Art. 774.

 The transmission of one’s property upon his demise is not an inherent right but, concedely, a
mere privilege granted by the sovereign power based on social and economic order, justice and
equity, as well as respect to man’s patrimony even in death

Art. 778

The Civil Code recognizes four kinds of succession:

Testamentary or testacy (by will)

Legal or intestacy (by operation of law based on the decedent’s presumed will)

Mixed (partly testamentary and legal)

And to a certain degree, by partition inter vivos (Art. 1081; Chavez vs. IAC, G.R. 68282, 8 November,
1990;

 Elements of Succession are –

1. Death of Decedent

2. Inheritance that includes all property, rights and obligations of a person which are not
extinguished by his death

-including those which have accrued thereto since the opening of succession

Succession is limited to the net estate and the successors are not personally bound to respond,
beyond their distributive shares, to the decedent’s obligations (Limjoco vs. Intestate Estate of Pedro
Fragante, 80 Phil. 776; Ledesma vs. Melanghlin, 66 Phil. 547)

3. Successors who may be –

a) Heirs-

voluntary

compulsory

legal or intestate heirs

b) Devisees or legatees

4. Acceptance or non-repudiation by the successors of their successional rights

Rights to the succession vest and are transmitted from the moment of death of the decedent (Art. 777,
Baranda vs. Baranda, G.r. No. 73275, 20 May 1987; Balais vs. Balais 159 SCRA 47; Ibarle vs. Po, 92 Phil.
721
Presumptive death may also authorize the opening of an absentee’s succession (Art. 390-391)

Art. 783.

 Thus, a document that does not purport or is not intended to dispose of one’s estate, either
directly by the institution of heirs or designation of devisees or legatees and the property or
share they are to receive or, indirectly, by validly disinheriting those who would otherwise
inherit by operation of law, is not governed by the law on testamentary succession but by some
other applicable laws that might be pertinent.

Art. 784.

 Characteristics of a Will

Unilateral

Mortis causa – dispositions can take effect only upon death although the law authorizes the testator to
have it probated (proved) during his lifetime (Art. 838) or partition his estate inter vivos (Art. 1080).

To illustrate, a holographic will containing a disposition of real property to take effect during the
testator’s lifetime would not invalidate the will but the disposition is ineffective being in the nature of an
inter vivos donation that requires it, among other things, to be in a public instrument.

 Personal

 Individual

2 or more persons cannot make a will jointly, either for their reciprocal benefit or for the benefit of a
third person (Art. 818)

 Revocable

 Free express of the testator’s Animus Testandi

 Formal

Art. 796.

 Any person of either sex, at least eighteen years of age, not otherwise expressly prohibited by
law, and of sound mind can make a will.

 It is essential that the testator be of sound mind at the time of its execution (Art. 79
  To be of sound mind, it is sufficient if the testator is able at the time of making the will to know
(not actual knowledge but capability to know) the nature of the estate to be disposed of, the
proper objects of his bounty, and the character of the testamentary act; it is not necessary that
the testator be in full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired or unshattered by disease, injury or other cause (Art. 799; Bugno vs.
Ubag, 14 Phil. 163; Heirs of Montinola-Sanson vs. CA, G.R. No. 76648, 26 February 1988; Reyes
vs. Zuniga, 91 Phil. 126; Torres Vs. Lopez, 48 Phil. 772)

Art. 804.

 The validity of a will as to its form depends upon the observance of the law in force at the time it
is made (Art. 795)

 Its intrinsic validity (successional rights and extent thereof), however, is judged at the time of
the decedent’s death (Art. 2263, Alsua-Betts vs. CA, 92 SCRA 332) by the law of his nationality
(Art. 16, Bellis vs. Bellis, 20 SCRA 358)

 The law did not specify any writing material or instrument; hence, any kind of writing will do
(Roxas vs. Roxas, 87 Phil. 692) so long as animus testandi is evident.

Art. 805.

 The testator need not be proficient in the language or dialect used; it would be sufficient if he
can by that language or dialect convey his testamentary act or make known that conveyance
through the instrument. Furthermore, the different parts of a notarial or ordinary will, such as
the testamentary dispositions of the testator, the attestation clause of the attesting witnesses
and the acknowledgment before the notary public, need not be in the same language. The
language requirement may be deemed complied with if he knows the language of his will
contained in the testamentary dispositions, even if he may not be familiar with that used in
either the attestation clause or acknowledgment portion of the will. Unlike , however, in the
attestation clause, where the lack of knowledge of the language used therein by the witnesses
may be cured by its interpretation to them (Art. 805), a similar interpretation to the testator of a
language or dialect unknown to him used in the body of the will (testamentary dispositions) will
not have a curative effect.

 The attestation is the certification or statement made by the witnesses (not the testator) on the
due execution of the will. The recitals of the attestation clause must therefore be known by the
witnesses; they need not, however, know the contents of the will itself (Barrera vs. Tampaco, 94
Phil. 346)

 In Cagro vs.Cagro (92 Phil. 1032), the Supreme Court ruled (with a dissenting opinion) that the
attestation clause must bear the witnesses’ signatures at the bottom thereon or immediately
thereafter, otherwise the will would be void. Unlike in the subscription by the testator, the law,
however, is not as explicit on where the attesting witnesses should sign.
  In Taboada vs. Rosal (188 SCRA 195, 5 November 1982), the Court stated that the marginal
signatures attest not only to the signature of the testatrix but likewise to the due execution of
the will, and that while perfection xxx is desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of the will is not assailed.

Art. 806.

 Subscription is akin to a signature which can be one’s mark; what is important is that he places
that mark as his signature. Such intention is considered naturally evident when he does so by a
customary signature; any other means such as by his initials, thumbmark or cross must be
explained.

