose a 16 year old girl got pregnant by her
boyfriend. The child was born when she was 17. When
she reach 18, the two got married. Was the child
legitimated by the marriage of his parents? There are
two schools of thought.
1. The Strict School. According to this school,
the child was not legitimated by the
marriage of the parents because the child was a
natural child. It was not a natural child because
at the time the child conceived and born, the
parents could not have validly married because
there was an impediment.
An anomaly situation will craft up in the family.
Because children that will be born after the
celebration of the marriage are full blood
brothers/sisters of the first born child and all of
them are legitmate but the first child is
illegitimate. If the parents adopted the child to
remedy the situation, adoption only creates a
purely personal relationship between the
adopting parent and the adopted child. The
child still remain illegitimate.
2. According to the liberal view, this is the view of
Justice Vitug and Simpio-Diy – The impediment
referred to in the law must be a an impediment
of a permanent character. If the impediment
can cured by the mere passage of time, then it
should not be considered an impediment that
prevent the child from being legitimated.
ART 178. Legitimation shall take place by a subsequent valid
marriage between parents.
The annulment of a voidable marriage shall not affect the
legitimation.
Related Provision
ART. 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36
has become final and executory shall be considered legitimate.
Children conceived or born of the subsequent marriage under
Article 53 shall likewise be legitimate.
ART 179. Legitimated children shall enjoy the same rights as
legitimate children.
ART 180. The effects of legitimation shall retroact to the time
of the child's birth.
ART 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.

The rationale of which is for the protection of the child
and his or her descendants, since the child’s parent may
get married many, many years after the birth of the child,
and even after the latter had already married and died,
leaving children behind who should benefit form the
legitimation of their own deceased parent.
ART 182. Legitimation may be impugned only by those who
are prejudiced in their rights, within five years from the time
their cause of action accrues.

Prejudice in their rights – means those who would suffer
economic or material injury by the legitimation like
testamentary or intestate heirs. Creditors are excluded
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
because they step into the picture only when there is
repudiation of inheritance by others.

Cause of action accrues – form the death of the
putative parent because before that, the heirs have
no personality to bring an action.
Grounds which legitmation may impugned
1. The subsequent marriage of the child’s parent is void
2. The child alleged legitimate is not natural
3. The child is not really the child of the alleged parents.
RA 8552
Domestic Adoption Act of 1998
SEC 7. Who May Adopt.
a. Any Filipino citizen of legal age, in possession of full
civil capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at least
16 years older than the adoptee, and who is in a
position to support and care for his/her children in
keeping with the means of the family. The
requirement of 16 year difference between the age of
the adopter and adoptee may be waived when the
adopter is the biological parent of the adoptee, or is
the spouse of the adoptee's parent;
b. Any alien possessing the same qualifications as above
stated for Filipino nationals: Provided, That his/her
country has diplomatic relations with the RP, that
he/she has been living in the Philippines for at least 3
continuous years prior to the filing of the application
for adoption and maintains such residence until the
adoption decree is entered, that he/she has been
certified by his/her diplomatic or consular office or
any appropriate government agency that he/she has
the legal capacity to adopt in his/her country, and
that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter:
Provided, Further, That the requirements on
residency and certification of the alien's qualification
to adopt in his/her country may be waived for the
following:
i. a former Filipino citizen who seeks to adopt a
relative within the 4th degree of consanguinity or
affinity; or
ii. one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
iii. one who is married to a Filipino citizen and seeks
to adopt jointly with his/her spouse a relative
within the 4th degree of consanguinity or affinity
of the Filipino spouse; or
c. The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following
cases:
i. if one spouse seeks to adopt the legitimate
son/daughter of the other; or
ii. if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, However, that the other spouse
has signified his/her consent thereto; or
iii. if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall
be exercised by the spouses.
SEC 8. Who May Be Adopted
a. Any person below 18 years of age who has been
administratively or judicially declared available for
adoption;
b. The legitimate son/daughter of one spouse by the other
spouse;
c. An illegitimate son/daughter by a qualified adopter to
improve his/her status to that of legitimacy;
d. A person of legal age if, prior to the adoption, said person
has been consistently considered and treated by the
adopter(s) as his/her own child since minority;
e. A child whose adoption has been previously rescinded; or
f. A child whose biological or adoptive parent(s) has died:
Provided, That no proceedings shall be initiated within 6
months from the time of death of said parent(s).

Joint adoption by husband and wife is mandatory. This is
in consonance with the concept of joint parental authority
over the child, which is the ideal situation [REPUBLIC v.
TOLEDANO]
SEC 9. Whose Consent is Necessary to the Adoption.
a. The adoptee, if 10 years of age or over;
b. The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality
which has legal custody of the child;
c. The legitimate and adopted sons/daughters, 10 years of
age or over, of the adopter(s) and adoptee, if any;
d. The illegitimate sons/daughters, 10 years of age or over,
of the adopter if living with said adopter and the latter's
spouse, if any; and
e. The spouse, if any, of the person adopting or to be
adopted.

Under the Rule on Adoption Sec. 6 - the petition for
adoption shall be filed with the Family Court of the
province or city where the prospective adoptive parents
reside.
SEC 13. Decree Of Adoption. If, after the publication of the order of
hearing has been complied with, and no opposition has been
interposed to the petition, and after consideration of the case
studies, the qualifications of the adopter(s), trial custody report and
the evidence submitted, the court is convinced that the petitioners
are qualified to adopt, and that the adoption would redound to the
best interest of the adoptee, a decree of adoption shall be entered
which shall be effective as of the date the original petition was filed.
Effects of Adoption
SEC 16. Parental Authority. Except in cases where the biological
parent is the spouse of the adopter, all legal ties between the
biological parent(s) and the adoptee shall be severed and the same
shall then be vested on the adopter(s)
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

SEC 17. Legitimacy. The adoptee shall be considered the a. is at least 27 years of age and at least 16 years older than
legitimate son/daughter of the adopter(s) for all intents and the child to be adopted, at the time of application unless
purposes and as such is entitled to all the rights and obligations the adopter is the parent by nature of the child to be
provided by law to legitimate sons/daughters born to them adopted or the spouse of such parent:
without discrimination of any kind. To this end, the adoptee is b. if married, his/her spouse must jointly file for the
entitled to love, guidance, and support in keeping with the adoption;
means of the family. c. has the capacity to act and assume all rights and
responsibilities of parental authority under his national
SEC 18. Succession. In legal and intestate succession, the laws, and has undergone the appropriate counseling from
adopter(s) and the adoptee shall have reciprocal rights of an accredited counselor in his/her country;
succession without distinction from legitimate filiation. d. has not been convicted of a crime involving moral
However, if the adoptee and his/her biological parent(s) had left turpitude;
a will, the law on testamentary succession shall govern. e. is eligible to adopt under his/her national law;
f. is in a position to provide the proper care and support and
SEC 19. Grounds for Rescission of Adoption. to give the necessary moral values and example to all his
Upon petition of the adoptee, with the assistance of the children, including the child to be adopted;
Department if a minor or if over 18 years of age but is g. agrees to uphold the basic rights of the child as embodied
incapacitated, as guardian/counsel, the adoption may be under Philippine laws, the U.N. Convention on the Rights
rescinded on any of the following grounds committed by the of the Child, and to abide by the rules and regulations
adopter(s): issued to implement the provisions of this Act;
a. repeated physical and verbal maltreatment by the h. comes from a country with whom the Philippines has
adopter(s) despite having undergone counseling; diplomatic relations and whose government maintains a
b. attempt on the life of the adoptee; similarly authorized and accredited agency and that
c. sexual assault or violence; or adoption is allowed under his/her national laws; and
d. abandonment and failure to comply with parental i. possesses all the qualifications and none of the
obligations. disqualifications provided herein and in other applicable
Philippine laws.
Adoption, being in the best interest of the child, shall not be
subject to rescission by the adopter(s). However, the adopter(s) SEC. 10. Where to File Application.
may disinherit the adoptee for causes provided in Art 919 CC. An application to adopt a Filipino child shall be filed either with
the Philippine RTC having jurisdiction over the child, or with the
RA 8043 Board, through an intermediate agency, whether governmental
Inter-Country Adoption Act of 1995 or an authorized and accredited agency, in the country of the
prospective adoptive parents, which application shall be in

INTER-COUNTRY ADOPTION refers to the socio-legal accordance with the requirements as set forth in the
process of adopting a Filipino child by a foreigner or a implementing rules and regulations to be promulgated by the
Filipino citizen permanently residing abroad where Board.
the petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued Substitute and Special Parental Authority
outside the Philippines.
SUBSTITUTE PARENTAL SPECIAL PARENTAL

LEGALLY-FREE CHILD means a child who has been AUTHORITY AUTHORITY
voluntarily or involuntarily committed to the The parents lose their The parents or anyone
Department, in accordance with the Child and Youth parental authority in favor of exercising parental authority
Welfare Code. the substitute who acquires it does not lose parental
to the exclusion of parents authority. Those who are

CHILD means a person below 15 years of age unless charged with special parental
sooner emancipated by law authority exercise such
authority only during the time
SEC. 7. Inter-Country Adoption as the Last Resort. The Board that child is in their custody
shall ensure that all possibilities for adoption of the child under Displaces parental authority Concurs with parental
the Family Code have been exhausted and that inter-country authority
adoption is in the best interest of the child. Towards this end,
the Board shall set up the guidelines to ensure that steps will be ART. 216. In default
taken to place the child in the Philippines before the child is a. of parents or a judicially appointed guardian,
placed for inter-country adoption: Provided, however, That the
b. the following persons shall exercise substitute
maximum number that may be allowed for foreign adoption
parental authority over the child in the order
shall not exceed 600 a year for the first 5 years.
indicated:
SEC 8. Who May Be Adopted. Only a legally free child may be
1. The surviving grandparent, as provided in Art.
the subject of inter-country adoption. 214;
SEC 9. Who May Adopt. An alien or a Filipino citizen 2. The oldest brother or sister, over twenty-one
permanently residing abroad may file an application for inter- years of age, unless unfit or disqualified; and
country adoption of a Filipino child if he/she:
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

3. The child's actual custodian, over twenty- 2. Upon the death of the child; or
one years of age, unless unfit or 3. Upon emancipation of the child.
disqualified.
ART. 229. Unless subsequently revived by a final judgment,
Whenever the appointment or a judicial guardian over the parental authority also terminates:
property of the child becomes necessary, the same order 1. Upon adoption of the child;
of preference shall be observed. 2. Upon appointment of a general guardian;
3. Upon judicial declaration of abandonment of the
ART. 217. In case of child in a case filed for the purpose;
1. foundlings, 4. Upon final judgment of a competent court divesting
2. abandoned neglected or the party concerned of parental authority; or
3. abused children and 5. Upon judicial declaration of absence or incapacity of
4. other children similarly situated, the person exercising parental authority.
5. parental authority shall be entrusted in summary
judicial proceedings to ART. 230. Parental authority is suspended upon
a. heads of children's homes, 1. conviction of the parent or the person exercising the
b. orphanages and similar institutions same of a crime
duly accredited by the proper 2. which carries with it the penalty of civil interdiction.
government agency.
The authority is automatically reinstated upon
*ART. 218. The 1. service of the penalty or
1. school, 2. upon pardon or
2. its administrators and teachers, or 3. amnesty of the offender.
3. the individual,
4. entity or *ART. 231. The court in an action filed for the purpose in a
5. institution engaged in child are shall related case may also suspend parental authority if the parent
have special parental authority and or the person exercising the same:
responsibility over the minor child 1. Treats the child with excessive harshness or cruelty;
while under their supervision, 2. Gives the child corrupting orders, counsel or
instruction or custody. example;
3. Compels the child to beg; or
Authority and responsibility shall apply 4. Subjects the child or allows him to be subjected to
1. to all authorized activities acts of lasciviousness.
2. whether inside or outside the premises of the
school, entity or institution. The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or
ART 219. Those given the authority and responsibility the person exercising parental authority.
under the preceding Article shall be If the degree of seriousness so warrants, or the welfare of the
1. principally and solidarily liable child so demands, the court shall deprive the guilty party of
2. for damages caused by the acts or omissions of parental authority or adopt such other measures as may be
the unemancipated minor. proper under the circumstances.

The parents, judicial guardians or the persons exercising
substitute parental authority over said minor
 shall be subsidiarily liable.
The respective liabilities of those referred to in the
preceding paragraph
1. shall not apply
2. if it is proved that they exercised the proper
diligence required under the particular
circumstances.
All other cases not covered by this and the preceding
articles shall be governed by the provisions of the Civil
Code on quasi-delicts.
Suspension or Termination of Parental Authority
ART. 228. Parental authority terminates permanently:
1. Upon the death of the parents;
The suspension or deprivation may be revoked and the
parental authority revived in a case filed for the purpose or in
the same proceeding if the court finds that the cause therefor
has ceased and will not be repeated.
PROPERTY
Immovable Property
*****ART 415. The following are immovable property:
1. Land, buildings, roads and constructions of all kinds
adhered to the soil;
2. Trees, plants, and growing fruits,
a. while they are attached to the land or
b. form an integral part of an immovable;
3. Everything attached to an immovable in a fixed
manner,
a. in such a way that it cannot be separated
therefrom
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b. without breaking the material or
deterioration of the object;
4. Statues, reliefs, paintings or other objects for use
or ornamentation,
a. placed in buildings or on lands
b. by the owner of the immovable
c. in such a manner that it reveals the
intention to attach them permanently to
the tenements;
5. Machinery, receptacles, instruments or
implements
a. intended by the owner of the tenement
b. for an industry or works
c. which may be carried on in a building
or on a piece of land, and
d. which tend directly to meet the needs
of the said industry or works;
6. Animal houses, pigeon-houses, beehives, fish
ponds or breeding places of similar nature,
a. in case their owner has placed them or
preserves them
b. with the intention to have them
permanently attached to the land, and
forming a permanent part of it;
c. the animals in these places are
included;
7. Fertilizer actually used on a piece of land;
8. Mines, quarries, and slag dumps,
a. while the matter thereof forms part of
the bed, and
b. waters either running or stagnant;
9. Docks and structures
a. which, though floating,
b. are intended by their nature and object
c. to remain at a fixed place on a river,
lake, or coast;
10. Contracts for public works, and servitudes and
other real rights over immovable property.
Classification of Real Property
1. By nature
2. By incorporation
3. By destination
4. By analogy

A factory building is real property, and the mere fact
that it is mortgaged and sold, separate and apart
from the land on which it stands, in no wise changes
its character as real property.

Parties to a deed of chattel may agree to consider a
house as personal property for the purposes of said
contract, "is good only insofar as the contracting
parties are concerned. It is based, partly, upon the
principles of estoppel.

Machinery which is movable in its nature only
becomes immobilized when placed in a plant by the
owner of the property or plant, but not when so
placed by a tenant, a usufructuary, or any person
having only a temporary right, unless such person
acted as the agent of the owner.
Par. 5 Requisites
1. The placing must be made by the owner of the tenement,
his agent or duly authorized representatives
2. The industry or building must be carried on in the building
or on the land.
3. The machines must tend directly to meet the needs of
said industry or works.
4. The machines must be essential and principal elements in
the industry.
Movable Property
ART 416. The following things are deemed to be personal
property:
1. Those movables susceptible of appropriation which
are not included in the preceding article;
2. Real property which by any special provision of law
is considered as personalty;
3. Forces of nature which are brought under control by
science; and
4. *In general, all things which can be transported from
place to place without impairment of the real
property to which they are fixed.
Test to determine whether property is movable or immovable
1. If the property is capable of being carried from place to
place [test by description]
2. If such change in location can be made without injuring
the real property to which it may in the meantime be
attached [test by description]
3. If the object is not the one of those enumerated or
included in Art. 415 [test by exclusion]
Property in Relation to the Person to Whom It Belongs
**ART 420. The following things are property of public
dominion:
1. Those intended for public use,
a. such as roads, canals, rivers, torrents, ports
and bridges constructed by the State,
banks, shores, roadsteads, and others of
similar character;
2. Those which belong to the State,
 without being for public use, and
 are intended for some public service or
3. for the development of the national wealth.
Characteristics of Properties of Public Dominion
1. They are outside the commerce of man
2. They cannot be acquired by prescription
3. They, as well as their usufruct, be levied upon by
execution nor can they be attached.
4. They can be used by everybody.
5. They may either real or personal property
Ownership
ART 427. Ownership may be exercised over things or rights.
Ownership

The independent and general right of a person to control
a thing particularly in his possession, enjoyment,
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disposition, and recovery, subject to no restrictions *ART 430. Every owner may enclose or fence his land or
except those imposed by the state or private persons, tenements by means of
without prejudice to the provisions of law. 1. walls,
2. ditches,
Kinds of Ownership 3. live or dead hedges, or
1. Full ownership 4. by any other means
2. Naked ownership – where the right to use and the  without detriment to servitudes constituted
fruits has been denied
thereon.
3. Sole ownership
4. Co-ownership
***ART 438. Hidden treasure
 belongs to the owner of the land, building, or other
**ART 428. The owner has the right to
property on which it is found.
1. enjoy and dispose of a thing,
2. without other limitations than those established by
Nevertheless,
law.
1. when the discovery is made on
a. the property of another, or
The owner has also a right of action against the holder and
b. of the State or
possessor of the thing in order to recover it.
c. any of its subdivisions, and

The right to use includes the right to exclude any
2. by chance,
person from the enjoyment and the disposal thereof. 3. one-half thereof shall be allowed to the finder.
4. If the finder is a trespasser, he shall not be entitled to

The right to the fruits includes the right to 3 kinds of any share of the treasure.
fruits under Art. 441. Only owners and not
mortgagees can claim damages for injury to the fruits If the things found be of interest to science or the arts,
to the piece of land and for injury caused by the 1. the State may acquire them
deprivation of possession. 2. at their just price,
3. which shall be divided in conformity with the rule

Jus vindicandi is transmissible to the heirs or assignee stated.
of a person entitled to it.
By Chance
Recovery of personal property
Means good luck whether there was deliberate search for

Personal property - replevin the treasure or not but there was no prior agreement on

For real property how the treasure, if found would be divided.
1. Forcible entry or unlawful detainer
2. Accion publiciana -
Reason – It is extremely difficult to find hidden treasure
3. Accion reivindicatoria without looking for it deliberately.
4. Writ of preliminary injunction
5. writ of possession *ART 439. By treasure is understood, for legal purposes,
1. any hidden and unknown deposit of money,
Limitation on Ownership 2. jewelry, or
1. Those given by the state or law 3. other precious objects,
2. Those given by the owner himself 4. the lawful ownership of which does not appear.
3. Those given by the person who gave the thing to its
present owner Right of Accession

ART 429. The owner or lawful possessor of a thing has *ART 440. The ownership of property
1. the right to exclude any person from the 1. gives the right by accession
enjoyment and disposal thereof. 2. to everything which is produced thereby, or
2. For this purpose, he may use such force 3. which is incorporated or
3. as may be reasonably necessary to repel or 4. attached thereto,
prevent an actual or threatened unlawful 5. either naturally or artificially.
physical invasion or usurpation of his property.
Kinds of Accession
Doctrine of Self-Help; requisites 1. Natural accession
1. The force must be employed by the owner or lawful 2. Artificial accession.
possessor of the property
2. There must be an actual or threatened physical Reason behind accession
invasion or usurpation of the property
Accession discreta – justice, pure and simple, for one who
3. The invasion or usurpation must be unlawful owns a thing should justly enjoy its fruits.
4. The force employed must be reasonably necessary to
repel the invasion or usurpation

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Accession continua – economic convenience is better
attained in a state of single ownership than in co-
ownership.
Right of Accession with Respect to What is Produced by Property
ART 441. To the owner belongs:
1. The natural fruits;
2. The industrial fruits;
3. The civil fruits.
Instances when owner of land does not own the fruits
1. possessor in good faith
2. usufructuary
3. lessee
4. contract of antichresis
*ART 442. Natural Fruits are the spontaneous products
of the soil, and the young and other products of animals.
Industrial Fruits are those produced by lands of any kind
through cultivation or labor.
Civil Fruits are the rents of buildings, the price of leases
of lands and other property and the amount of perpetual or
life annuities or other similar income.

Pratus sequitur ventrem – the offspring follows the
dam.
ART 443. He who receives the fruits has
1. the obligation to pay the expenses made by a
third person
2. in their production, gathering, and preservation.
ART 444. Only such as are manifest or born are
considered as natural or industrial fruits.
With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn.
Right of Accession with Respect to Immovable Property
*ART 445. Whatever is built, planted or sown
1. on the land of another and the improvements or
repairs made thereon,
2. belong to the owner of the land,
3. subject to the provisions of the following
articles.
Whatever is built

Refers to all kinds of constructions with a roof and
used as residence, for office or social meeting, etc.,
ART 446. All works, sowing, and planting are
1. presumed made by the owner and at his expense,
2. unless the contrary is proved.
***ART 447. The owner of the land
1. who makes thereon, personally or through
another,
2. plantings, constructions or works
3. with the materials of another,
a. shall pay their value; and,
b. if he acted in bad faith, he shall also be obliged
to the reparation of damages.
4. The owner of the materials shall have
a. the right to remove them only in case he can do
so
a. without injury to the work constructed, or
b. without the plantings, constructions or
works being destroyed.
b. However, if the landowner acted in bad faith,
a. the owner of the materials may remove
them in any event,
b. with a right to be indemnified for damages.
*****ART 448. The owner of the land on which
a. anything has been built,
b. sown or
c. planted in good faith,
shall have the right
1. to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided
for in articles 546 and 548, or
2. to oblige the one who built or planted to pay the
price of the land, and the one who sowed, the proper
rent.
However,
1. the builder or planter
2. cannot be obliged to buy the land if its value is
considerably more than that of the building or
trees.
3. In such case, he shall pay reasonable rent,
4. if the owner of the land does not choose to
appropriate the building or trees after proper
indemnity.
5. The parties shall agree upon the terms of the
lease and
6. in case of disagreement, the court shall fix the
terms thereof.
Related Provisions
***ART 546. Necessary expenses
1. shall be refunded to every possessor;
2. but only the possessor in good faith may retain the
thing
3. until he has been reimbursed therefor.
Useful expenses shall be refunded
1. only to the possessor in good faith
2. with the same right of retention,
3. the person who has defeated him in the possession
having the option of
a. refunding the amount of the expenses or
b. of paying the increase in value which the
thing may have acquired by reason thereof.
**ART 548. Expenses for pure luxury or mere pleasure
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1. shall not be refunded to the possessor in good
faith;
2. but he may remove the ornaments with which
he has embellished the principal thing
3. if it suffers no injury thereby, and
4. if his successor in the possession does not
prefer to refund the amount expended.

To fall within the provision of this Article, the
construction must be of permanent character,
attached to the soil with an idea of perpetuity; but if
it is of a transitory character or is transferable, there
is no accession, and the builder must remove the
construction. [ALVIOLA v. CA]

Art. 448 accorded the landowner because his right is
older, and because, by the principle of accession, he is
entitled to the ownership of the accessory thing.

Once a party, in conformity with a court decision, has
made his choice, and has duly informed the court of
said choice, and is accordingly ordered to comply with
the same by buying the building erected on his land
and pay the value thereof fixed by the courts, that
duty is converted into a money obligation which can
be enforced by execution, regardless of the
unwillingness and alleged inability of the party
concerned to pay the amount.

The option granted to the landowner is not absolute,
as when it is impracticable for the landowner to
exercise the first option.

