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SUCCESSION REVIEWER 1ST SEM 2006-2007

 Based on “Jottings and Jurisprudence on the Law on  A literal construction of Art774 appears to imply
Succession” by Prof. Balane and Cases according to the that money obligations of the deceased would pass
to the heirs, to the extent that they inherit from him.
2006 Syllabus of Justice Hofileña
• Seemingly, this article mandates that the
heirs receive the estate, and then pay off
the creditors.
 However, Philippine procedural law, as influenced
CHAPTER 1 by the common-law system, lays down a different
GENERAL PROVISIONS method for the payment of money debts, as found
in Rules 88 to 90 of the Rules of Court. It is only
AFTER the debts are paid that the residue of
the estate is distributed among the successors.
ART. 774. Succession is a mode of acquisition by
 Rule 90, Sec1 provides for the When the Order for the
virtue of which the property, rights and
Distribution of Residue is made.
obligations to the extent of the value of the  According to the rule, when the debts, funeral
inheritance, of a person are transmitted charges and expenses of administration, the
through his death to another or others either allowance to the widow and the inheritance tax
by his will or by operation of law. have all been paid, that is the only time that the
court shall assign the RESIDUE of the estate to
 The Code has simplified the concept of succession and persons entitled to it.
treats it simply as one of the 7 Modes of Acquiring  The rule also provides that there shall be no
Ownership as enumerated in Art712 of the NCC. distribution until the payment of the obligations
enumerated above, have been made or provided
 7 MODES OF ACQUIRING OWNERSHIP for. However, if the distributees give a bond for the
1. Occupation payment of the said obligations within such time
2. Intellectual Creation and of such amount as fixed by the court, the
3. Law distribution may be allowed.
4. Donation
5. Estate and Intestate Succession  In our system therefore, money debts are, properly
6. Tradition speaking, not transmitted to the heir nor paid by
7. Prescription them. The estate pays them and it is only what is
left after the debts are paid [residue] that are
 Overlap of Codal Definition with Art776 transmitted to the heirs.
 Article 774 talks of “property, rights and obligations
to the extent of the value of the inheritance.”  Justice JBL Reyes observed that Philippine rules of
 Article 776 talks of the “inheritance” as including Succession Mortis Causa proceed from an imperfect
“all the property, rights and obligations of a person blending of 3 Systems with Contrasting Philosophies –
which are not extinguished by his death.” 1. GERMANIC CONCEPT OF UNIVERSAL HEIR
• Heir directly and immediately steps into
 For clarity and better correlation, Prof. Balane the shoes of the deceased upon the latter’s
opines that Art774 should rather read: death
“Succession is a mode of acquisition by
virtue of which the inheritance of a person • At one single occasion [uno ictu]
is transmitted through his death to another • Without need of any formality
or others either by his will or by operation of • En mass
law.” • Automatic Subjective Novation
 And the inheritance which is transmitted through a 2. FRANCO-SPANISH SYSTEM
person’s death is defined by Article 776 to include • Acquisition of estate by universal title but
“all the property, rights and obligations of a person only upon acceptance by the heir at any time,
which are not extinguished by his death.” with retroactive effect.
• Acceptance may be made any time
 What are Transmitted by Succession?
except when the creditors or the court
 Only Transmissible Rights and Obligations. requires it be done within a certain time.
 General Rule – if the right or obligation is strictly • This is the system followed by the NCC,
personal [intuitu personae], it is intransmissible; by having the following features:
otherwise it may be transmitted. a) Universality of Property Rights and
Obligations
 Rule Regarding Pecuniary Obligations b) Transmitted from the moment of
death
c) En bloc, as an entire mass

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d) Transmitted even before judicial disposed of by the administrator, but must


recognition of heirship. be limited to the net residue.
• But if title vests in the heir as of the death
3. ANGLO-AMERICAN [COMMON LAW] SYSTEM of the decedent then the acceptance of
• Estate must first be liquidated, assets the heir becomes entirely superfluous,
marshaled and the debts paid or settled and the law should limit itself to regulating
under judicial supervision, by an intervening the effects the effects of a repudiation by
trustee or personal representative an heir or legatee, and its retroactive
[administrator or executor] before the net effect.
residue is taken over by the successor.
• This is the system followed by the Rules  Or do the successors acquire only the NAKED
of Court, in that: TITLE at the death of the predecessor, but with
a) Executor or administrator has possession or enjoyment vested in the
possession and management of the administrator or personal representative until after
estate as long as necessary for the settlement of the claims against the estate?
payment of debts and expenses of
administration, with authority to exercise  RESULT of these divergent rules – Creditors must now
the right of disposition. pursue their claims during the settlement proceedings
b) Section 3 Rule 87 – action to recover and not against the heirs individually.
title or possession of lands in the hands
of the executor or administrator can be CASE
maintained by the heir only upon the Union Bank v. Santibañez
order of the Court assigning such land to
the heir or devisee. - On May 31, 1980, First Country Credit Corporation (FCCC)
c) Section 1 Rule 90 – heirs may and Efraim M. Santibanez entered into a loan agreement in
recover their share only upon: the amount of P128,000 which was intended for the
 Payment of debts, expenses payment of the purchase price of 1 unit of a tractor. In view
and taxes of this, Efraim and his son, Edmund executed a promissory
note in favor of FCCC.
 Hearing conducted by the court
- On Dec. 13, 1980, FCCC and Efraim entered into another
 Court assigns the residue of the similar loan agreement which was intended to pay the
estate to the heirs. balance of the purchase price of another unit of a tractor.
And again, father and son executed a promissory note for
 As a result of the blending of these 3 systems, JBL the said amount in favor of FCCC.
Reyes says that we are thus faced with divergent, if not - However, sometime in Feb 1981, Efraim died, leaving a
contradictory principles. holographic will and subsequently testate proceedings were
 Do the successors acquire the WHOLE of the commenced before the RTC of Iloilo with Edmund being
transmissible assets and liabilities of the decedent? appointed as the special administrator of the estate of the
decedent.
• Art774 – by virtue of succession the
- During the pendency of the testate proceedings, Edmund
property, rights and obligations, to the and his sister, Florence Santibanez Ariola, executed a joint
extent of the value of the inheritance of a agreement on July 22, 1981 wherein they agreed to divide
person, are transmitted by and at the between themselves and take possession of the 3 tractors; 2
moment of his death, implying a transfer for Edmund and 1 for Florence, each of them to assume
at that instant of the totality or universality indebtedness of their late father to FCCC.
of assets and liabilities. - On August 20, 1981 a deed of assignment with assumption
of liabilities was executed by and between FCCC and Union
 Do the successors only acquire the RESIDUUM Savings and Mortgage Bank, wherein FCCC as the
remaining after payment of the debts, as implied by assignor, assigned all its assets and liabilities to Union
the Rules of Court? Savings and Mortgage Bank.
- Not long after, demand letter for the settlement of the
• Art1057 – within 30 days after the court account were sent by Union Bank to Edmund but the latter
has issued an order for the distribution of refused to pay. Thus Union Bank filed a complaint for sum of
the estate in accordance with the RoC, money against the Edmund and Florence before the RTC of
the heirs, devisees and legatees shall Makati.
signify to the court having jurisdiction, - However the case was dismissed. The lower court said that
whether they accept or repudiate the the claim should have been filed with the probate court were
inheritance. the testate estate of Efraim was pending. Furthermore, the
• The order of distribution under the RoC is agreement was void considering that the probate court did
issued only after the debts, taxes and not approve the agreement and no valid partition until after
administration expenses have been paid; the will has been probated.
hence it is arguable that the acceptance - Also, the list of assets and liabilities of Union Bank did not
can no longer refer to assets already clearly refer to the decedent’s account. Also, it was
contended that the obligation of the deceased had passed to

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his legitimate children and heirs already, in this case Estate of K.H. Hemady v. Luzon Surety
Edmund and Efraim. CA affirmed RTC decision.
- Hence this appeal. - Luzon Surety filed a claim against the Estate based on 20
WON the partition in the Agreement executed by the heirs is different indemnity agreements or counter bonds, each
valid. subscribed by a distinct principal and by the deceased K.H.
- No, there can be no valid partition among the heirs until after Hemady, a surety solidary guarantor in all of them, in
the will has been probated by the probate court. This is consideration of Luzon Surety’s of having guaranteed, the
specially because when the joint agreement executed by various principals in favor of different creditors.
Edmund and Florence partitioning the tractors among - Luzon Surety also prayed for allowance, as a contingent
themselves were executed, there was already a pending claim, of the value of the 20 bonds it had executed in
proceeding for the probate of their late father’s holographic consideration of the counterbonds, and further asked for
will covering the said tractors. Thus the probate court had judgment for the unpaid premiums and documentary stamps
already acquired jurisdiction over the said tractors which affixed to the bonds with 12% interest.
they can’t be divested of. Any extrajudicial agreement needs - Before the answer was filed, the lower court dismissed the
court approval. claims of Luzon Surety, on two grounds: (1) that the
premiums due and cost of documentary stamps were not
WON the heirs’ assumption of the indebtedness of the contemplated under the indemnity agreements to be a part
deceased is valid. of the undertaking of the guarantor (Hemady), since the
- No, the assumption of the indebtedness of the decedent by were not liabilities incurred after the execution of the
Edmund and Florence is not binding. Such assumption was counterbonds; and (2) that “whatever losses may occur after
conditioned upon the agreement above. Hence, when the Hemady’s death, are not chargeable to his estate, because
agreement of partition between Edmund and Florence was upon his death he ceased to be guarantor.”
invalidated, then the assumption of the indebtedness cannot
be given and force and effect. Also, the court should have Whether losses are chargeable to Hemady’s Estate.
filed it money claim against the decedent’s estate in the
probate court. Furthermore, it cannot go after Florence for - YES. While in our successional system the responsibility of
she took no part in the documents related to the tractors, the heirs for the debts of their decedent cannot exceed the
specifically the promissory notes and the continuing value of the inheritance they receive from him, the principle
guaranty agreement; they should have gone after Edmund remains intact that these heirs succeed not only to the rights
being a co-signatory to the promissory notes and guaranty. of the deceased but also to his obligations.
- Under the CC, the heirs, by virtue of the rights of succession
WON the Union Bank can hold the heirs liable on the obligation are subrogated to all the rights and obligations of the
of the deceased. deceased and cannot be regarded as third parties with
- No, Union Bank cannot hold the heirs liable on the obligation respect to a contract to which the deceased was a party,
of the deceased because it had not sufficiently shown that it touching the estate of the deceased.
is the successor-in-interest of the Union Savings and - By contract, the articles of the Civil Code that regulate
Mortgage Bank to which the FCCC assigned its assets and guaranty or suretyship contain no provision that the guaranty
liabilities. Furthermore, the documentary evidence clearly is extinguished upon the death of the guarantor or the
reflects that the parties in the deed of assignment with surety.
assumption of liabilities were the FCCC, and the Union - Although Art. 2056 requires that one who is required to
Savings and Mortgage Bank, with the conformity of Bancom furnish a guarantor must present a person who possesses
Philippine Holdings, Inc. Nowhere can the participation integrity, capacity to bind himself, and sufficient property to
therein of Union Bank as a party can be found. As a result, answer for the obligation which he guarantees, it will be
Union Bank has no personality to file the complaint and noted that the law requires these qualities to be present only
therefore cannot hold the heirs liable for the obligation of the at the time of the perfection of the contract of guaranty
deceased. - The contract of suretyship entered into by K.H. Hemady in
favor of Luzon Surety not being rendered intransmissible
due to the nature of the undertaking, nor by the stipulations
 In a sense, it can be said that even money debts are of the contracts themselves, nor by provision of law, his
transmitted to and paid for by the heirs, but this would eventual liability thereunder necessarily passed upon his
be by mere indirection – death to his heirs. The contracts, therefore, give rise to
 Because whatever payment is thus made from the contingent claims provable against his estate.
estate is ultimately a payment by the heirs and - The SC reversed the order of the lower court and instead
distributes, since the amount of the paid claim in ordered the case be remanded to the CFI.
fact diminishes or reduces the shares that the heirs - The general rule is that a party’s contractual rights and
would have been entitled to receive. obligations are transmissible to the successors.
- Art. 1311 of NCC: Contracts take effect only as between the
 BUT only the payment of MONEY DEBTS has been parties, their assigns and heirs, except in the case where the
affected by the Rules of Court. The transmission of rights and obligations arising from the contract are not
other obligations not by nature personal follows the rule transmissible by their nature, or by stipulation or by provision
in Art774 and is transmitted by succession. of law.
- Art. 774 of NCC: Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
CASE extent of the value of the inheritance of a person are

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transmitted through his death to another or other either by - The children are, however, liable only to the extent of the
his will or by operation of law. value of their inheritance.
- Art. 776 of NCC: The inheritance includes all the property, - Art. 774, NCC: Succession is a mode of acquisition by virtue
rights and obligations of a person which are not of which the property, rights and obligations to the extent of
extinguished by his death. the value of the inheritance, of a person are transmitted
- The binding effect of contracts upon the heirs of the through his death to another or others either by his will or by
operation of law.
deceased party is not altered by the provision in the Rules of
- Art. 776, NCC: The inheritance includes all the property,
Court that money debts of a deceased must be liquidated
rights and obligations of a person which are not extinguished
and paid from the estate before the residue is distributed
by his death.
among said heirs. The reasons is that whatever payment is
made from the estate is ultimately a payment by the heirs,
since the amount of the paid claim in fact diminishes or
reduces the shares that the heirs would have been entitled ART. 775. In this Title, “decedent” is the general
to receive. term applied to the person whose property is
transmitted through succession, whether or
not he left a will. If he left a will, he is also
called the testator.

 Decedent – general term, person whose property is


transmitted
Testator – specific term, person who transmits his
Alvarez v. IAC
property via a will.
- Aniceto Yanes owned a parcel of land identified as Lot 773
in Negros Occidental. He was survived by his children,  It is unfortunate that the Code does not use the term
Rufino, Felipe, and Teodora. “Intestate” to refer to a decedent who died without a
- Aniceto left his children with Lots 773 and 823. will, This would have prevented the ambiguity now
- Teodora cultivated part of Lot 823. inherent in the term “decedent”
- Rufino and his children left the province to settle in other
places as a result of the outbreak of WWII.
- After the liberation, Rufino’s children went back to the land ART. 776. The inheritance includes all the
to get the their share in the sugar produce. They were
property, rights and obligations of a person
informed that Santiago already owned Lot 773, and had the
corresponding TCTs. which are not extinguished by his death.
- Santiago sold the land to Fuentabella.
- After Fuentabella died, the administratrix of his estate  Overlap of Codal Definition with Art776
(Arsenia) filed a motion requesting authority to sell Lot 773  Article 774 talks of “property, rights and obligations
(already subdivided to Lots 773-A and 773-B). to the extent of the value of the inheritance.”
- The motion was granted and Arsenia sold the lands to  Article 776 talks of the “inheritance” as including
Alvarez. “all the property, rights and obligations of a person
- Teodora and Rufino’s children (Yaneses) filed a complaint in which are not extinguished by his death.”
CFI Negros Occidental for the “return” of the possession and
ownership of Lots 773 and 823.
 For clarity and better correlation, Prof. Balane
- During the pendency of the case, Alvarez sold the land to
Siason. opines that Art774 should rather read:
- CFI ordered Alvarez to reconvey Lots 773 and 823 to the “Succession is a mode of acquisition by
Yaneses. virtue of which the inheritance of a person
- Execution of the decision was unsuccessful with regard to is transmitted through his death to another
Lot 773 as it was already in the name of Siason. or others either by his will or by operation of
- Another action was instituted by the Yaneses, this time law.”
impleading Siason.
 And the inheritance which is transmitted through a
- Siason claims that he was a purchaser in good faith and
person’s death is defined by Article 776 to include “all
thus, he has title to Lot 773.
- CFI dismissed the complaint against Siason and ordered the the property, rights and obligations of a person which
children of Alvarez to solidarily pay the Yaneses Php are not extinguished by his death.”
20,000, representing the actual value of Lot 773.