 In Garcia vs. La Cuesta (90 Phil. 489), an unexplained cross not being his usual signature, was
held insufficient, the Court also saying that “we are not prepared to liken the mere sign of a
cross to a thumbmark, for the reason that a cross does not have the trustworthiness of a
thumbmark” . The testator must subscribe at the end of the will (at the close of or immediately
following his testamentary dispositions. The absence of subscription cannot be cured by a mere
marginal signing.

 The attesting witnesses need not sign beside the signature of the testator and before the
attestation clause (In re Will of Tan Diuco, 45 Phil. 807).

 The law permits the testator’s name to be written by another person in the presence of the
testator and by his express (not necessarily written) direction. Without the testator’s name, the
defect is fatal to the due execution of the will (Guison vs. Concepcion, 5 Phil. 551)

 The person writing the testator’s name need not himself sign (Caluya vs. Domingo, 27 Phil. 330;
Barult vs. Cabacungan, 21 Phil. 461; Balonan vs. Abellana L-15153, 31 August 1960)

Art. 809.

 Thus, the failure of an attestation clause to state the number of pages upon which the will is
written would not invalidate the will where, for instance, the acknowledgment portion
expresses such number of pages of which the will indeed consists (Taboada vs. Rosal, 118 SCRA
195, 5 November 1982)

 The total absence of the attestation clause, would be fatal; the part where it may be in the will is
not that consequential, and it may be, as usually it is, placed after the testamentary dispositions
or, with equal effect, made part of the body of the will itself so long as the requisite signatures
of the witnesses are affixed (Gonzales vs.Gonzales, 90 Phil. 444; Aldaba vs.Roque, 23 Phil. 378)

 The testator and the attesting witnesses must sign in the presence of each other. The true test
of presence, said the Supreme Court in Neyra vs. Neyra (76 Phil. 276) is “not whether they
actually saw each other at the time of the signing of the will, but whether they might have seen
each other sign, had they chosen to do so” such as, without changing their relative positions, by
 merely casting their eyes in the proper direction (Jabonela vs. Gustilo, 5 Phil. 541; Nera vs.
Rimando, 19 Phil. 450).

 In the case of a blind testator, it should be enough that, with his other available senses, he is
within range to perceive that which is taking place.

Marginal Signing (Art. 805)

 The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, in the presence of one another, each and every page thereof, except
the last, on the left margin.

 The intendment of the law is to require each and every page of the will to contain at least one
signature each of the testator and the attesting witnesses to ensure the authenticity of such
pages and avoid unauthorized insertions of a page. Hence, the page where the testator has
made his subscription need not indispensably be marginally signed further by him; similarly the
page whereon the attesting witnesses may have subscribed need no additional marginal
signatures by the latter. The last page containing only the attestation clause need not be signed
by the testator (Fernandez vs. Vergel de Dios, 6 Phil. 922; Abangan vs. Abangan, 40 Phil. 476)

 Should any page fail to bear the complete signatures of the testator and the three instrumental
witnesses, the will may not be admitted to probate (Rodriguez vs. Alcala, 55 Phil. 150; In re
Estate of Saguinsin, 41 Phil. 875).

 In Icasiano vs. Icasiano (11 SCRA 423), however, where the original (there were carbon copies
fully and duly executed) of the will, containing five pages, had all its pages fully signed except
page three which did not bear the signature of one attesting witness due to his oversight (in the
careless lifting of the pages), the Supreme Court held in obiter dictum

 …The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of inadvertence of a single witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the
will by bungling it or the attestation clause (Gil vs. Murciano, 49 O.G. 1459)

 …this court has held that a testament, with the only page signed at its foot by the testator and
witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41
Phil. 476)

 …despite the requirement for the correlative lettering of the pages of a will, the failure to mark
the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429)
  The signing by the testator and the attesting witnesses may be in order so long as it is done on
one occasion in which all are present (Gabriel vs. Mateo, 51 Phil. 206; Andalis vs. Fulgueras, 59
Phil. 643)

 Marginal signatures by the witnesses, said the court in Taboada vs.Rosal (118 SCRA 145, 5
November 1982), have the effect of attesting not only to the signature of the testatrix but also
to the due execution of the will.

 Paging

 The numbers may be numerals or by letters, placed on top or bottom page, or even on its left or
right margin but, except for the first page which is clearly identified by its very form (Lopez vs.
Liboro 81 Phil. 429), the numbering of pages is mandatory (Fernandez vs.Vergel de Dios, 46 Phil.
922; Unson vs. Abella, 43 Phil. 494).

 Acknowledgment

Every notarial will must be acknowledged before a notary public by the testator and the witnesses;
otherwise, the will is void (Garcia vs. Gatchalian, 21 SCRA 1056)

A notarial will need not be dated (In re Estate of Labitoria, 54 Phil. 379), and an erroneous date does not
invalidate it (Pasno vs.Ravina, 54 Pil. 378)

Art. 810.

 While the holographic will’s being witnessed or acknowledged may be considered a surplussage
(In re Estate of Calderon, 57 Phil 280), it can, however have probative value in evidence.

 In the probate of a holographic will, it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicity declare that the will and his signature are
in the handwriting of the testator. If the will is contested, at least three of such witnesses shall
be required, that is, said the Court in one case, if the oppositor is a real party in interest (Rivera
vs. IAC, 182 SCRA 322).

 In the absence of any competent witness, and if the court deems it necessary, expert testimony
may be resorted to (Art. 811 of the Civil Code; Heirs of Montinola Sanson vs.CA, G.R. 76648, 26
February 1988; Azaola vs. Singson, 109 Phil. 102).

 This requirement would necessitate the will to be presented to the witness before he can make
his declaration; accordingly, a lost holographic will cannot be probated, unless perhaps said the
Supreme Court (Gan vs. Yap 56 O.G. 2127 and Rodelas vs.Aranza 119 SCRA 16, December 7,
1982), a photocopy or similar reproduction can be submitted, in lieu of the original, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court.