A builder in GF may not be required to pay rentals. He
has a right to retain the land on which he has built in
good faith until he is reimbursed the expenses
incurred by him.
Remedies available where the builder fails to pay the value of
the land when such is demanded by the landowner
1. To leave things as they are and assume the retention
of lessor and lessee, and should they disagree as to
the amount of rental, then they can go to the court to
fix that amount
2. Should the parties not agree to assume the relation of
lessor and lessee, the owner of the land is entitled to
have the improvement removed
3. The land and the improvement may be sold at public
auction, applying the proceeds thereof first to the
payment of the value of the land and the excess, if
any to be delivered to the owner of the improvement
in payment thereof [Filipinas Colleges v. Timbang]

In case the landowner sells or in any other way
alienate the land – the action should be primarily be
directed against the new owner because he benefited
from accession.

Once a choice is made by the landowner, it is
generally irrevocable.
*****ART 449. He who builds, plants or sows in bad
faith
1. on the land of another,
2. loses what is built, planted or sown
3. without right to indemnity.
*ART 450. The owner of the land on which anything has
been
a. built,
b. planted or
c. sown in bad faith
d. may demand
1. the demolition of the work, or
2. that the planting or sowing be removed,
 in order to replace things in their
former condition at the expense of the
person who built, planted or sowed; or
3. he may compel the builder or planter to
pay the price of the land, and the sower the
proper rent.
**ART 451. In the cases of the two preceding articles,
 the landowner is entitled to damages
 from the builder, planter or sower.
*ART 452. The builder, planter or sower in bad faith is
1. entitled to reimbursement
2. for the necessary expenses of preservation of the
land.
*ART 453. If there was bad faith,
1. not only on the part of the person who built, planted
or sowed on the land of another,
2. but also on the part of the owner of such land,
3. the rights of one and the other shall be the same as
though both had acted in good faith.
It is understood that there is bad faith on the part of the
landowner
 whenever the act was done with his knowledge and
without opposition on his part.
**ART 454. When the landowner
1. acted in bad faith and
2. the builder, planter or sower proceeded in good
faith,
3. the provisions of article 447 shall apply.
*ART 455. If the materials, plants or seeds
1. belong to a third person
2. who has not acted in bad faith,
3. the owner of the land shall answer subsidiarily for
their value and
4. only in the event that the one who made use of them
has no property with which to pay.
This provision shall not apply
1. if the owner makes use of the right granted by article
450.
2. If the owner of the materials, plants or seeds has
been paid by the builder, planter or sower,
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3. the latter may demand from the landowner the 1. First determine rights of OL and BPS
value of the materials and labor. 2. Then OM can hold BPS primary liable and OL subsidiary
liable, except under Art. 450.
ART 456. In the cases regulated in the preceding articles,
1. good faith does not necessarily exclude [OL – in good or bad faith]
negligence, [BPS – in good or bad faith]
2. which gives right to damages under article 2176. [OM – in BAD faith]
1. First determine rights of OL and BPS
Outline of Accession Industrial 2. Then with respect to OM, apply Art. 449-552, since BPS
shall be considered agent of OM
OL - owner of land
BPS - builder, planter, or sower ****ART 457. To the owners of lands
OM - owner of the materials 1. adjoining the banks of rivers
2. belong the accretion
Art. 447 3. which they gradually receive from the effects of the
[OL BPS – in good faith] current of the waters.
[OM- in good faith]
1. AB – right of appropriation Forms of Accession Natural
2. C – a. right of reimbursement 1. Alluvuim [457] – the soil is deposited or added to the land
b. limited right of removal adjoining the banks of rivers and gradually received as an
effect of the current of the waters
[OL BPS – in bad faith] 2. Avulsion [459] -
[OM - in good faith] 3. change if course of rivers [462 – 463]
4. formation of island [464 – 465]
1. OL BPS– no right
2. OM – a. Right of reimbursement plus damages Accretion
b. Absolute right of removal plus damages
Process whereby the soil is deposited, while alluvium is
the soil deposited on the estate fronting the river bank;
Art. 448 the owner of such estate is called the riparian owner.
[OL – in good faith]
[BPS OM – in good faith]
Alluvium is granted to compensate him because the
1. OL – a. Right of Appropriation property is subject to encumbrances and legal easement.
b. Right to demand price of land or rent
2. BPS OM –
*An unregistered alluvial property is subject to acquisition
a. Right or reimbursement of necessary and through prescription by third persons.
useful expenses if OL elects the first option
b. Right of retention if elects the first option Requisites of Alluvium
Arts. 449-552 1. The deposit should be gradual and imperceptible
[OL – in good faith] 2. cause is the current of the river
[BPS OM – in bad faith] 3. current must be that of a river
1. OL – a. Right of appropriation plus damages 4. the river must continue to exist
b. Right to demand removal or demolition plus 5. the increase must be comparatively little
damages
c. Right to demand price of land or rent plus **ART 458. The owners of estates
damages 1. adjoining ponds or lagoons
2. do not acquire the land
2. BPS OM – 3. left dry by the natural decrease of the waters, or lose
 No right except reimbursement of necessary
that inundated by them in extraordinary floods.
expenses for preservation of land.

Art. 453
*****ART 459. Whenever the current of a
[OL – in bad faith] a. river,
[BPS OM – in bad faith] b. creek or
 Same in ART. 448 c. torrent
1. segregates from an estate on its bank
Art. 454 2. a known portion of land and
[OL BPS – in bad faith] 3. transfers it to another estate,
[OM – in good faith] 4. the owner of the land to which the segregated
 Same in ART. 447 portion belonged
5. retains the ownership of it,
Art. 455 6. provided that he removes the same within 2
[OL – in good or bad faith] years.
[BPS – in good or bad faith]
[OM – in GOOD faith]
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Avulsion 3. but is in truth and in fact invalid, ineffective,

Process whereby the current of a river, creek or voidable, or unenforceable, and
torrent segregates from an estate on its bank a 4. may be prejudicial to said title,
known portion of land and transfers it to another 5. an action may be brought to remove such cloud or to
estate. quiet the title.
ALLUVIUM AVULSION An action may also be brought
The deposit of the soil is Sudden or abrupt process 1. to prevent a cloud from being cast
gradual may be seen 2. upon title to real property or any interest therein.
Soil cannot be identified Identifiable or verifiable
Belongs to owner of Belong to owner from whose Requisites
property to which it is property it was detached 1. The plaintiff must have a legal or equitable title to or
attached interest in the real property which is the subject matter of
the action
*ART 460. Trees uprooted and 2. There must be a cloud on such title
1. carried away by the current of the waters 3. Such cloud must be due to some instrument, record,
2. belong to the owner of the land upon which they claim, encumbrance or proceeding which is apparently
may be cast, valid or effective but it in truth and in fact invalid,
3. if the owners do not claim them within 6 ineffective, voidable or unenforceable and is prejudicial to
months. the plaintiff’s title.
4. If such owners claim them, 4. The plaintiff must return to the defendant all benefits he
5. they shall pay the expenses incurred in gathering may have received from the latter or reimburse him for
them or putting them in a safe place. expenses that may have redounded to his benefit.

Co-ownership
ART 461. River beds
1. which are abandoned
2. through the natural change in the course of the ART 484. There is co-ownership
waters 1. whenever the ownership of an undivided thing or
3. ipso facto belong to the owners whose lands are right
occupied by the new course in proportion to the 2. belongs to different persons.
area lost.
4. However, the owners of the lands adjoining the In default of contracts, or of special provisions, co-ownership
old bed shall be governed by the provisions of this Title.
5. shall have the right to acquire the same
Requisites
6. by paying the value thereof,
1. Plurality of subjects
7. which value shall not exceed the value of the
2. Unity of object [material indivision]
area occupied by the new bed. 3. Recognition of the ideal or intellectual shares of the co-
owners which determines their rights and obligations.
Requisites
1. The change must be sudden in order that the old river Sources of co-ownership
must be identified 1. law
2. The changing of the course must be more or less 2. contract
permanent 3. chance
3. The change of the river must be a natural one 4. occupation
4. The river must continue to exist. 5. succession
Right of Accession with Respect to Movable Property Characteristic of Co-ownership
1. There must be more than one subject or owner
*ART 472. If by the will of their owners two things of the 2. There is one physically whole divided into ideal
same or different kinds are mixed, or if the mixture occurs [undivided] shares
by chance, and in the latter case the things are not 3. Each ideal share is definite in amount but is not physically
separable without injury, each owner shall acquire a right segregated from the rest
proportional to the part belonging to him, bearing in mind 4. Regarding the physical whole, each co-owner must
the value of the things mixed or confused. respect each other in the common use, enjoyment or
preservation of the physical whole.
Quieting of Title 5. Regarding the ideal share, each co-owner holds almost
absolute control over the same
*ART 476. Whenever there is a cloud on title to real 6. it is not a juridical person
property or any interest therein, 7. A co-owner is in sense a trustee for the other co-owners.
1. by reason of any instrument, record, claim,
encumbrance or proceeding *ART 485. The share of the co-owners,
2. which is apparently valid or effective 1. in the benefits
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2. as well as in the charges,
3. shall be proportional to their respective interests.
4. Any stipulation in a contract to the contrary shall
be void.
The portions belonging to the co-owners in the co-
ownership shall be presumed equal, unless the contrary is
proved.
ART 486. Each co-owner may use the thing owned in
common,
1. provided he does so in accordance with the
purpose for which it is intended and
2. in such a way as not to injure the interest of the
co-ownership or
3. prevent the other co-owners from using it
according to their rights.
4. The purpose of the co-ownership may be
changed by
 agreement, express or implied.
ART 487. Any one of the co-owners may bring an action
in ejectment.

The presumption is that the case instituted by one
was really in behalf of all.
*ART 488. Each co-owner shall have a right to
1. compel the other co-owners to contribute to the
expenses of preservation of the thing or right
owned in common and
2. to the taxes.
Any one of the latter may exempt himself from this
obligation
1. by renouncing so much of his undivided interest
as may be equivalent to his share of the expenses
and taxes.
2. No such waiver shall be made if it is prejudicial
to the co-ownership.
Requisites of renouncing
1. If the renouncing is in favor of the creditor, said
creditor must give his consent
2. If the renouncing is in favor of other co-owners,
novation would result necessitating the consent of
said other co-owners and of the creditor.
**ART 489. Repairs for preservation
1. may be made at the will of one of the co-owners,
2. but he must, if practicable, first notify his co-
owners of the necessity for such repairs.
3. Expenses to improve or embellish the thing shall
be decided upon by a majority as determined in
article 492.
Number of co-owner who must give consent
1. Repairs, and ejectment action – one [489]
2. Alterations or acts of ownership – all [491]
3. All others like useful improvements, luxurious
embellishments, administration and better enjoyment –
Financial majority [492 – 489]
ART 490. Whenever the different stories of a house
a. belong to different owners,
b. if the titles of ownership do not specify the terms
under which they should contribute to the necessary
expenses and
c. there exists no agreement on the subject,
d. the following rules shall be observed:
1. The main and party walls, the roof and the other
things used in common,
a. shall be preserved at the expense of all the
owners
b. in proportion to the value of the story
belonging to each;
2. Each owner shall bear the cost of maintaining
a. the floor of his story;
b. the floor of the entrance,
c. front door,
d. common yard and
e. sanitary works common to all, shall be
maintained at the expense of all the
owners pro rata;
3. The stairs from the entrance to the first story
shall be
a. maintained at the expense of all the
owners pro rata,
b. with the exception of the owner of the
ground floor;
c. the stairs from the first to the second
story
d. shall be preserved at the expense of
all,
e. except the owner of the ground floor
and the owner of the first story; and so
on successively.
Perpendicular co-ownership

Where the different stories belong to different persons
ART 491. None of the co-owners shall,
1. without the consent of the others,
2. make alterations in the thing owned in common,
3. even though benefits for all would result therefrom.
4. However, if the withholding of the consent by one or
more of the co-owners
5. is clearly prejudicial to the common interest,
6. the courts may afford adequate relief.
Effects of Illegal Alteration
1. The co-owner responsible may loss what he has spent
2. Demolition can be compelled
3. Liable for loss and damages but whatever benefits the co-
ownership derives will belong to it.
4. In case a house is constructed on common lot all the co-
owners will be entitled to a proportionate share of the
rent.
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**ART 492. For the administration and better enjoyment
of the thing owned in common,
 the resolutions of the majority of the co-owners
shall be binding.
There shall be no majority
1. unless the resolution is approved by the co-
owners who represent the controlling interest in
the object of the co-ownership.
2. Should there be no majority, or
3. should the resolution of the majority be seriously
prejudicial to those interested in the property
owned in common,
4. the court, at the instance of an interested party,
5. shall order such measures as it may deem proper,
6. including the appointment of an administrator.
Whenever a part of the thing
1. belongs exclusively to one of the co-owners, and
2. the remainder is owned in common,
3. the preceding provision shall apply only to the
part owned in common.
***ART 493. Each co-owner shall have
1. the full ownership of his part and
2. of the fruits and
3. benefits pertaining thereto, and
4. he may therefore alienate, assign or mortgage it,
and
5. even substitute another person in its enjoyment,
6. except when personal rights are involved.
7. But the effect of the alienation or the mortgage,
with respect to the co-owners,
8. shall be limited to the portion which may be
allotted to him in the division
9. upon the termination of the co-ownership.

A co-owner cannot sell his share to a stranger if
thereby there would be a change in the use of the
common property.
**ART 494. No co-owner shall be obliged to remain in
the co-ownership.
Each co-owner may demand
1. at any time the partition of the thing owned in
common,
2. insofar as his share is concerned.
Nevertheless,
1. an agreement to keep the thing undivided for a
certain period of time,
2. not exceeding ten years,
3. shall be valid.
4. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period
which
 shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run
1. in favor of a co-owner or co-heir against his co-
owners or co-heirs
2. so long as he expressly or impliedly recognizes the
co-ownership.
When a co-owner may not successfully demand a partition
1. if by agreement [for a period not exceeding 10 years
partition is prohibited
2. When partition is prohibited by a donor or testator [for a
period not exceeding 20 years
3. When partition is prohibited by law [as in the case of
conjugal partnership]
4. when a physical partition would render the property
unserviceable [498]
5. when the legal nature of the property does not allow
partition [party walls]
One co-owner cannot acquire the whole property as against the co-
owner except when certain conditions are present:
1. He must make known to the other co-ownership that he
is definitely repudiating the co-ownership and that he is
claiming ownership over the entire property
2. The evidence of repudiation and knowledge on the part of
the others must be clear and convincing
3. Other requirements of prescription
4. The period of prescription shall start to run only from
such repudiation of co-ownership.
*ART 495. Notwithstanding the provisions of the preceding
article,
1. the co-owners cannot demand a physical division of
the thing owned in common,
2. when to do so would render it unserviceable for the
use for which it is intended.
3. But the co-ownership may be terminated in
accordance with article 498.
ART 496. Partition may be made
1. by agreement between the parties or
2. by judicial proceedings.
3. Partition shall be governed by the Rules of Court
insofar as they are consistent with this Code.
ART 497. The creditors or assignees of the co-owners
1. may take part in the division of the thing owned in
common and
2. object to its being effected without their
concurrence.
3. But they cannot impugn any partition already
executed,
4. unless there has been fraud, or
5. in case it was made notwithstanding a formal
opposition presented to prevent it,
6. without prejudice to the right of the debtor or
assignor to maintain its validity.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Since the law grants them the right to participate in
the partition, it is understood that notice must be
given them, although the law does not expressly so
provide.
ART 498. Whenever the thing is
1. essentially indivisible and
2. the co-owners cannot agree that it be allotted to
one of them who shall indemnify the others,
3. it shall be sold and its proceeds distributed.

Partition of an Indivisible object
Procedure
1. Give the whole to one co-owner who will now be
required to indemnify the rest
2. If this is not agreed upon, there must be a sale.
ART 499. The partition of a thing owned in common
1. shall not prejudice third persons,
2. who shall retain the rights of mortgage, servitude
or any other real rights belonging to them before
the division was made.
3. Personal rights pertaining to third persons
against the co-ownership
4. shall also remain in force, notwithstanding the
partition.
ART 500. Upon partition,
1. there shall be a mutual accounting for benefits
received and
2. reimbursements for expenses made.
3. Likewise, each co-owner shall pay for damages
caused by reason of his negligence or fraud.
*ART 501. Every co-owner shall,
1. after partition,
2. be liable for defects of title and quality of the
portion assigned to each of the other co-owners.
Modes of extinguishing ownership
1. judicial partition
2. extrajudicial partition
3. prescription
4. When a stranger acquires by prescription the thing
owned in common
5. merger in one co-owner
6. loss or destruction
7. expropriation
Possession
ART 523. Possession is the holding of a thing or the
enjoyment of a right.
Elements of Possession
1. There must be a holding or control [may be actual or
constructive
2. There must be a deliberate intention to possess
3. The possession must be by virtue of one’s own right
Classes of Possession
1. In one’s own name or in that of another
2. in the concept of an owner
3. In good faith
ART 524. Possession may be exercised in one's own name or
in that of another.
ART 525. The possession of things or rights may be had in
one of two concepts:
1. either in the concept of owner, or
2. in that of the holder of the thing or right to keep or
enjoy it, the ownership pertaining to another person.
Possessor in the concept of an owner

One who, whether in good faith or bad faith claims to be,
and acts as if he is the owner. This is the possession that
ripen into ownership
*ART 526. He is deemed a possessor in good faith
 who is not aware that there exists in his title or mode
of acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith
 who possesses in any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may be
the basis of good faith.
Requisites of a possession in GOOD FAITH
1. The possessor should have acquired the thing through
some title or by some mode of acquisition recognized by
law
2. There must be a flaw or defect in such title or mode of
acquisition
3. The possessor should not be aware of such flaw or defect.
Requisites of a Possession in BAD FAITH
1. The possessor should have acquired the thing through
some title or by some mode of acquisition recognized by
law
2. There must be a flaw or defect in such title or mode of
acquisition
3. The possessor should be aware of such flaw or defect.

Bad faith is personal
ART 527. Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden of
proof.
ART 528. Possession acquired in good faith
1. does not lose this character
2. except in the case and from the moment facts exist
which show
3. that the possessor is not unaware that he possesses
the thing improperly or wrongfully.
Some presumption regarding possession
1. Good faith
2. Continuity of character of possession [529]
3. Non-interruption of possession [533]
4. presumption of just title [541]
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
5. Non-interruption of possession of property unjustly
lost but legally recovered [561]
6. Possession during intervening period [1138[2] ]
7. Possession of movables with real property [542]
8. Exclusive possession of common property [543]
ART 530. Only things and rights which are susceptible of
being appropriated may be the object of possession.
Acquisition of Possession
ART 531. Possession is acquired
1. by the material occupation of a thing or the
exercise of a right, or
2. by the fact that it is subject to the action of our
will, or
3. by the proper acts and legal formalities
established for acquiring such right.
*ART 532. Possession may be acquired
1. by the same person who is to enjoy it,
2. by his legal representative,
3. by his agent, or
4. by any person without any power whatever:
a. but in the last case, the possession shall
not be considered as acquired
b. until the person in whose name the act
of possession was executed has ratified
the same,
c. without prejudice to the juridical
consequences of negotiorum gestio in a
proper case.
Acquisition of possession from the viewpoint of who possesses
1. Personal acquisition requisites
a. Intent to possess
b. Capacity to possess
c. Object must be capable of being possessed
2. Thru an authorized person
a. Intent to possess for principal
b. Authority or capacity to possess
c. Principal has intent and capacity to possess
3. Thru an authorized person [negotiorum gestio]
a. Intent to possess for another
b. Capacity of principal to possess
c. Ratification by principal –having retroactive
effect
ART 538. Possession as a fact
1. cannot be recognized at the same time in two
different personalities
2. except in the cases of co-possession.
Should a question arise regarding the fact of possession,
3. the present possessor shall be preferred;
4. if there are two possessors,
 the one longer in possession;
5. if the dates of the possession are the same,
 the one who presents a title; and
6. if all these conditions are equal,
 the thing shall be placed in judicial deposit
pending determination of its possession or
ownership through proper proceedings.
Effects of Possession
*ART 544. A possessor in good faith is
1. entitled to the fruits received
2. before the possession is legally interrupted.
Natural and industrial fruits are considered received
 from the time they are gathered or severed.
Civil fruits are deemed
1. to accrue daily and
2. belong to the possessor in good faith in that
proportion.
Reason

Justice demands that the fruits be retained by the
possessor who thought that he was really the owner of
the property, and who, because of such thought had
regulated his daily life, income and expenses by virtue of
such fruits.
**ART 545. If at the time the good faith ceases,
1. there should be any natural or industrial fruits,
2. the possessor shall have a right to a part of the
expenses of cultivation, and
3. to a part of the net harvest,
4. both in proportion to the time of the possession.
The charges shall be divided on the same basis by the two
possessors.
The owner of the thing may, should he so desire,
1. give the possessor in good faith
2. the right to finish the cultivation and gathering of the
growing fruits, as an indemnity for his part of the
expenses of cultivation and the net proceeds;
3. the possessor in good faith who for any reason
whatever should refuse to accept this concession,
4. shall lose the right to be indemnified in any other
manner.