WON it was correctly ruled that the children of Alvarez be ART. 777. The rights to the succession are
made responsible for the liability of their father (Alvarez). transmitted from the moment of the death of
- YES. The rights and obligations of the deceased are
the decedent.
generally transmissible to his legitimate children and heirs.
- As heirs of the late Alvarez, the children cannot escape the  Time of Vesting of Successional Right
consequences of their father’s transaction, which gave rise
to the present claim for damages.

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 Prof. Balane says the terminology used in this article is - However, it was the common-life, Maria del Rosario who
“infelicitous” because the right to the succession is not took possession of the lands, depriving Unson the
transmitted; but rather vested. enjoyment and possession of the same.
 To say that it is transmitted upon death implies that - Thus, the legal wife filed a case for recovery of ownership
before the decedent’s death, the right to the and possession of the said parcels of land against del
succession was possessed by the decedent [which Rosario.
- Maria de Rosario contended that Unson and Faustino
is absurd].
agreed to separate some time in 1931. Unson was given a
 To say that it vests upon death implies that before parcel of land as alimony on the condition that the latter will
the decedent’s death the right was merely inchoate renounce her right to inherit any property that may be left by
[which is correct]. the husband upon his death.
- Whether or not Unson is entitled to recover the parcels of
land in question.
 THE LAW PRESUMES THAT THE PERSON
SUCCEEDING – - The SC held for Maria Unson.
1. Has a right to succeed by - The Civil Code provides that the inheritance of a person is
a) Legitime [compulsory succession], transmitted to another at the moment of his death.
- Accordingly, the Supreme Court said that the parcels of land
b) Will [testamentary succession], or
of Faustino passed from the moment of his death to his only
c) Law [intestate succession]
heir, Maria Unson.
2. Has the legal capacity to succeed, and - The contention that Unson and Faustino agreed that the
3. Accepts the successional portion former would NOT inherit anything from the latter cannot be
made effectual. Future inheritance cannot be validly made
the subject of any contract nor can it be renounced.
- Del Rosario also argued that her illegitimate children with
Faustino have the right to inherit by virtue of the provision of
the new Civil Code granting successional rights to
illegitimate children.
 The vesting of the right occurs immediately upon
- Said argument is untenable. It is true that the new Civil
the decedent’s death; i.e. without a moment’s
Code grants successional rights to illegitimate children and
interruption. From this principle, the following that this right shall be given retroactive effect even though
consequences flow – the event which gave rise to said right may have occurred
1. The law in force at the time of the decedent’s under the former legislation. (Faustino died in 1945, The
death will determine who the heirs should be NCC took effect in 1950).
• New Civil Code – August 30, 1950 - However, according to the NCC, this new right must not
2. Ownership passes to the heir at the very prejudice or impair any vested or acquired right.
- In this case, and as already explained, the right over the
moment of death, who therefore, from that
parcels of land vested upon Unson from the moment of
moment acquires the right to dispose of his share.
death of Faustino. Thus, the new right cannot be enforced
3. The heirs have the right to be substituted for w/out prejudice to Unson’s vested right over the properties.
the deceased as party in an action that survives. - Rights over the inheritance of a person are transmitted upon
• Because the heir acquires ownership at his death to another.
the moment of death and become parties
in interest. - ‘The property belongs to the heirs at the moment of death of
the ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his death.”
 It should be emphasized that the operation of Art. 777
is at the very moment of the decedent’s death, meaning
the transmission by succession occurs at the
De Borja v. De Borja
precise moment of death and therefore the heir,
Ownership passes to heir at the
devisee, or legatee is legally deemed to have
very moment of death, with right to dispose
acquired ownership at that moment, even if,
particularly in the heir’s case, he will generally not
- Francisco De Borja and Jose De Borja were co-
know how much he will be inheriting and what
administrators of the testate estate of Josefa De Borja,
properties he will ultimately be receiving, and not at Francisco’s wife and Jose’s mother
the time of declaration of heirs or partition or - When Francisco died, Jose became the sole administrator in
distribution. the testate proceedings of his mother before the CFI of
Rizal.
CASES - It appears that after the death of Josefa, widower Francisco
Uson v. Del Rosario married Tasiana Ongsingco.
Law in force at time of decedent’s death - Following the death of Francisco, Tasiana was appointed as
determines who the heirs should be. special administratrix in the testate proceedings of Francisco
before the CFI of Nueva Ecija.
- Maria Unson was the legal wife of Faustino Nebrada. - Multiple suits ensued between the children of the first
Faustino died in 1945 leaving 5 parcels of land with no other marriage and Tasiana until at some point, when both parties
heir except his legal wife.

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agreed to enter into a compromise agreement on October - NO. In the very opening paragraph of the agreement itself,
12, 1963. she was described as the heir and surviving spouse of
- In the said agreement, Jose De Borja, personally and as Francisco De Borja which was a definite admission of her
administrator of the estate of Josefa, and Tasiana civil status.
Ongsingco, expressed their mutual desire to end the suits
between them by selling the Poblacion portion of the Whether or not the compromise agreement had ceased to be
Jalajala, Rizal properties of Francisco, from the proceeds of valid.
which P800,000, representing P200,000 from each of the 4 - NO. Jose’s act of seeking a court order for the approval and
children from the first marriage, shall be paid to Tasiana as enforcement of the agreement is justified as said agreement
full and complete payment and settlement of Tasiana’s had not been abandoned and not invalidated by the inability
hereditary share in the estate of Francisco as well as of of the parties to reach a novatory accord in a quest for a
Josefa, and to any properties bequeathed or devised to her more satisfactory compromise following Tasiana’s unilateral
by Francisco, by will or by donation purportedly conveyed attempts to back out from the same.
for consideration or otherwise. - A hereditary share in a decedent’s estate is transmitted or
- The CFI of Rizal approved the agreement whereas the CFI
vested immediately from the moment of the death of such
of Nueva Ecija did not. causante or predecessor in interest (Art. 777, NCC.)
- Tasiana’s grounds for her opposition to the agreement after - Thus, there is no legal bar to a successor (with requisite
it was submitted to the court for approval were: 1) no such contracting capacity) disposing of his or her hereditary share
agreement is valid without first probating the will of immediately after such death, even if the actual extent of
Francisco; 2) it compromises the validity of the marriage such share is not determined until the subsequent liquidation
between Francisco and Tasiana; and, 3) the resolutory 60- of the estate.
day period had lapsed so that the agreement had ceased to - The effect of such alienation is limited to what is ultimately
be valid.
adjudicated to the vendor heir.
- Tasiana cited Guevara v. Guevara which did not allow an - The only difference between an extrajudicial compromise
extrajudicial settlement of a decedent’s estate if there has and one submitted and approved by the court is that the
been left a will, stating that it was against the law and public latter is enforceable by execution proceedings.
policy.
- Thus, pending probate of Francisco’s will when the
agreement was made, it was invalid.

Whether or not the compromise agreement was invalid without Bonilla v. Barcena
first probating the will of Francisco. Heirs have right to be substituted for deceased
- NO. The compromise agreement was valid. in an action that survives.
- Guevara v. Guevara was inapplicable.
- Following a review of the provision in the agreement where - On March 31, 1975 Fortunata Barcena, mother of minors
full and complete payment was made to Tasiana in the Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
amount of P800,000, it was clear that there was no attempt Bonilla, instituted a civil action in the Court of First Instance
to settle or distribute Francisco’s estate before the probate of of Abra, to quiet title over certain parcels of land located in
his will. Abra.
- Its object was conveyance by Tasiana of her individual - On August 4, 1975, the defendants filed a motion to dismiss
share and interest, actual or eventual, in the estates of the complaint on the ground that Fortunata Barcena is dead
Francisco and Josefa. and, therefore, has no legal capacity to sue.
- A hereditary share in a decedent’s estate is transmitted or - During the hearing, counsel for the plaintiff confirmed the
death of Fortunata Barcena and asked for substitution by her
vested immediately from the moment of the death of such
minor children and her husband, the petitioners herein; but
causante or predecessor in interest (Art. 777, NCC.)
the court after the hearing immediately dismissed the case
- Thus, there is no legal bar to a successor (with requisite
on the ground that a dead person cannot be a real party in
contracting capacity) disposing of his or her hereditary share
interest and has no legal personality to sue.
immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation
- Whether the court acted correctly in dismissing the
of the estate.
complaint on the ground that the plaintiff, who had died
- The effect of such alienation is limited to what is ultimately
pending the proceedings, has no more personality to sue.
adjudicated to the vendor heir.
- While it is true that a person who is dead cannot sue in
- Moreover, as surviving spouse of Francisco’s, Tasiana was
court, yet he can be substituted by his heirs in pursuing the
a compulsory heir so that her successional interest existed
case up to its completion.
independent of Francisco’s will and testament and would
- The court had acquired jurisdiction over the person of the
exist even if such were not probated at all.
deceased. If thereafter she died, Section 16, Rule 3 of the
- Also, the agreement bound the parties, in their individual
Rules of Court provides that "whenever a party to a pending
capacities, upon the perfection of the contract, even absent case dies . . . it shall be the duty of his attorney to inform the
a previous authority from the Court. court promptly of such death . . . and to give the name and
- The only difference between an extrajudicial compromise residence of his executor, administrator, guardian or other
and one submitted and approved by the court is that the legal representatives." This duty was complied with by the
latter is enforceable by execution proceedings. counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on
Whether or not the agreement compromises the status and
validity of the marriage between Francisco and Tasiana.

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July 9, 1975 and asked for the proper substitution of parties - YES. SC held that probate court has jurisdiction over it since
in the case. it covers all matters relating to the settlement of estates and
- Article 777 of the Civil Code provides "that the rights to the the probate of wills of deceased persons, including the
succession are transmitted from the moment of the death of appointment and removal of administrators and executors. It
the decedent." From the moment of the death of the also extends to incidental and collateral matters such as
decedent, the heirs become the absolute owners of his selling, mortgaging or otherwise encumbering real property
property, subject to the rights and obligations of the belonging to the estate.
decedent, and they cannot be deprived of their rights thereto - The stipulation requiring court approval does not affect the
except by the methods provided for by law. The moment of validity and the effectivity of the sale as regards the selling
death is the determining factor when the heirs acquire a heirs. It merely implies that that the property may be taken
definite right to the inheritance whether such right be pure or out of custodia legis, only with court’s permission.
contingent. The right of the heirs to the property of the
deceased vests in them even before judicial declaration of Whether or not Lina can apply to the court for the approval of
their being heirs in the testate or intestate proceedings. the sale.
When Fortunata Barcena, therefore, died her claim or right - Because the other heirs did not consent to the sale of their
to the parcels of land in litigation was not extinguished by ideal shares in the disputed lots, it is only limited to the pro-
her death but was transmitted to her heirs upon her death. indiviso share of Eliosoro.
Her heirs have thus acquired interest in the properties in - The proper party must be the one who is to be benefited or
litigation and became parties in interest in the case. There injured by the judgment, or one who is to be entitled to the
is, therefore, no reason for the Court to disallow their avails of the suit.
substitution as parties in interest for the deceased plaintiff.
- Likewise, when counsel asked that the minor children be Whether or not Eliosoro is in bad faith
substituted for the deceased and suggested that the uncle - NO. SC held that he is not in bad faith because: (1) he
be appointed as guardian ad litem for them because their informed Lina of the need to secure court approval prior to
father is busy earning a living for the family, it is grave error the sale of the lots, and (2) he did not promise he could
for the court to refuse the request for substitution on the obtain the approval.
ground that the children were still minors and cannot sue,
because it ought to know that Section 17, Rule 3 of the How much is Eliosoro’s share in the property?
Rules of Court, directs the Court to appoint a guardian ad - SC held that his share is 11/20 of the entire property
litem for the minor. because he owned ½ of these lots plus a further 1/10 of the
- From the moment of the death of the decedent, the heirs remaining half, in his capacity as one of the legal heirs.
become the absolute owners of his property, subject to the
rights and obligations of the decedent, and they cannot be
deprived of right thereto except by the methods provided for
by law. The moment of death is the determining factor where
the heirs acquire a definite right to the inheritance whether
such right to be pure or contingent. The right of the heirs to Limjoco v. Intestate of Flagrante
the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or - Assailed is the decision of the Public Service Commission
intestate proceedings. granting a certificate of public convenience to install,
maintain and operate an ice plant in San Juan to the
Cases for Articles 774-777 Intestate Estate of Pedro O. Fragrante.
- Fragrante died pending the conclusion of his application to
Commission.
Heirs of Spouses Sandejas v. Lina - The Commission granted the application in view of the
financial ability of the estate to maintain and operate the ice
- Eliosoro Sandejas was appointed administrator for the plant
settlement of the estate of his wife, Remedios.
- He eventually sold parcels of land to Alex Lina, who agreed Whether the substitution of the legal representative of the
to buy it for P1M. Estate of Fragante for the latter as party applicant in the case
- Eliosoro eventually died and Alex Lina was appointed new pending before the Commission be allowed.
administrator of the estate of Remedios. - Yes. Had Fragante not died, he would have the right to
- The heirs of Sandejas now filed a MR for the appointment of prosecute his application to its final conclusion. This right
a new administrator. did not lapse through his death. Hence, it constitutes a part
- Lina filed a Motion to approve the deed of conditional sale. of the assets of his estate, for such a right was property
despite the possibility that the application may be denied. A
Whether or not Eliosoro is legally obligated to convey title to certificate of public convenience once granted should
the property which is found by the lower court to be a contract descend to the estate as an asset. Such certificate would
to sell. certainly be property and the right to acquire such belonged
- NO. Because the condition is the procurement of court to the decedent in his lifetime and survived to his estate and
approval and not the payment of the purchase price. judicial administrator after his death.

Whether or not the probate court has jurisdiction over the Whether the Estate of Fragante is a person within the meaning
approval of the sale. of the Public Service Act.