Art. 814.
  Kalaw vs. Kalaw (L-40207, 28 September 1984), the holographic will of the testatrix contained
alterations, indicating that she initially intended to leave all her property to her sister but that
she later changed her mind and made her brother the sole heir. The probate of the will, as
corrected, was opposed on the ground that the alterations were made without authentication
by the full (customary) signature of the testatrix, and that the will, as first written, should thus
instead be probated and given effect.

 The Supreme Court ruled:

 Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic will have not been noted under his signature,xxxthe will is not thereby
invalidated as a whole, but at most only as respect the particular words, erased, corrected or
interlined.xxx

 However, when as in this case, the holographic will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which alteration
did not carry the requisite of full authentication by the full signature of the testator, the effect
must be that the ENTIRE WILL IS VOID OR REVOKED for the simple reasont hat nothing remains
in the will after that which could remain valid. To state that the will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to authenticate it in the manner required by
law by affixing her full signature.

Art. 821.

 Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a notarial will , except
(1) any person not domiciled in the Philippines; and (2) those who have been convicted of
falsification of a document, perjury or false testimony (Suntay vs.Suntay, 95 Phil. 500).

 The acknowledging notary public cannot be one of the three witnesses; otherwise, the will is
void (Guz vs. Villasor, 54 SCRA 31)

Art. 822.

 The witness need not be shown to have had a good standing in the community where he lives (
Gonzales vs. CA, 90 SCRA 183, 5 May 1979)

Art. 825.

 Incorporation by reference is not intended to substitute for the basic function of a will which is
to effect testamentary dispositions of the testator’s estate.

 Such testamentary dispositions must be contained in the will itself as implicit in

  Art. 783 defining a will and allowing a person to control to a certain degree the disposition of his
estate;

 Art. 835 prohibiting the republication by codicil of dispositions contained in a previously

executed void will; and

 Art. 838 stating that no property shall pass under a will without it having first probated.

 Provisions in a will such as conditions, burdens imposed by testator,, acknowledgment of

illegitimate children and those incorporated merely for convenience or reference need not be
embodied in the will itself

In order however that an incorporated matter may have an efficacy equivalent to what may be
contained in the will proper, the legal requisites therefor must be observed.

A BURDEN OR CONDITION attached to a testamentary disposition may effectively be imposed by the

testator even if such burden or condition is merely contained in a validly incorporated document.

Previously void wills may be incorporated but if its purpose is to give effect to testamentary dispositions
contained in said void will, a mere incorporation thereof would not be sufficient.

Said testamentary dispositions should instead be reinstated in the new and validly executed will, but
mere terms, conditions or burdens in the previously executed void will may effectively be incorporated.

There should also be no real problem in a holographic will incorporating by reference, documents which,
although not in the handwriting of the testator himself, are not in the nature of testamentary
disposition themselves.

Similarly, detailed descriptions of property disposed of by will may, for convenience, be incorporated by
reference.

Art. 828.

 A will may be revoked, totally or partially, by the testator at any time before his death (Cuevas
vs. Cuevas, 98 Phil. 68)

 Any waiver or restriction of this right is void but not the will itself which may have constrained
such waiver or restriction.

Art. 830

 In Testate Estate of Maloto vs.CA 158 SCRA 451, the heirs of deceased Adriana Maloto agreed to
partition the estate which was approved by the court in intestate estate proceedings. Three
years later, Adriana’s counsel discovered a document purporting to be the decedent’s last will
and testament. A petition for probate of the will was thus initiated (which was held not to be
 barred by the intestate settlement of estate proceedings). In the probate proceedings, it was
contended that the will was revoked by an overt act of burning of a copy thereof. The court
ruled that while animus revocandi could be conceded, there was paucity of evidence to show
compliance with the other elements or requirements of revocation by an overt act, under Art.
830 of the Civil Code,when not done by the testator or testatrix herself, i.e.

(1) That the document burned was in fact the will of the deceased;

(2) That the overt act was in fact the will of the deceased; and

(3) That the same was done in the presence of said decedent.

Revocations by implication of law revoke not the will itself but only certain testamentary
dispositions based on the testator’s presumed intent, such as the subsequent disqualification of an
heir (Art. 106, 1032) preterition of a child (Art. 854) or the alienation of a thing given by legacy or
devise (Art. 957).

Art. 831.

 A validly executed will or codicil may expressly revoke a previously executed will or any of its
testamentary dispositions. But subsequent wills, which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills (Art. 831, Civil Code; Gonzales vs. Carungcong, 90
Phil 444; Molo vs. Molo 90 Phil. 37).

Art. 832.

 A revocation made in a subsequent will shall take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or
by their renunciation. But if the will is void, its revocatory provisions would also be void (Samson
vs. Nava, 41 Phil. 638; Molo vs. Molo, 90 Phil. 37).

 To be effective, revocation by an overt act there must be:

 Animus revocandi

 An evidence of the overt act; and

 A complete act

If a testator should mistakenly destroy his will, or when he is incapable of that intent, the will may
still be probated (Santos vs.Santos,L-2396, 11 December 1950; Gonzales vs. Carungcong, 90 Phil.
444; Cuyugan vs. Baron, 62 Phil. 859) on the basis of the recollection of witnesses or secondary
evidence (Bulian vs. Sunloy, 63 Phil. 937) except in the case of holographic wills the probate of which
would require its presentation.

Art. 837
  Doctrine of Presumed Revocation

Whenever it is established that the testator had in his possession or had access to the will, but
upon his death it cannot be found or located, the presumption arises that it must have been revoked by
him by an overt act (Rodelas vs. Aranza, 119 SCRA 16; Gago vs. Mamuyac, 49 Phil. 902)

 Doctrine of Dependent Relative Revocation

A revocation subject to a condition does not revoke the will unless and until the condition occurs. Thus,
where a testator “revokes” a will with proven intention that he would execute another will, his failure to
validly make a later will would permit the allowance of the earlier will (Molo vs. Molo, 90 Phil. 37).