Applies to pending fruit natural or industrial
****ART 546. Necessary expenses
1. shall be refunded to every possessor;
2. but only the possessor in good faith may retain the
thing until he has been reimbursed therefor.
Useful expenses
1. shall be refunded only to the possessor in good faith
with the same right of retention,
2. the person who has defeated him in the possession
having the option of
a. refunding the amount of the expenses or
b. of paying the increase in value which the
thing may have acquired by reason thereof.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
**ART 547. If the useful improvements
1. can be removed without damage to the principal
thing,
2. the possessor in good faith may remove them,
3. unless the person who recovers the possession
exercises the option under paragraph 2 of the
preceding article.
**ART 548. Expenses for pure luxury or mere pleasure
1. shall not be refunded to the possessor in good
faith;
2. but he may remove the ornaments with which he
has embellished the principal thing
a. if it suffers no injury thereby, and
b. if his successor in the possession does not
prefer to refund the amount expended.
**ART 549. The possessor in bad faith
1. shall reimburse the fruits received and
2. those which the legitimate possessor could have
received, and
3. shall have a right only to the expenses
mentioned in paragraph 1 of article 546 and in
article 443.
The expenses incurred in improvements for pure
luxury or mere pleasure
1. shall not be refunded to the possessor in bad
faith,
2. but he may remove the objects for which
such expenses have been incurred,
3. provided that the thing suffers no injury
thereby, and
4. that the lawful possessor does not prefer to
retain them by paying the value they may
have at the time he enters into possession.
**ART 552. A possessor in good faith
1. shall not be liable for the deterioration or loss of
the thing possessed,
2. except in cases in which it is proved
3. that he has acted with fraudulent intent or
negligence, after the judicial summons.
A possessor in bad faith
1. shall be liable for deterioration or loss in every
case,
2. even if caused by a fortuitous event.
Outline of the Effects of Possession in Good Faith & Possession
in Bad Faith
Fruits Received
1. Possessor in good faith entitled to fruits received
while his possession is still in good faith [544]
2. Possessor in bad faith shall reimburse fruits received
or which legitimate possessor could have received
subject to Art. 443 [after deducting expenses which
he might have incurred in their production, gathering,
and harvesting] [549]
Pending Fruits
1. Possessor in good faith and legitimate possessor shall be
liable for expenses of cultivation and shall share in net
harvest in proportion to the time of their possession [545
par. 1]
2. Possessor in bad faith shall not have any right
Charges

Possessor whether in good or bad faith and legitimate
possessor shall share in proportion to the time of their
possession [545 par.1]
Necessary Expenses

They are those without which the thing would physically
deteriorate or be lost; those made for the preservation of
the thing.
 Possessor in GOOD FAITH
1. Right of reimbursement [546 par. 1]
2. Right of retention [546 par. 1]
 Possessor in BAD FAITH

Right of reimbursement only
Useful Expenses
 Possessor in GOOD FAITH
1. Right of reimbursement - of either the amount spent
or the increase in value at owners option [546 par. 1]
2. Right of retention till paid [546 par. 2]
3. Limited right of removal - provided no substantial
injury is caused to the principal, reducing its value
unless the owner [winner] exercise the option in #1
[547]
 Possessor in BAD FAITH

None
Expenses for Pure Pleasure/Mere Luxury
 Possessor in GOOD FAITH

Limited right of removal [548]
 Possessor in BAD FAITH

Limited right of removal [549]
Deterioration or Loss
 Possessor in GOOD FAITH –

No liability unless due to his fault or negligence after
he had become a possessor in bad faith
 Possessor in BAD FAITH –

Always liable
ART 555 A possessor may lose his possession:
1. By the abandonment of the thing;
2. By an assignment made to another either by onerous
or gratuitous title;
3. By the destruction or total loss of the thing, or
because it goes out of commerce;
4. By the possession of another, subject to the
provisions of article 537, if the new possession has
lasted longer than one year.
But the real right of possession is not lost till after
the lapse of ten years.
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Requisites of Abandonment 2. to prevent abuse

1. The abandoner must have been a possessor in the 3. to prevent impairment
concept of the owner
2. The abandoner must have the capacity to renounce
Only the jus utendi and jus fruendi over the property is
or alienate transferred to the usufructuary.
3. There must be a physical relinquishment of the thing
or object
The owner of the property maintains the jus disponendi.
4. There must be no more expectation to recover and
no more animus revertendi. USUFRUCT EASEMENT
Object – maybe real or Only real property
*****ART 559. The possession of movable property personal property
1. acquired in good faith is What can be enjoyed are all Limitted to a particular use
2. equivalent to a title. uses and fruits of the property [right of way]
Usually extinguished by death Not extinguished by the death
Nevertheless, of usufructuary of the owner of the dominant
1. one who has lost any movable or easement
2. has been unlawfully deprived thereof, Usufruct cannot be Easement may be constituted
3. may recover it from the person in possession of constituted on an easement in favor, of or burdening a
the same. piece of land held in usufruct

If the possessor of a movable lost or which the owner has USUFRUCT LEASE
been unlawfully deprived, Extent –GR -Covers all fruits GR - Covers only a particular
and uses as of specific rules
1. has acquired it in good faith
Nature – always a real right Real right only as in the case
2. at a public sale,
of lease of real property, the
3. the owner cannot obtain its return without
lease is registered, or is for
reimbursing the price paid therefor.
more than 1 year, otherwise it

The right of the owner to recover personal property
is only a personal right
acquired in good faith by another, is based on his
Creator of the right - Can be The lessor may or may not be
being dispossessed without his consent [DE GARCIA v.
created only by the owner or the owner as when there is
CA]
by a duly authorized agent sublease or when the lessor is
only a usufructuary

Ownership in the thing sold shall not pass to the
buyer until full payment of the purchase price only if
there is a stipulation to that effect. But absent the ART 563. Usufruct is constituted
stipulation, delivery of the thing sold will effectively 1. by law,
transfer ownership to the buyer who can in turn 2. by the will of private persons expressed in acts inter
transfer it to another [EDCA PUBLISHING v. SANTOS] vivos or in a last will and testament, and
3. by prescription.

Non-payment only creates a right to demand
payment or to rescind the contract, or to criminal ART 564. Usufruct may be constituted
prosecution in the case of bouncing checks [supra] 1. on the whole or a part of the fruits of the thing,
2. in favor of one more persons, simultaneously or
Usufruct successively, and
3. in every case from or to a certain day, purely or
**ART 562. Usufruct conditionally.
1. gives a right to enjoy the property of another 4. It may also be constituted on a right, provided it is
2. with the obligation of preserving its form and not strictly personal or intransmissible.
substance,
3. unless the title constituting it or the law Rights of the Usufructuary
otherwise provides.
*ART 579. The usufructuary may
Requisites of a usufruct 1. make on the property held in usufruct
1. Essential – real, temporary right to enjoy another’s 2. such useful improvements or expenses for mere
property pleasure as he may deem proper,
2. Natural – the obligation to preserve its form or 3. provided he does not alter its form or substance;
substance 4. but he shall have no right to be indemnified
3. Accidental characteristics/elements - those which therefor.
may be present or absent depending upon the 5. He may, however, remove such improvements,
stipulation of the parties. 6. should it be possible to do so without damage to the
property.
Reason for conserving form/substance
1. to prevent extraordinary exploitation
*ART 580. The usufructuary may
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
1. set off the improvements he may have made on
the property
2. against any damage to the same.
Extinguishment of Usufruct
*ART 603. Usufruct is extinguished:
1. By the death of the usufructuary, unless a
contrary intention clearly appears;
2. By the expiration of the period for which it was
constituted, or by the fulfillment of any
resolutory condition provided in the title creating
the usufruct;
3. By merger of the usufruct and ownership in the
same person;
4. By renunciation of the usufructuary;
5. *By the total loss of the thing in usufruct;
6. By the termination of the right of the person
constituting the usufruct;
7. By prescription.
 GR -Death of the usufructuary ends the usufruct
Exceptions
1. In the case of multiple usufructs [611]
2. In case there is a period fixed based on the number of
years that would elapse before a person would reach
a certain age. [606]
3. in case of contray intention appears expressly or tacit
Other causes of extinguishment of usufruct
1. annulment
2. rescission
3. mutual withdrawal
4. legal causes ending legal usufruct, as when the
attainment of majority extinguished parental
usufruct.
ART 604. If the thing given in usufruct
1. should be lost only in part,
2. the right shall continue on the remaining part.
*ART 606. A usufruct granted
1. for the time that may elapse before a third person
attains a certain age,
2. shall subsist for the number of years specified,
3. even if the third person should die before the
period expires,
4. unless such usufruct has been expressly granted
only in consideration of the existence of such
person.
*ART 607. If the usufruct is
1. constituted on immovable property of which a
building forms part,
2. and the latter should be destroyed in any manner
whatsoever,
3. the usufructuary shall have a right to make use
of the land and the materials.
The same rule shall be applied
1. if the usufruct is constituted on a building only and
the same should be destroyed.
2. But in such a case, if the owner should wish to
construct another building,
3. he shall have a right to occupy the land and to make
use of the materials,
4. being obliged to pay to the usufructuary,
5. during the continuance of the usufruct,
6. the interest upon the sum equivalent to the value of
the land and of the materials.
Usufruct on both Building and Land
 but the building is destroyed in any manner whatsoever
before the expiration of the period of the usufruct
1. The usufruct on the building is ended, but the
usufruct on the land continues therefore the
usufructuary is still entitled to the use of the land
and the use of whatever materials of the house
remain.
2. If the naked owner wants to rebuild but the
usufructuary refuses, it is the usufructuary who
prevails for the use of the land is still his for the
remainder of the period.

The building cannot exist without the land hence the
usufruct is not extinguished by the destruction of the
building, so long as the land exists. In order that there will
be an extinguishment of the usufruct, it is essential that
the ting in usufruct must be totally lost or destroyed. This
is a temporary measure calculated to maintain the
usufruct alive until the very thing that has been destroyed
be reconstructed or replaced [ALBAR v. FABIE]
Usufruct on the Building Alone
 but the building is destroyed before the termination of
the period
1. The usufruct on the building ends, but the
usufructuary can still make use of whatever mate-
rials of the house remain.
2. The usufructuary is also entitled to the use of the
land but since there was no usufruct on the land, the
naked owner has preferential right to its use.
Reason- Although there was no usufruct on the land,
still it cannot be denied that in using the building
before, he was also automatically using the land
Easements or Servitudes
*ART 613. An easement or servitude
1. is an encumbrance
2. imposed upon an immovable
3. for the benefit of another immovable
4. belonging to a different owner.
The immovable in favor of which the easement is established
is called the dominant estate;
that which is subject thereto, the servient estate.
ART 614. Servitudes may also be established
1. for the benefit of a community, or
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

2. of one or more persons to whom the encumbered According to the purpose of the easement or the nature of the
estate does not belong. limitation
1. positive [sufferance or intrusion]
Characteristics of easement 2. negative [abstention or restriction]
1. Real right
2. impossible only on another’s property According to the right given
3. A real right that may be alienated although the naked 1. partial use
ownership is maintained 2. getting of specific material
4. It is a limitation or encumbrance on the servient
estate for another’s benefit According to source or origin
5. there is inherence or inseparability from the estate to 1. voluntary
which it belongs [617] 2. legal
6. indivisible [618] 3. mixed
7. Intransmissible [unless the tenement affected be also
transmitted or alienated] *ART 617. Easements are inseparable from the estate to
8. Perpetual [631] which they actively or passively belong.

*ART 615. Easements may be continuous or
discontinuous, apparent or nonapparent.
Continuous easements are
1. those the use of which is or may be incessant,
2. without the intervention of any act of man.
ART 618. Easements are indivisible.
If the servient estate is divided between two or more persons,
1. the easement is not modified, and
2. each of them must bear it on the part which
corresponds to him.

Discontinuous easements are If it is the dominant estate that is divided between two or
1. those which are used at intervals and more persons,
2. depend upon the acts of man. 1. each of them may use the easement in its entirety,
Apparent easements are 2. without changing the place of its use, or
1. those which are made known and 3. making it more burdensome in any other way.
2. are continually kept in view by external signs
3. that reveal the use and enjoyment of the same. ART 619. Easements are established
1. either by law or
Nonapparent easements are 2. by the will of the owners.

those which show no external indication of their
existence. The former are called legal and the latter voluntary easements.
Modes of Acquiring Easements
ART 616. Easements are also positive or negative.
A positive easement is ART 620. Continuous and apparent easements are
1. one which imposes 1. acquired either by virtue of a title or
2. upon the owner of the servient estate 2. by prescription of ten years.
3. the obligation of allowing something to be done
or of doing it himself, and a How easements are acquired
1. Continuous and Apparent – they may be acquired by title
negative easement, or by prescription
1. that which prohibits the owner of the servient 2. Discontinuous and Apparent – by title
estate 3. Continuous and Non-apparent – by title
2. from doing something 4. Discontinuous and Non-apparent – by title.
3. which he could lawfully do if the easement did
not exist.
It is unquestionable that the real property may, through
expropriation, be subjected to an easement of right of
Classification of Easement way. The use of the PLDT's lines and services to allow
According to the party given the benefit interservice connection between both telephone systems
1. Real [predial] is not much different [Republic v. PLDT]
2. Personal
*ART 621. In order to acquire by prescription
According to the manner they are exercised a. the easements referred to in the preceding article,
1. Continuous – b. the time of possession shall be computed thus:
2. discontinuous 1. in positive easements,
a. from the day on which the owner of the
According to whether or not existence is indicated dominant estate, or
1. apparent b. the person who may have made use of the
2. non-apparent easement,

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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
c. commenced to exercise it upon the servient
estate;
2. and in negative easements,
a. from the day on which the owner of the
dominant estate forbade,
b. by an instrument acknowledged before a
notary public,
c. the owner of the servient estate,
d. from executing an act which would be
lawful without the easement.
Instrument Acknowledged before a Notary Public

The law requires solemn formalities because
easements are in the nature of an encumbrance on
the servient estate constituting a limitation of the
dominical right of the owner of the subjected
property.
*Easement of light and view is
1. Negative - if made on one’s own wall and the wall
does not extend over the neighbor’s land because he
only does an act of ownership, and to create an
easement, a prohibition is required
2. Positive - if made on one’s own wall which extends
over the neighboring land.
ART 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not,
 may be acquired only by virtue of a title.

An easement of right of way cannot be acquired thru
prescription since the dominant owner can not be
continually and uninterruptedly crossing the servient
estate, but can do so only at intervals, the easement
is necessarily of an intermittent or discontinuous
nature.
ART 624. The existence of
1. an apparent sign of easement between two
estates,
2. established or maintained by the owner of both,
3. shall be considered,
4. should either of them be alienated,
5. as a title in order that the easement may continue
actively and passively,
6. unless, at the time the ownership of the two
estates is divided,
a. the contrary should be provided in the title
of conveyance of either of them, or
b. the sign aforesaid should be removed before
the execution of the deed.
7. This provision shall also apply in case of the
division of a thing owned in common by two or
more persons.
ART 625. Upon the establishment of an easement,
 all the rights necessary for its use are considered
granted.
*ART 626. The owner of the dominant estate
1. cannot use the easement
2. except for the benefit of the immovable originally
contemplated.
3. Neither can he exercise the easement in any other
manner than that previously established.

This article was made to prevent an increase in the
burden or different form of exercising easement.
Rights of the Dominant Estate
1. To exercise the easement and all the necessary rights for
its use including accessory easement [625]
2. To make on the servient estate all works necessary for the
use and preservation of the servitude, BUT — 1] this
must be at his own expense 2) he must notify the
servient owner 3) select convenient time and manner 4)
he must not alter the easement nor render it more
burdensome [art. 627]
3. To ask for a mandatory injunction to prevent impairment
or obstruction in the exercise of the easement as when
the owner of the servient estate obstructs the right of
way by building a wall or fence.
4. To renounce totally the easement if he desires exemption
from contribution to expenses [art. 628]
Obligation of the Dominant Estate
1. He cannot alter the easement. (Art. 627).
2. He cannot make it more burdensome. (Art. 627).
3. If there be several dominant estates, each must contrib-
ute to necessary repairs and expenses in proportion to
the BENEFITS received by each estate.
Rights of the Servient Estate
1. To retain ownership and possession of the portion of his
land affected by the easement [art. 630] even if indemnity
for the right is given [art. 649], unless the contrary has
been stipulated.
2. To make use of the easement, unless deprived by stipu-
lation provided that the exercise of the easement is not
adversely affected [art. 630] and provided further that he
contributes to the expenses in proportion to benefits
received, unless there is a contrary stipulation. [art. 628,
par. 2]
3. To change the location of a very inconvenient easement
provided that an equally convenient substitute is made,
without injury to the dominant estate [art. 629, par. 2]
Obligation of the Servient Estate
1. he cannot impair the use of the easement [art. 629, par.
1]
2. he must contribute to the expenses in case he uses the
easement, unless there is a contrary stipulation [art. 628,
par. 2]
3. in case of impairment, to restore conditions to the status
quo at his expense plus damages.
4. to pay for the expenses incurred for the change of loca-
tion or form of the easement [art. 629, par. 2]
Modes of Extinguishment of Easements
*ART 631. Easements are extinguished:
1. By merger in the same person of the ownership of
the dominant and servient estates;
2. By nonuser for ten years;
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
a. with respect to discontinuous
easements, this period shall be
computed from the day on which they
ceased to be used; and,
b. with respect to continuous easements,
from the day on which an act contrary
to the same took place;
3. When either or both of the estates fall into such
condition that the easement cannot be used;
a. but it shall revive if the subsequent
condition of the estates or either of
them should again permit its use,
b. unless when the use becomes possible,
sufficient time for prescription has
elapsed, in accordance with the
provisions of the preceding number;
4. By the expiration of the term or the fulfillment
of the condition, if the easement is temporary or
conditional;
5. By the renunciation of the owner of the
dominant estate;
6. By the redemption agreed upon between the
owners of the dominant and servient estates.

Merger must be absolute, complete and not
temporary.

The right to claim or exercise some legal easements
never prescribe, since they are founded on necessity,
although the manner or form of using the legal
easement may indeed prescribe, such as using a
particular path.

Renunciation must be express, clear and specific
Other causes for extinguishment of easement
1. Expropriation of the servient estate
2. permanent impossibility to make use of the easement
3. annulment, rescission or cancellation of the title
4. abandonment of the servient estate
5. Resolution of the right of the grantor to create the
easement
6. Registration of the servient estate as free from
easement. It is an established principle that actual
notice or knowledge is as binding as registration
unless there is a stipulation or actual knowledge of
the existence of the easement.
ART 633. If the dominant estate
a. belongs to several persons in common,
b. the use of the easement by any one of them
prevents prescription with respect to the others.
Easements Relating to Waters
**ART 637. Lower estates are obliged
1. to receive the waters which naturally and
without the intervention of man descend from
the higher estates,
2. as well as the stones or earth which they carry
with them.
The owner of the lower estate cannot
1. construct works which will impede this easement;
2. neither can the owner of the higher estate make
works which will increase the burden.
*ART 638. The banks of rivers and streams,
1. even in case they are of private ownership,
2. are subject throughout their entire length and within
a zone of 3 meters along their margins,
3. to the easement of public use in the general interest
of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore,
1. subject to the easement of towpath
2. for the exclusive service of river navigation and
floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid.
*ART 639. Whenever
1. for the diversion or taking of water from a river or
brook, or
2. for the use of any other continuous or discontinuous
stream,
3. it should be necessary to build a dam, and
4. the person who is to construct it is not the owner of
the banks, or lands which must support it,
5. he may establish the easement of abutment of a
dam,
6. after payment of the proper indemnity.
*ART 640. Compulsory easements
1. for drawing water or
2. for watering animals
3. can be imposed only for reasons of public use in
favor of a town or village,
4. after payment of the proper indemnity.
ART 641. Easements for drawing water and for watering
animals
1. carry with them the obligation of the owners of the
servient estates
2. to allow passage to persons and animals to the place
where such easements are to be used, and
3. the indemnity shall include this service.
*ART642. Any person who may wish to use upon his own
estate
1. any water of which he can dispose
2. shall have the right to make it flow through the
intervening estates,
3. with the obligation to indemnify their owners, as
well as the owners of the lower estates upon which
the waters may filter or descend.
*ART 643. One desiring to make use of the right granted in
the preceding article is obliged:
1. To prove that he can dispose of the water and that it
is sufficient for the use for which it is intended;
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2. To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
3. To indemnify the owner of the servient estate in
the manner determined by the laws and
regulations.
Easement of Right of Way
***ART 649. The owner, or any person who
1. by virtue of a real right may cultivate or use any
immovable,
2. which is surrounded by other immovables
pertaining to other persons and
3. without adequate outlet to a public highway,
4. is entitled to demand a right of way through the
neighboring estates,
5. after payment of the proper indemnity.
Should this easement be established
1. in such a manner that its use may be continuous
for all the needs of the dominant estate,
establishing a permanent passage,
2. the indemnity shall consist of
a. the value of the land occupied and
b. the amount of the damage caused to the
servient estate.
In case the right of way is
1. limited to the necessary passage for the
cultivation of the estate surrounded by others
and
2. for the gathering of its crops through the servient
estate without a permanent way,
 the indemnity shall consist in the payment
of the damage caused by such encumbrance.
This easement is not compulsory
 if the isolation of the immovable is due to the
proprietor's own acts.
****ART 650. The easement of right of way shall be
established
1. at the point least prejudicial to the servient
estate, and,
2. insofar as consistent with this rule, where the
distance from the dominant estate to a public
highway may be the shortest.
*ART 651. The width of the easement of right of way
shall be
1. that which is sufficient for the needs of the
dominant estate, and
2. may accordingly be changed from time to time.
Easement of Right of Way

Privilege by which one person or a particular class of
persons is allowed to pass over another’s land,
usually thru one particular path or line.
Requisites
1. The estate is surrounded by other immovables and is
without adequate outlet to a public highway
2. After payment of the proper indemnity
3. The isolation was not due to the proprietor's own acts;
4. The right way claimed is at a point least prejudicial to the
servient estate, and in so far as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest
ART 652. Whenever a piece of land
1. acquired by sale, exchange or partition,
2. is surrounded by other estates of the vendor,
exchanger, or co-owner,
3. he shall be obliged to grant a right of way without
indemnity.
In case of a simple donation,
1. the donor shall be indemnified by the donee
2. for the establishment of the right of way.
ART 653. In the case of the preceding article,
1. if it is the land of the grantor that becomes isolated,
2. he may demand a right of way after paying an
indemnity.
3. However, the donor shall not be liable for
indemnity.

The right of way is granted only once after that 649 is
applicable.
Causes for extinguishment of right of way
1. Opening of a new road
2. Joining the dominant estate to another which abuts and
have access to the public highway. But the new access
must be adequate and convenient
Easement of Party Wall
ART 658. The easement of party wall
1. shall be governed by the provisions of this Title,
2. by the local ordinances and customs
3. insofar as they do not conflict with the same, and
4. by the rules of co-ownership.
Party wall

This is a wall at the dividing line of the estate. Co-
ownership governs the wall.
*ART 659. The existence of an easement of party wall is
presumed,
a. unless there is a title, or
b. exterior sign, or
c. proof to the contrary:
1. In dividing walls of adjoining buildings up to
the point of common elevation;
2. In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
3. In fences, walls and live hedges dividing rural
lands.
ART 666. Every part-owner of a party wall
1. may use it
2. in proportion to the right he may have in the co-
ownership,
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3. without interfering with the common and
respective uses by the other co-owners.
Easement of Light and View
ART 667. No part-owner may,
1. without the consent of the others,
2. open through the party wall any window or
aperture of any kind.
Easement of Light

“jus luminum”- as in the case of a small windows not
more than 30 cm. square at the height of the ceiling
joist, the purpose of which is to admit light, and a
little air but not view.
Easement of view –

“servidumbre prospectus” - Although the principal
purpose is view, the easement of light is necessarily
included as well as the easement not to build higher
for the purpose of obstructions.
***ART 668. The period of prescription for the
acquisition of an easement of light and view shall be
counted:
1. From the time of the opening of the window,
 if it is through a party wall; or
2. From the time of the formal prohibition upon the
proprietor of the adjoining land or tenement,
 if the window is through a wall on the
dominant estate.
*ART 669. When the distances in article 670 are not
observed,
1. the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging
to another,
2. can make in it openings to admit light at the
height of the ceiling joints or immediately under
the ceiling, and
3. of the size of thirty centimeters square, and,
4. in every case, with an iron grating imbedded in
the wall and with a wire screen.
Nevertheless,
1. the owner of the tenement or property adjoining
the wall in which the openings are made
2. can close them should he acquire part-ownership
thereof,
3. if there be no stipulation to the contrary.
He can also obstruct them
1. by constructing a building on his land or by
raising a wall thereon contiguous to that having
such openings,
2. unless an easement of light has been acquired.
***ART 670. No
a. windows,
b. apertures,
c. balconies, or
d. other similar projections
1. which afford a direct view upon or towards an
adjoining land or tenement can be made,
2. without leaving a distance of two meters
between the wall in which they are made and
such contiguous property.
3. Neither can side or oblique views upon or
towards such conterminous property be had,
4. unless there be a distance of sixty centimeters.
The nonobservance of these distances
 does not give rise to prescription.
ART 671. The distance referred to in the preceding article
shall be measured
1. in cases of direct views from the outer line of the
wall when the openings do not project,
2. from the outer line of the latter when they do, and
3. in cases of oblique view from the dividing line
between the two properties.
ART 672. The provisions of article 670 are not applicable
1. to buildings separated by a public way or alley,
2. which is not less than three meters wide,
3. subject to special regulations and local ordinances.
*ART 673. Whenever by any title
1. a right has been acquired to have direct views,
2. balconies or belvederes overlooking an adjoining
property,
3. the owner of the servient estate cannot build thereon
4. at less than a distance of three meters to be measured
in the manner provided in article 671.
5. Any stipulation permitting distances less than those
prescribed in article 670 is void.
Drainage of Buildings
*ART 676. Whenever the yard or court of a house is
1. surrounded by other houses, and
2. it is not possible to give an outlet through the house
itself to the rain water collected thereon,
3. the establishment of an easement of drainage can be
demanded,
4. giving an outlet to the water at the point of the
contiguous lands or tenements where its egress may
be easiest, and
5. establishing a conduit for the drainage in such
manner as to cause the least damage to the servient
estate,
6. after payment of the property indemnity.
Intermediate Distances and Works for Certain Constructions and
Plantings
*ART 681. Fruits naturally falling upon adjacent land belong
to the owner of said land.
Easement against Nuisance
*ART 682. Every building or piece of land is
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1. subject to the easement
2. which prohibits the proprietor or possessor from
committing nuisance
3. through noise, jarring, offensive odor, smoke,
heat, dust, water, glare and other causes.
ART 683. Subject to zoning, health, police and other laws
and regulations,
1. factories and shops may be maintained
2. provided the least possible annoyance is caused
to the neighborhood.