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- Yes. The Supreme Court of Indiana declared that a


collection of property to which the law attributes the capacity  Some observations –
of having rights and duties, such as the estate of a  Enumeration cannot satisfactorily accommodate
deceased, is an artificial person, and to rule otherwise would the system of legitimes.
result in a failure of justice. In this case, there would also be
• Legal or intestate succession operates
a failure of justice if the estate would not be regarded as a
only in default of a will [Arts960 and 961],
person as it would prejudice Fragante’s investment of Php.
35T.
while the legitime operates whether or not
there is a will, in fact prevails over a will.
Whether the Estate of Fragante can be considered as a citizen • There are instances where the rules on
of the Philippines. legitime [Arts 887..] operate, to the exclusion
- Yes. The fiction of extension of the citizenship of Fragante of the rules on intestacy [Arts 960..]
is grounded upon the same principle as that of the extension • It is therefore best for clarity, to classify
of his personality. succession to the legitime as a separate and
- The decedent’s rights which by their nature are not distinct kind of succession, which, for want of
extinguished by death go to make up a part and parcel of a better term, can be denominated
the assets of his estate, which, being placed under the compulsory succession.
control and management of the administrator, can not be
exercised but by him in representation of the estate for the  Until the effectivity of the Family Code, there was
benefit of the creditors, devisees or legatees and heirs.
one exceptional case of succession by contract
- Real property, as estate or interest, have also been declared
[contractual succession] found in Article 130 of Civil
to include every species of title, inchoate or complete and
embrace rights which lie in contract, whether executory or Code.
executed. ART 130. The future spouses may
- It is the estate or mass of property, rights and assets left by give each other in their marriage
the decedent, instead of the heirs directly, that becomes settlements as much as one-fifth of their
vested and charged with his rights and obligations which present property, and with respect to
survive after his demise. This doctrine is an abrogation of their future property, only in the event of
art. 661 of the Civil Code brought about by the enactment of death, to the extent laid down by the
the Code of Civil Procedure. provisions of this Code referring to
testamentary succession.

• Donations propter nuptias of future


property, made by one of the future spouses
to the other, took effect mortis cause, and had
only to be done in the marriage settlements,
which were governed only by the Statute of
Frauds.
• It was the only instance of Contractual
ART. 778. Succession may be: Succession in our civil law.
(1) Testamentary
(2) Legal or Intestate, or • This has been eliminated by the Family
Code in Article 84 paragraph 2:
(3) Mixed
“Donations of future property shall
ART. 779. Testamentary succession is that which be governed by the provisions on
results from the designation of an heir, made testamentary succession and the
in a will executed in the form prescribed by formalities of wills.”
law.
• Since under the provision, any donation of
ART. 780. Mixed succession is that effected partly future property between the affianced couple
by will and partly by operation of law. is to be governed by the rules of testamentary
succession and the forms of wills, contractual
 3 KINDS OF SUCCESSION ACCDG TO ART. 778: succession no longer exists in this
1. TESTAMENTARY jurisdiction.
• That which results from the designation of • Such a donation becomes an ordinary
an heir, made in a will. case of testamentary succession.
2. LEGAL OR INTESTATE
 FOUR KINDS OF SUCCESSION ACCORDING TO
• Lost definition: “takes place by operation
IMPORTANCE [Prof. Balane]
of law in the absence of a valid will.”
1. COMPULSORY
3. MIXED
• Succession to the legitime
• That effected partly by will and partly by
operation of law. • Prevails over all other kinds

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2. TESTAMENTARY [Art. 779]  The distinction between an heir and a devisee or


• Succession by will legatee is important because on this distinction
depends the correct application of Art854 on preterition.
3. INTESTATE
 In cases of preterition, the institution of an heir is
• Succession in default of a will annulled, while the institution of legatees and devisees
4. MIXED [Art. 780] is effective to the extent that the legitimes are not
• Not a distinct kind really, but a impaired.
combination of any two or all of the first
three.  The codal definitions are neither clear nor very helpful.
They are so open-ended that an heir can fall under the
definition of a legatee/devisee and vice-versa.
 “I give X my fishpond in Navotas” – by definition of
ART. 781. The inheritance of a person includes
heir, is not X called to the succession by provision
not only the property and the transmissible of a will and therefore an heir?
rights and obligations existing at the time of  “I give X ¼ of my estate” – if in the partition, X
his death, but also those which have accrued receives a fishpond, can X, by definition, not be
thereto since the opening of the succession. considered a devisee, having received a gift of real
property by will?
 Article 781 is best deleted; it serves only to confuse.
 The inheritance includes only those things enumerated  The definitions of the Spanish Code in conjunction with
in Article 776. Whatever accrues thereto after the Castan’s explanations are more helpful:
decedent’s death [which is when the succession opens] • HEIR – one who succeeds to the WHOLE or an
belongs to the heir, not by virtue of succession, but by
Aliquot part of the inheritance
virtue of ownership.
• DEVISEE / LEGATEE – those who succeed to
 To say, as Art781 does, that accruals to the inheritance definite, specific, and individual
after the decedent’s death are included in the properties.
inheritance is to negate the principle in Art777 that
transmission takes place precisely at the moment of Case for Arts. 778-782
death.
DKC Holdings Corp. v. CA
 Once the decedent dies and the heir inherits, the
fruits of the property or inheritance belongs to the - DKC entered into a Contract of Lease with Option to Buy
heir by accession, and not by succession. This is with Encarnacion Bartolome, whereby DKC was given the
so even if the heir does not actually receive the option to lease or lease with purchase a land belonging to
inheritance. Encarnacion, which option must be exercised within 2 years
 Art781 should have left well enough alone. from the signing of the Contract.
- In turn, DKC undertook to pay Php 3,000 a month for the
 Question – If the assets left behind by the decedent are reservation of its option.
not sufficient to pay the debts, may the creditors claims - DKC regularly paid the monthly Php 3,000 until
the fruits produced by the decedent’s property after his Encarnacion’s death. Thereafter, DKC coursed its payment
death? Or do these fruits pertain to the heirs? to Victor, the son and sole heir of Encarnacion. However,
 But wouldn’t the debts be deducted from the estate Victor refused to accept these payments.
first before the properties are distributed to the - Meanwhile, Victor executed an Affidavit of Self-Adjudication
heirs? over all the properties of Encarnacion, including the subject
lot. Thus, a new TCT was issued in the name of Victor.
- Later, DKC gave notice to Victor that it was exercising its
option to lease the property tendering the amount of Php
ART. 782. An heir is a person called to the 15,000 as rent.
succession either by the provision of a will or - Again, Victor refused to accept the payment and to
by operation of law. surrender passion of the property.
Devisees and legatees are persons to - DKC thus opened a savings account in the name of Victor
and deposited therein the rental fee.
whom gifts of real and personal property are - DKC also tried to register and annotate the Contract on the
respectively given by virtue of a will. title of Victor but the Register of Deeds refused to register or
annotate the same.
 HEIR – person called to the succession either by will or - Thus, DKC filed a complaint for specific performance and
by law damages.
DEVISEE – persons to whom gifts of real property are - In the course of the proceedings, a certain Lozano, who
given by virtue of a will. claimed that he was and has been a tenant-tiller of the lot for
LEGATEE – persons to whom gifts of personal 45 years, filed a Motion for Intervention.
property are given by virtue of a will. - The RTC denied Lozano’s Motion and dismissed the
complaint filed by DKC.

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- Whether the Contract of Lease with Option to Buy entered


into by the late Encarnacion Bartolome with DKC was Subsection 1 – Wills in General
terminated upon her death or whether it binds her sole heir,
Victor, even after her demise.
- The SC held that Victor is bound by the Contract of Lease
with Option to Buy. ART. 783. A will is an act whereby a person is
- Article 1311 of the NCC provides: Contracts take effect only permitted, with the formalities prescribed by
between the parties, their assigns and heirs, except in case law, to control to a certain degree the
where the rights and obligations arising therefrom are not disposition of his estate, to take effect after
transmissible by (1) their nature, (2) stipulation or (3)
his death.
provision of law.
- In this case, there is neither contractual stipulation nor legal
provision making the rights and obligation under the contract  Operative Words in the Definition
intransmissible. More importantly, the nature of the rights 1. ACT
and obligations therein are, by their nature, transmissible. • The definition of a will as an act is too
- Where the service or act is of such a character that it may be broad and should have been more clearly
performed by another, or where the contract, by its terms, delimited with a more specific term such as
shows the performance by others was contemplated, death instrument or document, in view of the
does not terminate the contract or excuse nonperformance.
provision of Art804 that “every will must be in
- In this case, there is no personal act required from the late
writing.”
Encarnacion. Rather, the obligation of Encarnacion to
deliver possession of the property may very well be • NUNCUPATIVE or oral wills are not
performed by Victor. recognized in our Code, unlike the Spanish
- Also, the subject matter of the contract is a lease, a property Civil Code wherein military wills could be oral.
right. The death of a party does not excuse nonperformance
of a contract which involves a property right, and the rights 2. PERMITTED
and obligations thereunder pass to the personal • Will-making is purely statutory.
representatives of the deceased.
3. FORMALITIES PRESCRIBED BY LAW
- Since DKC exercised its option in accordance with the
contract, the SC held that Victor has the obligation to • The requirement of form prescribed
surrender possession of and lease of premises for 6 years. respectively for attested and holographic
However, SC held that the issue of tenancy should be wills.
ventilated in another proceeding. 4. CONTROL TO A CERTAIN DEGREE
- The general rule, therefore, is that heirs are bound by • The testator’s power of testamentary
contracts entered into by their predecessors-in-interest disposition is limited by the rules on legitimes.
except when the rights and obligations arising therefrom are
not transmissible by (1) their nature, (2) stipulation or (3) 5. AFTER HIS DEATH
provision of law. • Testamentary succession, like all other
- Where acts stipulated in a contract require the exercise of kinds of succession in our Code, is mortis
special knowledge, genius, skill, taste, ability, experience, causa.
judgment, discretion, integrity, or other personal qualification
of one or both parties, the agreement is of personal nature,
and terminates on the death of the party who is required to
render such service.
- There is privity of interest between an heir and his deceased
predecessor – he only succeeds to what rights his
predecessor had and what is valid and binding against the
latter is also valid and binding against the former.
- The death of a party does not excuse nonperformance of a
contract which involves a property right, and the rights and
obligations thereunder pass to the personal representatives
of the deceased. Similarly, nonperformance is not excused
by the death of the party when the other party has a property
interest in the subject matter of the contract.

CHAPTER 2
TESTAMENTARY SUCCESSION

SECTION 1 – WILLS

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provided by law, such as the acknowledgment of a


CHARACTERISTICS OF WILLS natural child or the order that the patria potestas of the
widow shall continue after her remarriage, can be give
1. PURELY PERSONAL effect even without probating the will.
• Articles 784, 785 and 787
 Questions
2. FREE AND INTELLIGENT
 Would a document merely appointing an executor,
• Article 839
not containing any dispositive provision, have to
• The testator’s consent should not be
comply with the formal requirements of a will in
vitiated by the causes mentioned in Article 839
order to be effective? Would such a document
paragraphs 2-6 on Insanity, Violence,
Intimidation, Undue Influence, Fraud and
have to be probated?
Mistake. • Justice Hofilena says NO, because there
is no disposition and such appointment
3. SOLEMN AND FORMAL would not be under the category of a will.
• Articles 804-814 and 820-821 Therefore, the formal requirements of a
• The requirements of form depend on will do not apply.
whether the will is attested or holographic.  Would a document containing only a disinheriting
• Articles 805-808 and 820-821 govern clause have to be in the form of a will and be
attested wills. Articles 810-814 govern probated? [Article 916]
holographic wills. Article 804 applies to both.
• YES. According to Art916, disinheritance
4. REVOCABLE AND AMBULATORY can be effected only through a will
• Article 828 wherein the legal cause therefore shall be
specified.
5. MORTIS CAUSA
• A valid disinheritance is in effect a
• Article 783
disposition of the property of the testator
• This is a necessary consequence of
in favor of those who would succeed in
Articles 774 and 777.
the absence of the disinherited heir.
6. INDIVIDUAL Unless the will is probated, the
• Article 818 disinheritance cannot be given effect.
• Joint wills are prohibited in this
jurisdiction. CASES
7. EXECUTED WITH ANIMUS TESTANDI Vitug v. CA
• This characteristic is implied in Article
783 - Romarico Vitug and Nenita Alonte were co-administrators of
Dolores Vitug’s (deceased) estate. Rowena Corona was the
• Rizal’s valedictory poem “Ultimo executrix.
Adios” was not a will. An instrument which - Romarico, the deceased’s husband, filed a motion with the
merely expresses a last wish as a thought or probate court asking for authority to sell certain shares of
advice but does not contain a disposition of stock and real properties belonging to the estate to cover
property and was not executed with animus alleged advances to the estate, which he claimed as
testandi, cannot be legally considered a will. personal funds.
- The advances were used to pay estate taxes.
8. EXECUTED WITH TESTAMENTARY CAPACITY
- Corona opposed the motion on ground that the advances
• Articles 796 – 803 on testamentary
came from a savings account which formed part of the
capacity and intent
conjugal partnership properties and is part of the estate.
9. UNILATERAL Thus, there was no ground for reimbursement.
• This characteristic is implied in Article - Romarico claims that the funds are his exclusive property,
783 having been acquired through a survivorship agreement
executed with his late wife and the bank.
10. DISPOSITIVE OF PROPERTY - The agreement stated that after the death of either one of
• Article 783 seems to consider the the spouses, the savings account shall belong to and be the
disposition of the testator’s estate mortis causa sole property of the survivor, and shall be payable to and
as the purpose of will-making. collectible or withdrawable by such survivor.
- The lower court upheld the validity of the agreement and
granted the motion to sell.
 The present Civil Code seems to limit the concept of a - CA reversed stating that the survivorship agreement
will to a disposition of property to take effect upon and constitutes a conveyance mortis causa which did not comply
after death. with the formalities of a valid will. Assuming that it was a
 It is only when the will disposes of property, wither donation inter vivos, it is a prohibited donation (donation
directly or indirectly, that it has to be probated. When between spouses).
there is no disposition of property, it is submitted that, - WON the survivorship agreement was valid.
although the instrument may be considered as a will, it - YES.
does not have to be probated; its dispositions which are