Art. 838.

 The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator’s death shall govern. Such probate merely authenticates the
will and it may still, therefore, be revoked (Alsua-Betts vs.CA, 92 SCRA 322). Subject to the right
of appeal, the allowance of the will, either during the lifetime of the testator or after his death,
shall be conclusive (Mercado vs. Santos, 66 Phil. 215; In re Estate of Johnson; 89 Phil. 156) as to
its due execution.

 Only persons who have direct interest in the probate of a will may be parties thereto; one who
is merely indirectly interested in a will, such as a lawyer of a repudiating heir, may not interefere
in its probate (Leviste vs. IAC, G. R. L-29184, January 30, 1989)

 A petition for probate is not subject to the statute of limitations (Guevarra vs. Guevarra, 74 Phil.
479); neither is the principle of estoppel applicable to probate because of public policy and the
intendment of the law to ensure that the will of the testator is respected and carried out (Alsua-
Bets vs. CA 92 SCRA 332).

 But once probated, its annulment may be barred by res judicata and prescription (Gallanosa vs.
Ubaldo, 83 SCRA 676)

 The title to the mode (death of decedent) of acquiring ownership by succession is, in the case of
legal heirs, the legal relationship of the successors to the decedent and, in the case of voluntary
heirs, the will of the decedent but it is essential that the will be probated in order that it may
serve as a title. The heirs may not do away with such probate because its suppression is contrary
to law and public policy (Guevarra vs. Guevarra, 74 Phil. 479).

 In one case, the Supreme Court implied that “the fact that the decedent’s last will and
testament was never probated may not be a bar to transmission of the estate where a partition
agreement was entered into which was based on the will itself (Chua vs. CFI, 78 SCRA 421)
  Later, however, the court rules that there can be NO PARTITION among co-heirs on a property
covered by the will until after it is probated (Ralla vs. Untalan, G.R. No. 62353, April 27, 1989)

 Still later in Coronado vs. CA (G.R. 78778, December 2, 1990; Chavez vs. IAC, G.R. 68282,
November 8, 1990, it was ruled that without probate, a will may be sustained as a partition by
an act inter vivos. It is believed that the term “partition” meant by the court must be
understood to be one that allocates specific items or pieces of property and not merely pro-
indiviso shares of the estate in order to be within the contemplation of Art. 1080 and 1081 of
the Civil Code.

 A partition based upon a will requires that will to be first probated (Kilayko vs. Tengco 207 SCRA
600, G.R. No. 45425, March 27, 1992)

Art. 839.

 In the case of Heirs of Montinola-Sanson vs. CA (G.R. No. 76648, February 26, 1988, the SC did
not consider sufficient to contest the validity of a holographic will the fact that the only surviving
sister of the testatrix was excluded therein and that the will did not dispose of all her estate. The
court also ruled that in order for undue influence to be established, it is not enough that there
was an opportunity to exercise that influence but substantial evidence is essential to show that
improper and undue influence was actually exercised.

 In the probate of a will, its intrinsic validity (efficaciousness) is not considered, since the
consideration thereof would come only after the will has been proved and allowed (Alsua-Betis,
vs. CA, 92 SCRA 332; Palacios vs. Palacios, 106 Phil. 739)

 The only factors that are put in issue in a probate proceeding are: (1) whether or not the
testator had animus testandi; (2) whether or not vices of consent attended the execution of the
will; and (3) whether or not the formalities of the will had been complied with and (3) whether
or not the formalities of the will had been complied with (Macapinlac vs. Alimurong, 16 Phil. 41;
Barreto vs. Reyes, 98 Phil. 996; Icasiano vs. Icasiano, 11 SCRA 403; Coso vs. Deza, 42 Phil. 596;
Pecson vs. Coronel, 45 Phil. 216).

 In Maninang vs. CA (114 SCRA 478, 19 June 1982), it was held that the challenge that there had
been a preterition in the will under Art. 854 of the Civil Code did not warrant the dismissal of the
testate case which is simply to pass upon the validity of the will and considered as one of
“aberration” the Nuguid vs. Nuguid case which passed upon the intrinsic validity of the will
because “practical considerations” demanded it (the only testamentary disposition was an
institution of an heir which was nullified by preterition under Art. 854, Civil Code)

 For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the obvious fact that one of the
private respondents had been preterited would have been an exercise in futility. It would have
 meant a waste of time, effort, expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of the testament provisions
before the extrinsic validity of the will was resolved (Cayetano vs. Leonidas; Nuguid vs. Nuguid)

 The petition for probate should not be dismissed merely because the will has no documentary
stamp (tax) affixed on it; instead, the court should direct the proponents to affix one (Gabucan
vs. Manta, G.R. L-51546, 28 January, 1980)

 When a will is declared void because it has not been executed in accordance with the formalities
required by law, but one of the intestate heirs, after settlement of the debts of the deceased,
pays a legacy in compliance with a clause in the defective will, the payment is effective and
irrevocable (Art. 1430)

Art. 846.

 PRESUMPTION OF EQUITY

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

UNLESS a contrary intention is shown, it is to be presumed that the testator is merely conveying in his
will the disposable free portion of his estate; accordingly, where a compulsory heir and an heir not
entitled to a legitime are instituted, without designation of shares, to the entire estate, the legitime
should first be paid before the equal sharing is applied.

 Presumption of Equality (Art. 846, 848)

 Unless a contrary intention is shown, it is to be presumed that the testator is merely conveying
in his will the disposable free portion of his estate; accordingly, where a compulsory heir and an
heir not entitled to a legitime are instituted, without designation of shares, to the entire estate,
the legitime should first be paid before the equal sharing is applied.