In nuisance the general public or anybody injured by
the nuisance is the dominant estate

The servient estate is the proprietor or possessor of
the building or a piece of land who commits the
nuisance thru noise jarring, offensive odor etc.,
Lateral and Subjacent Support
*ART 684. No proprietor shall make such excavations
1. upon his land
2. as to deprive any adjacent land or building of
sufficient lateral or subjacent support.
ART 685. Any stipulation or testamentary provision
allowing excavations that cause danger to an adjacent land
or building shall be void.
ART 686. The legal easement of lateral and subjacent
support is not only for buildings standing at the time the
excavations are made but also for constructions that may
be erected.
ART 687. Any proprietor intending to make any
excavation contemplated in the three preceding articles
shall notify all owners of adjacent lands.
Nuisance
ART 694. Nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
1. Injures or endangers the health or safety of
others; or
2. Annoys or offends the senses; or
3. Shocks, defies or disregards decency or
morality; or
4. Obstructs or interferes with the free passage of
any public highway or street, or any body of
water; or
5. Hinders or impairs the use of property.
ART 695. Nuisance is either
1. Public - affects a community or neighborhood or
any considerable number of persons, although
the extent of the annoyance, danger or damage
upon individuals may be unequal.
2. Private - one that is not included in the
foregoing definition.
Attractive Nuisance Doctrine

One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise ordinary
care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is
injured thereby, even if the child is technically a
trespasser in the premises.

The basis of the liability is that its attractiveness is an
invitation to the children.
ART 696. Every successive owner or possessor of property
1. who fails or refuses to abate a nuisance in that
property
2. started by a former owner or possessor
3. is liable therefor in the same manner as the one who
created it.
*ART 697. The abatement of a nuisance
1. does not preclude the right of any person injured
2. to recover damages for its past existence.
ART 698. Lapse of time cannot legalize any nuisance,
whether public or private.
ART 699. The remedies against a public nuisance are:
1. A prosecution under the Penal Code or any local
ordinance: or
2. A civil action; or
3. Abatement, without judicial proceedings.
ART 705. The remedies against a private nuisance are:
1. A civil action; or
2. Abatement, without judicial proceedings.
Defenses
1. estoppel, public necessity
2. non-existence of the nuisance
3. impossibility of abatement
Different Modes of Acquiring Ownership
*ART 712. Ownership is acquired by
1. occupation and
2. by intellectual creation.
Ownership and other real rights over property are acquired
and transmitted by
1. law,
2. by donation, by testate and intestate succession, and
3. in consequence of certain contracts, by tradition.
They may also be acquired by means of
4. prescription.
*ART 719. Whoever finds a movable,
1. which is not treasure,
2. must return it to its previous possessor.
3. If the latter is unknown,
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4. the finder shall immediately deposit it with the
mayor of the city or municipality
5. where the finding has taken place.
The finding shall be publicly announced by the mayor for
two consecutive weeks in the way he deems best.
If the movable cannot
1. be kept without deterioration, or
2. without expenses which considerably diminish
its value,
3. it shall be sold at public auction eight days after
the publication.
 This is partly onerous and partly simple.
 Form – insofar as it is onerous follows the form
of contract, insofar as it is simple follow the
form of donation.] [726]
4. Onerous – there are burdens, charges or future services
equal in value to that thing donated.
1. This is not really a donation the FORM is that of
a contract. [733]
ART 727. Illegal or impossible conditions
1. in simple and
2. remuneratory donations
3. shall be considered as not imposed.

The donation itself remains valid.

Six months from the publication having elapsed
1. without the owner having appeared, **ART 728. Donations
2. the thing found, or its value, shall be awarded to 1. which are to take effect upon the death of the donor
the finder. 2. partake of the nature of testamentary provisions, and
3. The finder and the owner shall be obliged, as the 3. shall be governed by the rules established in the
case may be, to reimburse the expenses. Title on Succession.
Donation
ART 729. When the donor intends
1. that the donation shall take effect during the lifetime
ART 725. Donation is an act of liberality whereby a
of the donor,
person disposes gratuitously of a thing or right in favor of
2. though the property shall not be delivered till after
another, who accepts it.
the donor's death,
3. this shall be a donation inter vivos.
Characteristics of a Donation
1. consent, subject matter and cause
4. The fruits of the property from the time of the
2. necessary form [including delivery in some cases] acceptance of the donation,
3. acceptance by the donee during donor’s lifetime 5. shall pertain to the donee,
4. intent to benefit the donee [animus donandi] 6. unless the donor provides otherwise.
liberality being emphasized than gratuitousness
5. resultant decrease in the assets or patrimony of the
Donation in praesenti
donor
INTER VIVOS MORTIS CAUSA

Acceptance by the donee is required because no one Take effect during the lifetime Take effect after the death of
can be compelled to accept the generosity of another. of the donor the donor
Must follow the formalities of Formalities of wills or codicils
**ART 726. When a person gives to another a donation
1. a thing or right Cannot be revoked except for Can be revoked at any time
2. on account of the latter's merits or of the services grounds provided for by law and for any reason while the
rendered by him to the donor, donor is still alive
3. provided they do not constitute a demandable In case of impairment of the In case of impairment of the
legitime, donations inter vivos legitime, donations mortis
debt, or
are preferred to donations cause are reduce ahead of the
4. when the gift imposes upon the donee a burden
mortis causa [priority in time donations inter vivos
which is less than the value of the thing given, priority in right]
 there is also a donation. The right of disposition is The right of disposition is not
completely transferred to the transferred to the donor while
Classification of Donation -from the viewpoint of motive, donee although certain the donor is still alive
purpose or cause reservations may be made [ex.
1. Simple – the cause is pure liberality [no strings usufruct]
attached] [725] Acceptance by the donee Acceptance by donee mortis
2. Remuneratory of the 1st kind – The purpose of which must be during lifetime of causa can only be done after
is to reward past services with no string attached. The donor the donor’s death
service here do not constitute recoverable debts]
[726]
ART 730. The fixing of an event or the imposition of a
3. Compensatory/ Conditional/Remuneratory of the
suspensive condition,
2nd kind– The purpose of which is to reward future
services or because of certain future charges or
1. which may take place beyond the natural
burdens, when the value of said services, burdens or expectation of life of the donor,
charges is less than the value of the donation.
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2. does not destroy the nature of the act as a
donation inter vivos, unless a contrary intention
appears.

Reason – The retroactive effect of the fulfillment of a
suspensive condition [Art. 1187]
ART 731. When a person donates something,
1. subject to the resolutory condition of the donor's
survival,
2. there is a donation inter vivos.

Thus, when a person donates land to another on the
condition that the latter would build upon the land a
school, the condition imposed was not a condition
precedent or a suspensive condition but a resolutory
one. The donation had to be valid before the
fulfillment of the condition. If there was no fulfillment
or compliance with the condition, the donation may
now be revoked and all rights which the donee may
have acquired under it shall be deemed lost and
extinguished [CPU v. CA]
ART 732. Donations which are to take effect inter vivos
1. shall be governed by the general provisions on
contracts and obligations
2. in all that is not determined in this Title.
*ART 733. Donations with an onerous cause
1. shall be governed by the rules on contracts and
2. remuneratory donations by the provisions of the
present Title as regards that portion which
exceeds the value of the burden imposed.
Related Provision
ART. 1183. Impossible conditions, those contrary to good
customs or public policy and those prohibited by law shall
annul the obligation which depends upon them.
If the obligation is divisible, that part thereof which is not
affected by the impossible or unlawful condition shall be
valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon.
*ART 734. The donation is perfected from the moment
the donor knows of the acceptance by the donee.

Knowledge may be actual or constructive
Persons Who May Give or Receive a Donation
ART 735. All persons who may contract and dispose of
their property may make a donation.
ART 736. Guardians and trustees cannot donate the
property entrusted to them.
*ART 737. The donor's capacity shall be determined as of
the time of the making of the donation.

Making – must be interpreted to mean “perfection” of
the donation
ART 738. All those who are not specially disqualified by law
therefor may accept donations.
***ART 739. The following donations shall be void:
1. Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
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.
In the case referred to in No. 1,
1. the action for declaration of nullity may be brought
by the spouse of the donor or donee; and
2. the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
Related Provision
***ART 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to testamentary
provisions.
ART 1782. Persons who are prohibited from giving each other any
donation or advantage cannot enter into universal partnership.

A life insurance policy is no different from a civil donation
insofar as the beneficiary is concerned. Both are founded
upon the same consideration: liberality. A beneficiary is
like a donee, because from the premiums of the policy
which the insured pays out of liberality, the beneficiary
will receive the proceeds or profits of said insurance. As a
consequence, the proscription in Art. 739 should equally
operate in life insurance contracts.

They are void by reason of public policy.
ART 740. Incapacity to succeed by will shall be applicable to
donations inter vivos.
ART 741. Minors and others who cannot enter into a contract
may become donees but acceptance shall be done through
their parents or legal representatives.
ART 742. Donations made to conceived and unborn children
may be accepted by those persons who would legally
represent them if they were already born.
Requisites
1. That the child be born alive later [if he had a normal intra
uterine life
2. Or that the child after being born alive, should live for at
least 24 hrs. [if he had an intra uterine life of less than 7
months
ART 743. Donations made to incapacitated persons shall be
void, though simulated under the guise of another contract or
through a person who is interposed.
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Incapacitated – those who are not allowed to become
donee
ART 744. Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons.
ART 745. The donee must accept the donation
1. personally, or
2. through an authorized person with a special
power for the purpose, or
3. with a general and sufficient power;
4. otherwise, the donation shall be void.
***ART 746. Acceptance must be made
1. during the lifetime of the donor and
2. of the donee.

Reason – Donation is personal between the donor
and the done.
ART 747. Persons who accept donations in representation
of others who may not do so by themselves, shall be
obliged to make the notification and notation of which
article 749 speaks.
***ART 748. The donation of a movable may be made
1. orally or
2. in writing.
An oral donation requires
1. the simultaneous delivery of the thing or
2. of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos,
1. the donation and
2. the acceptance shall be made in writing.
3. Otherwise, the donation shall be void.
ART 749. In order that the donation of an immovable
may be valid,
1. it must be made in a public document,
2. specifying therein the property donated and
3. the value of the charges which the donee must
satisfy.
The acceptance
1. may be made in the same deed of donation or
2. in a separate public document,
3. but it shall not take effect unless it is done
during the lifetime of the donor.
If the acceptance is made in a separate instrument,
1. the donor shall be notified thereof in an
authentic form, and t
2. his step shall be noted in both instruments.

Without the formalities the donation of realty is null
and void because a donation of real property is a
solemn contract.

If the notification and notation are not complied with, the
donation is void. However it should be understood that
the donor may waive the necessity of a formal notice or
notification. The intended object to be achieved by the
notice of acceptance and the notation is to assure that the
donor is informed of the acceptance and of the perfection
of the donation.

The registration in the Registry of Property of the
donation of real property is not needed for validity
between the parties and their assigns; the registration is
only useful for binding 3rd persons.

If the donation is only in private instrument the donation
is null and void unless it be a donation propter nuptias
because the statute of Frauds governs. Neither party may
compel the other to execute a public instrument because
Art. 1367 applies only when the contract or donation is
already valid and enforceable and its purpose is only for
convenience.

A void donation may serve as basis for acquisitive
prescription.

A daughter, as sole heir of her deceased father, executed
a public document recognizing and ratifying a donation
made by him in life, which donation was void for lack of
compliance with statutory requisite. Held: That though
ratification by the heir did not operate retroactively to
perfect the imperfect donation, yet being supported by a
good consideration, it had the effect of a quitclaim deed
and as such prevented the heir from asserting thereafter
any right to the subject of the donation [ABRAGAN v. DE
CENTENERA]
Effect of Donations and Limitations Thereon
ART 750. The donation may comprehend
1. all the present property of the donor, or
2. part thereof,
3. provided he reserves, in full ownership or in
usufruct,
4. sufficient means for the support of himself, and
5. of all relatives who, at the time of the acceptance of
the donation,
6. are by law entitled to be supported by the donor.
7. Without such reservation, the donation shall be
reduced in petition of any person affected.
Donation not included under this article
1. Onerous donation
2. Donation mortis causa
3. Donation propter nuptias

These donations are never reducible, they are only
revocable on the grounds expressly provided by law
**ART 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation.
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Reason of the Art. – one cannot give away which he
does not have [nemo dat quod non habit]
Exceptions
1. Contractual Succession – occurs when in a marriage
settlement, the would-be spouse are allowed to
donate mortis causa to each other future property to
the extent permitted by the rules of testamentary
succession [Art. 84 FC]
2. A promise made by a candidate for election that he
will, if elected, donate his salary for the education of
indigent but deserving students, is not prohibited by
of the Election Law because the donation is not made
to a particular person.
ART 752. The provisions of article 750 notwithstanding,
1. no person may give or receive, by way of
donation,
2. more than he may give or receive by will.
The donation shall be inofficious in all that it may exceed
this limitation.
ART 753. When a donation is made to several persons
jointly,
1. it is understood to be in equal shares, and
2. there shall be no right of accretion among them,
3. unless the donor has otherwise provided.
The preceding paragraph shall not be applicable
1. to donations made to the husband and wife
jointly,
2. between whom there shall be a right of
accretion,
3. if the contrary has not been provided by the
donor.
ART 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the
donor.
The latter, on the other hand,
1. is not obliged to warrant the things donated,
2. save when the donation is onerous,
3. in which case the donor shall be liable for
eviction to the concurrence of the burden.
The donor shall also be liable for
1. eviction or
2. hidden defects
3. in case of bad faith on his part.
*ART 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge
thereon,
1. may be reserved by the donor;
2. but if he should die without having made use of
this right,
3. the property or amount reserved shall belong to
the donee.
Revocation and Reduction of Donations
ART 760. Every donation inter vivos,
a. made by a person having no children or descendants,
legitimate or legitimated by subsequent marriage, or
illegitimate,
b. may be revoked or
c. reduced as provided in the next article,
d. by the happening of any of these events:
1. If the donor, after the donation, should have
legitimate or legitimated or illegitimate
children, even though they be posthumous;
2. If the child of the donor, whom the latter
believed to be dead when he made the donation,
should turn out to be living;
3. If the donor subsequently adopt a minor child.
ART 771. Donations which in accordance with the provisions
of article 752, are inofficious,
1. bearing in mind the estimated net value of the
donor's property at the time of his death,
2. shall be reduced with regard to the excess;
3. but this reduction shall not prevent the donations
from taking effect during the life of the donor,
4. nor shall it bar the donee from appropriating the
fruits.
For the reduction of donations the provisions of this Chapter
and of articles 911 and 912 of this Code shall govern.

Revocation is allowed because the law had presumes that
had the donor known he would have a child, he would not
have made the donation then because his own child
would have been the object of his affection and
generosity.

Art. 760 seek to protect the presumptive or expected
legitime while Art. 771 seek to protect the ACTUAL
legitime.
ART 761. In the cases referred to in the preceding article,
1. the donation shall be revoked or reduced
2. insofar as it exceeds the portion that may be freely
disposed of by will,
3. taking into account the whole estate of the donor at
the time of the birth, appearance or adoption of a
child.
ART 762. Upon the
1. revocation or reduction of the donation
2. by the birth, appearance or adoption of a child,
3. the property affected shall be returned or its value if
the donee has sold the same.
If the property is mortgaged,
1. the donor may redeem the mortgage,
2. by paying the amount guaranteed, with a right to
recover the same from the donee.
When the property cannot be returned,
 it shall be estimated at what it was worth at the time
of the donation.
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ART 763. The action for revocation or reduction on the 3. If he unduly refuses him support when the donee is
grounds set forth in article 760 shall prescribe legally or morally bound to give support to the
1. after four years from the birth of the first child, donor.
or
2. from his legitimation, Reason
3. recognition or
One who has been the object of generosity must not turn
4. adoption, or ungrateful. Gratitude here is a moral as well as a legal
5. from the judicial declaration of filiation, or duty.
6. from the time information was received

The acts of ingratitude covered are purely personal and
regarding the existence of the child believed
exclusive.
dead.
REVOCATION REDUCTION
This action There is total [affects the Only partial except Art. 771
1. cannot be renounced, and whole property] regardless of and applies only when the
2. is transmitted, upon the death of the donor, whether the legitime has legitime has been impaired.
3. to his legitimate and illegitimate children and been impaired or not
descendants. As a rule for the benefit of For the benefit of the heirs of
the dnor the donor
***ART 764. The donation shall be revoked at the
instance of the donor, Grounds for Revocation
1. when the donee fails to comply 1. Fulfillment of resolutory conditions or charges [Art. 764]
2. with any of the conditions which the former 2. Ingratitude [Art. 765]
imposed upon the latter. Grounds for Reduction
1. B.A.R. (birth, adoption, reappearance). [Art. 760]
In this case, 2. Inofficiousness. [Art. 771]
1. the property donated shall be returned to the 3. If insufficient property is left for support of donor and his
donor, relatives [Art. 750]
2. the alienations made by the donee and the 4. If made in fraud of creditors (creditors at the time of the
mortgages imposed thereon by him being void, donation) [Art. 1387]
3. with the limitations established, with regard to
Void, Ineffective, or Unperfected Donations
third persons, by the Mortgage Law and the

Those not perfected in accordance with the forms and
Land Registration laws.
solemnities of law (particularly when there is no proper
acceptance) [Art. 794]
This action shall prescribe
1. after four years from the noncompliance with the
Those made with property outside the commerce of man.
condition,
2. may be transmitted to the heirs of the donor, and
Those made with future property [Art. 751] except those
3. may be exercised against the donee's heirs. provided for in marriage settlements [Art. 84, FC]

Modal Donation
Those made to persons specially disqualified:

One in which the donor imposes a prestation upon
the donee.
ART 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
1. If the donee should commit some offense against
the person,
a. the honor or the property of the donor,
or
b. of his wife or children under his
parental authority;
2. If the donee imputes to the donor any criminal
offense, or
a. any act involving moral turpitude,
b. even though he should prove it,
c. unless the crime or the act has been
committed against the donee himself,
his wife or children under his authority;
1. by reason of public policy [Art. 739]
2. by reason of unworthiness [Art. 740]
3. by reason of possible undue influence [Art. 87
FC]
WILLS & SUCCESSION
ART. 774. Succession is
1. a mode of acquisition
2. by virtue of which the property, rights and
obligations
3. to the extent of the value of the inheritance, of a
person
4. are transmitted through his death to another or others
5. either by his will or by operation of law.
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.

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If he left a will, he is also called the testator.
ART. 776. The inheritance includes
1. all the property,
2. rights and
3. obligations of a person which are
4. not extinguished by his death.
*ART. 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
Related Provisions
ART 390. After an absence of seven years,
1. it being unknown whether or not the absentee still
lives,
2. he shall be presumed dead for all purposes,
3. except for those of succession.
The absentee shall not be presumed dead
1. for the purpose of opening his succession
2. till after an absence of ten years.
3. If he disappeared after the age of seventy-five years,
4. an absence of five years
5. shall be sufficient in order that his succession may be
opened.
ART 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
1. A person on board a vessel lost during a sea voyage,
or
a. an aeroplane which is missing,
b. who has not been heard of for four years
c. since the loss of the vessel or aeroplane;
2. A person in the armed forces
a. who has taken part in war,
b. and has been missing for four years;
3. A person who has been in danger of death
a. under other circumstances and
b. his existence has not been known for four
years.
ART 392. If the
1. absentee appears, or
2. without appearing his existence is proved,
3. he shall recover his property in the condition in
which it may be found, and
4. the price of any property that may have been
alienated or the property acquired therewith;
5. but he cannot claim either fruits or rents.
***ART 43. If there is a doubt,
1. as between two or more persons who are called to
succeed each other,
2. as to which of them died first,
3. whoever alleges the death of one prior to the
other,
4. shall prove the same;
5. in the absence of proof,
6. it is presumed that they died at the same time and
7. there shall be no transmission of rights from one to
the other.
Requisites
1. There is no proof as to which of two persons died first
2. They are called to succeed to each other
Requisites for the Transmission of Successional Right
1. There has been a death [either actual or presumed]
2. Rights or properties are indeed transmissible or descendible
3. The transferee is still alive, willing, is capacitated to inherit.

The effect of acceptance of the inheritance retroacts to
the moment of death.

In Extraordinary Presumption the person is presumed to
have died at the time of disappearance. The succession
really took place 4 years before on the day of
disappearance but actual division will only be at the end
of 4 years.

Prior to a person’s death, his heirs merely have an
inchoate right to his property.
ART. 778 - 780. Succession may be:
1. Testamentary - is that which results from the
designation of an heir, made in a will executed in the
form prescribed by law.
2. Legal or intestate;
3. Mixed - is that effected partly by will and partly by
operation of law.
ART. 781. The inheritance of a person includes
1. not only the property and
2. the transmissible rights and obligations existing at
the time of his death,
3. but also those which have accrued thereto since the
opening of the succession.
Related Provision
*ART 1429. When a testate or intestate heir
1. voluntarily pays a debt of the decedent
2. exceeding the value of the property which he received
by will or by the law of intestacy from the estate of the
deceased,
3. the payment is valid and
4. cannot be rescinded by the payer.
ART. 782. 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.
Related Provisions
***ART 41. For civil purposes,
1. the fetus is considered born
2. if it is alive at the time it is completely delivered from the
mother's womb.
However,
1. if the fetus had an intra-uterine life of less than seven
months,
2. it is not deemed born
3. if it dies within twenty-four hours after its complete delivery
from the maternal womb.
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*ART 1025. In order to be capacitated to inherit,
1. the heir, devisee or legatee
2. must be living at the moment the succession opens,
3. except in case of representation, when it is proper.
A child already conceived at the time of the death of the
decedent
1. is capable of succeeding
2. provided it be born later under the conditions
prescribed in article 41.
****ART 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
*ART 956. If the legatee or devisee
1. cannot or is unwilling to accept the legacy or devise, or
2. if the legacy or devise for any reason should become
ineffective,
3. it shall be merged into the mass of the estate,
4. except in cases of substitution and of the right of
accretion.
ART. 783. A will is an act
1. whereby a person is permitted,
2. with the formalities prescribed by law,
3. to control to a certain degree
4. the disposition of this estate,
5. to take effect after his death.
Elements and Characteristic of a Will
1. The making of a will is a statutory right
2. It is a unilateral act [No acceptance is needed while
the testator is still alive]
3. Solemn and formal act
4. There must be animus testandi
5. Testator must be capacitated to make a will
6. Will is strictly a personal act in all matters that are
essential
7. Effective mortis causa
8. Essentially revocable or ambulatory
9. Free from vitiated consent
10. It is an individual act
11. Disposes of the testator’s estate in accordance with
his wishes
*ART. 793. Property acquired
1. after the making of a will
2. shall only pass thereby,
3. as if the testator had possessed it at the time of
making the will,
4. should it expressly appear by the will that such
was his intention.