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- The conveyance is not mortis causa, which should be 3. The determination of the portions they are to
embodied in a will. A will is a personal, solemn, revocable receive.
and free act by which a capacitated person disposes of his
property and rights and declares or complies with duties to
take effect after his death. The bequest or devise must
pertain to the testator.
- In this case, the savings account involved was in the nature
of conjugal funds.
- Since it was not shown that the funds belonged exclusively ART. 786. The testator may entrust to a third
to one party, it is presumed to be conjugal. person the distribution of specific property or
- It is also not a donation inter vivos because it was to take sums of money that he may leave in general
effect after the death of one party. It is also not a donation to specified classes or causes, and also the
between spouses because it involved no conveyance of a designation of the persons, institutions or
spouse’s own properties to the other. establishments to which such property or
- It was an error to include the savings account in the sums are to be given or applied.
inventory of the deceased’s assets because it is the
separate property of Romarico.
- Thus, Romarico had the right to claim reimbursement.  Exception to the Rule on Non-Delegability of Will-
Making. Without this provision, the things allowed to be
- A will is a personal, solemn, revocable and free act by which delegated here would be non-delegable.
a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his  TWO THINGS MUST BE DETERMINED BY THE
death. TESTATOR –
- Survivorship agreements are permitted by the NCC. 1. The property or amount of money to be given;
However, its operation or effect must not be violative of the
and
law (i.e. used as a cloak to hide an inofficious donation or to
2. The class or the cause to be benefited.
transfer property in fraud of creditors or to defeat the legitime
of a forced heir).
 TWO THINGS MAY BE DELEGATED BY THE
TESTATOR –
1. The designation of persons, institutions, or
establishments within the class or cause;
2. The manner of distribution
ART. 784. The making of a will is a strictly
personal act; it cannot be left in whole or in  Question – Suppose the testator specified the
part to the discretion of a third person, or recipients by specific designation but left to the 3rd
accomplished through the instrumentality of person the determination of the sharing, ex. “I leave
an agent or attorney. P500,000 for the PNRC, the SPCA, and the Tala
Leprosarium, to be distributed among these institutions
 This provision gives the will its purely personal in such proportions as my executor may determine.”
character. Valid?
 One View – Article 785 seems to prohibit this,
 NON-DELEGABILITY OF WILL-MAKING – because the recipients are referred to by name and
 It is the exercise of the disposing power that therefore the portions they are to take must be
cannot be delegated. determined by the testator. Article 786 applies only
 Obviously, mechanical aspects, such as typing, do where the testator merely specifies the class or the
not fall within the prohibition. cause but not the specific recipients.
 Contra – This actually involves a lesser discretion
for the 3rd person than the instances allowed by
ART. 785. The duration or efficacy of the Article 786 and should be allowed.
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name, cannot ART. 787. The testator may not make a
be left to the discretion of a third person. testamentary disposition in such manner that
another person has to determine whether or
 What Constitute the Essence of Will-Making or the not it is to be operative.
Exercise of the Disposing Power? The ff are non-
delegable:  This rule is consistent with, and reinforces, the purely
1. The designation of heirs, devisees or legatees person character of a will, laid down in Article 784.
2. The duration of efficacy of such designation,  This article should be interpreted rationally. It is not to
including such things as conditions, terms, be so interpreted as to make it clash with the principle
substitutions; expressed in Articles 1041-1057 of the NCC that the

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heir is free to accept or reject the testamentary b. His right in the share of Dona Luisa is expressly
disposition. left to him as a legacy.
 What this article prohibits is the delegation to a 3rd - The reservation of property in a will to the name of specific
person of the power to decide whether a disposition persons shall be considered as a legacy.
should take effect or not. - Where the will authorizes the executor to pay the legacies,
expressly or by natural inference, action will lie by the
legatee against the executor to compel allowance and
payment hereof. If the executor is not authorized, action will
lie against the heirs. An heir on the other hand, can maintain
no such action against the executor.

Case for Arts. 783-787

Del Rosario v. Del Rosario ART. 788. If a testamentary disposition admits of


different interpretations, in case of doubt, that
- Don Nicolas left a will awarding parts of his estate to his
nephews, Don Enrique and plaintiff, Don Ramon subject to interpretation by which the disposition is to
certain conditions. (See case page 322) be operative shall be preferred.
- He also left a part of his estate to his siblings, one of which
is Dona Luisa. And upon the latter’s death, her share shall  Articles 788-794 lays down the rules of construction
be divided between her two nephews after P1,000 has been and interpretation.
given to Dona Luisa’s male children.  The underlying principle here is that testacy is preferred
- Doña Honorata, Don Nicolas’ wife, left her estate to his to intestacy, because the former is the express will of
husband. Upon the husband’s death, it shall be passed on to the decedent whereas the latter is only his implied will.
her husband’s siblings. However, upon the death of her  In statutory construction, the canon is: “That the thing
sister-in-law, Dona Luisa, same provisions shall apply as may rather be effective than be without effect.”
what is stated in her husband’s will.
- Plaintiff now institutes this present case against the  A similar principle in contractual interpretation is found
executor, who is one of his uncles, Don Clemente. He seeks
in Art1373, which provides that “if some stipulation of
to be entitled to a certain part of the share of the estates left
any contract should admit of several meanings, it shall
to Dona Luisa during her life, and he asks that the executor
be directed to render accounts and to proceed to the
be understood as bearing that import which is most
partition of the estate. adequate to render it effectual.”

Whether or not he is entitled to any share of the estate left by


the spouses. ART. 789. When there is an imperfect description,
- Plaintiff is not entitled to any allowance under the will of Don or when no person or property exactly
Nicolas because:
answers the description, mistakes and
a. He is only allowed such amount if widow
remarries and he is still continuing studies, omissions must be corrected, of the error
which are not present in this case. appears from the context of the will or from
b. His interest in the share of Dona Luisa in Don extrinsic evidence, excluding the oral
Nicolas’ will was given to him as an heir and not declarations of the testator as to his
as a legatee. intention; and when an uncertainty arises
- He is not entitled to live in the widow’s house because such
was terminated upon the widow’s death.
upon the face of the will, as to the application
of any of its provisions, the testator’s
- He is entitled to be paid the sum of P1500 given to Don
intention is to be ascertained from the words
Enrique in addition to the P1500 pesos already received by
plaintiff under the 9th clause of Dona Honorata’s will of the will, taking into consideration the
because: circumstances under which it was made,
a. The will specifically awarded the said amounts excluding such oral declarations.
to him as a legatee and the fact that they were
called natural sons of Don Clemente only serves
as a further description and needs no proof to be  2 KINDS OF AMBIGUITY REFERRED TO –
given.
b. By virtue of the right of accretion, plaintiff is also 1. LATENT – not obvious on the face of the will
entitled to the other P1500 share of Don Enrique • When there is an imperfect description or
since the latter died before Don Honorata. when no person or property exactly answers
- He is entitled to the share of the estate left by the will of the description
Dona Honorata to Dona Luisa during her life, after deducting a) Latent as to PERSON – “I institute to
P1,000 because: ¼ of my estate my first cousin Jose”
a. The share of plaintiff from Dona Luisa’s share is and the testator has more than one
given to him whether or not Dona Luisa dies first cousin named Jose.
before or after Dona Honorata. b) Latent as to PROPERTY – “I devise
to my cousin Pacifico my fishpond in

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Roxas City” and the testator has


more than one fishpond in Roxas Sec14. Peculiar signification of terms – The
City. terms of a writing are presumed to have been
used in their primary and general application,
2. PATENT – obvious on the face of the will but evidence is admissible to show that they
• When an uncertainty arises upon the face have a local, technical, or otherwise peculiar
of the will, as to the application of any of its signification, and were so used and understood
provisions in the particular instance, in which case the
agreement must be construed accordingly.
a) Patent as to PERSON – “I institute ¼
of my estate to some of my first  In contractual interpretation, a similar principle is
cousins. expressed in Article 1370 par1:
b) Patent as to PROPERTY – “I Art1370. If the terms of a contract are clear
bequeath to my cousin Pacifico some and leave no doubt upon the intention of the
of my cars.” contracting parties, the literal meaning of its
• In both cases, the ambiguity is evident stipulations shall control.
from a reading of the testamentary
provisions themselves; the ambiguity is
patent [patere – to be exposed]

 HOW TO DEAL WITH AMBIGUITIES – ART. 791. The words of a will are to receive an
 The provisions of this article do not make a interpretation which will give to every
distinction in the solution of the problem of expression some effect, rather than one
ambiguities – whether latent or patent.
which will render any of the expressions
• Hence, the distinction between the 2 kinds
inoperative; and of two modes of interpreting
of ambiguity is, in the light of the codal
provisions, an all but theoretical one. a will, that is to be preferred which will
prevent intestacy.
 The ambiguity should, as far as possible, be
 A similar rule is found in Rule 130 Sec11 of the RoC –
cleared up or resolved, in order to give effect to the Sec11. Instrument construed so as to give
testamentary disposition.
effect to all provisions – In the construction of an
• Based on principle that testacy is instrument where there are several provisions or
preferred to intestacy. particulars, such a construction is, if possible, to
be adopted as will give effect to all.
 Ambiguity may be resolved using any evidence
admissible and relevant, excluding the oral  In contractual interpretation, Articles 1373 and 1374 lay
declarations of the testator as to his intention. down similar principles –
• Reason for the statutory exclusion is that Art1373. If some stipulation of any contract
a dead man cannot refute a tale. should admit of several meanings, it shall be
understood as bearing that import which is most
adequate to render it effectual.
Art1374. The various stipulations of a
ART. 790. The words of a will are to be taken in
contract shall be interpreted together,
their ordinary and grammatical sense, unless attributing to the doubtful one that sense which
a clear intention to use them in another sense may result from all of them taken jointly.
can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken ART. 792. The invalidity of one of several
in their technical sense, unless the context dispositions contained in a will does not
clearly indicates a contrary intention, or result in the invalidity of the other
unless it satisfactorily appears that he was dispositions, unless it is to be presumed that
unacquainted with such technical sense. the testator would not have made such other
dispositions if the first invalid disposition had
 Similar rules are laid down in Rule 130 Sections 10 and
not been made.
14 of the Rules of Court –
Sec10. Interpretation of a writing according
 This article makes applicable to wills the
to its legal meaning – The language of a writing
is to be interpreted according to the legal SEVERABILITY OR SEPARABILITY PRINCIPLE in
meaning it bears in the place of its execution, statutory construction frequently expressly provided in a
separability clause.
unless the parties intended otherwise.

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 The source of this article is Art2085 of the German Civil part or interest, unless the testator expressly declares
Code which provides that the invalidity of one of several that he gives the thing in its entirety.
dispositions contained in a will results in the invalidity of
the other dispositions only if it is to be presumed that  GENERAL RULE – in a legacy or devise the testator
the testator would not have made these if the invalid gives exactly the interest he has in the thing.
disposition had not been made. EXCEPTIONS – he can give a less interest [Art794] or a
greater interest [Art929] than he has.

ART. 793. Property acquired after the making of a  In the latter case, if the person owning the interest
to be acquired does not wish to part with it, the
will shall only pass thereby, as if the testator
solution in Art931 can be applied wherein the
had possessed it at the time of making the legatee or devisee shall be entitled only to the
will, should it expressly appear by the will JUST VALUE OF THE INTEREST that should
that such was his intention. have been acquired.

 This article creates problems which would not have


existed had it not been so nonchalantly incorporated in
the Code, an implant from the Code of Civil Procedure
and ultimately from American law.

 The problem springs from the fact that this article


makes the will speak as of the time it is made, rather
than at the time of the decedent’s death [which is more
logical because that is when the will takes effect
according to Article 777].

 Illustration – X executes a will in 1985 containing a


legacy: “I give to M all my shares in BPI.” The testator
dies in 1990, owning at the time of his death ten times
as many BPI shares as he did when he made the will.
• Under Article 793, the shares acquired
after the will was executed are NOT included in
the legacy.

 Article 793 therefore departs from the codal


philosophy of Articles 774 and 776 and constitutes
an EXCEPTION to the concept of succession as
linked to death and rendered legally effective by
death.

 Prof. Balane suggests the provisions be reworded as:


“Property acquired after the making of a will passes
thereby unless the contrary clearly appears from the
words or the context of the will.”
 In the meantime, it is suggested that a liberal
application of the article be allowed.
 Can the word “expressly” in this article be
interpreted to mean “clearly” even if it might be
stretching a point?

ART. 794. Every devise or legacy shall cover all


the interest which the testator could device or
bequeath in the property disposed of, unless
it clearly appears from the will that he
intended to convey a less interest.

 This article should be read together with Art929, which


provides that “if the testator, heir, or legatee owns only
a part of or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such

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ART. 795. The validity of a will as to its form


RE-CAP OF THE RULES ON
depends upon the observance of the law in
INTERPRETATION force at the time it is made.
AND CONSTRUCTION OF WILLS
2. In case of doubt, testacy is preferred and  ASPECTS OF VALIDITY OF WILLS
disposition should be interpreted in manner which A. EXTRINSIC – refers to the requirement of form
would make it operative. / formal validity
1. Governing law as to TIME
3. Two kinds of Ambiguities
a. Filipinos – law in force when the will was
• Latent – imperfect description or
when no person or property exactly answers
executed [Art795]
to description. b. Foreigners – same rile. The assumption
• Patent – based on the face of the here is that the will is being
will as to the application of any of its probated in the Philippines.
provisions 2. Governing law as to PLACE
4. In case of ambiguity, may resort to any evidence,  Filipinos or Foreigners
even extrinsic evidence, but may not resort to a. Law of citizenship
oral declarations of the testator as to his b. Law of domicile
intention. c. Law of residence
5. Words of a will shall be taken in their ordinary d. Law of place of execution, or
and grammatical sense, unless: e. Philippine law
• Another sense or meaning is clearly  Articles 815-817 - Rules of formal validity
intended to be used, and a. Filipino Abroad - According to the
• That other sense or meaning can be law in the country in which he may be
ascertained and may be probated in the Philippines
b. Alien abroad - Has effect in the
6. Technical words shall be taken in technical
Philippines if made according to: Law
sense, except:
of place where he resides, Law of his
• When context clearly indicates
own country or Philippine law
otherwise
c. Alien in the phils. - Valid in Phils.
• Will was drawn solely by the testator
as if executed according to Phil. laws,
and he was not acquainted with the technical
meaning of such word. if: Made according to law of country
which he is a citizen or subject, and
7. Words are to receive interpretation which will give May be proved and allowed by law of
it some effect. his own country.
8. Invalidity of one disposition in a will does not
mean the other dispositions are also invalid.
• But invalidity of one provision B. INTRINSIC – refers to the substance of the
affects the other if it is to be presumed that provisions / substantive validity
the testator would not have made such other
disposition if the first invalid disposition had 1. Governing law as to TIME
not been made. a. Filipinos – law at the time of death,
9. Property that is acquired by the testator after the in connection with Art2263.
will was executed shall only be transmitted along b. Foreigners – depends on their
with those in the will, if the testator expressly personal law [Art16, par2 and
states in the will that such is his intention. Art1039]
10. A devise of legacy shall transmit the whole extent 2. Governing law as to PLACE
of the testator’s interest in the property disposed. a. Filipinos – Philippine law [Art16 par2
and Art1039]
b. Foreigners – their national law [Art16
par2 and Art1039]

 Art2263 provides that “Rights to the inheritance of a


person who died, with or without a will, before the
effectivity of this Code [August 30, 1950], shall be
governed by the Civil Code of 1889, by other previous
laws, and by the Rules of Court. The inheritance of
those who, with or without a will, die after the beginning
of the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws
and by the Rules of Court; but the testamentary
provisions shall be carried out insofar as they may be