Art. 847

 Noble vs. Uson, 27 Phil. 73)

 Belen vs. Bank of P.I. (60 O.G. 6206), the institution of the testator’s “descendants” to his estate
was held to entitle his children and grandchildrenn to inherit per capita

 Presumption of Individuality (Art. 847)

 Thus in Belen vs. Bank of P.I. (60 O.G. 6206), the institution of the testator’s descendants to his
estate was held to entitle his children and grandchildren to inherit per capita.

Art. 849.

 PRESUMPTION OF SIMULTANEITY
  Fideicommissary substitution is not presumed but must be express (Art. 864)

Art. 850.

 Preterition consists in the omission in the testator’s will of the forced heirs of anyone of them,
either because they are not mentioned therein, or though mentioned, they are neither
instituted as heirs nor are expressly disinherited.

 Disinheritance, in turn, is testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law.

 Effects flowing from preterition are totally different from those of disinheritance.

 PRETERITION under Art. 854 “shall annul the institution of heirs”. This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions in the form of devises or
legacies.

 INEFFECTIVE DISINHERITANCE under Art. 918, disinheritance shall also “annul the institution of
heirs” but only insofar as it may prejudice the person disinherited, which latter phrase was
omitted in the case of preterition.

 In disinheritance, the nullity is LIMITED to that portion of the estate which the disinherited heirs
have been illegally deprived.

 The omitted compulsory heir must belong to the direct (descending or ascending) line (thus
excluding the wife); whether legitimate or illegitimate (Lajom vs. Leuterio, 107 Phil. 651). The
majority view appears to be that an omission of an adopted child can also result in preterition
under Art. 854 of the code . This view was adopted in Acain vs. Diongson G.R. No. 72706 Oct. 27,
1987).

Art. 864.

 The term “fideicommissary substitution” need not, however, be used in the will; it is enough
that there is a clear and unequivocal statement that one shall enjoy usufructuary or other rights,
short of naked ownership or title, over certain property of the testator with the obligation to
preserve the property and to transmit to a second heir (Cristobal vs. Singson, 4 SCRA 491).

 The law requires that the substitution should “not go beyond one degree from the heir originally
instituted”. Views have been expressed that one degree means one transfer, citing the Supreme
Court Tribunal of Spain and as advocated by such eminent civilists as Justices J.B. L. Reyes, R.
Puno, E. Caguioa and D. Jurado.

 In Ramirez vs. Ramires (111 SCRA 704), decided on 15 February 1982, the Supreme Court,
however, adopted the literal view that one degree means relationship or generation as
advanced by equally eminent writers as Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino.
Art. 872.

 A parent, however, who desires to keep intact an agricultural, industrial or manufacturing

enterprise, may allot the enterprise to one or some of his children and order the legitime of the
other children to be paid in cash (Art. 1080). The testator may also prohibit the partition of the
partition of the property for a period not exceeding twenty years but not its alienation (Art. 870
in relation to Art. 872).

Art. 873.

 This rule (Sabinian Doctrine, similar to Rebus Sic Stantibus in International Law), which is
likewise applied in donations inter vivos (Art. 727), is opposed to that in the law on obligations
where the nullity of the condition brings about the nullity of the obligation to which the
condition is attached (Art. 1183).

Art. 882

The statement of the object of the institution, or the application of the property left by the testator, or
the charge imposed by him, shall not be considered as a condition unless it appears that such was his
intention (Chiong vs. Vano, 8 Phil. 119).

Art. 887.

 Compulsory Heirs

1. Legitimate children and descendants, with respect to their legitimate parents and ascendant

(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 in default of LC/LD

1. legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287.

 The compulsory heirs are also grouped into: primary compulsory heirs or those entitled to the
legitime so long as they survive the decedent, such as the heirs belonging to the descending line,
and secondary compulsory heirs or those entitled to the legitime only in the absence of, or
failure to succeed by, certain compulsory heirs. In this second group, for instance, are legitimate
parents and ascendants who are excluded by the presence of legitimate children and
 descendants and the illegitimate parents who are themselves excluded by illegitimate children
and descendants.

 The Family code provides that when the parents by nature, or in their absence the ascendants,
concur with the adopting parents, in legal or intestate succession to the estate of the adopted,
one half of what is due the ascending line shall pertain to the parents or legitimate ascendants
by nature and the other half to the adopting parents (Art. 190 (2) Family Code).

 Although the term “legal or intestate succession” was used in the law, the intendment appears
to be, however, that whatever share is due the ascending line, whether in intestacy or in the
legitime, should not be equally divided between the ascending line by nature and the adopting
parents whenever the said two groups concur.

Art. 888.

 An adopted child shall be considered as one legitimate child (Art. 189, Family Code)

 A ward (ampon) without the benefit of formal adoption, is neither a compulsory nor a legal heir
(Lim vs. IAC, G.R. No. 69679, 18 October 1988).

 LCDs exclude LPAs. But adopted children, prior to the Family Code, in the absence of LCDs, did
not exclude LPAs; instead, adopted children were considered (or relegated to the status of)
acknowledged natural children or natural children by legal fiction (Art. 39 P.D. 603), although in
all other cases of concurrence (not involving LPAs), an adopted child was considered as a
legitimate child. That distinction has been abandoned by the Family Code, hence, adopted
children now having successional rights as legitimate children (Art. 979, Civil Code), would also
exclude LPAs .

 LPAs in the absence of LCDs one half of the hereditary estate whether alone or in concurrence
with the compulsory heirs, except when the concurrence is with the adopting parents, the
surviving spouse and illegitimate children or descendants of an adopted in the latter’s estate
(Art. 190, Family Code) in which case the legitime is now to be understood as one third for the
ascending line.

Art. 891.

 RESERVA TRONCAL

 a special rule designed primarily to assure the return of the reservable property to the third
degree relatives belonging to the line from which the property originally came and avoid its
being dissipated into and by the relatives of the inheriting ascendants.