GR - What are given by the will are only those
properties already possessed and owned by the
testator at the time the will was made, not those
acquired after.
Exceptions
1. IF it expressly appears in the will that it was the
intention to give such “after acquired property”.
2. If the will was republished or modified by a
subsequent will or codicil [in such case, the property
owned at the time of such republication or modification
shall be given].
3. If at the time the testator made the will he erroneously
thought that he owned certain properties, the gift of said
properties will not be invalid, unless after making the will,
said properties will belong to him [Art. 930]
4. List of credit or remission are effective only as regards
that part of the credit or debt existing at the time of the
death of the testator [Art. 935 par. 1]. However it is not
applicable to a credit that is increased.
Testamentary Capacity and Intent
ART. 797. Persons of either sex under eighteen years of age
cannot make a will.
ART. 798. In order to make a will it is essential
1. that the testator
2. be of sound mind at the time of its execution.
ART. 799. To be of sound mind,
1. it is not necessary that the testator be in full
possession of all his reasoning faculties, or
2. that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient
1. if the testator was able at the time of making the will
to know the nature of the estate to be disposed of,
2. the proper objects of his bounty, and
3. the character of the testamentary act.
ART. 800. The law presumes
1. that every person is of sound mind,
2. in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind
1. at the time of making his dispositions
2. is on the person who opposes the probate of the will;
3. but if the testator, one month, or less, before making
his will
4. was publicly known to be insane,
5. the person who maintains the validity of the will
6. must prove that the testator made it during a lucid
interval.
ART. 801. Supervening incapacity
1. does not invalidate an effective will,
2. nor is the will of an incapable validated by the
supervening of capacity.
Forms of Wills
ART. 804. Every will must be
1. in writing and
2. executed in a language or dialect known to the
testator.
***ART. 805. Every will,
 other than a holographic will,
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1. must be subscribed at the end thereof by the 4. The will must be subscribed at the end thereof by the
testator himself or testator himself or by the testator’s name written by
2. by the testator's name written by some other another person in his presence and by his express
person direction.
a. in his presence, and
b. by his express direction, and
Subscribed – means to affix the signature.
3. attested and subscribed

Testator can sign with a mere cross if he intends that to
a. by three or more credible witnesses
be his signature. However where the cross appearing
b. in the presence of the testator
on a will is not the usual signature of the testator or
c. and of one another.
even one of the ways by which he signed his name,
that cross cannot be considered a valid signature
The [GARCIA v. LACUESTA]
1. testator or
2. the person requested by him to write his name
Even if the testators hand is guided by another, when
and the signing or marking is made, the signing will still be
3. the instrumental witnesses of the will, valid and will be considered as having done by the
a. shall also sign, as aforesaid, each and testator himself.
every page thereof,
b. except the last, on the left margin, and The delegate
c. all the pages shall be numbered
The testator may ask a delegate to sign for him,
correlatively in letters placed on the provided
upper part of each page. a. The delegate must write the name of the
testator under the express direction of the
The attestation shall state testator and in the presence of the testator.
1. the number of pages used upon which the will is b. The delegate must sign in the presence of the
written, and three witnesses.
2. the fact that the

Express Direction – the delegate must be expressly
a. testator signed the will and every page
authorized to do so. Mere clear gesture or motions or
thereof, or
conduct is sufficient. The testator must be conscious.
b. caused some other person to write his The testator must be the one who command the
name, delegate to sign the will for him.
i. under his express direction,
ii. in the presence of the
The delegate must write the name of the testator
instrumental witnesses, and manually [In Re Will of SIASON]
iii. that the latter witnessed and
signed the will and all the
The law does not require that the delegate must be of
pages thereof age. What the law requires is for the delegate to know
iv. in the presence of the testator how to read and write so that he can write the name of
and of one another. the testator. He must be also of sufficient age to
understand the direction of the testator.
If the attestation clause is
1. in a language not known to the witnesses,
Anybody including one of the 3 witnesses may be the
2. it shall be interpreted to them. delegate whom the testator may request to write his
name for him in the will [BARUT v. CABACUNGAN]
Requirements for Notarial Will
1. Testator must be at least 18 years of age, and
When the testator expressly caused another to sign the
possessed of soundness of mind at the time of the former's name, this fact must be recited in the
execution of the will attestation clause. Otherwise, the will is fatally
2. The will must be in writing defective.
3. The will must be executed in a language or dialect
known to the testator
If the will was not signed at the end but somewhere
else, the will is not valid.

If the testator resides in a certain locality, it can
be presumed that he knows the language or
END of the Will – means the logical not the physical
dialect in said locality. end of the will.

If the will was written in a language not known
to the testator it is void because of the
mandatory provision of Article 804 [SUROZA v.
HONRADO]
5. The will must be attested and subscribed by 3 or more
credible witnesses in the presence of the testator and of
one another.

Purpose – to avoid fraudulent substitution of the will.

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To attest – means to observe or to witness.

The 3 credible witnesses must witness the
execution of the will - the signing of the will by the
testator of each and every page of the will.

***In the presence –The law does not require the
witnesses to actually see the testator sign, it is
enough if the witnesses could have seen the
testator sign had they chosen to do so by casting
their eyes at the proper direction [NERA v.
RIMANDO]

The law requires the testator and the 3 witnesses
to affix to set of signatures.
a. In the first set of signatures, the testator is
required to sign at the end of the will and
the 3 witnesses.
b. In second set of signatures, the testator
and the witnesses are required to sign each
and every page thereof, except the last, on
the left margin.

The marginal signatures of the witnesses on the last
page are substantial compliance with the
requirement that they must sign the last page. The
law does not tell where the witnesses must sign the
last page. On the part of the testator the law is very
clear, on the last page the testator must sign at the
end of the will. Reason – what was the purposes that
the witnesses must sign the last page? To
authenticate that page so that the page will be
difficult to be substituted for another. Since that is
the only requirement of affixing the witnesses
signatures on the last page, that purpose is served by
the marginal signatures on the left margin [TABOADA
v. ROSAL]
Substantial compliance rule

This is the manner of execution followed by the
testator not in literal compliance with the provision of
the law. But while it is not in literal compliance, the
manner followed served the purpose behind the
requirement of the law.

The execution of the will should be accomplished in
one continuous transaction. Reason – the
testamentary capacity of the testator might have
change.

According to the strict view there must be an order of
signing – the testator should sign first before the
witnesses. According to the liberal view – for as long
as the testator and the witnesses accomplished in
one transaction – the testator and the witnesses can
simultaneously sign the will.

In case a testator is blind the presence may be
complied with if the signing or action is within the
range of the other senses like hearing, touch etc., of
the testator.
6. The testator or person requested by him to write his
name and the instrumental witnesses of the will
shall sign each other and every page thereof except the
last on the left margin.

Whenever the marginal signatures are required
although the law says left margin the purpose is served
if they are on the right, top or bottom margin for the
only purpose is to identify the pages used and prevent
fraud.

Failure to have the marginal signature of the testator
and of the witnesses is fatal.

The marginal signatures would make the substitution
of the pages with a forgery difficult.

Except the last page – it is presumed that the testator
and the witnesses sign the last page at the end of the
will.

All the pages must contain at least 4 signatures. If one
of the pages of a will is lacking in signature, the entire
will is invalid. In the probate of a will it is all or nothing.

The omission of the attesting witnesses to sign with the
testator at the left margin of each page is a fatal defect.
7. All the pages shall be numbered correlatively in letters
placed on the upper part of each page.

Purpose - To prevent addition or suppression of a page.

The pages of the will are those where the testamentary
disposition of the testator are written. If the page
contains nothing but an attestation clause, it is not part
of the will [Abangan v. Abangan]

The acknowledgment and the attestation clause do not
have page number.
8. The attestation clause
Attestation clause

A memorandum of the facts attending the execution of
the will required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures
[CAGRO v. CAGRO]
Purpose

To preserve in permanent formed a record of the facts
that attended the execution of the will so that in case of
failure of the memory of the subscribing witnesses or
other casualty those facts may be proven in court.

It is in effect a certification by witnesses as to the facts
attending the execution of the will. It is an act of the
witnesses.

A will which entirely lacks the attestation clause cannot
be probated.

The failure of the attestation clause to state the number
of sheets or pages is fatal except it is discernible from the
entire will that it is really and actually composed of only
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two pages duly signed by the testatrix and her
instrumental witnesses [TABOADA v. ROSAL]

Inasmuch as the signatures of the three witnesses to
the will do not appear at the bottom of the
attestation clause, although the page containing the
same is signed by the witnesses on the left-hand
margin, the will is fatally defective [CAGRO v. CAGRO]

In Taboada v. Rosal the witnesses where not
executing the will of the testator they were simply
authenticating the page and therefore their marginal
signature will suffice to serve the purpose of
authentication. But in Cagro v. Cagro the witnesses
are not simply authenticating the attestation clause
or the page where the attestation clause was written.
They are executing the attestation clause. Therefore
they have sign the attestation clause at the end
thereof.

While the law is silent, authorities are of the opinion
that the attestation clause must be executed by the
witnesses on the same occasion that the will was
executed by the testator because if a gap of three
days is allowed why can’t a gap of one year be
allowed between the execution of the will and the
execution of the attestation clause if that happen the
purpose of the attestation clause is defeated.

The attestation clause may be written
1. within the body of the will or
2. it may be written on a separate page.

There is no requirement that the language of the
attestation clause be the same as that of a will.

If one of those required to appear at the attestation
clause is not there, the general is that the attestation
clause is in effective and therefore it will invalidate
the will.

Exception - Those which do not appear in the
attestation clause but which can be verified to have
been complied with by looking at the four corners of
the will should not invalidate the will.
ART. 806. Every will must be acknowledged
1. before a notary public
2. by the testator and the witnesses.
3. 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.

Purpose of acknowledgment – to minimize fraud.

The notarial certificate is not required to be executed
on the same day that the will was executed. The
notarial certificate may be preferred and sign by the
lawyer on another day even after the death of the
testator [JAVELLANA v. LEDESMA]

To allow the notary public to act as third witness, or
one of the attesting and acknowledging witnesses,
would have the effect of having only two attesting
witnesses to the will which would be in contravention of
the provisions of Article 805 [CRUZ v. VILLASOR]

If the notary failed to attach the documentary stamp tax
on the acknowledgment certificate for the will the will is
not invalidate the will is simply inadmissible as evidence.
Documentary stamp may be affixed at the time the
taxable document is presented in evidence [GABUCAN v.
MANTA]
ART. 807. If the testator be
a. deaf, or a
b. deaf-mute,
1. he must personally read the will, if able to do so;
2. otherwise, he shall designate two persons to
a. read it and
b. communicate to him, in some practicable
manner, the contents thereof.
ART. 808. If the testator is blind,
 the will shall be read to him twice;
a. once, by one of the subscribing witnesses, and
b. again, by the notary public before whom the
will is acknowledged.
Will must be read twice

The purpose is to make known to the incapacitated
testator the contents of the document before signing and
to give him an opportunity to object if anything is
contrary to his instructions [ALVARADO v. GAVIOLA]

Applies not only to blind testators but also to those who,
for one reason or another, are incapable of reading their
wills [supra]
ART. 809. In the absence of
1. bad faith,
2. forgery, or
3. fraud, or
4. undue and improper pressure and
5. influence,
6. defects and imperfections
a. in the form of attestation or
b. in the language used therein
c. shall not render the will invalid
d. if it is proved that the will was in fact executed
and attested
e. in substantial compliance with all the
requirements of Article 805.
*ART. 810. A person may execute a holographic will
1. which must be entirely written,
2. dated, and
3. signed by the hand of the testator himself.
a. It is subject to no other form, and may be made
in or out of the Philippines,
b. and need not be witnessed.

Holographic will is allowed because no two persons have
the same handwriting.
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For as long as there is animus testandi the
holographic will is valid even if written in the wall or
anything.

We cannot leave the validity of a holographic will to
the wills and caprices of unscrupulous individuals who
can easily write on the face of the will without
authority of the testator [AJERO v. CA]

As a general rule, the date in a holographic will should
include the day, month, and year of its execution.
However, when there is no appearance of fraud, bad
faith, undue influence and pressure and the
authenticity of the Will is established, probate of the
holographic Will should be allowed under the
principle of substantial compliance [ROXAS v. DE
JESUS]

The testator must write the true date in the
holographic will. If the testator writes a false date the
will is invalid. It is a true date when the date has
something to do or has a connection in the execution
of the will. If he writes a date which has no
connection with the execution of a holographic will
that is a false date.
ART. 812. In holographic wills,
1. the dispositions of the testator
2. written below his signature
a. must be dated and
b. signed by him
3. in order to make them valid as testamentary
dispositions.

Rationale - Once the testator sign with his signature
the holographic will is completed.
ART. 813. When a number of dispositions appearing in a
holographic will
1. are signed without being dated, and
2. the last disposition has a signature and a date,
3. such date validates the dispositions preceding it,
4. whatever be the time of prior dispositions.
Kinds of alterations
1. Alteration by deletion
2. Alteration by insertion
3. Substitution – by deleting a provision and lieu thereof
you will insert a substitute provision.
*ART. 814. In case of any
1. insertion,
2. cancellation,
3. erasure or
4. alteration
a. in a holographic will,
b. the testator must authenticate the same
by his full signature.
Full Signature

Means the usual or customary signature. This is the
signature that is used by testator in executing a
holographic will. There must be one kind of signature that
must appear in the will.

If there is an alteration w/o full signature only the
alteration is void. However, if what was altered was the
date or the signature without full signature makes the
whole instrument void.

Art. 814 covers only those alterations introduce within
the body of the will. Outside the body of a will are codicil
and for them to be valid they must not only be signed it
must also be dated.

**When a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature the Will is not
thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined [KALAW v. RELOVA]

**However, the holographic Will in dispute had only one
substantial provision, which was altered by substituting
the original heir with another, but which alteration did
not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that
nothing remains in the Will after that which could remain
valid [supra]
ART. 811. In the probate of a holographic will,
1. it shall be necessary that at least one witness
2. who knows the handwriting and signature of the
testator
3. explicitly declare that the will and the signature are
in the handwriting of the testator.
4. If the will is contested, at least three of such
witnesses shall be required.
In the absence of
1. any competent witness referred to in the preceding
paragraph, and
2. if the court deem it necessary,
 expert testimony may be resorted to.
Probate

The allowance of a will by the court after due execution
has been proved.

The execution and the contents of a lost or destroyed
holographic will may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy;
or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court [GAN v.
YAP]

Where the will is holographic, no witness need be present
and the rule requiring production of three witnesses must
be deemed merely permissive if absurd results are to be
avoided [AZAOLA v. SINGSON]
Witnesses to Wills
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ART 820. Any person of 2. as if such devise or legacy had not been made or
1. sound mind and given.
2. of the age of eighteen years or more, and
3. not blind, Reason for the disqualification
4. deaf or dumb, and
The devise or the legacy given to the witness will temp
5. able to read and write, may be a witness to the the witness to perjure himself because if he testify against
execution of a will mentioned in article 805 of the validity of the will he won’t be able to get the legacy
this Code. given to him.

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
a. falsification of a document,
b. perjury or
c. false testimony.

Those three crimes mentioned involve falsehood.

Since a person is already convicted for telling a lie
then a person is no longer credible as a witness.
ART 824. A mere charge on the estate of the testator
1. for the payment of debts due
2. at the time of the testator's death
3. does not prevent his creditors from being competent
witnesses to his will.
***ART. 815. When a Filipino
1. is in a foreign country,
2. he is authorized to make a will in any of the forms
3. established by the law of the country in which he
may be.
4. Such will may be probated in the Philippines.

It is the fact of conviction which disqualifies a person ***ART. 816. The will of an alien
from becoming a witness therefore even if it pardon 1. who is abroad produces effect in the Philippines
the disqualification remains. The fact of conviction is 2. if made with the formalities prescribed by the law of
not obliterated by the pardon. the place in which he
a. resides, or

The notary public before whom the will was b. according to the formalities observed in his
acknowledged is disqualified to be a witness. country, or
However if there are four witnesses and one of them c. in conformity with those which this Code
is the notary public the will is still valid. But if there prescribes.
are only three witnesses and one of them is the
notary public the will is invalid [CRUZ v. VILLASOR] Related Provisions
ART. 795. The validity of a will
ART 822. If the witnesses
1. as to its form
1. attesting the execution of a will
2. depends upon the observance of the law in force at
2. are competent at the time of attesting,
the time it is made.
3. their becoming subsequently incompetent
4. shall not prevent the allowance of the will.
*****ART. 16. Real property as well as personal
property
*ART 823. If a person attests the execution of a will,
1. is subject to the law of the country
1. to whom or to whose
2. where it is stipulated.
a. spouse, or
b. parent, or
However, intestate and testamentary successions,
c. child,
1. both with respect to the order of succession and
2. a devise or legacy is given by such will,
2. to the amount of successional rights and
3. such devise or legacy shall, so far only as
3. to the intrinsic validity of testamentary provisions,
concerns
a. shall be regulated by the national law of the
a. such person, or
person whose succession is under
b. spouse, or
consideration,
c. parent, or
b. whatever may be the nature of the property and
d. child of such person, or
c. regardless of the country wherein said property
e. any one claiming under such person or
may be found.
spouse, or parent, or child,
4. be void,
*****ART. 17. The forms and solemnities of
5. unless there are three other competent witnesses
1. contracts,
to such will.
2. wills, and
3. other public instruments
However,
a. shall be governed by the laws of the country
1. such person so attesting shall be admitted as a
b. in which they are executed.
witness

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When the acts referred to
1. are executed before the diplomatic or consular
officials of the Republic of the Philippines in a
foreign country,
2. the solemnities established by Philippine laws
3. shall be observed in their execution.
Prohibitive laws concerning
1. persons,
2. their acts or property, and
3. those which have for their object
a. public order,
b. public policy and
c. good customs
4. shall not be rendered ineffective
a. by laws or
b. judgments promulgated, or
c. by determinations or conventions
agreed upon in a foreign country.

There is only one will which is not valid in the
Philippines although it is valid where it was executed
– that is the joint will.
**ART. 817. A will made in the Philippines
1. by a citizen or subject of another country,
2. which is executed in accordance with the law of
the country of which he is a citizen or subject,
and
3. which might be proved and allowed by the law
of his own country,
4. shall have the same effect
5. as if executed according to the laws of the
Philippines.
*ART. 818. Two or more persons
1. cannot make a will jointly, or
2. in the same instrument,
3. either for their
a. reciprocal benefit or
b. for the benefit of a third person.
*ART. 819. Wills, prohibited by the preceding article,
1. executed by Filipinos in a foreign country
2. shall not be valid in the Philippines,
3. even though authorized by the laws of the
country where they may have been executed.
An alien abroad may make a will in accordance with the
formalities (extrinsic validity) prescribed by the law of:
1. The place of his residence or domicile
2. His own country or nationality
3. The Philippines
4. Law of the place of execution.

Joint Wills – are those which contain in one
instrument the will of two or more persons jointly
signed by them.

Reciprocal/Mutual Wills – those that provide that he
survivor of the testators will succeed to all or some of
the properties of the decedent. (Mutual wills by
themselves are valid but if made in one instrument they
are void because they are joint)
Reasons
1. To allow as much as possible secrecy, a will being a purely
personal act.
2. To prevent undue influence by the more aggressive
testator on the other.
3. In case of death of the testators at different times,
probate would be harder.
4. It militates against the right of a testator to revoke his will
at any time.
5. In case of a husband and wife, one may be tempted to kill
the other.

With respect to aliens, according to Tolentino, the Civil
Code does not govern the acts of foreigner that is why a
foreigner may execute a will in the Philippines in
accordance with the law of their country. If the law of
their country allows them to execute a joint will wherever
they may be then the joint will they executed in the
Philippines must be valid.

However according to Justice Paras, to recognized that
joint will executed by the foreigner in the Philippines will
be violative of a public policy.

Suppose the husband was a foreigner and wife is a Filipina
they executed a joint will in a foreign country, can it be
probated in the Philippines? The will is valid in so far as
the alien husband is concerned because he is not govern
by Philippine law. His will is governed by the law of his
country if the law of his country allows him to execute a
joint will but the will is invalid insofar as the Filipina wife
is concerned.
Codicils & Incorporation by Reference
*ART. 825. A codicil is
 supplement or
 addition to a will,
1. made after the execution of a will and
2. annexed to be taken as a part thereof,
3. by which disposition made in the original will is
a. explained,
b. added to, or
c. altered.
*ART. 826. In order that a codicil may be effective, it shall
be executed as in the case of a will.
Formalities of Codicil
1. Notarial or ordinary codicil
2. Holographic codicil

In case of conflict between a will and a codicil, it is
understood that the latter should prevail, it being the
latter expression of the testator’s wishes.
ART. 827. If a will, executed as required by this Code,
a. incorporates into itself by reference
b. any document or paper,
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c. such document or paper shall not be considered i. with the intention of revoking it,
a part of the will ii. by the testator himself, or
d. unless the following requisites are present: iii. by some other person in his
1. The document or paper presence, and by his express
a. referred to in the will direction.
b. must be in existence at the time of
the execution of the will;
If burned, torn, cancelled, or obliterated
2. The will must clearly
a. describe and identify the same, a. by some other person,
b. stating among other things the b. without the express direction of the testator,
number of pages thereof; c. the will may still be established, and
3. It must be identified by clear and d. the estate distributed in accordance therewith,
satisfactory proof as the document or paper e. if its
referred to therein; and i. contents, and
4. It must be signed by the testator and ii. due execution, and
a. the witnesses on each and every iii. the fact of its unauthorized
page, destruction, cancellation, or
b. except in case of voluminous obliteration
books of account or inventories. iv. are established according to the Rules
of Court.
Art. 827 is not applicable to a holographic will because
1. There are no witnesses in a holographic will and
under Art. 827 it requires those witnesses to sign ART. 833. A revocation of a will
each and every page incorporated by reference. 1. based on a false cause or an illegal cause
2. If the document is not in the handwriting of the 2. is null and void.
testator and it will be incorporated by reference then
it will become part of the will, therefore the entire Revocation
will is no longer written in the hand of the testator
It is an act terminating the validity of a will or a provision
and therefore it is void. thereof.

Revocation of Wills & Testamentary Dispositions Requirements for revocation

1. There must be testamentary capacity – In revoking a will
ART. 828. A will may be revoked the testator is making a new disposition.
1. by the testator 2. There must be animus revocandi – This must be done
2. at any time before his death. freely and voluntarily. The act of revocation must comply
3. Any waiver or restriction of this right is void. with formalities prescribed by law.