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permitted by this Code. Therefore, legitimes,


betterments, legacies and bequests shall be respected;
however, their amount shall be reduced if in no other Which of the two courts is the proper venue for the settlement
manner can every compulsory heir be given his full of estate of Don Juan
share according to this Code.” - The SC held that the proper venue should have been with
the CFI of Negros.
 Art16 par2 provides that “intestate and testamentary - The Courts of First Instance is granted the original and
exclusive jurisdiction over all matters of probate (this
successions, both with respect to the order of
includes testate and intestate proceedings)
succession and to the amount of successional rights
- In this light, both the CFI of Manila and Negros have
and to the intrinsic validity of testamentary provisions, jurisdiction over the subject matter. Thus, the question boils
shall be regulated by the national law of the person down to where the proper venue lies.
whose succession is under consideration, whatever - Venue in the settlement of an estate, if the decedent is an
may be the nature of the property and regardless of the inhabitant of foreign country, is in the CFI of any province on
country wherein said property may be found.” which the decedent had an estate. This is true for both the
CFI of Manila and Negros.
 While Art1039 provides that “Capacity to Succeed is - Although as declared above that an intestate intestate
governed by the law of the nation of the decedent.” proceeding should give way to testate proceedings, records
show that expediency would have been achieved if
Cases for Arts. 788-795 Zamacona filed the petition in the Negros Court.
- The Negros court was already informed of the existence of a
Uriarte v. CFI will by Higinio and that in fact the latter was requested to
submit a copy of the said will.
- Vicente Uriarte instituted a special proceeding for the - But since venue is a waiveable defect, Vicente is barred by
settlement of the estate of Don Juan Uriarte before the CFI laches from raising the same as it was almost a year when
of Negros. he raised the objection.
- Vicente Uriarte contends that he is an acknowledged son of - Testacy is preferred to Intestacy.
the deceased and that as the natural son, he should be - If in the case of intestate proceedings pending before a
considered as the sole heir. (It appears that Vicente court, it is found that the decedent had left a last will,
instituted a case before the same court for his proceedings for the probate of the latter should replace the
acknowledgment as a natural son, however such case is yet intestate proceedings even if at the stage an administrator
to attain finality.) has already been appointed.
- Higinio Uriarte filed an opposition to the special proceeding - This is without prejudice that should the alleged will be
alleging that Don Juan Uriarte executed a Last Will and rejected or disapproved, the proceeding shall continue as an
Testament in Spain. intestacy.
- In another occasion, Juan Zamacona commenced a special
proceeding for the probate of the last will of Don Juan before Enriquez, et al. v. Abadia, et al.
the CFI of Manila.
- At the same time, Juan Zamacona also filed a Motion to - In 1923, Fr. Sancho Abadia of Talisay, Cebu executed a
Dismiss on the special proceeding instituted by Vicente document purporting to be his Last Will and Testament
alleging that by virtue of the will executed by Don Juan, covering his properties the estimated value of which was
there is no legal basis to proceed in the intestate proceeding P8000 when he died in 1943.
and that Vicente has no legal standing to initiate said - Andres Enriquez, one of the legatees, filed a petition for its
proceeding. probate in the CFI of Cebu, to the opposition of the late
- The CFI of Negros accordingly dismissed the case. To priest’s cousins and nephews.
protect his interest, Vicente Uriarte filed an Omnibus Motion - One of the witnesses (the other two have died) related that
praying that he be allowed to Intervene before the CFI of in his presence and of his co-witnesses, Fr. Abadia wrote
Manila or that the proceedings therein be dismissed. out in longhand in Spanish which the testator spoke and
understood; signed on the left hand margin each of the three
Whether or not the testate proceeding filed by Juan Zamacona pages, numbered the same with Arabic numerals, and
should take precedence over the intestate proceeding signed the last page after declaring that it was his last will,
instituted by Vicente after which the three witnesses signed on the last page as
- The SC held that in accordance with well settled well.
jurisprudence, testate proceedings for the settlement of the - In 1923, long before the New Civil Code was in force,
estate of a deceased person shall take precedence over holographic wills (as the one prepared by Fr. Abadia,
intestate proceedings over the same. determined as such by the lower court) were invalid.
- This doctrine is in accord with the principle that TESTACY is - The law at the time also required numbering correlatively
preferred to INTESTACY. each page in letters and signing on the left hand margin by
- Thus, in if in the case of intestate proceedings pending the testator and by the three attesting witnesses on each of
before a court, it is found that the decedent had left a last the three pages, among others, which were not followed in
will, proceedings for the probate of the latter should replace the present will.
the intestate proceedings even if at the stage an - However, the lower court said that since the New Civil Code
administrator has already been appointed. was already in effect at the time of the hearing and the
making of the decision in 1952, a liberal view ought to be

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taken to carry out the intention of the testator which is the her widowhood the children of their servants and the two
controlling factor and which may override any defect in form. children of D. Lucas y Eugenio;
- In the same will, Miguel Fabie authorized her wife to provide
Whether or not the provisions of the New Civil Code which in her will that property be delivered to the persons who may
allowed holographic wills may be applied to validate Fr. have assisted and cared for her during her widowhood until
Abadia’s will. her death and to sell the property so that the proceeds to be
- NO. No subsequent law with more liberal requirements or divided if there be any foreseeable disagreements over the
which dispenses with such requirements as to execution property;
should be allowed to validate a defective will and thereby - The same will also provided that should the wife forget to
divest the heirs of their vested rights in the estate by make a will, that it be complied with and fulfilled by his
intestate succession. The general rule is that the Legislature brother Ramon Fable.
cannot validate void wills. - The testator’s will, as recorded in the abovementioned is so
- Art. 795 of the New Civil Code provides: “The validity of a clear and definite that in order duly to comply therewith, it
will as to its form depends upon the observance of the law in needs but be determined who are the persons that must be
force at the time it is made.” considered as the legatees on account of their having
- The above provision weight of authority to the effect that the served and cared for the testator’s widow until their death.
validity of a will is to be judged not by the law in force at the - From a due examination of the evidence presented at the
time of the testator’s death or at the time the supposed will is trial, those entitled are Encarnacion Gutierrez Calderon,
presented in court for probate or when the petition is Filomena Calderon, Potenciana de la Cruz, Basilisa
decided by the court but at the time the instrument was Salteras, Candida Reyes, Benita Garcia, Maria and Josefa
executed. Calderon and Petronilla Eugenio.
- The wishes of the testator about the disposition of his estate - The minor children were also of service to the widow, and
among his heirs and among the legatees is given solemn should equally receive a pro-rate share on the property’s
expression at the time the will is executed, and in reality, the value. It was not only Petronila who had served the widow,
legacy or bequest then becomes a completed act. there were many others and she should not alone get the
- The position that subsequent statutes should be applied to property.
validate wills defectively executed according to the law in - Since some of them did so, as proven by the record, the law
force at the time of execution is untenable. must be fulfilled in accordance with the tenor of the last will
- The reason for the above is that from the day of the death of of the testator.
the testator, if he leaves a will, the title of the legatees and - It is the settled rule that the intention and wishes of the
devisees under it becomes a vested right, protected under testator, when clearly expressed in his will, constitute the
the due process clause of the constitution. fixed law of interpretation.
- Art. 795 of the New Civil Code provides: “The validity of a
will as to its form depends upon the observance of the law in Balanay v. Martinez
force at the time it is made.”
- The above provision weight of authority to the effect that the - Leodegaria Julian, in her will, partitioned her paraphernal as
validity of a will is to be judged not by the law in force at the well as all the conjugal properties as if they were all owned
time of the testator’s death or at the time the supposed will is by her, disposing of her husband's one-half share, and
presented in court for probate or when the petition is providing that the properties should not be divided during
decided by the court but at the time the instrument was her husband's lifetime but should remain intact and that the
executed. legitimes should be paid in cash to be satisfied out of the
- No subsequent law with more liberal requirements or which fruits of the properties.
dispenses with such requirements as to execution should be - Felix Balanay, Jr. filed a petition for the approval of his
allowed to validate a defective will and thereby divest the mother's will which was opposed by the husband and some
heirs of their vested rights in the estate by intestate of her children.
succession. The general rule is that the Legislature cannot - During the pendency of the probate proceedings petitioner
validate void wills. submitted to the court a document showing his father's
conformity to the testamentary distribution, renouncing his
In re Estate of Calderon hereditary rights in favor of his children in deference to the
memory of his wife.
- This is an appeal made by the attorneys for Basilla Salteras, - The Court denied the opposition, set for hearing the probate
Potenciana de la Cruz and Benigno Calderon, the latter as of the will and gave effect to the affidavit and conformity of
the natural guardian of the minors Maria and Josefa the surviving spouse.
Calderon from an order which directed that the administrator - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
be authorized to make a conveyance of property, a house behalf of the petitioner, moved to dismiss the probate
and lot, situate in Binondo to Petronila Eugenio. proceedings and requested authority to proceed by intestate
- The case questions on 1) How and what manner the proceedings on the ground that the will was void (because
provisions made by the testator, the deceased Miguel Fable, Leodegaria cannot validly dispose of her husband’s share) ,
in clause 12 of his will should be complied with; and 2) Who which motion was granted by the probate court. The Court,
should receive pro rata the legacy specified in the said however, did not abrogate its prior orders to proceed with
clause. the probate proceedings.
- Petitioner impugned the order of dismissal claiming that Atty.
- The said clause states that the property on Calle Analogue
Montaña had no authority to ask for the dismissal of the
will be left as legacy to his wife under the condition that with petition for allowance of will and that the court erred in
its revenue she shall care for and educate and assist during declaring the will void before resolving the question of its
formal validity.

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made such other dispositions if the first invalid disposition


Whether the probate court erred in passing upon the intrinsic had not been made;
validity of the will, before ruling on its allowance or formal - Where some provisions are valid and others invalid, the
validity, and in declaring it void. valid provisions shall be upheld if they can be separated
- NO. In view of certain unusual provisions of the will, which from the invalid provisions without defeating the intention of
are of dubious legality, and because of the motion to the testator or interfering with the general testamentary
withdraw the petition for probate (which the lower court scheme or doing injustice to the beneficiaries.
assumed to have been filed with the petitioner's - The very existence of a purported testament is in itself prima
authorization), the trial court acted correctly in passing upon facie proof that the supposed testator has willed that his
the will's intrinsic validity even before its formal validity had estate should be distributed in the manner therein provided,
been established. and it is incumbent upon the state that, if legally tenable,
- The probate of a will might become an idle ceremony if on such desire be given effect independent of the attitude of the
its face it appears to be intrinsically void. Where practical parties affected thereby
considerations demand that the intrinsic validity of the will be - Testacy is favored. Doubts are resolved in favor of testacy
passed upon, even before it is probated, the court should especially where the will evinces an intention on the part of
meet the issue the testator to dispose of practically his whole estate.

Whether the court erred in converting the testate proceeding Bellis v. Bellis
into an intestate proceeding notwithstanding the fact that in its
order of June '8, 1973 it gave effect to the surviving husband's - Amos Bellis was a citizen of the State of Texas and of the
conformity to the will and to his renunciation of his hereditary United States.
rights which presumably included his one-half share of the - By his first wife, he had 5 legitimate children; by his second
conjugal estate. wife, he had 3 legitimate children; and he had 3 illegitimate
- YES. The rule is that "the invalidity of one of several children.
dispositions contained in a will does not result in the - Amos executed a will in the Philippines, in which he
invalidity of the other dispositions, unless it is to he specified how his estate will be divided and distributed.
presumed that the testator would not have made such other - Subsequently, Amos died, a resident of Texas.
dispositions if the first invalid disposition had not been - His will was admitted to probate in the CFI of Manila.
made" (Art. 792, Civil Code). - The People’s Bank, as executor of will, paid all the bequests
- "Where some of the provisions of a will are valid and others included in Amos’ will.
invalid, the valid parts will be upheld if they can be - Before closing its administration, the executor submitted its
separated from the invalid without defeating the intention of final report and project of partition.
the testator or interfering with the general testamentary - However, 2 of Amos’ illegitimate children filed their
scheme, or doing injustice to the beneficiaries" oppositions to the project of partition on the ground that they
- Void provisions in the will: were deprived of their legitimes as illegitimate children and
1. The statement of the testatrix that she owned the therefore compulsory heirs of the deceased.
"southern half" of the conjugal lands is contrary to law - The CFI issued an order overruling the oppositions and
because, although she was a co-owner thereof, her approving the executor’s final account, report and project
share was inchoate and pro indiviso partition. The lower court, relying upon Art. 16 of the NCC,
2. that the properties of the testatrix should not be applied the national law of Amos, which is the Texas law,
divided among her heirs during her husband's lifetime which did not provide for legitimes.
but should be kept intact and that the legitimes - The illegitimate children thus filed an Appeal.
should be paid in cash is contrary to article '080 of
the Civil Code Whether this case falls under Art. 17 of the NCC.
- NO.
Whether an heir may validly renounce his share
- YES. Felix Balanay, Sr. could validly renounce his hereditary - Appellants argue that their case falls under the
rights and his one-half share of the conjugal partnership circumstances mentioned in the 3rd paragraph of Art. 17 in
(Arts. '79['] and '04', Civil Code) but insofar as said relation to Art. 16 of the NCC. It argues that Art. 17 prevails
renunciation partakes of a donation of his hereditary rights as the exception to Art. 16.
and his one-half share in the conjugal estate (Art. '050['] Civil - The SC rule that appellants argument is incorrect.
Code), it should be subject to the limitations prescribed in - It ruled that the change in the NCC shows that whatever
articles 750 and 752 of the Civil Code. A portion of the public policy and good customs may be involved in our
estate should be adjudicated to the widower for his support system of legitimes, Congress has not intended to extend
and maintenance. Or at least his legitime should be the same to the succession of foreign nationals. Congress
respected. has specifically chose to leave the amount of successional
- Generally, the probate of a will is mandatory and it is the rights to the decedent’s national law.
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically Whether Philippine law should govern to Amos’ Philippine
void. estate.
- A will is not rendered null and void by reason of the - NO. Appellants argued that Amos executed 2 wills – one to
existence of some illegal or void provisions since the govern his Texas estate and the other his Philippine estate –
invalidity of one of several dispositions contained in a will arguing that he intended Philippine law to govern his
does not result in the invalidity of the other dispositions Philippine estate.
unless it is to be presumed that the testator would not have - The SC held that that a provision in a foreigner’s will to the
effect that his properties shall be distributed in accordance

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with Philippine law and not with his national law, is illegal nature of the estate to be disposed of, the
and void, for his national law cannot be ignored in regard to proper objects of his bounty, and the
those matters that Art. 16 of the NCC states said national
character of the testamentary act.
law should govern.