 The purpose of the reserva is accomplished once the property has devolved to the specified
relatives of the line of origin (Padura vs. Baldovino, 104 Phil. 1065).
 The reserva troncal is reserved for legitimate relationship (Nieva vs. Alcala, 41 Phil. 915; Centeno
vs. Centeno, 41 Phil. 915; illegitimate and adoptive relationships, as well as those by affinity are
excluded.

 For reserva troncal to exist, the following conditions must concur, viz:

 1) The property is acquired by lucrative title by a descendant (praepositus) from an ascendant or

a brother or sister;

 2) That the same property (reserva) passes by operation of law (succession to the legitime or in
intestacy) to another ascendant (reservista); and

 3) That there are living relatives (reservatarios) within the third degree counted from the
propositus and belonging to the same line from where the property originally came (Chua vs.
CFI, 78 SCRA 412; Cabardo vs. Villanueva, 44 Phil. 186; Aglibot vs. Manalac, 4 SCRA 1030; Tioco
vs. Camacho, G.R. No. 28032, September 24, 1986)

 The reservista must be an ascendant, not a descendant of the propositus (Solivio vs. CA 182
SCRA 121). The brother or sister referred to in the law must be deemed as a half blood brother
or sister of the propositus.

 During the lifetime of the reservista, reservatarios merely have contingent rights; the reservista
is the owner of the property subject to a resolutory condition (Sienes vs. Esparcia, 1 SCRA 750;
Edroso vs. Sablan, 25 Phil. 295; Cano vs. Director of Lands, 105 Phil. 1)

 In the case of Gonzales vs. CFI (104 SCRA 179), however, the Supreme Court, said that the rights
of the reservista may only be likened to those of a USUFRUCTUARY. The better view would be to
consider the reserva as being conditionally owned by the reservista, who may use or even
alienate the property subject to the rights of the reservatarios. Hence, if at the time of the
reservista’s death there are no living reservatarios then the property shall be treated as if it was
never subject to reserva; conversely, if at such time there are living reservatarios then the
property should be conveyed to them and any earlier disposition of the property would itself be
considered conditional (Sienes vs. Esparcia, 1 SCRA 750).

 If reconveyance is no longer legally possible such as when the property is lost because of the
fault of the reservista as when the property consists of a titled land which is sold to a buyer in
good faith (De los Reyes vs. Paterno, 34 Phil. 420), the reservista’s estate must be held to
account for its value.

 To protect the right of the reservatarios, the reservable character of the property may
meantime be annotated in the title of the property (Sumaya vs. IAC, 201 SCRA 178, Edroso vs.
Sablan, 25 Phil. 295; Padura vs. Baldovino, 104 Phil. 1056).

 Succession under the reserva is a case of delayed succession; the reservatarios are deemed to
succeed from the propositus subejct to the condition of their surviving the reservista (Padura vs.
 Baldovina 104 Phil. 1065). The law does not require however, that the reservatarios should be
living at the time the propositus died.

 The Civil Code did not provide for the rules on how the reservatarios would succeed to the
reserva. Consistently, the rules on intestacy have been applied; accordingly, it has been held
that the direct line of the propositus is preferred over the collateral line, the nearer relatives
exclude the further ones, the right of representation whenever proper can apply, and full blood
brothers and sisters get twice as much as half blood brothers and sisters (Florentino vs.
Florentino, 40 Phil. 480; Padura vs. Baldovino; Tioco de Papa vs. Camacho, G.R. No. 28032,
September 24, 1986)

 The right of the reservatarios to recover the reservable property is subject to the rules on
prescription (Carillo vs. De Paz, 18 SCRA 467)

Art. 900.

 If there are two or more surviving spouses, the share is equally divided between or among them
(Pisalbon vs. Bejec, 74 Phil. 88)

 To be entitled to succesional rights, it is not enough that an illegitimate child is able to show his
bare filiation, but that such filiation must be established or proved in the manner provided by
law. A mere claim that the child has been in continuous possession of that status is not sufficient
(Noble vs. Noble, 18 SCRA 1104) but in Tongoy vs. CA (G.R. No. L-4565, June 28, 1983), it was
held that while the continued possession of the status of a natural child by the claim of the
presumed parents is not per se sufficient acknowledgement, from a liberal view however, the
child should not be compelled to still file an action for acknowledgment.

 The Tongoy case was subsequently overturned in Quismundo vs. WCC and Atlantic Gulf and
Pacific Company (L-33442, 23 October 1984) which reverted to the old rule where the Supreme
Court held that possession of status of a child does not itself constitute acknowledgment but
merely constitutes a ground to prove filiation

Art. 905.

 If all the legitimate children repudiate their legitimes, the next generation of legitimate
descendants may succeed in their own right. The successional rights of legitimate descendants is
ad infinitum so that incapacitated descendants or those who predeceased or disinherited
themselves, may be represented (and so on); and when all the descendants of the same degree,
entitled to succeed either by right of representation or in their own right, themselves repudiate
their legitimes, the generation of descendants next to the repudiating descendants, may inherit
in their own right.

 In case all legitimate children who may have legitimate descendants should repudiate, an
adopted child will succeed as a legitimate child to the exclusion of the descendants of the
repudiating legitimate children. Before the Family Code took effect, an adopted child did not
 thereby exclude surviving legitimate parents and ascendants. The adopted child in this latter
case was relegated to the status of an acknowledged natural child succeeding in his own right
and not by right of accretion. The repudiation by the legitimate children, more than the
presence of the adopted child, prevented the descendants of the repudiating children from
being entitled, as next generation heirs, to succeed in their own right. With the effectivity of the
Family Code however, an adopted has the status of a legitimate child in all cases of succession to
the estate of an adopter.

Art. 909.

 The reduction shall be made as follows:

1. Donations shall be respected as long as the legitime can be covered, reducing or annulling, if
necessary, the devises or legacies made in the will; among donations, whenever required, those
of the more recent dates shall be suppressed or reduced with regard to the excess (Art. 773)

2. The reduction of the devises or legacies shall be pro rata without any distinction
whatever;however, if the testator has directed to a certain devise or legacy be paid in
preference to others, it shall not suffer any reduction until the latter have been applied in full to
the payment of the legitime;

3. Art. 911

4. Art. 912

5. Art. 913

6. Art. 914

Art. 921.