Ways of revocation
ART 829. A revocation done outside the Philippines,
Revocation by Implication of Law
1. by a person who does not have his domicile in
this country,
Such as those found in the Family Code.
2. is valid when it is done Revocation by a subsequent will
a. according to the law of the place where
1. The subsequent instrument must comply with the formal
the will was made, or requirements of a will
b. according to the law of the place in
The will can either be
which the testator had his domicile at a. Express – when there is a revocatory
the time; and clause.
3. if the revocation takes place in this country, b. Implied – the provisions of a will are
 when it is in accordance with the conflicting with each other.
provisions of this Code. c. Total – If the entire will or the entire
disposition contain in the will is rendered
*****ART. 830. No will shall be revoked except in the null and void.
following cases: d. Partial – If it is simply reduced or
1. By implication of law; or modified.
2. By some will, 2. The testator must possess testamentary capacity
a. codicil, or 3. The subsequent instrument must either contain an
b. other writing executed as provided in express revocatory clause or be incompatible with the
case of wills; or prior will.
3. By burning,

The subsequent will must be valid for a revocation to take
a. tearing,
effect.
b. cancelling, or
c. obliterating the will
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If the testator revoke his prior will by a subsequent
will the revocation may be subject to a suspensive
condition but not a resolutory condition because a
will which has been revoked can only be given effect
if republish and the happening of a resolutory
condition is not a republication.
Revocation by an Act of Destruction
1. There must be an overt act specified by the law.
2. There must be a completion at least of the subjective
phase of the overt act.
3. The testator at the time of revoking must have
capacity to make a will
4. The revocation must be done by the testator himself
or by some other person in his presence and by his
express direction.

The acts of destruction provided by law are not
exclusive.

For the physical act of destruction to produce
revocation the act of destruction must appear on the
face of the will because that is the only proof of the
act of destruction carried out by the testator.

It is not required that the destruction be total for the
revocation to be effective. It is sufficient that the act
of destruction appears on the face of the will.
However, when the testator is destroying his will the
animus revocandi must be subsisting until the
destruction was completed.
Principle of Instanter

The moment the act of destruction coupled with
animus revocandi has been completed the revocation
is instantly produced.

Whether or not the act of destruction has been
completed or not will defend on the circumstances
behind the destruction. It is the state of the mind of
the testator which must be proven by evidence
aliunde.

The act of destruction that must appear on the face
of the will must be the very act of destruction carried
out by the testator.
1. The act of destruction must be carried out
by the testator
2. And the act of destruction carried out by
the testator must appear on the face of the
will.

This problem will only arise when the will has been
saved but there is an allegation that it has been
destroyed.

The testator may delegate to a third person the
destruction of the will as long as the third person
must destroy the will in the presence of the testator
and under the express direction of the testator.

The act of destruction carried out by third party not in the
presence of the testator and under his express direction
may be ratified by the testator.
Revocation based on a false cause

For revocation to be based on a false cause the cause
must appear on the will itself. Therefore, if the will does
not contain any reason for the revocation of a prior will
nobody can come forward to allege that revocation was
based on a cause and the cause was false. Someone may
attack the revocation to be invalid on the ground that it is
based on a false cause only when the revoking will states
the cause for the revocation of the prior. If the
subsequent will states the cause or the reason for the
revocation of the prior an interested party may come
forward to allege that the reason stated in the will was
false and he can proved it by introducing all kinds of
competent evidence. But if the subsequent will does not
state for the revocation of the prior no one can come
forward and claimed that the revocation was based on a
cause and that the cause was false.
Doctrine of Conditional Revocation/Dependent Relative
Revocation

Where the testator cancels or destroys a will or executes
an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not
made or, if made, fails of effect for some reason, the
original will remains in full force [MOLO v. MOLO]

The second act of revocation through an act of
destruction was subject to a condition– that the 2nd will
was valid. And since the 2nd will is not valid, the act of
destruction as a revocation did not take place.

The cancellation of the name of the heir is actually an
alteration of the will and for such cancellation to be
effective it must authenticated by the full signature of the
testator. But in Kalaw v. Relova such cancellation
amounted to a revocation of that disposition by
cancellation. And revocation by cancellation to be
effective under Art. 830 does not require authentication
by the full signature of the testator.
ART. 831. Subsequent wills
1. which do not revoke the previous ones in an express
manner,
2. annul only such dispositions in the prior wills as
a. are inconsistent with or
b. contrary to those contained in the later
wills.
ART. 832. A revocation made in a subsequent will
1. shall take effect,
2. even if the new will should become inoperative
3. by reason of the incapacity of
a. the heirs,
b. devisees or
c. legatees designated therein, or
4. by their renunciation.
ART. 834. The recognition of an illegitimate child
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1. does not lose its legal effect,
2. even though the will wherein it was made should
be revoked.
Republication and Revival of Wills
ART 835. The testator cannot republish,
1. without reproducing in a subsequent will,
2. the dispositions contained in a previous one
3. which is void as to its form.
ART 836. The execution of a codicil
1. referring to a previous will
2. has the effect of republishing the will as
modified by the codicil.
Republication

It is the process of giving validity to a will which is
useless or has become useless because it was void, or
had been revoked.
Republication may be made by:
1. By re-execution –the provision in Art. 805 -807 must
be complied with
2. By reference in a valid will or codicil

When the will is void as to form [Art. 805] it can only
be republish by re-execution. It cannot be republish
by a mere reference.
ART 837. If after making a will,
1. the testator makes a second will
2. expressly revoking the first,
3. the revocation of the second will
4. does not revive the first will,
5. which can be revived only by another will or
codicil.
Revival

The process of storing by operation of law the validity
of a previously revoked will.

Art. 837 tell when there is no revival.

There is only revival if the second will did not
expressly revoked the first it merely impliedly revoke
the first.

Where a will which cannot be found is shown to have
been in the possession of the testator, when last
seen, or where it is shown that the testator had ready
access to the will and it cannot be found after his
death the presumption is in the absence of other
competent evidence, that the same was cancelled or
destroyed by the testator [GAGO v. MAMUYAC]
Allowance & Disallowance of Wills
**ART 838. No will shall pass
1. either real or
2. personal property
3. unless it is proved and allowed in accordance
with the Rules of Court.
The testator himself may,
1. during his lifetime,
2. petition the court having jurisdiction for the
allowance of his will.
3. 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 SC 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,
1. the allowance of the will,
2. either
a. during the lifetime of the testator or
b. after his death,
3. shall be conclusive as to its due execution.
Allowance of will

The process of probating the will.
The proceedings is divided into several parts
1. Probate of the will – whether the will is valid or not. If the
will is not valid, there will be an intestate proceeding. The
only issue is whether or not the will is duly executed.

Elements of due execution of a will – these are the
issues that may be raised and decided during the
probate proceedings of a will.
a. Testamentary capacity
b. Animus testandi
c. Compliance with the formalities prescribed
by law
d. Whether or not the will was executed freely
and voluntarily
2. Declaration of heirship
3. Distribution of estate

Only issues in the due execution of the will may be
entertained at the probate of a will however when the
invalidity of the will is manifest on the face of the will
even if the issue is not one of the due execution the court
may entertain that issue even at probate [NUGUID v.
NUGUID]

The probate of a will is considered as conclusive as to its
due execution and validity, and is also conclusive that the
testator was of sound and disposing mind at the time
when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the
will is genuine and not a forgery [MERCADO v. SANTOS]

And when the order of the court admitting the will to
probate has become final and executory the due
execution of the will becomes conclusive and evidence
may not be admitted later on to reverse that conclusion.

Criminal action will not lie against the forger of a will
which had been duly admitted to probate by a court of
competent jurisdiction [MERCADO v. SANTOS]
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ART 839. The will shall be disallowed in any of the
following cases:
1. If the formalities required by law have not been
complied with;
2. If the testator was insane, or
a. otherwise mentally incapable of
making a will,
b. at the time of its execution;
3. If it was executed through force or
a. under duress, or
b. the influence of fear, or
c. threats;
4. If it was procured by undue and improper
pressure and influence,
a. on the part of the beneficiary or
b. of some other person;
5. If the signature of the testator was procured by
fraud;
6. If the testator acted by mistake or
a. did not intend that the instrument he
signed should be his will
b. at the time of affixing his signature
thereto.

The grounds enumerated are exclusive.
Institution of Heir
ART 840. Institution of heir is
1. an act by virtue of which a testator
2. designates in his will
3. the person or persons who are to succeed him
4. in his property and transmissible rights and
obligations.

It is an act of pure liberality.

In institution – there is an aliquot part of the estate is
given such ½, ¼ etc.,

The legatees will be given preference in the partition
of the estate because specific property has been
given to them. With respect to the instituted heirs
what they will get is only the remainder.

If the estate has been given to the instituted heir,
they are charge of paying the devisees and legatees
to the extent of the value they receive.
*ART 842. One who has no compulsory heirs
1. may dispose by will
2. of all his estate or any part of it
3. in favor of any person having capacity to
succeed.
One who has compulsory heirs
1. may dispose of his estate
2. provided he does not contravene the provisions
of this Code with regard to the legitime of said
heirs.
ART 843. The testator shall designate
1. the heir by his name and surname, and
2. when there are two persons having the same names,
3. 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,
1. should he designate him in such manner that there
can be no doubt as to who has been instituted,
2. the institution shall be valid.
ART 844. An error in the name, surname, or circumstances of
the heir
1. shall not vitiate the institution
2. when it is possible, in any other manner, to know
with certainty the person instituted.
If among persons having the same names and surnames,
1. there is a similarity of circumstances in such a way
that,
2. even with the use of other proof,
3. the person instituted cannot be identified,
4. none of them shall be an heir.
ART 850. The statement of a false cause
1. for the institution of an heir
2. shall be considered as not written,
3. unless it appears from the will
4. that the testator would not have made such
institution
5. if he had known the falsity of such cause.
Rules in institution
1. *Principle of equality - Heirs instituted without
designation of shares shall inherit in equal parts [Art. 846]
2. Individuality –heirs are deemed individually instituted
and not as a group [Art. 847]
3. Simultaneity in institution - Art. 849
Substitution of Heirs
*ART 857. Substitution is
1. the appointment of another heir
2. so that he may enter into the inheritance
3. in default of the heir originally instituted.
Purpose

To prevent the effects of intestate succession.

There may be also substitution of legatees and devisees.
ART 858. Substitution of heirs may be:
1. Simple or common/vulgar
2. Brief or compendious –
3. Reciprocal -
4. Fideicommissary.
ART 859. The testator may designate one or more persons
1. to substitute the heir or heirs instituted
2. in case such heir or heirs should
a. die before him, or
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b. should not wish, or
c. should be incapacitated to accept the
inheritance.
A simple substitution,
1. without a statement of the cases to which it
refers,
2. shall comprise the three mentioned in the
preceding paragraph,
3. unless the testator has otherwise provided.
Brief

several substitutes where appointed to replace single
heir.
Compendious

several heirs whrere to be substituted by one
substitute
Reciprocal

They are substitute of each other.
The substitute will inherit in 3 instances
1. Predecease of the original heir
2. Repudiation by the original heir
3. Incapacity of the original heir – catch all provision.
Anything that will not allow to inherit is an incapacity.
In reality, if the original does not inherit for whatever
reason the substitute will inherit.

If the will does not specify the ground that will trigger
the substitution the presumption is all causes for
inability to inherit are included. However the will may
limit the ground for substitution to just one, such as
in case of predecease. When the will has limited or
restricted the grounds to just one that will prevail
over the law.

The testator may appoint up to four substitutes for
one heir.
Situation

If a testator institute 3 persons to the entire estate
and appointed one substitute and if one of the 3
persons instituted predecease the testator, the
substitute will not get the share of such heir because
there is an accretion among the persons instituted.
The substitute will only get the share if all of the
instituted heirs died.

However if the testator instituted [for example 1/3]
of the estate of each one of the substitute and a
person is appointed as their substitute, when one of
the heir instituted predecease the testator, such
share of the predecease instituted heir will go to the
substitute because there is no accretion among the
instituted heir.

In comparison – before they are instated to the entire
estate, since they are instituted to the entire estate
the testator intended the three to get the entire
estate. Therefore there is accretion among them.
Unlike in the latter exception they were not instituted
to the same inheritance. They are not co-heirs of the
same inheritance. Therefore there is no accretion among
them.
**ART 863. A fideicommissary substitution by virtue of
which
1. the fiduciary or first heir instituted
2. is entrusted with the obligation
a. to preserve and
b. to transmit to a second heir
3. the whole or part of the inheritance, shall be valid
and shall take effect,
4. provided such substitution does not go beyond one
degree from the heir originally instituted, and
5. provided further, that the fiduciary or first heir and
the second heir are living at the time of the death of
the testator.
*ART 864. A fideicommissary substitution can never burden
the legitime.
*ART 865. Every fideicommissary substitution
1. must be expressly made
2. in order that it may be valid.
The fiduciary shall be obliged
1. to deliver the inheritance to the second heir,
2. without other deductions than those which arise
from
a. legitimate expenses,
b. credits and
c. improvements,
d. save in the case where the testator has
provided otherwise.
Related Provision
ART 869. A provision whereby the testator
1. leaves to a person the whole or part of the inheritance,
and
2. to another the usufruct,
3. shall be valid.
If he gives the usufruct to various persons,
1. not simultaneously, but successively,
2. the provisions of article 863 shall apply.
ART 868. The nullity of the fideicommissary substitution
1. does not prejudice the validity of the institution of
the heirs first designated;
2. the fideicommissary clause shall simply be
considered
3. as not written.
Fideicommissary Substitution

The testator institute a first heir to an inheritance but he
imposes on this heir the obligation to preserve and
transmit the property to a second heir.

In comparison to Art. 869 there is no substitution in Art.
869.
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There are cases where the 1st heir will get the entire 2. for a certain purpose or
property such as those provided for in Art. 868. 3. cause.

Requisites Kinds of Institutions

1. There must be a 1st heir called primary or
preferentially to the enjoyment of the property

1st heir must be capacitated, and must accept
the inheritance if he wants to enjoy the same.

He is like a usufructuary, with the right to enjoy
the property. If he however succeeds for
registering it innocent 3rd person should not be
prejudiced. If no such registration is made, the
buyer, no matter how innocent, acquires merely
the seller’s right, hence he holds it subject to the
substitution with the duty himself of preserving
and transmitting.
2. There must be an obligation clearly imposed upon
him to preserve and transmit to a 3rd person the
whole or part of the inheritance

If a mere suggestion, advise ore request is made
instead of an obligation. There is no
fideicommissary substitution but only a simple.

If the obligation is conditional, there is no FS.
3. A SECOND Heir.

He is known as fideicommissary, and is a sort of
naked ownership.
4. The 1st and the 2nd heirs must be only one degree
apart.

One Degree – second heir must be related to
and be one generation from the first heir. It
follows that the fideicommissary can only be
either a child or a parent of the first heir
[PALACIOS v. RAMIREZ]
5. Both heirs must be alive (or at least conceived) at the
time of the testator’s death.

Reason – To reduce as much as possible the
number of years the property will have to be
entailed.
6. Must be made in an express manner.
7. Must not burden the legitime.
8. Must not be conditional.
*ART. 870. The dispositions of the testator
a. declaring all or part of the estate
b. inalienable
c. for more than twenty years are void
1. With a Condition – future or uncertain event, or a fast
event unknown to the parties, upon which the
performance of the obligation depends.
2. With a Term – the day or time when the effect of an
institution of the heir is to begin or cease.
3. Modal Substitution – when the institution of an heir is
made for a certain purpose or cause.
Restriction on the right of the testator to imposed conditions
1. ART 872. The testator cannot impose
a. any charge,
b. condition, or substitution whatsoever
c. upon the legitimes prescribed in this Code.
d. Should he do so,
e. the same shall be considered as not
imposed.
2. ART 873. Impossible conditions and those contrary
to law or good customs
a. shall be considered as not imposed and
b. shall in no manner prejudice the heir,
c. even if the testator should otherwise
provide.
3. ART 874. An absolute condition
a. not to contract a first or subsequent
marriage
b. shall be considered as not written
c. unless such condition has been imposed
d. on the widow or widower
e. by the
i. deceased spouse, or
ii. by the latter's ascendants or
iii. descendants.
Nevertheless,
a. the right of usufruct, or
b. an allowance or some personal prestation
c. may be devised or bequeathed to any
person
d. for the time during which he or she should
remain unmarried or in widowhood.

For the prohibition to be absolute the heir should
not be able to marry anybody, anyplace, anytime.
4. ART 875. Any disposition
a. made upon the condition
b. that the heir shall make some provision in
his will
c. in favor of the testator or of any other
person
d. shall be void.

Conditional Testamentary Dispositions and Testamentary Disposition Captatoria

Dispositions with a Term
It is prohibited because it tends to make a will a
contractual act.
ART 871. The institution of an heir
1. may be made conditionally, or

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Unlike an immoral, illegal or impossible condition
which is disregarded, in disposition captatoria the
disposition itself is invalid not only the condition.
Suspensive condition

Problem – X, a testator instituted A subject to a
suspensive condition. A has legal heir same also with
X. 1st scenario A died before X. But despite that X
never change his will. At the time X died the condition
has not yet happened. If the condition happened will
the legal heir of A acquire what as been given to A.
The legal heirs of X will acquire what has been given
to A because A predecease the testator and therefore
he never became an heir.

A died after the death of X unfortunately the
condition has not yet happened. Since the
conditioned has not yet happened is A entitled to get
the inheritance? Not yet. Art. 880 provide the answer.
Suppose A dies before the happening of the
condition? When the condition happens after his
death to whom will the inheritance go? The
inheritance will go the heirs of X because of Art. 1034.

When an inheritance is subject to a suspensive
condition, the heir must be alive not only at the time
of the death of the testator. But also be alive at the
happening of the condition. When the heir dies
before the happening of the condition, he does not
inherit at all. Since he does not receive from
inheritance from the estate, there is nothing to be
transmitted to his heirs.
ART 880. If the heir be instituted
1. under a suspensive condition or
2. term,
3. the estate shall be placed under administration
a. until the condition is fulfilled, or
b. until it becomes certain that it cannot be
fulfilled, or
c. until the arrival of the term.
The same shall be done
1. if the heir does not give the security
2. required in the preceding article.
Related Provision
*ART 1034. In order to judge the capacity of
1. the heir,
2. devisee or
3. legatee,
a. his qualification at the time of the death of the
decedent
b. 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.
Resolutory Condition

X instituted A subject to a resolutory condition. A
predecease the testator. When X dies will the legal heirs
of A inherit? No because A predecease X therefore he
never inherited.

Suppose A was alive at the time of the death of X, A will
receive the inheritance but subject to a resolutory
condition. When that resolutory condition happens, A
losses the inheritance and it goes back to the estate of X
and the same shall be disposed of in accordance with the
provision in a will if there is any or in accordance with the
laws of intestacy.

Suppose A dies after receiving the property from the
estate of X but before the happening of a resolutory
condition. The property will go to A’s heirs but subject to
a resolutory condition. When the resolutory condition
happens, the heirs of A will return the property to the
estate of X. But if the resolutory condition does not
happen or will not happen at all. A or his heirs will entitled
to retain the property and will become absolute owners
of the inheritance.
Subject to a Term
Suspensive term

If the heir predecease the testator, the inheritance will be
given to the estate of the testator.

When A died X was alive, but the term has not yet arrived
who will receive the property? There is conflict between
Art. 880 and 885. But since Art. 885 is specifically
applicable to an institution subject to a term then it
should prevail over Art. 880. Therefore the property will
be going to the legal heirs of the testator but they have to
post a caucion muciana. If the term arrived, the property
will be given to A.

Suppose A died before the arrival of the term, the
inheritance will go to the legal heirs of A under Art. 878.
ART 885. The designation of the day or time
1. when the effects of the institution of an heir shall
commence or cease
2. shall be valid.
In both cases,
1. the legal heir shall be considered as called to the
succession
2. until the arrival of the
a. period or
b. its expiration.
3. But in the first case
4. he shall not enter into possession of the property
until
5. after having given sufficient security, with the
intervention of the instituted heir.
ART 878. A disposition with a suspensive term
1. does not prevent the instituted heir
2. from acquiring his rights and
3. transmitting them to his heirs
4. even before the arrival of the term.
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Resolutory Term

If A was alive it go to him. But when the term arrived
he losses it. It will go back to the estate.

If A died before the arrival of the term the same will
be given to A’s heir but subject to a resolutory term. If
the resolutory term arrives the legal heirs of A loss
the inheritance and it will return to the estate of X.
**Modal institution

It is a charge imposed on the heir by the testator. It is
a charge but the testator has not provided that if heir
does not comply with the charge he losses the
inheritance. The will is silent. In this case, the heir
does not loss the inheritance in case he failed to
comply with the charge since the will is silent.

The remedy if the heir does not comply with the
charge is specific performance. In which case a writ of
execution may be issued and the person who is the
beneficiary of the charge can levy the properties
belonging to such heir who does not comply with the
charge.

If the heir sells the property the buyer of the property
is subject to a charge. But the same shall not exceed
20 years under Art. 870

It becomes resolutory condition if the testator
provided that the testator losses the inheritance if he
does not comply with the charge.
LEGITIME
ART 886. Legitime is that
1. part of the testator's property
2. which he cannot dispose of
3. because the law has reserved it for certain heirs
4. who are, therefore, called compulsory heirs.
Purpose

To protect the children and the surviving widow or
the widower from the unjustified anger or
thoughtlessness of the other spouse.
****ART 887. The following are compulsory heirs:
1. Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
2. In default of the foregoing,
a. legitimate parents and ascendants,
b. 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,
1. shall inherit from them in the manner and
2. to the extent established by this Code.
Related Provisions
RA 8552 SEC. 20. 3rd Par. Effects of Rescission.
Succession rights
1. shall revert to its status prior to adoption,
2. but only as of the date of judgment of judicial rescission.
3. Vested rights acquired prior to judicial rescission shall be
respected.
FC 189 ART 189. Adoption shall have the following effects: 3]
The adopted shall remain an intestate heir of his parents and
other blood relatives.
ART 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
2] When the parents, legitimate or illegitimate, or the
legitimate ascendants
1. of the adopted
2. concur with the adopters,
3. they shall divide the entire estate,
4. one-half to be inherited by the parents or ascendants and
5. the other half, by the adopters;
ART 984. In case of the death of an adopted child,
1. leaving no children or descendants,
2. his parents and relatives by consanguinity and
3. not by adoption,
4. shall be his legal heirs.

Both the natural and spurious children under the FC are
called illegitimate children.
Problem

Suppose the adopted child die, and the adopted child is
survived by his natural parents and by his adopting
parents, who are his compulsory heirs? Under the FC Art.
190 in case of intestacy and the adopted child is survived
by the adopting parents and the natural parents, the
natural parents and the adopting parents will divide the
estate between the two. But there is nothing in Art. 190
or in CC Art. 984 is the adopting parent considered a
compulsory heir by the adopted child. Therefore the
natural parents remain as the compulsory heir of the
adopted child because of Art. 984 which has been
modified but not totally repealed by the FC. But in case of
intestacy, the adopting parent will inherit. But only in
those instances and concurrences provided for in ART.
190 FC. If not provided for by Art. 190 the adopting
parents will not inherit.

No relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives
of the adopter. Adoption creates a purely personal
relationship between the adopting parent and the
adopted child [TEOTICO v. DEL VAL]
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Therefore the heirs of the adopted child will be his Art. 888, 176 FC & 892 [2] - One ½ - legitimate child
relatives by blood. legitimate child, illegitimate children ½ of each share of
& surviving spouse legitimate child –
Classes of Compulsory Heirs illegitimate child
1. Primary – gets their legitime even in the presence of ¼ - SS
the other primary compulsory heirs and even in the
presence of the secondary compulsory heirs. Those All the concurring heirs get
from the half free portion,
are No. 1, 3, 4, and 5.
the share of the surviving
2. Secondary – those mentioned in no. 2. The father or
spouse having preference
mother is also a secondary compulsory heir but only
over those of the
as provided in Art. 903. illegitimate children whose
share may suffer reduction

Principle - The love of a person can be pro rata because there is no
compared to the flow of the water in a preference among
river, it flows down it doesn’t flow up themselves [Art. 895 last
before it flows side ways. par.]