Which law must apply – Texas law or Philippine law? ART. 800. The law presumes that every person is
- Texas law applies. of sound mind, in the absence of proof to the
- The petitioners admit that Amos was a citizen of State of contrary.
Texas and that under the laws of Texas, there are no forced The burden of proof that the testator was
heirs of legitimes.
not of sound mind at the time of making his
- Accordingly, since the intrinsic validity of the provision of the
will and the amount of successional rights are to be dispositions is on the person who opposes
determined under Texas law, the Philippine law on legitimes the probate of the will; but if the testator, one
cannot be applied to the testacy of Amos. month, or less, before making his will was
- Art. 16: Real property as well as personal property is subject publicly known to be insane, the person who
ot the law of the country where it is situated. However, maintains the validity of the will must prove
intestate and testamentary succession, both with respect to that the testator made it during a lucid
the order of succession and to the amount of successional interval.
rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the ART. 801. Supervening incapacity does not
nature of the property and regardless of the country wherein invalidate an effective will, nor is the will of an
said property may be found. incapable validated by the supervening of
- Art. 1039: Capacity to succeed is governed by the law of the capacity.
nation of the decedent.
- Art. 17: Prohibitive laws concerning persons, their acts or  Articles 796-801 lay down the rules on testamentary
property, and those which have for their object public order, capacity.
public policy and good customs shall not be rendered  Testamentary Capacity – testamenti factio;
ineffective by laws or judgments promulgated, or by testamentifacción active, the legal capacity to make
determinations or conventions agreed upon in a foreign a will.
country.  Who has testamentary capacity? All NATURAL
- The decedent’s national law governs the (1) order of persons, unless disqualified by law. Juridical
succession, (2) the amount of successional rights, (3) the persons are NOT granted testamentary capacity.
intrinsic validity of the provision of the will and (4) the
capacity to succeed.  DISQUALIFIED PERSONS
- Testamentary provision that successional right to decedent’s
1. THOSE UNDER 18 [ART797]
estate would be governed by law other than his national law
if void, being contrary to article 16 of the NCC. • Under EO292, the Administrative Code of
1987, which took effect on November 24,
1989, years are now reckoned according to
Subsection 2 – Testamentary Capacity the Gregorian Calendar.
And Intent • Sec31 provides for the legal periods
a) Year – 12 calendar months
b) Month – 30 days, unless specific
ART. 796. All persons who are not expressly
calendar month is referred to, in
prohibited by law may make a will. which case it shall be computed
according to the number of days the
ART. 797. Persons of either sex under eighteen specific calendar month contains
years of age cannot make a will. c) Day – 24 hours
d) Night – Sunset to sunrise
ART. 798. In order to make a will it is essential 2. THOSE OF UNSOUND MIND [ART798]
that the testator be of sound mind at the time
of its execution.
• Unsoundness of Mind [Insanity]
 Absence of the qualities of soundness of
mind
ART. 799. To be of sound mind, it is not  Defined by the Code only by indirection
necessary that the testator be in full because only soundness of mind is
possession of all his reasoning faculties, or defined under Art799.
that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury  SOUNDNESS OF MIND [SANITY]
or other cause.  NEGATIVELY
It shall be sufficient if the testator was 1. Not necessary that testator be in full
able at the time of making the will to know the possession of reasoning faculties

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2. Not necessary that testator’s mind be wholly ART. 802. A married woman may make a will
unbroken, unimpaired, unshattered by without the consent of her husband, and
disease, injury or other cause. without the authority of the court.
 POSITIVELY – Ability to know 3 things
 Sexist provision, contains an erroneous and unintended
1. Nature of estate to be disposed of
suggestion that a married man does not have the same
• Testator should have a fairly accurate
privilege.
knowledge of what he owns.
• The more one owns, the less accurate his  Suggested rewording –
knowledge of his estate expected to be.  “A married person may make a will without his or
2. Proper objects of one’s bounty; & her spouse’s consent.”
• Testator should know, under ordinary
circumstances, his relatives in the most
proximate degrees, his knowledge ART. 803. A married woman may dispose by will
expectedly decreasing as the degrees of all her separate property as well as her
become more remote. share of the conjugal partnership or absolute
3. Character of testamentary act. community property.
• It is not required that the testator know the
legal nature of a will with the erudition of a  Sexist provision, contains an erroneous and unintended
civilest. suggestion that a married man does not have the same
• All that he need know is that the privilege.
document he is executing is one that
disposes of his property upon death.  Article 97 of the Family Code supersedes this in part
 Art97. Either spouse may dispose by will of his or
 Legal Importance and Implication of Mental Capacity her interest in the community property.
 Law is interested in the legal consequences of the
testator’s mental capacity or incapacity, not in the
medical aspects of mental disease. Cases for Arts. 796-803
 The testator could be mentally aberrant medically
but testamentarily capable, or vice versa, mentally Bagtas v. Paguio
competent medically but testamentarily
incompetent. - This is an appeal from an order of the CFI admitting to
 TEST – as long as the testator, at the time he probate a document which was offered as the last will and
testament of Pioquinto Paguio.
made the will, was capable of perceiving the three
- The testator died a year and 5 months following the date of
things [nature of estate, objects of bounty, and the execution of the will.
character of testamentary act], he has - For some 14 or 15 years prior to his death, the testator
testamentary capacity, whatever else he may be suffered from paralysis of the left side of his body.
medically. - A few years prior to his death, his hearing became impaired
and he lost the power of speech.
 PRESUMPTION / GENERAL RULE – rebuttable - Owing to the paralysis of certain muscles, his head fell to
Presumption of Sanity under Art800. one side and saliva ran from his mouth. However, he
 TWO EXCEPTIONS – when there is a rebuttable retained the use of his right hand, and was able to write
presumption of Insanity – fairly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his
1. When testator, one month or less before the family.
execution of the will, was publicly known to be - At the time of the execution of the will, there were four
insane testamentary witnesses.
2. When the testator executed the will after being - It appears that the testator made notes disposition he
placed under guardianship or ordered desires to make his property, from which his attorney
committed, in either case, for insanity under prepared a formal will which was then read to the testator,
who assented to it section by section. After which the whole
Rules 93 and 101 of the RoC, and before said
will is read in a loud voice and is then signed by the testator
order has been lifted.
and four witnesses in the presence of each other.
 The time for determining mental capacity Whether the will was executed according to the formalities and
 time of execution of the will and no other temporal requirements of the law.
criterion is to be applied - YES. The SC held that the requirements of the Code of Civil
Procedure were fully complied with.

Whether the testator was in full enjoyment and use of his


mental faculties to execute a valid will.

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- YES. The is no sufficient evidence to overthrow the legal WON the will dated 11 August 1909 executed by Tomasa was
presumption of a sound mind and disposing memory. valid.
- Witnesses testified that, at the time of the execution of the - YES.
will, the testator was in his right mind and that although 1. A plan of the room where the will was signed was
serious ill, he indicated by the movements of his head what presented. It was shown that from the bed where
his wishes were. Tomasa was lying, it was possible for her to see the
- The evidence shows that the writing and the execution of the table on which the witnesses signed the will.
will occupied a period of several hours and that the testator 2. As regard the issue of the soundness of Tomasa’s
was taking an active part in all the proceedings. mind when she executed the will, SC held that in
- The SC held that that the testimony of the two physicians do view of the conflicting testimonies and the findings of
not in any way strengthens the argument that the testator the lower court, it upheld the conclusion of the lower
was mentally incapacitated. The SC said that their testimony court that Tomasa had clear knowledge and knew
only confirms the fact that the testator had been afflicted with what she was doing at the time she signed the will.
paralysis but neither of them attempted to state what the 3. Although it was contended that the signature of
mental condition of the testator was at the time he executed Tomasa in the latter will varied from the one found in
the will in question. the earlier will, SC held that if Tomasa signed any
- The SC held that it cannot conclude from this that he was portion of her name to the will, with the intention to
wanting of the necessary mental capacity to dispose of his sign the same, that will amount to a signature. The
property by will. lower court found that no undue influence was
- The SC affirmed the order probating the will. exercised over Tomasa when she executed the will.
- In our jurisdiction, the presumption of law is in favor of the The findings of the lower court, which had the
mental capacity of the testator and the burden is upon the opportunity to see, hear and note the witnessed
contestants of the will to prove the lack of testamentary during examination is accorded great weight. SC
capacity. upheld the lower court’s findings.
- When a testator has never been adjudged insane by a court 4. On the issue of the execution of an earlier will, the
of competent jurisdiction, there is a presumption of mental SC held that the execution of a former will is no proof
soundness which must be overcome by competent proof. that she did not execute a later one. She had the
perfect right to alter, modify, or revoke any and all of
- To constitute a sound mind and disposing memory, it is not
her former wills and to make a new one.
necessary that the mind shall be wholly unbroken, - While it is an absolute rule that one who makes a will must
unimpaired, and unshattered by disease or otherwise, or sign the same in the presence of the witnesses and the
that the testator be in full possession of all his reasoning witnesses must sign in the presence of each other and of the
faculties. testator, yet the actual seeing of the signatures made ins not
- Perfect soundness of mind is not essential to testamentary necessary.
capacity. - It is sufficient if the signatures are made where it is possible
- Failure of memory is not sufficient unless it be total or for the necessary parties, if they desire to see, may see the
extends to his immediate family or property. signatures placed upon the will.
- The question is that, were his mind and memory sufficiently - A signature containing only the first name is nevertheless a
sound to enable him to know and understand the business signature and is sufficient to satisfy the requirements of the
in which he was engaged at the time when he executed his law.
will. - If the writing of a mark simply upon a will is sufficient
indication of the intention of the person to make and execute
Yap Tua v. Yap Ca Kuan & Yap Ca Llu a will, then certainly the writing of a portion or all of the name
should be accepted as a clear indication of an intention to
- Yap Tua, through a representative, filed a petition for the execute the will.
probate of the will of Tomasa Elizaga Yap Caong, the
deceased. Samson v. Tan
- The will dated 11 August 1909 was signed by Tomasa and 4
other witnesses. - The Testator was suffering from diabetes and had been in a
- After due hearing, the judge ordered that Tomasa’s will be comatose condition for several days prior to his death. He
allowed and admitted to probate. died at about 8:00pm and the will is alleged to have been
- Later, Yap Ca Kuan and Yap Ca Llu (the minors) appeared executed in the noon of the same day.
and were interested in the matters of the will. A guardian ad - Oppositor in this case alleges that at the time of the
litem (Gabriel) was then appointed. execution of the will, testator is not of sound and disposing
- Gabriel then filed a petition alleging that the will admitted to mind.
probate was null because:
1. It was not executed in accordance with the law Whether or not testator is of unsound mind
(specifically with the signing of the witnesses) - SC held that he was not. Although the attending physician
2. Tomasa was not mentally capacitated to execute the testified that he was in a state of coma, he also stated that
will due to her sickness coma has varying degrees of coma ad in its lighter forms the
3. Tomasa’s signature was obtained through fraud and patient may be aroused and have lucid intervals.
illegal influence - The petitioner presented 5 witnesses who all testified that he
4. Tomasa had earlier executed another will dated 06 was conscious and could her and understand what was said
August 1909 with all the formalities required by law to him and was able to indicate his desires. He could speak
- A rehearing was then ordered by the judge. distinctly or move his head to answer questions. This was
given greater weight by the court as against the two

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witnesses presented by oppositor, one of which was the and to comprehend the manner in which the instrument will
oppositor’s mother who was not considered as a distribute his property.
disinterested witness.
- Mere professional speculation cannot prevail over the Sancho v. Abella
positive statements of 5 apparently credible witnesses
whose testimony does not seen unreasonable. - Matea Abella, sometime prior to her death, asked her niece
to accompany her to a reputable physician for consultation.
Torres v. Lopez - During her visit, Matea stayed in one of the convents in San
Fernando La Union.
- The controversy on this case is centered on the allowance - Said physician, Dr. Antonio Querol, diagnosed her to be
or the disallowance of the will of Tomas Rodriguez. suffering from dyspepsia and cancer of the stomach.
- Vicente Lopez acted as the administrator of the properties of - As such, Matea, immediately asked her attorney to come to
the decedent. A year before Tomas’s death, the latter was the convent so that she may make her will. The will was
also subjected to a guardianship proceeding, where the accordingly drafted and signed by the testator in the
court found the decedent incapacitated to take care of presence of the witnesses.
himself and his property. For this reason, Vicente was - Months after, Matea died.
named also as the guardian of the deceased. - The opponent claims that Matea did not have capacity to
- By virtue of the court’s finding, the decedent was committed make the will at the time she executed the same as Mate
in the Philippine General Hospital where he eventually died. was deaf, has defective eyesight and is suffering from
- Tomas expressed his desire to make a will during one of the severe impairment of memory.
visits of Santiago Lopez and accordingly, they
commissioned Atty. Mina to ascertain the wishes of the Whether or not Matea had testamentary capacity
decedent. - The Sc held in the affirmative.
- The same will prepared by the attorney was the same - The mental capacity of the testator was established by the
document signed by the testator and the other witnesses at fact that she was able to leave home and travel to LA Union
the General Hospital on January 3, 1924. to consult with the doctor, that she was able to give her
- After the decedent died, some of the relatives of Tomas, the medical history to her physician, that she in fact called an
Margarita Lopez faction, wanted the will invalidated on the attorney to make her will, and that in fact she brought with
ground that the testator was of unsound mind, and that the her the deeds to her properties.
latter was induced due to fraud on the execution of the will. - All these show that Matea was intelligent enough to make
- During the trial, the Luz Lopez faction presented doctors the dispositions.
whose medical findings reveal that the testator was of sound - The allegation that Mateo was induced by the fact that she
mind though weak on memory during the execution of the donated one her properties to the bishop of said diocese
will. The doctors on the Margarita faction however have the was not sufficiently proven by the evidence.
opposite conclusion, that in fact the decedent is suffering - Neither senile debility, nor blindness, nor poor memory, is by
from senile debility or of mental impairment. itself sufficient to incapacitate a person for making his will.

Whether or not the will of Tomas Rodriguez should be allowed Gonzales v. Caruncong
- YES. The SC held that the will should be allowed.
- The allegation of fraud was not proved by the evidence. - On November 27, 1948, Manuela Ibarra Vda. de Gonzales
- As to the soundness of the mind of Tomas, the Court first (testatrix) died leaving five children namely Alejandro
declared that what is necessary is that the decedent must Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales,
have a disposing mind. This means that the circumstances Manolito Gonzales de Carungcong, and Juan Gonzales. Her
of advanced age, health or weak memory alone are not estate is estimated at P150,000.
conclusive of the capacity of a person to make a will. - Thereafter, one of the children of the testatrix, Manuel
- Furthermore, the fact that a person is adjudged by a court to Gonzales filed in CFI Rizal for the probate of an alleged will
be incapacitated in a guardianship proceeding is not by the testatrix executed on November 16, 1942, devising to
conclusive. Our laws do not have any statute providing for Manuel Gonzales the greater portion of the estate w/o
the conclusiveness of the judgments of a court on incapacity impairing the legitimes of the other children.
of a person. A person placed under guardianship is - On the other hand, Manolita de Carungcong filed in the
presumed to be incapable but this presumption is refutable same court a petition for the probate of another alleged will
by contrary evidence. executed by the testatrix on May 5, 1945 devising to him the
- In this case, since there were conflicting testimonies of well- greater portion of the estate.
regarded physicians the court decided to base the capacity - Alejandro Gonzales, Jr, one of the siblings then sought the
of Tomas Rodriguez to make a will on the nature of the will disallowance of the wills presented by his two other siblings,
itself. assuming that even if they are valid, such were already
- As the will was simple and can be easily understood. revoked by the testatrix in an instrument executed by her on
- Also, the fact that the testator was able to confer with Atty. November 18, 1948 with the result that the testatrix’s estate
Mina and disclose to him his interests, that he generally should be distributed as if she died intestate.
remembered close relatives and that he was still able to sign - Thereafter, the CFI of Rizal upheld the probate of the will
the document properly shows that the deceased had presented by Manolita Carungcong. And said that the will
testamentary capacity. Manuel Gonzales presented for probate was revoked
- Testamentary capacity is the capacity to comprehend the already by the one Manolita presented and that the
nature of the transaction in which the testator is engaged at instrument presented by Alejandro was executed without the
the time, to recollect the property to be disposed of and the knowledge and testamentary capacity of the testatrix.
persons who would naturally have claims upon the testator, - Hence this appeal.