 Mere estrangement is not a legal ground for disqualification of a spouse (Baritua vs. CA, 183
SCRA 565)

 EFFECTS OF PROPER (EFFECTIVE) AND IMPROPRER (INEFFECTIVE) DISINHERITANCE

 1.Void will – disinheritance would be of no consequence at all; heir attempted to be disinherited

would not be prejudiced in any way both as a compulsory and as an intestate heir (Merza vs.
Porras, 93 Phil. 142)

 2. Valid will but disinheritance is without cause, or with false cause, or if contradicted not
proved, or not one of those set forth by the law, ATTEMPTED DISINHERITANCE shall ANNUL the
institution of heirs insofar as it may prejudice the person disinherited; but the devises or
legacies and other testamentary dispositions shall be valid to such extent as will not impair the
legitime (Aznar vs. Duncan, 17 SCRA 592).
  3. IF VALIDLY DISINHERITED – right to legitime is lost; children and desccendants shall take his
place and shall preserve the rights of compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or administration of the property which
constitutes the legitime (Art. 923)

Art. 922.

 Reconciliation is the resumption of genuine cordial relationship, approxiating that which

prevailed before the testator learned of the cause for disinheritance, reciprocally manifested by
their (testator and disinherited heir) actions. Mere civility which may characterize their
relationship, a conduct that is naturally expected of every decent person, is not enough.

 Where the cause for disinheritance is likewise a ground for unworthiness to succeed (Art. 1032)
a WRITTEN PARDON would also be requried (Art. 1033).

Art. 933.

Operative and Inoperative Legacies or Devises

1. A legacy or devise of property belonging to the testator at the time of the will’s execution and
up to his death is operative.

2. A legacy or devise of property not belonging to the testator at the time of the will’s execution
and thereafter is inoperative, unless the testator has ordered that the thing be acquired in order
that it be given to a legatee or devisee, in which case the heir upon whom the obligation is
imposed or the estate must acquire it and give the same to the legatee or devisee; but if the
owner of the thing refuses to alienate the same, or demands an excessive price therefor, the
heir or the estate shall only obliged to give the just value of the thing (Art. 931).

3. 3. A legacy or devise of a thing not belonging to the testator at the time the will is executed is
void if the testator erroneously believed that the thing pertained to him, but if the thing
bequeathed, though not belonging to the testator when he made the will, afterwards becomes
his, by whatever title, the disposition shall take effect (Art. 930)

Art. 961.

Art. 962.

Basic Rules in the Succession of Heirs in the Same Order

a) In every inheritance, the relative nearest in degree excludes the more distant ones, saving the
right of representation when it properly takes place (Art. 962)

The right of representation may take place in the descending line, generally, and in the collateral line
in favor of nephews and nieces (when they survive with their uncles and aunts) but never in the
ascending line where the division by line rule instead applies. The right of representation does not take
place where the vacancy arises because of repudiation; in disinheritance, the right of representation is
confined to the legitime.

b) If there are several relatives of the same degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue to the others of the same degree, save, in the latter
case, when the right of representation should take place (Art. 968)

c.) If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be several, those of the following degree shall
inherit in their own right and cannot represent the person or persons repudiating the inheritance (Art.
969).

d.) Relatives in the same degree shall inherit in equal shares, subject to the provisions as regards
legitimate and illegitimate children and descendants (Art. 895) with respect to relatives of the full and
half blood (Art. 1006) and concerning divisions between the paternal and maternal lines (Art. 987 in
relation to Art. 962).

Art. 967.

As regards succession by an adopted

1. The adopted child remains to be an intestate heir of the parents by nature and other blood relatives
(Art. 189, FC). In this context, the term “intestate” means the generic concept of succession by law
which includes the adopted child’s rights, for instance, to the legitime and to the reserva troncal.

2. The adopted person becomes an heir as a legitimate child of the adopter. Both the 1950 Civil Code
(Art. 343) and the Child and Youth Welfare Code (Art. 34) on adoption contained a proviso, to the effect
that if the adopting parents is survived by his legitimate parents or ascendants (in the absence of
legitimate children and descendants) and by an adopted child, the latter shall not have more
successional rights than those that pertain to an illegitimate child. Said provisions have been deleted in
the Family Code.

 Since the law on succession under the Civil Code states that an “adopted child succeeds to the
property of the adopting parents in the same manner as a legitimate child” without any proviso,
the presence of an adopted child would now preclude the legitimate parents and ascendants
from succeeding as compulsory or intestate heirs (Santos vs. Aranzano, 16 SCRA 344).

 b) As regards succession to the estate of an adopted –

 The presence of legitimate children and descendants, as well as parents and ascendants, and the
adopting parents as well, from succeeding by operation of law (to the legitime and in legal
succession). The presence of illegitimate children, or their descendants by right of
representation, would only exclude illegitimate parents, but not the legitimate parents and
ascendants, or the adopting parents, from such succession. When the parents or ascendants, or
the adopting parents, are not thus excluded, in accordance with the above rules, the
 intendment of the Family code is to allow the parents (including the ascendants if the
relationship is legitimate) by nature and the adopting parents to have equal rights to the
adopted child’s estate as might pertain to the ascending line. If there is among them only one
surviving group – either the ascending blood line or the parents by adoption – then that group,
would be entitled to the entire portion pertaining to the said ascending group.

 Hence –

 1. Absent the LPs, IPs or LPAs of the adopted concur with adopters, one half of the estate shall
pertain to the parents by nature and the other half to the adopting parents. If only one of said
groups survive the adopted, then the entire estate shall pertain to such surviving group.