Legtimate ascendants or descendants– The
nearer exclude the more remote. However if there are two or
more legitimate children

There is no representation in the ascending the surviving spouse gets a
line. share equal to that of each
legitimate child

Legitimate descendants – The nearer Art.889 - Legitimate parents or ½
exclude the more remote. ascendants alone
Art.896 - Legitimate parents or ½ - legitimate parents
ascendants & illegitimate children ¼ - ill. Children to be taken

If there is no free portion, the testator
from the portion at the free
cannot make a donation propter nuptias
disposal of the testator.
because all of the donations made by him
Art.893 - Legitimate parents or ½ - legitimate parents
are chargeable to the free portion. ascendants & surviving spouse ¼ - SS – To be taken from
the free portion of the
3. Concurring – They succeed as compulsory heirs estate
together with primary or secondary heirs. Legitimate parents, illegitimate ½ -legitimate parents
children & surviving spouse ¼ - illegitimate children
Testate Succession 1/8 – surviving spouse
Art.901 - illegitimate children alone ½
Heirs entitled to receive Portion of the share
Art.894 - Illegitimate children & ⅓ - illegitimate children
Art. 888 - Legitimate children & ½
surviving spouse 1/3 - surviving spouse
descendants
Art.900 - Surviving spouse alone ½ or ⅓ or ½
Art.892 - A] One legitimate child or ½ - legitimate children
Art.899 - Surviving spouse & ½ - legitimate parents
descendant concurring & surviving ¼ - SS
legitimate parents or ascendants and ⅛ – Surviving spouse be
spouse
illegitimate children taken from the free portion
B] Two or more legitimate children or SS - Equal to the legitime of
¼ - illegitimate children to
descendants together & surviving each of the legitimate
be taken also from the
spouse children.
disposable portion
In both cases, the legitime
Art.903 - A] Parents of the illegitimate ½ of the hereditary estate
of the surviving spouse shall
alone of such illegitimate child
be taken from the portion
that can be freely disposed B] Parents of the illegitimate child & ¼ each
of by the testator surviving spouse
Art. 888 & 176 FC - Legitimate ½ – in equal portions
children & illegitimate children Legitimate Children ART 890. The legitime reserved for the legitimate parents
½ the share of each shall be
Legitimate Child – 1. divided between them equally;
Illegitimate Child
2. if one of the parents should have died,
3. the whole shall pass to the survivor.

If the testator leaves neither father nor mother,

1. but is survived by ascendants of equal degree of the
paternal and maternal lines,
2. the legitime shall be divided equally between both
lines.
3. If the ascendants should be of different degrees,
4. it shall pertain entirely to the ones nearest in degree
of either line.
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ART 892. If only one legitimate child or descendant of
the deceased survives,
1. the widow or widower shall be entitled to one-
fourth of the hereditary estate.
2. In case of a legal separation,
3. the surviving spouse may inherit
4. if it was the deceased who had given cause for
the same.
If there are two or more legitimate children or
descendants,
1. the surviving spouse
2. shall be entitled to a portion equal to the legitime
of each of the legitimate children or descendants.
In both cases,
1. the legitime of the surviving spouse
2. shall be taken from the portion that can be freely
disposed of by the testator.
ART. 900. If the only survivor is the widow or widower,
1. she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and
2. the testator may freely dispose of the other half.
If the marriage between the surviving spouse and the
testator
1. was solemnized in articulo mortis, and
2. the testator died within three months from the
time of the marriage,
3. the legitime of the surviving spouse as the sole
heir
4. shall be one-third of the hereditary estate,
5. except when they have been living as husband
and wife
6. for more than five years.
7. In the latter case, the legitime of the surviving
spouse shall be that specified in the preceding
paragraph.
ART 902. The rights of illegitimate children
1. set forth in the preceding articles are transmitted
2. upon their death to their descendants, whether
legitimate or illegitimate.
*ART 903. The legitime of the parents who have an
illegitimate child,
1. when such child leaves neither legitimate
descendants,
2. nor a surviving spouse,
3. 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,
1. the legitime of the parents is one-fourth of the
hereditary estate of the child,
2. and that of the surviving spouse also one-fourth of
the estate.
Related Provision
ART 992. An illegitimate child has
1. no right to inherit ab intestato
2. from the legitimate children and relatives of his father or
mother;
3. nor shall such children or relatives
4. inherit in the same manner from the illegitimate child.

The provision of Art. 903 is up to illegitimate parents only
there is no illegitimate ascendants because they will be
barred by Art. 992.
ART 904. The testator cannot
1. deprive his compulsory heirs of their legitime,
2. except in cases expressly specified by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.
Related Provision
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.
Exceptions
1. ***Art. 1080 2nd par. A parent who,
a. in the interest of his or her family,
b. desires to keep any agricultural, industrial, or
manufacturing enterprise intact,
c. may avail himself of the right granted him in
this article,
d. by ordering that the legitime of the other
children to whom the property is not assigned
e. be paid in cash.
2. *Art. 1083 1st par. Every co-heir has a right to demand
the division of the estate
a. unless the testator should have expressly
forbidden its partition,
b. in which case the period of indivision shall not
exceed twenty years as provided in article 494.
c. This power of the testator to prohibit division
applies to the legitime.

If the testator dies, the compulsory must receive an
inheritance not less than their legitime. If a compulsory
heir will receive an inheritance less than his legitime, his
legitime is impaired and that impairment is to be cured
except when the legitme of the illegitimate children were
impaired by other compulsory heirs who are proffered.
Preterition
*****ART 854. The preterition or omission of one, some,
or all
1. of the compulsory heirs in the direct line,
2. whether
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a. living at the time of the execution of legitimate child of the adopter and makes the
the will or adopted person a legal heir of the adopter.
b. born after the death of the testator, Therefore an adopted child can be preterited
3. shall annul the institution of heir; [ACAIN v. IAC]
4. but the devises and legacies shall be valid
5. insofar as they are not inofficious. ART 855. The share of a child or descendant omitted in a will
1. must first be taken from the part of the estate not
If the omitted compulsory heirs should die before the disposed of by the will, if any;
testator, the institution shall be effectual, without 2. if that is not sufficient,
prejudice to the right of representation. 3. so much as may be necessary must be taken
proportionally from the shares of the other

It is the total exclusion of a compulsory heir in the compulsory heirs.
direct line from the inheritance.
*ART 856. A voluntary heir

For there to be preterition the compulsory heir 1. who dies before the testator
should not receive anything by will. The testator must 2. transmits nothing to his heirs.
have left a will and in that will, he dispose of
everything but he did not give anything to a A compulsory heir
compulsory heir in the direct line. 1. who dies before the testator,
2. a person incapacitated to succeed, and

The effect of preterition is annulment of the
3. one who renounces the inheritance,
institution of heirs in the will. Therefore if there is no
4. shall transmit no right to his own heirs
will preterition is irrelevant.
5. except in cases expressly provided for in this Code.
Problems
Related Provision

Suppose the testator did not dispose the entire
*ART. 970. Representation is
estate? I institute D to ½ of my estate. In this case,
1. a right created by fiction of law,
there will be no preterition because there will be an
2. by virtue of which the representative is raised to the place
intestate portion. ½ of the estate is free portion and
and the degree of the person represented, and
the preterited heir can claim his legitime in the other
3. acquires the rights which the latter would have if he were
half.
living or
4. if he could have inherited.

Suppose it was provided in a will, A institutes her
sister B as his sole and universal heir. It was further
stated that to my mother who no loner needs money PRETERITION DISINHERITANCE
I’m not giving anything. Is there preterition? There is Omission may either Always intentional
no preterition but there is ineffective disinheritance intentional or unintentional
– that is if a person is deprived of his legitime in a will May with cause or without Cause must always be stated in
for a reason or a ground which is not a ground to cause the will; must be true and legal.
disinherit a compulsory heir. It annuls the institution; Disinherited heir inherits
omitted heir inherits nothing [either by way of

In ineffective disinheritance, the institution of an heir legitime or by way of free
is not annulled. The compulsory heir who is portion]
ineffectively disinherited will receive his or her May exits with or without a Will is always required
legitime. will
The institution is always void May be valid.
Requisites
1. Total exclusion from the inheritance. Disinheritance

For their to be total exclusion from the *ART 915. A compulsory heir may,
inheritance the compulsory should not 1. in consequence of disinheritance,
received anything by will, by intestacy, or 2. be deprived of his legitime,
any advance on his inheritance by way of 3. for causes expressly stated by law.
donation inter vivos. A donation inter vivos
in favor of a compulsory heir is considered
ART 916. Disinheritance can be effected
an advance on his legitime and it is subject
1. only through a will
to collation when the donor dies.
2. wherein the legal cause therefor shall be specified.
2. The omission must be of a compulsory heir.
Requisites
3. The compulsory heir omitted must be in the direct
1. Must be made in a will
line.
2. Must be made expressly

Adoption gives to the adopted person the
3. For a legal cause
same rights and duties as if he were a
4. For a true cause
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5. For an existing cause (there can be no conditional or
preventive disinheritance although the revocation of
a disinheritance may be conditional. ***ART 891. The ascendant
6. Total or complete
7. The cause must be stated in a will itself (does not
require that the disinheritance should be
accomplished in the same instrument)
8. The heir disinherited must be clearly identified.
9. The will must not have been revoked.

It is the process or act, thru a testamentary
disposition of depriving in a will any compulsory heir
of his legitime for true and lawful causes.
Purpose - retribution.

Its object is to maintain good order and discipline
within the family.

Disinheritance excludes the heir not only from the Related Provision
legitime but also from the free portion. Reason - if by
disinheritance an heir is excluded from legitime with
greater reason exclude him from the free portion.
ART 917. The burden of proving the truth of the cause for
disinheritance
1. shall rest upon the other heirs of the testator,
2. if the disinherited heir should deny it.
ART 918. Disinheritance
a. without a specification of the cause, or
b. for a cause the truth of which, if contradicted, is
not proved, or
c. which is not one of those set forth in this Code,
1. shall annul the institution of heirs
2. insofar as it may prejudice the person
disinherited;
3. but the devises and legacies and other
testamentary dispositions
a. shall be valid
b. to such extent as will not impair the
legitime. Requisites
*ART 923. The children and descendants of the person
disinherited
a. shall take his or her place and
b. shall preserve the rights of compulsory heirs
with respect to the legitime;
c. but the disinherited parent shall not have
1. the usufruct or Origin/Source
2. administration of the property which
constitutes the legitime.
Related Provision
*ART. 972. The right of representation takes place
1. in the direct descending line,
2. but never in the ascending.
In the collateral line,
1. it takes place only in favor of the children of brothers
or sisters,
2. whether they be of the full or half blood.
Reserva Troncal
1. who inherits from his descendant
2. any property
3. which the latter may have acquired by gratuitous
title
4. from another
a. ascendant, or a
b. brother or
c. sister,
5. is obliged to reserve such property
6. as he may have acquired by operation of law
7. for the benefit of relatives who are
a. within the third degree and
b. who belong to the line from which said
property came.
ART 1461. Things having a potential existence may be the object
of the contract of sale.
The efficacy of the sale of a mere hope or expectancy is deemed
subject to the condition that the thing will come into existence.
The sale of a vain hope or expectancy is void.
Origin-A---B C------D
F---------------E - Reservista
Gratuitous title
Acquired by operation of law
G - Propositus

Purpose – To keep the property in the family to which the
property belongs.

The reservation is called reserve troncal because the
property goes to the trunk of the line from which it came.
1. The property was acquired by a descendant from an
ascendant or from a brother or sister by gratuitous title.
2. The said descendant died without an issue.
3. The property is inherited by another ascendant by
operation of law.
4. Existence of relatives within the third degree belonging to
the line from which said property came.

It must be an
a. ascendant or
b. brother -
c. sister -

The origin must be a legitimate relative because reserve
troncal exits only in the legitimate family.

To have a reserva, the brother or sister according to Sen.
Tolentino, whether full blood or half blood it does not
matter. But JBL Reyes and Justice R. Puno do not agree.
According to them to have a reserva troncal it must be
half blood. In the case of a full blood there can be no
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reserva because the property will never leave the
family. It will never cross to another family. When
the reason behind the law ceases, the law ceases.

The transmission must be by gratuitous title – that is
by donation or inheritance and no other.

Proceeds from the insurance [which the beneficiary
is the propositus] are not included because the same
is come from the insurance company which the
insurance company paid in accordance with the
aleatory contract of insurance.
Propositus

The descendant who received by gratuitous title and
died without an issue, making his other ascendant
inherit by operation of law. Upon his death it gives
rise to reserva and from which 3rd degree is counted.

Must be a legitimate descendant of the origin of the
property.

If adopted there is no reserva because there is no
relative by adoption.
Reservees/Reservatarios

In the hands of the propositus the property is not yet
reserved.

Reserva attaches to the very property that was
received gratuitously by the propositus. When the
propositus changes the form of the property reserve
does not attach to the substitute property.

For this reason the propositus is called the arbiter of
the reserva. Whether or not reserva will attach to the
property will depend on the propositus because if the
propositus changes the form of the property by
selling it or otherwise there will no longer be reserva
that will attach to the proceeds.
Reservor/Reservista

The ascendant who inherits the property by operation
of law from his descendant. When the reservista dies
he will return the very property to the reservatarios.
Until the reservista does not die, the reservatarios
cannot claim the property.

For there to be reserva, the very property that was
received gratuitously by the propositus must be
inherited by operation of law by another ascendant.
Acquired by operation of law means
1. Legal succession/intestate or
2. The legitime in case of testamentary succession.

Legitime – the testator cannot impose any
conditioned or burdened on the legitime. But reserva
is not imposed by the testator. It is imposed by law.

If the property is donated there can be no reserva
unless the donated property is considered an advance
on the legitime which is considered by law as received
by operation of law.

In the hands of the reservista, the property is reserved for
the benefit of the relatives within the 3rd degree of
consanguinity of the propositus who come from the
family where the property came from.

Another ascendant – is an ascendant who comes from
different family.

The reservista may alienate the property. But what the
reservista can alienate is what he has in the property. The
property is subject to a resolutory condition – that is
when the reservista die there are qualified reservatarios,
if there are qualified reservatarios when the reservista
dies then the property goes to the reservatarios. But
when there are no qualified reservatarios, when the
reservista died, then the ownership of the reservista over
the property becomes absolute.

Subject to a resolutory condition - the rights acquired by
the transferee being revoked upon the survival of
reservees at the time of death of the reservoir [SIENES v.
ESPARCIA]
Requisites
1. They must be legitimate relatives of the propositus and of
the origin of the property
2. They must be related to the propositus within the 3rd
degree
3. They must belong to the line from which the reservable
property property came
4. They must survive the reservista.

The reservatarios inherit the property from the propositus
not from the reservista.

Relatives of the propositus within the 3rd degree of
consanguinity and belonging to the line from which the
property came. The propositus is the reckoning point.
Third degree form the propositus Rules
1. **Apply the Double consanguinity test – the reservatario
must be related by blood not only to the propositus but
also to the origin because the reservatiro must be within
the same as the family of the origin.
2. Among the qualified reservatarios, apply the rules on
intestacy.
a. The direct line excludes the collateral
b. Among those who are in the direct line – the
nearer excludes the more remote.
c. If all the claimants are brothers and sisters of
the propositus and some of them are of the full
blood and the others are of the half blood, the
principle of double share for the full blood
collaterals shall apply [PADURA v. BALDOVINO]

Among those who are in the collateral line the descending
collateral line excludes the ascending collateral [DE PAPA
v. CAMACHO]

There is right of representation on the part of
reservatarios provided the representative is within the
third degree [FLORENTINO v. FLORENTINO]
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A half blood relatives by consanguinity may also 3. insofar as they may be inofficious or excessive.
qualify as a reservatarios but the share of the half-
blood relative is only half the share of a full blood Intestate Succession
relative [PADURA v. BALDOVINO]
Ill. Children – ½ Surviving Spouse –all

The reservatarios may sell the property before the Surv. Spouse – ½ Leg. Parents alone – all
death of the reservista because they have an Ill. Parents alone – all
expectancy. That is sale emptio res speratae. But the Leg. Child alone –all
buyer gets a mere expectancy- that the seller will be Ill. Children – ¼ 1 leg. Child - ½
qualified as reservatarios when the reservista dies. Surv. Spouse – ¼ Surv. Spouse - ½
Therefore when the seller/reservatarios died ahead Leg. Parents – ½
of the reservista the buyer will acquire nothing. Ill. Children – ½ 2 or more leg. Child ]
Leg. Parents -½ Surv. Spouse ]

The reservatario is not required to be alive at the time Leg. Parents -½
of the death of the propositus. The reservation made Surv. Spouse – ½ Spouse is considered as 1
by law is in favor of a class. However for the legitimate child and divide the
Ill. Parents - ½
reservatrio to inherit, the reservatario must be alive estate by total number.
Surv. Spouse - ½
at the time of the death of the reservista.
Surv. Spouse - ½
Brothers, Sisters,
Extinguishment of Reserva
nephews and nieces -½
1. Death of the reservista
2. Death of all the would be reservatarios ahead of the
Manresa’s Solution
reservista

The testator cannot dispose the legitime by will.
3. Loss of the reservable properties, provided the
Therefore, whatever institution was given in a will can
reservista had no fault or negligence
only be applied to the free portion. The legitime must first
4. Prescription – begins form the death of the reservista
be satisfied.
5. Registration under the Torrens system free from
reservation

Between legacy and institution, legacy is preferred.
6. Renunciation or waiver by all the reservatarios after
the death of the reservista.

If the testator dispose the entire estate by institution and
there is legacy still to be paid, the legacy will be paid by
Reserva Maxima
looking who got the free portion, and those who got the

The first property that must be imputed to the
free portion will share the burden of paying the legacy in
legitime [of reservista] must be the reservable
proportion to the amount they receive from the free
property as much as the legitime can accommodate.
portion.
Reserva Minima

Legacy is chargeable against the free portion. Therefor if

Each and every property received by the reservista is
there is no free portion is left because the entire estate
received partly by will, partly by legitime. That part
was eaten up by legitimes, the legatees will get nothing.
which is received by legitime shall be the only part
that is reserved. Therefore the reservable property is
Order of Intestate Succession
half of the property which was acquired by legitime.
[Philippines follows this rule]
Decedent is a legitimate person
1. Legitimate children or descendants
*ART 905. Every renunciation or compromise 2. Legitimate parents or ascendants
1. as regards a future legitime 3. Illegitimate children or descendants
2. between the person owing it and his compulsory 4. Surviving spouse subject to the concurrent right of the
heirs is void, brothers & sisters, nephews & nieces
3. and the latter may claim the same upon the death 5. Brothers and sisters, nephews and nieces
of the former; 6. Other collateral relatives within the 5th degree
4. but they must bring to collation whatever they 7. The State
may have received by virtue of the renunciation
or compromise. Decedent is an illegitimate person
1. Legitimate children or descendants
ART 906. Any compulsory heir 2. Illegitimate children or descendants
1. to whom the testator has left by any title less 3. Illegitimate parents
than the legitime belonging to him 4. Surviving spouse subject to the concurrent right of the
2. may demand that the same be fully satisfied. brothers & sisters, nephews & nieces
5. Brothers and sisters, nephews and nieces
6. State
ART 907. Testamentary dispositions
1. that impair or diminish the legitime of the  If the decedent is an adopted person, the same rules shall
compulsory heirs be followed except in connection with parents or
2. shall be reduced on petition of the same,
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ascendants. The FC provides - When the parents,
legitimate or illegitimate, or the legitimate ascendants
of the adopted concur with the adopters, they shall
divide the entire estate, ½ to be inherited by the
parents or ascendants and the other half, by the
adopters;

In intestacy some heirs are compulsory heirs and
therefore in intestacy what they will receive is part
legitime, part share in the free portion because the
compulsory heir acquires his legitime by operation of
law. What he acquires by intestacy is the free portion
because the testator did not dispose the free portion
by will.

In intestacy remember also who among the heirs who
got the free portion because those who got the free
portion are liable to pay whatever legacy or devise
was left or given by the decedent. The payment of the
legacy is pro rata among the heirs who got a free
portion.

The legacy or devise whenever one is given in the will,
the legacy or devise is chargeable against the free
portion.

If the testator gave donations inter vivos during his
lifetime and these donations are not inofficious the
same shall be charge to the free portion. Therefore
only those heirs who receive the free portion in
intestacy are liable to a reduction to the extent of the
free portion that was receive by them.

The legitime of each illegitimate child shall consist of
one-half of the legitime of a legitimate child [Art. 176
FC]
Intestate Heirs
1. Legitimate Children &descendants

Exclude parents, collaterals and state

Concur with surviving spouse and illegitimate children
2. Illegitimate Children & descendants

Exclude illegitimate parents. Collaterals and the state.

Concur with surviving spouse, legitimate children and
legitimate parents
3. Legitimate Parents & ascendants

Exclude collaterals and the state

Concur with surviving spouse and illegitimate
children
4. Illegitimate Parents

Exclude collaterals and state

Concur with surviving spouse
5. Surviving Spouse

Excludes collaterals other than brothers, sisters,
nephews and nieces and state.

Concurs with legitimate children, illegitimate
children, legitimate parents, illegitimate parents,
brothers, sisters, nephews and nieces.
6. Brothers & Sisters Nephews & Nieces

Exclude all the collaterals and the state.

Concur with surviving spouse
7. Other Collaterals – to the 5th degree

Excludes collaterals in the remoter degree and the state

Concur with collaterals in the same degree.
8. State

Covers the whole estate
Decedent Resident of the Philppines

Personal Property – to municipality of last residence

Real Property – where situated
Never Resident

Personal and real property where situated
To Be Used For The Following
1. For the benefit of the public educational and charitable
institution and centers in the respective municipalities/
cities.
2. Alternatively, at the instance of an interested party, or
motu propio, court may order the creation of permanent
trust.

Prescriptive Period – 5 years from the delivery of the
property to the State or its political subdivision upon
claim by interested party to the estate.

Partial Intestacy – Instances where the decedent has left a
will disposing of part, but no all of the disposable portion.
Legal or Intestate Succession

Reason - because of an unexpected death may come to
any person, the law presumes what would have been the
last wishes of a person had such person made a will,
taking into consideration his love and affection for those
closest to him.
ART 960. Legal or intestate succession takes place:
1. If a person dies
a. without a will, or
b. with a void will, or
c. one which has subsequently lost its
validity;
2. When the will
a. does not institute an heir to, or
b. dispose of all the property belonging to the
testator.
c. In such case, legal succession shall take
place only
d. with respect to the property of which the
testator has not disposed;
3. If the suspensive condition
a. attached to the institution of heir does not
happen or
b. is not fulfilled, or
c. if the heir dies before the testator, or
d. repudiates the inheritance,
e. there being no substitution, and
f. no right of accretion takes place;
4. When the heir instituted
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 NOTES & CASES IN CIVIL LAW 1 PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
a. is incapable of succeeding,
b. except in cases provided in this Code.
ART 962. In every inheritance,
a. the relative nearest in degree excludes the more
distant ones,
b. saving the right of representation when it
properly takes place.
Relatives in the same degree
a. shall inherit in equal shares,
b. subject to the provisions of article 1006 with
respect to relatives of the full and half blood, and
c. of article 987, paragraph 2, concerning division
between the paternal and maternal lines.