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• The provisions of Article 804 are


WON, the will presented by Manolita Carungcong was valid MANDATORY and failure to comply with the
despite the fact that it allegedly has no attestation clause two requirements nullifies the will.
- The will is valid. • Neither the will nor the attestation clause
- The appellants contest that the will is not valid because it
need state compliance with Art804. This can
does not contain any attestation clause; that the concluding
be proved by Extrinsic Evidence.
paragraph to be the attestation clause, it is not valid
because it is the act of the testatrix and not of the witnesses, • Presumption of Compliance – it may
and because it does not state the number of sheets or pages sometimes be presumed that the testator
of the will. knew the language in which the will was
- However, in a precedent case, the high court had already written.
sustained an attestation clause made by the testator and a) Will must be in a language or dialect
forming part of the body of the will. generally spoken in the place of
- In that case, it was said that, “The only apparent anomaly we execution, and
find is that it appears to be an attestation made by the b) The testator must be a native or
testator himself more than by the instrumental witnesses. resident of said locality.
This apparent anomaly however is not in our opinion serious
nor substantial as to affect the validity of the will, appearing CASES
that right under the signature of the testator, there appear Suroza v. Honrado
the signatures of the three instrumental witnesses.”
- And such is a sufficient compliance with requirements set - This is a complaint against Judge Honrado for admitting to
out by the law. It is significant that the law does not require probate a will which, on its face is void.
the attestation to be contained in a single clause. That - Mauro Suroza, a corporal in the US army married Marcelina
unsubstantial departure from the usual forms should be Salvador. They reared a boy named Agapito Suroza, who
ignored, especially where the authenticity of the will is not considered them as his parents. Mauro died and Marcelina
assailed. got pension from the Federal gov’t.
- Now, with respect to the instrument presented by Alejandro - Agapito married Nenita and had a child named Lilia.
Gonzales, it can be shown that the instrument was prepared Agapito became a soldier. When he was disabled Nenita
when the testatrix lacked the testamentary capacity as this became his guardian.
was proved by the attending physician. When the alleged - Agapito allegedly had a girlfriend, Arsenia dela Cruz who
instrument was prepared, the testatrix was already suffering also tried to become his guardian but was denied by the
and was in a comatose and unconscious state and could not court. A child, Marilyn Sy was thereafter entrusted to
talk or understand. Arsenia by the Spouses Sy. Arsenia delivered the child to
- An attestation clause made by the testator and signed by the Marcelina Salvador, who brought up the child as a supposed
witnesses substantially complies with law. daughter of Agapito and her granddaughter, but was never
- Statement of sheets of pages in body of will held sufficient legally adopted by Agapito.
when considered in connection with attestation clause. - When Marcelina died, her laundrywoman, Marina Peje, filed
a petition for probate of Marcelina’s will, which was written in
Hernaez v. Hernaez English and thumb marked by Marcelina, naming Marina as
the executrix and Marilyn as the sole heir.
- The case was assigned to Honrado who appointed Marina
Subsection 3 – Forms of Wills as the administrator and allowed her to withdraw sums of
money from Marcelina’s saving’s account. Upon motion of
Marina, an order was issued to eject the occupants of
ART. 804. Every will must be in writing and Marcelina’s house. This order alerted Nenita to the
executed in a language or dialect known to existence of the testamentary proceeding for the settlement
the testator. of Marcelina’s estate.
- Nenita opposed the proceedings but to no avail.
 Art804 lays down Common Requirements that apply
both to ATTESTED and HOLOGRAPHIC wills. Whether disciplinary action should be taken against Honrado
 Art805-808 lays down special requirements for attested - Yes. The testatrix was illiterate. In the opening paragraph
wills. Articles 810-814 lays down special requirements of the will, it was stated that English was a language
understood and know to the testatrix. But in its concluding
for holographic wills.
paragraph, it was stated that the will was read to the testatrix
 TWO COMMON REQUIREMENTS
and translated into Filipino. That could only mean that the
will was written in a language not known to the illiterate and,
1. IN WRITING
therefore, void because of the mandatory provision of art.
• Oral wills [the testamentum nuncupativum 804 of the CC that every will must be executed in a
of the Institutes] are not recognized in the language known to the testator.
Civil Code. - Had Honrado been careful and observant, he could have
• However, oral wills are allowed under the noted not only the anomaly as to the language of the will but
Code of Muslim Personal Laws or PD1083 in also that there was something wrong in instituting the
relation to Art102(2). supposed granddaughter as sole heiress and giving nothing
at all to her supposed father who was still alive.
2. IN A LANGUAGE OR DIALECT KNOWN TO - He should also have noted that the notary was not
THE TESTATOR presented as witness.

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- A will written in a language that is not known to the testator The testator or the person requested by
is void. him to write his name and the instrumental
witnesses of the will, shall also sign, as
Abangan v. Abangan
aforesaid, each and every page thereof,
- The CFI admitted to probate Ana Abangan’s will. except the last, on the left margin, and all the
- The said document, duly probated as Ana Abangan’s will, pages shall be numbered correlatively in
consists of two sheets, the first of which contains all the letters placed on the upper part of each page.
disposition of the testatrix, duly signed at the bottom of The attestation clause shall state the
Martin Montalban (in the name and under the direction of the number of pages used upon which the will is
testatrix) and by 3 witnesses.
written, and the fact that the testator signed
- The second sheet contains only the attestation clause duly
signed at the bottom by the three instrumental witnesses. the will an every page thereof, or caused
- Neither of these sheets is signed on the left margin by the some other person to write his name, under
testatrix and the three witnesses, nor numbered by letters. his express direction, in the presence of the
instrumental witnesses, and that the latter
Whether the absence of the signature on the left margin of will witnessed and signed the will and all the
invalidate Abangan’s will.
pages thereof in the presence of the testator
- NO. The SC held that in a will consisting of two sheets, the
first of which contains all the testamentary dispositions and and of one another.
is signed at the bottom by the testator and 3 witnesses and If the attestation clause is in a language
the second contains only the attestation clause and is not known to the witnesses, it shall be
signed also at the bottom by the 3 witnesses, it is not interpreted to them.
necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
ART. 806. Every will must be acknowledged
Whether the failure to number by the letters will invalidate the before a notary public by the testator and the
will of Abangan. witnesses. The notary public shall not be
- NO. In requiring that each and every page of a will must be required to retain a copy of the will, or file
numbered correlatively in letters placed on the upper part of another with the Office of the Clerk of Court.
the sheet, the object of the law is to know whether any sheet
of the will has been removed.  SPECIAL REQUIREMENTS FOR ATTESTED /
- But, when all the dispositive parts of a will are written on one
ORDINARY / NOTARIAL WILLS -
sheet only, the object of the statute disappears because the
1. Subscribed by the testator or his agent in
removal of this single sheet, although unnumbered, cannot
be hidden.
his presence and by his express direction at
the end thereof, in the presence of the
Whether the will was written in the dialect that the testatrix witnesses
knew. • Subscribed by the testator – To subscribe
- YES. The circumstances appearing in the will itself that the denotes writing, more precisely to write
same was executed in Cebu and in the dialect of this locality under. To Sign means to place a
where the testatrix was a neighbor is enough, in the distinguishing mark.
absence of any proof to the contrary, to presume that she • Thus signing has a broader meaning than
knew this dialect in which the will was written. subscribing. Not every signature is a
- The testator’s signature is not necessary in the attestation subscription and not every distinguishing
clause because this, as its name implies, appertains only to mark is a writing.
the witnesses and not to the testator.
- In requiring the signature on the margin, the statute took into
consideration the case of a will written on several sheets • THUMBMARK AS SIGNATURE
and must have referred to the sheets which the testator and a) Is the placing of the testator’s
the witnesses do not have to sign at the bottom. thumbprint a signature within the
contemplation of the article? YES, on the
Mendoza v Pilapil authority of Payad v. Tolentino and
Matias v. Salud, the testator’s thumbprint
is always a valid and sufficient signature
ART. 805. Every will, other than a holographic for the purpose of complying with the
will, must be subscribed at the end thereof by requirement of Art805.
the testator himself or by the testator’s name b) There is no basis for limiting the
validity of thumbprints only to cases of
written by some other person in his presence,
illness or infirmity.
and by his express direction, and attested
and subscribed by three or more credible • A CROSS AS SIGNATURE – a sign of the
witnesses in the presence of the testator and cross placed by the testator does not comply
of one another. with the statutory requirement of signature,

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UNLESS it is the testator’s usual manner of 2. Attested and subscribed by at least three
signature or one of his usual styles of signing. credible witnesses in the presence of the
testator and of one another.
• SIGNING BY AN AGENT OF THE • Two distinct things are required of the
TESTATOR – witnesses here –
 Two Requisites a) Attesting – which is the act of
i. Must sign in the testator’s witnessing
presence, and b) Subscribing – which is the act of
ii. By the testator’s express direction signing their names in the proper
places of the will
 What the agent must write – need not be
alleged in the will itself that agent wrote • Both must be done.
the testator’s name under the latter’s • May the witness, like the testator, affix his
express direction thumbmark in lieu of writing his name? Art820
requires a witness to be able to read and
 The essential thing, for validity, is that the write, but this does not answer the query
agent write the testator’s name, nothing definitively. The point is debatable.
more. It would be a good thing, but not • Signing in the presence of the testator and
required, for the agent to indicate the fact of one another - Actual seeing is not required,
of agency or authority. but the ability to see each other [the testator
and the witnesses] by merely casting their
• May the agent be one of the attesting eyes in the proper direction.
witnesses?
a) If there are more than 3 witnesses – 3. Testator, or his agent, must sign every
YES page, except the last, on the left margin in the
b) If there are only 3 witnesses – presence of the witnesses
Uncertain. • The last page need not be signed by the
testator on the margin because, being the
page where the end of the will is, it already
contains the testator’s signature.
• There is a Mandatory and a Directory part
• SIGNING AT THE END to this requirement –
 If the will contains only dispositive a) MANDATORY – the signing on every
provisions, there will be no ambiguity as page in the witnesses’ presence
to where the end of the will is. If however b) DIRECTORY – place of the signing,
the will contains non-dispositive the left margin, the signature can be
paragraphs after the testamentary affixed anywhere on the page.
dispositions, one can refer to two kinds of • Signing in the presence - Actual seeing is
end – not required, but the ability to see each other
1. Physical End – where the writing [the testator and the witnesses] by merely
stops casting their eyes in the proper direction
2. Logical End – where the last
testamentary disposition ends 4. The witnesses must sign every page,
except the last, on the left margin in the
 Signing at either the physical end or presence of the testator and of one another.
logical end is equally permissible. The
non-dispositive portions are not essential • Order of Signing – immaterial, provided
parts of the will. everything is done in a single transaction.
However, if the affixation of the signatures is
 Signing before the end invalidates not done in several transactions, then it is
only the dispositions that come after, but required for validity that the TESTATOR affix
the entire will, because then one of the his signature ahead of the witnesses.
statutory requirements would not have
been complied with. 5. All pages numbered correlatively in letters
on the upper part of each page.
• SIGNING IN THE PRESENCE OF • Mandatory and Directory part
WITNESSES a) MANDATORY – pagination by means
 Actual seeing is not required, but the of a conventional system. The
ability to see each other [the testator and purpose is to prevent insertion or
the witnesses] by merely casting their removal of pages
eyes in the proper direction. b) DIRECTORY – pagination in letters
on the upper part of each page.

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6. Attestation clause, stating:  Par2 Art805 – No statement that the testator and
a) Number of pages of the will the witnesses must sign every page in one
b) Fact that the testator or his agent another’s presence.
under his express direction signed the • But these two things are required to be
will and every page thereof, in the stated in the attestation clause.
presence of the witnesses Conclusion is that they should be
c) The fact that the witnesses complied with as requirements.
witnessed and signed the will and every
page thereof in the presence of the
 Attestation clause is not required to state that the
testator and of one another. agent signed in the testator’s presence - a
circumstance mandated by the 1st and 2nd
• The attestation clause is the affair of paragraphs of the article.
witnesses therefore, it need not be signed by
the testator.  Indication of Date – there is no requirement that an
• The signatures of the witnesses must be attested will should be dated, unlike a holographic will.
at the BOTTOM of the attestation clause.
• If the entire document consists only of 2 CASE
sheets, the first containing the will and the Payad v. Tolentino
second the attestation clause, there need not
be any marginal signatures at all [Abangan v. - The lower court denied probate on the will of deceased
Abangan] Tolentino on the ground that the attestation clause was not
• The fact that the attestation clause was in conformity with the requirements of law in that it is not
written on a separate page has been held to stated therein that the testatrix caused Atty. Almario to write
her name at her express direction.
be a matter of minor importance and
- Whether or not the will should be denied probate.
apparently will not affect the validity of the
- SC held that it should not be denied because:
will.
1. The deceased placed her thumb mark on each and
every page of the will and the attorney merely wrote
7. Acknowledgement before a notary public. her name to indicate the place where she placed her
• Code does not require that the signing of thumb mark. Thus, the attorney did not really sign for
the testator, witnesses and notary should be her.
accomplished in one single act. 2. It was not necessary that the attestation clause
• All that is required in this article is that the should state that the testatrix requested Atty.
testator and witnesses should avow to the Alamario to sign her name since she signed it in
notary the authenticity of their signatures and accordance with law.
the voluntariness of their actions in executing A statute requiring a will to be signed is satisfied if the
the testamentary disposition. [Javellana v. signature is made by the testator’s mark.
Ledesma]
a) Ratio – Certification of
acknowledgement need not be signed by
notary in the presence of testator and Matias v. Salud
witnesses.
b) Art806 does not require that testator - The CFI denied probate of the will of Gabina Raquel.
and witnesses must acknowledge on the - It must be noted that Gabina Raquel was suffering from
same day that it was executed. herpes zoster that afflicted the right arm and shoulder of the
c) Logical Inference – neither does the testatrix, which made writing difficult and a painful act.
article require that testator and witnesses - Thus, upon the insistence of the attorney, Gabina attempted
must acknowledge in one another’s to sign, but since it was so painful she just managed to
presence. If acknowledgement is done thumbmarked the foot of the document and the left margin at
by testator and witness separately, all of each page.
them must retain their respective - The parties opposing the probate of the will contended that
capacities until the last one has the will was void due to the irregularities in the execution
acknowledged. thereof.
- One of the points raised by the oppositors was that the
• Notary cannot be counted as one of the finger mark can not be regarded as the decedent’s valid
attesting witnesses. signature as it does not show distinct identifying ridgelines.
• Affixing of documentary stamp is not - And since the finger mark was an invalid signature, there
required for validity. must appear in the attestation clause that another person
wrote the testator’s name at his request.
 Some Discrepancies
 Par1 Art805 – No statement that the testator must Whether or not the will was valid
- The SC held that the will was valid.
sign in the presence of the witnesses
- As to the clarity of the ridge impressions, it is so dependent
on aleatory requirements as to require dexterity that can be