 2. Parents by nature and parents by adoption concur with a surviving spouse, the estate shall be
divided equally

 3. LPAs by nature and parents by adoption concur with illegitimate children (or descendants by
right of representation), estate shall be divided equally

 4.LPAs by nature and parents by adoption concur with SS and illegitimate children (or
descendants by right of representation), estate shall be divided equally into three parts

Art. 977.

 The right of representation takes place in the direct descending line (ad infinitum) but never in
the ascending.

 Legitimate children may only be represented by their legitimate, not illegitimate, descendants
(Art. 992; Pascual vs. Pascual,G.R. No. 84240, March 25, 1992, 207 SCRA 561), but illegitimate
children may be represented by their descendants whether legitimate or illegitimate.

 In the collateral line, representation takes place only in favor of the children of brothers or
sisters, whether they be of the full or half blood (Art. 972, Baranda vs. Baranda, G.R. No. 73270,
20 May 1987; Gutierrez vs.Gutierrez, G.R. No. 58654, 29 May 1987); when they survive with
their uncles and aunts; if they alone survive; they shall inherit in equal portions (Art. 975)

 In adoptive relationship, the adoption is between the adopter and the adopted; hence, the
latter’s successional rights do not extend to a right of representation in favor of his children and
descendants from the former’s estate (Sayson vs. CA, 205 SCRA 321).

 The right of representation does not apply to succession by will.

Art. 990.

 This provision suggests that the descendants of illegitimate children may not inherit in their own
right (Vitug)

Art. 992.
  Whether in their own right or by right of representation (Pascual vs. Pascual, 207 SCRA 561).

Art. 994.

 The law is silent (perhaps inadvertently) on a concurrence between the illegitimate parents and
the surviving spouse. Applying the theory of concurrence, each group of heirs shall receive their
shares in the same proportion as in the legitime (in equal shares); under the theory of exclusion,
the disposable free portion of one half of the entire estate shall pertain solely to the illegitimate
parents (Vitug).

Art. 1002.

 A surviving spouse is obviously not an intestate heir of his or her parent-in-law. The reference to
the widower or widow in the law on succession is succession to the property of the deceased
spouse. Said spouse is considered, for purposes of successional rights, a third person as regards
the estate of relative-in-law (Rosales vs.Rosales, L-40789, 27 February 1987; Lachenal vs.Sales,
71 SCRA 262).

Art. 1004.

 Brothers and sisters and nephews and nieces exclude other collaterals, such as uncles and aunts
of the decedent (Tioco vs. Camacho, G.R. No. 28032, 24 September, 1986).

 Nephews and nieces who succeed alone (not together with any uncle or aunt) shall inherit in
their own right (per capita) and not by right of representation (per stirpes) which can apply only
when they concur with an uncle or aunt.

Art. 1009.

 In the collateral line, legitimate relatives do not succeed from the illegitimates and vice versa
(Corpus vs. Corpus, 85 SCRA 567).

Art. 1078.

 During the period of indivision, the law on co-ownership would be applicable ( Picardal vs.
Llanas, 21 SCRA 1483)

Art. 1082.

 Partition itself is not required to be in any form; it need not even be in writing (see Barcelona vs.
Barcelona, 100 Phil. 251; Hernandez vs. Andal, 78 Phil. 186). Partition may be effected judicially
or extrajudicially

 Where one of the spouses die, the property of the surviving spouse cannot be included in an
extrajudicial partition as an object of future inheritance (Art. 1347, Civil Code; Bautista vs. Reyes,
G.R. 79958, 28 October 1988)
  Old Civil Code – “testator” was used in Art. 1056 in relation to Art. 1271 – held to express the
clear intent of the law then that the privilege of allowing a person to partition his estate inter
vivos was restricted to one who made a prior will (Alsua-Betts vs. CA, 92 SCRA 332).

 Art 1080 and 1081 now uses the word “person”.

 Chavez vs. IAC (G.R. 68282, 8 November, 1990)

 Several sisters executed deeds of sale over their 1/6 undivided share of the paraphernal
property of their mother, with her conformity and signature in favor of another sister

 SC held: valid partition inter vivos between mother and children

 2 options in making partition:

by will

by act inter vivos

Partition by will – it is imperative that such partition must be executed in accordance with the provision
of the law on wills

Partition by act inter vivos – oral or written

BOTH CASES – LEGITIMES MUST BE RESPECTED

 In Chavez vs. IAC, SC held that the partition cannot be revoked by the mother and that the
various deeds of sale are not to be deemed contracts regarding future inheritance.

 Partition under Art. 1080 – merely allocated items or pieces of property based on pro-indiviso
shares fixed by law or given under a will to heirs or successors.

 Partition is not itself a mode of acquiring ownership nor a title therefor;

 Partition in 1080 is deemed to recognize the theory of mode and title that necessitates
existence of title – successor’s relationship to decedent in intestate succession and a will duly
probated in testate succession.

 Thus,

 Partition made during testator’s lifetime in favor of his legal heirs (conformably with the rules of
intestacy) could be operative;

 Dispositions to non-legal heirs may suffer an impediment unless based on a valid will

- except when such dispositions are intended to take effect during life (not in contemplation of death)
and the formalities of an ordinary donation is properly observed.
  VDA. DE KILAYKO VS. TENGCO (G.R. No. 45425, 27 March 1992, 207 SCRA 600)

 No valid partition in testate succession among the heirs until after the will has been probated;
otherwise, the right of a person to dispose of his estate by will may be rendered nugatory.

Art. 1088.

 Sales ordered by a probate court to pay the decedent’s debts are final and not subject to legal
redemption (Plan vs. IAC, G.R. 65656, 28 February, 1985)

Art. 1097.

 Cimafranca vs. Heirs of Jalosjos (G.R. No. 68687, 31 January 1987), may be filed only within four
(4) years from the discovery of the fraud. Such discovery is deemed to have taken place from
the issuance of the new certificates of title.