GR - inheritance in equal shares.
Exceptions
1. Division in the ascending line
2. Division between relatives of the full and half blood
3. Division in cases of representation.
Basic Rules of Intestacy
1. Rule of Preference of Lines – the 3 lines of
relationship are:
a. The descending
b. Ascending
c. Collateral
2. Rule of Proximity of Degree – the nearer exclude the
more remote without prejudice to the right of
representation.
3. Rule of Equality among relatives of the same degree
– If the nearer exclude the more remote, logically
those of equal degree should inherit in equal shares.
Exceptions
a. The rule of preference of lines
b. The distinction between legitimate and illegitimate
filiation
c. Rule of division by line in the ascending line [987 par.
2]
d. Distinction between full and half blood relationship
among brothers and sister and nieces and nephews
[1006 and 1008]
e. Representation.
Relationship
ART 964. A series of degrees forms a line, which may be
either direct or collateral.
Direct Line is that constituted by the series of degrees
among ascendants and descendants.
Collateral Line is that constituted by the series of degrees
among persons who are not ascendants and descendants,
but who come from a common ancestor.
ART 966. In the line, as many degrees are counted as
there are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the
brother of his father, four from his first cousin, and so forth.

Direct and Collateral – direct is preferred

Descending and Ascending – descending is preferred.

Direct line – There is no legal limit for the number of
degrees for entitlement to instate succession.
*ART 967. Full blood relationship is that existing between
persons who have the same father and the same mother.
Half blood relationship is that existing between persons who
have the same father, but not the same mother, or the same
mother, but not the same father.

With respect to the collateral relatives, the full and half
blood relationship is immaterial.
Right of Representation
*ART 970. Representation is a right
1. created by fiction of law,
2. by virtue of which the representative is raised to the
place and the degree of the person represented,
3. and acquires the rights which the latter would have
a. if he were living or
b. if he could have inherited.
ART 971. The representative is called to the succession
a. by the law and
b. not by the person represented.
c. The representative does not succeed the person
represented
d. but the one whom the person represented would
have succeeded.
**ART 973. In order that representation may take place,
1. it is necessary that the representative himself
2. be capable of succeeding the decedent.
There is right of representation
1. Predecease
2. Incapacity or Unworthiness
3. Disinheritance

There is only representation in legal succession.

In representation, the representative must not only be a
legal heir of the person he is representing, he must also
be a legal heir of the decedent.
Representation operates
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Per Stirpes – Means inheritance by group, all those
within the group inheriting in equal shares.
Rules on qualification
1. The representative must be qualified to succeed the
decedent
2. The representative need not be qualified to succeed
the person represented
3. The person represented need not qualified succeed
the decedent.
**ART 972. The right of representation takes place
1. in the direct descending line,
2. but never in the ascending.
In the collateral line,
1. it takes place only in favor of the children of
brothers or sisters,
2. whether they be of the full or half blood.
ART 974. Whenever there is succession by
representation,
1. the division of the estate
2. shall be made per stirpes,
3. in such manner that the representative or
representatives
4. shall not inherit more than what the person they
represent would inherit,
a. if he were living or
b. could inherit.
****ART 975. When children of one or more brothers or
sisters of the deceased survive,
1. they shall inherit from the latter by
representation,
 if they survive with their uncles or aunts.
2. But if they alone survive,
 they shall inherit in equal portions.
Representation in the direct line

In the direct line, representation occurs ad
infinitum.

In representation the representative is entitled
to receive whatever the person he is
representing was supposed to have inherited.
Representation in the collateral line

It will only occur when nephews and nieces
survived with at least one aunt or uncle.

When no uncle or aunt survived with them,
then there is no need for representation. They
will be the one who inherit in their own right as
the nearest surviving relatives of the same
degree.
*ART 977. Heirs who repudiate their share may not be
represented.
Principle

A renouncer may represent but may not be represented.
Descending Direct Line
*ART 981. Should
1. children of the deceased and
2. descendants of other children who are dead,
3. survive,
a. the former shall inherit in their own right,
and
b. the latter by right of representation.
**ART 982. The grandchildren and other descendants
1. shall inherit by right of representation,
2. and if any one of them should have died, leaving
several heirs,
3. the portion pertaining to him shall be divided among
the latter in equal portions.
Illegitimate Children
*ART 990. The hereditary rights granted by the two
preceding articles to illegitimate children
1. shall be transmitted upon their death to their
descendants,
2. who shall inherit by right of representation from
their deceased grandparent.
*****ART 992. An illegitimate child
1. has no right to inherit ab intestato
2. from the legitimate children and relatives of his
father or mother;
3. nor shall such children or relatives
4. inherit in the same manner from the illegitimate
child.
Related Provision
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.

The Iron Curtain Rule

Based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family, while
the legitimate family is, in turn, hated by the illegitimate
child. The law does not recognize the blood tie and seeks
to avoid further grounds of resentment.

Relative - broad enough to comprehend all the kindred of
the person spoken of.
A
B C
D E F G

The inheritance of A is the one being distributed. Both B &
C are dead. Only E cannot represent B in the inheritance
of A. E is an illegitimate child. B is the illegitimate parent
but A is a legitimate relative of his parent. He cannot
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inherit from the legitimate relative of his parent and
neither may the legitimate relative inherit from the
illegitimate child. In compare to the other side,
“kanya kanyang kalat, kanya kanyang linis”. C
became an illegitimate because of A and because C is
an illegitimate child of A, “lahat ng kalat ni C sagot ni
A even si F”. On the other hand, E cannot inherit from
A because E became an illegitimate child not because
of A but because of B. In short, “kalat ni B”.
Surviving Spouse
*ART 996. If a widow or widower and
1. legitimate children or descendants are left,
2. the surviving spouse has in the succession the
same share as that of each of the children.

A surviving spouse concurring with only one
legitimate child of the deceased is entitled to one-half
of the estate of the deceased.
*ART 997. When the widow or widower
1. survives with legitimate parents or ascendants,
2. the surviving spouse shall be entitled to one-half
of the estate,
3. and the legitimate parents or ascendants to the
other half.
*ART 1000. If legitimate ascendants,
1. the surviving spouse, and
2. illegitimate children are left,
3. the ascendants shall be entitled to one-half of the
inheritance, and
4. the other half shall be divided between the
surviving spouse and the illegitimate children
5. so that such widow or widower shall have one-
fourth of the estate,
6. and the illegitimate children the other fourth.
*****ART 1001. Should brothers and sisters or their
children
1. survive with the widow or widower,
2. the latter shall be entitled to one-half of the
inheritance and
3. the brothers and sisters or their children to the
other half.
*ART 1002. In case of a legal separation,
1. if the surviving spouse gave cause for the
separation,
2. he or she shall not have any of the rights granted
in the preceding articles.

One of the effects of legal separation is the
disqualification of the guilty spouse from succession
to the estate of the innocent person.
Collateral Relatives

The distinction in the maternal or paternal line will
not apply.
ART 1003. If there are no
a. descendants,
b. ascendants,
c. illegitimate children, or
d. a surviving spouse,
 the collateral relatives shall succeed to the
entire estate of the deceased in accordance with
the following articles.
*ART 1004. Should the only survivors
a. be brothers and sisters of the full blood,
b. they shall inherit in equal shares.
***ART 1005. Should brothers and sisters
a. survive together with nephews and nieces,
b. who are the children of the descendant's brothers
and sisters of the full blood,
c. the former shall inherit per capita,
d. and the latter per stirpes.
**ART 1006. Should brother and sisters of the full blood
a. survive together with brothers and sisters of the half
blood,
b. the former shall be entitled to a share double that of
the latter.

Extended to nephews and nieces. The sole niece of full
blood to a share double that of the nephews and nieces of
half blood.
*ART 1007. In case brothers and sisters of the half blood,
1. some on the father's and
2. some on the mother's side,
3. are the only survivors,
4. all shall inherit in equal shares
5. without distinction as to the origin of the property.
*ART 1008. Children of brothers and sisters of the half blood
1. shall succeed per capita or per stirpes,
2. in accordance with the rules laid down for brothers
and sisters of the full blood.
*ART 1009. Should there be
1. neither brothers nor sisters
2. nor children of brothers or sisters,
 the other collateral relatives shall succeed to the
estate.
The latter shall succeed
1. without distinction of lines or preference
2. among them by reason of relationship by the whole
blood.
ART 1010. The right to inherit ab intestato
1. shall not extend
2. beyond the fifth degree of relationship in the
collateral line.

The law means only that among the other collateral
relatives, no preference or distinction shall be observed
"by reason of relationship by the whole blood”.
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Provisions Common to Testate & b. to any one of them and to a stranger.

Intestate Successions
Should the part repudiated be the legitime,
Right of Accretion 1. the other co-heirs
2. shall succeed to it in their own right,
*ART 1015. Accretion is a 3. and not by the right of accretion.
1. right by virtue of which,
2. when two or more persons are called to the same ART 1023. Accretion shall also take place
a. inheritance, 1. among devisees,
b. devise or 2. legatees and
c. legacy, 3. usufructuaries
3. the part assigned to the one  under the same conditions established for heirs.
a. who renounces or
b. cannot receive his share, or Capacity to Succeed By Will or By Intestacy
c. who died before the testator,
4. is added or incorporated to that of his co-heirs, ART 1024. Persons not incapacitated by law
co-devisees, or co-legatees. 1. may succeed by will or
2. ab intestato.
Requisites
1. Unity of object (one inheritance) The provisions relating to incapacity by will are equally
2. Plurality of subjects applicable to intestate succession.
3. Vacant portion
4. Acceptance Capacity to Succeed

It is the ability to inherit and retain property obtained
Avoidance of Accretion mortis causa.
1. By expressly designating a substitute.
2. By expressly providing that although accretion may Kinds
take place still he does not want accretion to occur. 1. Absolute – never inherit (1027 no. 6 & those who lack
juridical personality).
When Accretion May Take Place 2. Relative – cannot inherit only from certain persons but
1. Predecease can inherit from other.
2. Incapacity a. Because of possible undue influence (1027)
3. Repudiation b. Public policy and morality (1028)
4. If suspensive condition is not fulfilled c. Unworthiness
5. If there is a failure to identify one particular heir,
devisee or legatee but the others can be identified. ART 1027. The following are incapable of succeeding:
1. The priest who heard
ART 1016. In order that the right of accretion may take a. the confession of the testator
place in a testamentary succession, it shall be necessary: b. during his last illness, or
1. That two or more persons be called c. the minister of the gospel
a. to the same inheritance, or d. who extended spiritual aid to him
b. to the same portion thereof, pro e. during the same period;
indiviso; and 2. *The relatives of such priest or minister of the
2. That one of the persons thus called die gospel
a. before the testator, or a. within the fourth degree,
b. renounce the inheritance, or b. the church,
c. be incapacitated to receive it. c. order,
d. chapter,
Pro Indiviso
e. community,

Undivided or in common. Accretion will occur even if
the sharings are unequal as long as the result of the f. organization, or institution to which such
institution is co-ownership. priest or minister may belong;
3. A guardian with respect to
ART 1018. In legal succession a. testamentary dispositions
1. the share of the person who repudiates the b. given by a ward in his favor
inheritance c. before the final accounts of the
2. shall always accrue to his co-heirs. guardianship have been approved,
d. even if the testator should die after the
ART 1021. Among the compulsory heirs approval thereof;
1. the right of accretion shall take place e. nevertheless, any provision made by the
2. only when the free portion is left ward in favor of the guardian
a. to two or more of them, or
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f. when the latter is his ascendant, c. if the accusation has been found
descendant, brother, sister, or spouse, groundless;
g. shall be valid; 4. Any heir of full age
4. Any attesting witness to the execution of a will, a. who, having knowledge of the violent
a. the spouse, death of the testator,
b. parents, or b. should fail to report it to an officer of the
c. children, or law within a month,
d. any one claiming under such witness, c. unless the authorities have already taken
spouse, parents, or children; action;
5. Any physician, this prohibition shall not apply to cases
a. surgeon, wherein,
b. nurse, a. according to law,
c. health officer or b. there is no obligation to make an
d. druggist accusation;
e. who took care of the testator during his 5. Any person convicted of
last illness; a. adultery or
6. Individuals, b. concubinage
a. associations and c. with the spouse of the testator;
b. corporations 6. Any person who by
c. not permitted by law to inherit. a. fraud,
b. violence,
Reason c. intimidation, or

The law, in imposing this disqualifications, seek to d. undue influence
prevent any possible abuse of the moral or spiritual e. should cause the testator to make a will or
ascendancy for purposes of testamentary benefit. f. to change one already made;
7. Any person

Applicable only to testamentary succession. a. who by the same means
b. prevents another from making a will, or

It has no application to the legitime. c. from revoking one already made, or
d. who supplants,

The disqualifications are conclusively presumed.
e. conceals, or
f. alters the latter's will;
***ART 1028. The prohibitions mentioned in article 739,
8. Any person who
1. concerning donations inter vivos
a. falsifies or
2. shall apply to testamentary provisions.
b. forges a supposed will of the decedent.
ART 1031. A testamentary provision
1. in favor of a disqualified person, ART 1033. The cause of unworthiness
2. even though made under the guise of an onerous 1. shall be without effect
contract, or 2. if the testator had knowledge thereof at the time he
3. made through an intermediary, made the will, or
4. shall be void. 3. if, having known of them subsequently,
4. he should condone them in writing.
ART 1032. The following are incapable of succeeding by

Applicable to all kinds of succession.
reason of unworthiness:
1. Parents
Unworthiness gives rise to the total disqualification. It is a
a. who have abandoned their children or disinheritance imposed by law.
b. induced their daughters to lead a
corrupt or immoral life, *ART 1034. In order to judge the capacity of the
c. or attempted against their virtue; a. heir,
2. Any person b. devisee or
a. who has been convicted of an attempt c. legatee,
b. against the life of the testator, 1. his qualification
c. his or her spouse, 2. at the time of the death of the decedent
d. descendants, or 3. shall be the criterion.
e. ascendants;
3. Any person In cases falling under Nos. 2, 3, or 5 of article 1032,
a. who has accused the testator of 1. it shall be necessary to wait until final judgment is
b. a crime for which the law prescribes rendered, and
imprisonment for six years or more, 2. in the case falling under No. 4, the expiration of the
month allowed for the report.
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If the institution, devise or legacy
1. should be conditional,
2. the time of the compliance with the condition
shall also be considered.
*ART 1035. If the person excluded from the inheritance
by reason of incapacity
1. should be a child or
2. descendant of the decedent and
3. should have children or descendants,
4. the latter shall acquire his right to the legitime.
The person so excluded
1. shall not enjoy the usufruct and
2. administration of the property
3. thus inherited by his children.

Representation in unworthiness extends not only to
the legitime but also to whatever portion in intestate
succession the person represented may have been
entitled to.
Process in the computation of the value of the estate
1. Inventory of all the properties and assets of the
decedent. That is assets which a decedent owned
during his lifetime and whose ownership is not
extinguished by his death. [Gross estate]
2. Then deduct the total liabilities - that is those
liabilities which are not extinguished by his death.
Even the liabilities are not yet matured or they are
contingent. [Net estate]
3. Add all donations inter vivos which are subject to
collation. [The sum of the these three is the
Hereditary Estate – the amount available for
distribution to the heirs]
ART 907. Testamentary dispositions
1. that impair or diminish the legitime of the
compulsory heirs
2. shall be reduced on petition of the same,
3. insofar as they may be inofficious or excessive.
ART 908. To determine the legitime,
1. the value of the property left
2. at the death of the testator
3. shall be considered,
4. deducting all debts and charges,
5. which shall not include those imposed in the
will.
To the net value of the hereditary estate,
1. shall be added the value of all donations by the
testator
2. that are subject to collation,
3. at the time he made them.
ART 909. Donations given to children shall be charged to
their legitime.
Donations made to strangers
1. shall be charged to that part of the estate of
which the testator
2. could have disposed by his last will.
Insofar as they may be
1. inofficious or
2. may exceed the disposable portion,
3. they shall be reduced according to the rules
established by this Code.
*ART 1061. Every compulsory heir,
1. who succeeds with other compulsory heirs,
2. must bring into the mass of the estate
3. any property or
4. right
5. which he may have received from the decedent,
6. during the lifetime of the latter, by way of
a. donation, or
b. any other gratuitous title,
7. in order that it may be computed in the
determination of the legitime of each heir, and
8. in the account of the partition.
Related Provision
ART 1067. Expenses for
1. support,
2. education,
3. medical attendance,
4. even in extraordinary illness, apprenticeship,
5. ordinary equipment, or
6. customary gifts
 are not subject to collation.
Purpose

To produce equality as among the compulsory heirs of the
same class. Not only there is equality in quantity but also
in quality.
ART 1062. Collation shall not take place
1. among compulsory heirs
a. if the donor should have so expressly provided,
or
b. if the donee should repudiate the inheritance,
2. unless the donation should be reduced as inofficious.
ART 1064. When the grandchildren,
1. who survive with their uncles, aunts, or cousins,
2. inherit from their grandparents
3. in representation of their father or mother,
4. they shall bring to collation
5. all that their parents, if alive, would have been
obliged to bring,
6. even though such grandchildren have not inherited
the property.
They shall also bring to collation
1. all that they may have received from the decedent
during his lifetime,
2. unless the testator has provided otherwise,
3. in which case his wishes must be respected,
4. if the legitime of the co-heirs is not prejudiced.
ART 1065. Parents are not obliged
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1. to bring to collation
2. in the inheritance of their ascendants
3. any property which may have been donated by
the latter to their children.

Donation to grandson is considered as donations in
favor of a stranger. But if the father predecease and
the son will inherit in representation of the father,
the donation in favor of the son is considered an
advanced on the legitime of the father.
*ART 1066. Neither shall
1. donations to the spouse of the child be brought
to collation;
2. but if they have been given by the parent to the
spouses jointly,
3. the child shall be obliged to bring to collation
4. one-half of the thing donated.
*ART 1069. Any sums paid by a parent
1. in satisfaction of the debts of his children,
2. election expenses,
3. fines, and
4. similar expenses
5. shall be brought to collation.
ART 1070. Wedding gifts
1. by parents and ascendants
2. consisting of
a. jewelry,
b. clothing, and
c. outfit,
3. shall not be reduced as inofficious
4. except insofar as they may exceed one-tenth of
the sum which is disposable by will.
Collation
1. Collation in the 1st sense – refers to the adding back
of all donations given by the decedent during his
lifetime to his estate. Reason – if there is no adding
back of the donations made by the decedent during
his lifetime, the decedent can easily circumvent the
institution of legitimes.

The testator cannot provide in his will that certain
donations which are subject to collation under the
law be exempt from collation.

All donations intervivos which the decedent may have
made during his lifetime are chargeable to the free
portion at the time of his death. When that donation
exceeds the free portion at the time of his death the
excess is inoficcious.
2. Collation in the 2nd sense – means imputation –
donations given to compulsory heirs shall be
considered as an advanced on their legitimes. Hence,
if the testator provided in his will, that the donation
made by him in favor of his oldest son shall not be
subject to collation the same is not allowed. The
testator cannot exempt a donation from collation in
the first sense. But if the testator provided that the
donation in favor of his son is not subject to collation
it means that the donation is not imputed to his legitime.
That will be considered as donations made in favor of a
stranger and that will be imputed to the free portion.
3. Collation in the 3rd sense – means returning what was
inofficious.

The oldest donation shall be the first to charge against the
free portion in chronological order.

The donee is obliged to return the value of the property
at the time of the making of donation.
Example

X has three sons. A, B, and C. During his lifetime X made
the following donations:
1. In 1990 – he made a donation in favor of A
P60,000.
2. In 1992 - he made a donation in favor of B
P10,000.
3. In 1995 – he made a donation in favor of a
brother Y for P50,000.
4. In 2000 – he made a donation in favor of a Z
P80,000.
X has a total donation of P200,000. When X died the gross estate
was P40, 000. Divide the estate.

Estate – P240,000. Heirs A, B, and C. Their total legitimes
is ½ of the estate or P120,000. The other half is free
portion.

Intestate share – P80,000 each – ½ legitime and ½ free
protion.

The donation in favor of A was considered as an advance
of his legitime minus 40,000 as his legitime. The amount
of 20,000 is chargeable to the free portion considered
being donations in favor of a stranger.

To B minus 10,000 chargeable in his legitime.

The donation in favor of Y is chargeable to the free
portion - minus P50,000. He is the first one to be charged
because the donation was made in 1995. The donation is
still officious and therefor the donation is to be respected.

To Z – 80,000. Therefore there is an excess of P30,000
since what is left is only P50,000.

To A – there is nothing to be paid

To B – P30,000.

To C – P40,000.

The amount to be paid to the estate is P70,000. Since
what is left in the estate is only P40,000. Z will bring back
the 30,000 to the estate for the payment of the heirs.
Partition & Distribution of the Estate Partition
ART 1079. Partition, in general,
1. is the separation,
2. division and
3. assignment
4. of a thing held in common among those to whom it
may belong.
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The thing itself may be 1. which is intended to put an end to indivision

1. divided, or 2. among co-heirs and legatees or devisees
2. its value. 3. is deemed to be a partition,
4. although it should purport to be a
Kinds of Partition a. sale, and exchange,
1. Actual – physical division of the thing among co-heirs b. a compromise, or
2. Constructive - any act other than physical division c. any other transaction.
which terminate the co-ownership.
*ART 1083. Every co-heir
***ART 1080. Should a person make partition of his 1. has a right to demand the division of the estate
estate 2. unless the testator should have expressly forbidden
1. by an act inter vivos, or its partition,
2. by will, 3. in which case the period of indivision shall not
a. such partition shall be respected, exceed twenty years as provided in article 494.
b. insofar as it does not prejudice the 4. This power of the testator to prohibit division
legitime of the compulsory heirs. 5. applies to the legitime.
A parent who,
1. in the interest of his or her family, Even though forbidden by the testator,
2. desires to keep any 1. the co-ownership terminates
a. agricultural, 2. when any of the causes
b. industrial, or a. for which partnership is dissolved takes
c. manufacturing enterprise intact, place, or
3. may avail himself of the right granted him in this b. when the court finds for compelling
article, reasons that division should be ordered,
4. by ordering that the legitime of the other  upon petition of one of the co-heirs.
children to whom the property is not assigned,
5. be paid in cash.
GR – any co-heir may demand partition at any time.

Partition Causante Exceptions

It takes effect only upon death

It is revocable as long as the causante is still alive

Causante may make the partition either by will or by
an act inter vivos.

When a person makes the partition of his estate by an
act inter vivos, such partition may even be oral or
written, and need not be in the form of a will,
[CHAVEZ v. IAC]

when forbidden by the testator for a period not exceeding
20 years
Exceptions to the Exception
1. When any of the causes of dissolution of partnership
occurs
2. When the court finds compelling reason for partition
3. When the co-heirs agree on indivision -for a period not
exceeding 10 years, renewable.

*ART 1081. A person may,

a. by an act inter vivos or
b. mortis causa,
1. intrust the mere power to make the
partition
2. after his death to any person
3. who is not one of the co-heirs.

The provisions of this and of the preceding article

1. shall be observed
2. even should there be among the co-heirs a minor
or a person subject to guardianship;

but the mandatary, in such case,

1. shall make an inventory of the property of the
estate,
2. after notifying the
a. co-heirs,
b. the creditors, and
c. the legatees or
d. devisees.
ART 1082. Every act
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