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expected of very few persons; testators should not be presence of 3 other witnesses and that they attested and
required to possess the skill of trained officers. subscribed it in her presence and in the presence of one
- And as to the validity of the thumbprints as signature, the SC another. That is all the statute requires.
held that it has been held in a long line of cases that a - The cases relied upon by the oppositors are not in point. In
thumbprint is always a valid and sufficient signature for the those cases, the reason for the invalidation of the wills
purpose of complying with the requirement of the article. concerned was that the persons instructed to sign for the
- Furthermore, the validity of thumbprints should not be limited testator signed their own names instead of the names of the
in cases of illness or infirmity. testators in each case.
- A thumbprint is considered as a valid and sufficient - The will must be in writing and signed by the testator, or the
signature in complying with the requirements of the article. testator’s name written by some other person in his
presence, and by his express direction, and attested and
Garcia v. Lacuesta subscribed by 3 or more credible witnesses in the presence
of the testator and of each other.
- This case purports to the validity of the will executed by - The fact that the testator signed the will or that he caused it
Antero Mercado. to be signed by another person at his express direction and
- The will is said to be irregularly execute as the attestation that the same was signed by the witnesses must be included
clause did not mention that it was Atty. Javier who signed for in the attestation.
the decedent under the latter’s express direction.
- The other party however argued that such fact need not be Nera v. Rimando
mentioned because although Atty. Javier wrote the name of
Mercado, Mercado nevertheless put a cross and that such - Only questioned raised by the evidence in this case as to
cross amounts to a signature by the decedent himself. the due execution of the instrument propounded as a will is
whether the one of the subscribing witnesses was present in
Whether or not the will was valid the small room where the will was executed at the time
- The SC held that it was not. when the testator and the other subscribing witnesses
- Although there have been cases considering marks, such as attached their signatures.
a cross, as sufficient signature, there is nothing in the
records that shows that Mercado usually uses a cross as his WON, the will was validly witnessed by one of the subscribing
signature. witnesses to make the will valid.
- As such, the will was disallowed. - Yes. The subscribing witness validly witnessed the signing.
- Marks, such as a cross, can only be considered as a - Majority of the members of the court is of the opinion that the
signature if there is showing that the decedent was subscribing witness was indeed in the small room to be able
accustomed to using such mark as signature. to observe the signing of the will be the testator and other
subscribing witnesses.
- The trial court decided when it said that the fact that one of
the alleged witnesses signed the instrument in the outer
room when the others were inside would not be sufficient in
itself to invalidate the execution of the will.
- But this Court is of the opinion that had this subscribing
witness been proven to have been in the outer room, it
would have been invalid as a will.
- But it is especially to be noted that the position of the parties
with relation to each other at the moment of the subscription
of each signature must be such that they may see each
Barut v. Cabacungan other sign if they choose to do so.
- It is enough that when the witness, if he chose to look at the
- Barut applied for the probate of the last will and testament of actual signing he could have done so by just merely casting
Maria Salomon. his eyes in the proper direction, such would be considered
- In the will, Salomon revoked all former wills she made. She already as a proper witnessing of the said execution of the
also stated that being unable to read and write, she will.
instructed Concepcion and Inoselda to read the will to her. - However, to extend to extend this doctrine further would
She also instructed Agayan to sign her (Salomon) name to it open the door to the possibility of all manner of fraud,
as testator. substitution and the like and would defeat the purpose for
- The probate court found that the will was not entitled to which this particular condition is prescribed in the code as
probate because the signed name of the testatrix on her one of the requisites in the execution of a will.
behalf looked more like the handwriting of one of the other - Hence the will is to be admitted to probate.
witnesses that that of the person whose handwriting it was - Actual seeing is not required, but the ability to see each
alleged to be. other, i.e. the testator and the witnesses, “by merely casting
eyes in the proper direction.”
WON the will was valid. Specifically, is the signature of the
person instructed by the testator to sign the will valid. Icasiano v. Icasiano
- YES. With respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix - Josefa Villacorte died in Manila on September 12, 1958; on
signs his name or not. June 2, 1956, Villacorte executed a last will and testament in
- The important thing is that it clearly appears that the name of duplicate at the house of her daughter Mrs. Felisa Icasiano
the testatrix was signed at her express direction in the

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before three instrumental witnesses, namely; attorneys Justo made by the attesting witnesses, and it must necessarily
P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy. bear their signatures. An unsigned attestation clause cannot
- The records show that the original of the will, consists of five be considered as an act of the witnesses, since the omission
pages, and while signed at the end and in every page, it of their signatures at the bottom thereof negatives their
does not contain the signature of one of the attesting participation.
witnesses, Atty. Jose V. Natividad, on page three (3) thereof; - DISSENT by Bautista: The liberal trend of the NCC in the
but the duplicate copy attached to the amended and interpretation of wills should not be overlooked. In case of
supplemental petition is signed by the testatrix and her three doubt, the interpretation that would have the effect of
attesting witnesses in each and every page. preventing intestacy prevails.
- Witness Natividad, who testified on his failure to sign page - Cruz Dissent by Tuason: The law on wills does not provide
three (3) of the original, admits that he may have lifted two that the attesting witness should sign the clause at the
pages instead of one when he signed the same, but affirmed bottom. In the absence of the such provision, there is no
that page three (3) was signed in his presence. reason why signatures on the margin are not good.
- An unsigned attestation clause cannot be considered as an
Whether or not the will is void (since one of the pages in the act of the witnesses, since the omission of their signatures at
original copy was not signed by one of the witnesses) the bottom thereof negatives their participation.
- NO. The inadvertent failure of one witness to affix his
signature to one page of a testament, due to the Cruz v. Villasor
simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. - This is a petition for review on certiorari on the judgment of
- Impossibility of substitution of this page is assured not only the CFI allowing the probate of the will of the late Valente
the fact that the testatrix and two other witnesses did sign Cruz.
the defective page, but also by its bearing the coincident - The surviving spouse of Valente opposed the allowance of
imprint of the seal of the notary public before whom the the will alleging that the will was executed through fraud,
testament was ratified by testatrix and all three witnesses. deceit, misrepresentation and undue influence; that the said
- The law should not be so strictly and literally interpreted as instrument was executed without the testator having been
to penalize the testatrix on account of the inadvertence of a fully informed of the contents thereof, particularly as to what
single witness over whose conduct she had no control, properties he was disposing; and that the supposed will was
where the purpose of the law to guarantee the identity of the not executed in accordance with law.
testament and its component pages is sufficiently attained, - It appears that of the 3 instrumental witnesses, one of them,
no intentional or deliberate deviation existed, and the is at the same time the Notary Public before whom the will
evidence on record attests to the full observance of the was supposed to have been acknowledged.
statutory requisites. Otherwise, witnesses may sabotage the
will by muddling or bungling it or the attestation clause". Whether the supposed last will and testament of Valente Cruz
- That the failure of witness Natividad to sign page three (3) was executed in accordance with law, particularly Articles 805
was entirely through pure oversight is shown by his own and 806 of the NCC, the first requiring at least 3 credible
testimony as well as by the duplicate copy of the will, which witnesses to attest and subscribe to the will, and the second
bears a complete set of signatures in every page. The text of requiring the testator and the witnesses to acknowledge the
the attestation clause and the acknowledgment before the will before a notary public.
Notary Public likewise evidence that no one was aware of - NO. The notary public before whom the will was
the defect at the time. acknowledge cannot be considered as the third instrumental
- The law should not be so strictly and literally interpreted witness since he cannot acknowledge before himself his
where the purpose of the law to guarantee the identity of the having signed the will.
testament and its component pages is sufficiently attained. - If the third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the will in
Notes on Icasiano – Icasiano holding cannot, and should not, be
taken as a departure from the rule that the will should be signed by
from of himself. This cannot be done because he cannot
the witnesses on every page. The carbon duplicate, it will be split his personality into two so that one will appear before
noted, was regular in all respects. A cavalier disregard of the the other to acknowledge his participation in the making of
formal requirements of wills, in reliance on Icasiano, is not the will.
recommended. - To allow the notary public to act as third witness, or one of
the attesting and acknowledging witnesses, would have the
Cagro v. Cagro effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 805
- The probate of the will allegedly executed by Vicente Cagro requiring at least 3 credible witnesses to act as such and of
who died in Laoangan, Pambujan, Samar, is being opposed Article 806 which requires that the testator and the required
on the ground that the will is fatally defective, because its number of witnesses must appear before the notary public to
attestation clause is not signed by the attesting witnesses. acknowledge the will.
- There is no question that the signature of the 3 witnesses to - The SC declared the last will of Valente invalid.
the will do not appear at the bottom of the attestation clause, - The notary public before whom the will was acknowledged
although the page containing the same is signed by the cannot be considered as the third instrumental witness since
witnesses on the left hand margin. he cannot acknowledge before himself his having signed the
will.
Whether the will is fatally defective. - To acknowledge before means to avow; to own as
- Yes. The attestation clause is a “memorandum of the facts genuine, to assent, to admit, and before means in front or
attending the execution of the will” required by law to be preceding in space or ahead of.

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- The function of a notary public is, among others, to guard subscribing witnesses, and again, by the
against any illegal or immoral arrangements. This function notary public before whom the will is
would be defeated if the notary public were one of the
acknowledged.
attesting witnesses.

Taboada v. Rosal  Special Requirements for Handicapped Testators


 For Deaf / Deaf-Mute testator
- Written in Cebuano-Visayan dialect, the will consists of 2 1. Able to Read – must read the will personally
pages. The first page contains the entire testamentary 2. Unable to Read – must designate two persons
dispositions and is signed at the end or bottom of the page to read the will and communicate to him, in
by the testatrix alone and at the left hand margin by the 3 some practicable manner its contents.
witnesses. The second page which contains the attestation • Does this mean the 2 persons must
clause and the acknowledgement is signed at the end of the perform each task in turn?
attestation clause by the 3 witnesses and at the left hand
margin by the testatrix.  For Blind Testator – to be read to him twice, once
- The lower court denied probate of deceased Perez. by one of the subscribing witnesses, and another
time by the notary.
Whether or not the law requires that the testatrix and 3
witnesses sign at the end of the will and in the presence of the  Art808 is MANDATORY
testatrix and of one another.
 If art808 is mandatory, by analogy Art807 is also
- SC held that the will should be admitted because:
mandatory. Failure to comply with either would
1. The signatures of the witnesses in the left hand result in nullity and denial of probate.
margin of the 1st page attested not only to the
genuineness of the signature of the testatrix but also  The requirement has been liberally applied, SC
the due execution of the will as embodied in the declaring substantial compliance to be sufficient.
attestation clause.  Applies not only to blind testators but also to those
2. Unsubstantial departure from the usual forms should
who, for one reason or another, are incapable of
be ignored esp. where the authenticity of the will is
reading their wills.
not assailed.
3. The objects of the attestation and subscription were  Substantially complied with when documents were
fully met when the witnesses signed at the sole page read aloud to the testator with each of the 3
where the testamentary instrumental witnesses and the notary following the
- Dispositions were contained, esp. so when the will was reading with their respective copies.
properly identified by the subscribing witness to be the same
will executed by the testatrix. There was no question of fraud  Burden of proof is upon the proponent of the will that
or substitution behind the questioned order. the special requirement of the article was complied
- SC held that this would have been a fatal defect were it not with. At the same time, there is no requirement that
for the fact that, in this case, it is discernible from the entire compliance with the requirement be stated either in the
will that it is really and actually composed of only 2 pages will or the attestation clause.
duly signed by the testatrix and her witnesses.
- The acknowledgement itself in the second page states that
“This Last Will and Testament consists of two pages CASE
including this page.” Garcia v. Vasquez

Whether or not it should be invalidated due to the attestation - This case pertains to the will of the late Gliceria Avelino del
clause’s failure to state the number of pages used in writing the Rosario.
will. - Upon the decedent’s death, her niece Consuelo Precilla,
- Attestation consists in witnessing the testator’s execution of filed a petition for the probate of the decedent’s holographic
the will in order to see and take note mentally that those will and for the latter’s appointment as the special
things are done which the statute requires for the execution administratrix of the decedent’s estate.
of a will and that the signature of the testator exists as a fact. - Witnesses presented by the proponents of the will testified
- Subscription is the signing of the witnesses’ names upon the that the decedent was of sound mind when she executed
same paper for the purpose of identification of such paper the will, and that the decedent first read the will silently
as the will which was executed by the testator. before she signed it.
- Oppositors of the will however contended that it was
physically impossible for the decedent to have read the will
ART. 807. If the testator be deaf, or a deaf-mute, as she had a severely impaired eyesight as testified by Dr.
he must personally read the will, if able to do Jesus Tamesis.
so; otherwise, he shall designate two persons - The physician found out on March 1960 that the decedent
had a cataract on the left eye and her right eye also had
to read it and communicate to him, in some difficulty seeing printed pages.
practicable manner, the contents thereof. - The physician further testified that despite the operation and
removal of the cataract and the decedent’s being fitted with
ART. 808. If the testator is blind, the will shall be aphakic lens, the latter’s vision remained capable of viewing
read to him twice; once by one of the

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only distant objects and is not capable of reading printed Whether or not notarial will of Brigido Alvarado should be
articles. admitted to probate despite allegations of defects in the
execution and attestation thereof as testator was allegedly
Whether or not the decedent is considered “blind” pursuant to blind at the time of execution and the double-reading
the provisions of Art 808 requirement under Art. 808 of the NCC was not complied with.
- Yes. The SC held that for all intents and purposes of the - YES. The spirit behind the law was served though the letter
rules on probate, the decedent is like a blind testator, and was not. Although there should be strict compliance with the
the due execution of her will would have required faithful substantial requirements of law in order to insure the
observance of the provisions of Art 808 of the CC. authenticity of the will, the formal imperfections should be
- Also, The SC found it worthy to mention the fact that that the brushed aside when they do not affect its purpose and
will was executed without any regard for the defective vision which, when taken into account, may only defeat the
of the decedent. The testament was cramped in a single testator’s will.
page and was abundant with typographical errors. This only - Cesar Alvardo was correct in asserting that his father was
strengthens the proposition that the decedent could not have not totally blind (of counting fingers at 3 feet) when the will
read or understood the alleged testament. and codicil were executed, but he can be so considered for
purposes of Art. 808.
Whether or not the will was duly executed - That Art. 808 was not followed strictly is beyond cavil.
- No. Considering that the testator is within the term “blind” as - However, in the case at bar, there was substantial
contemplated under Art 808, the due execution of the compliance where the purpose of the law has been satisfied:
decedent’s will would have required the reading of the will that of making the provisions known to the testator who is
twice (once by one of the witnesses, and once by the blind or incapable of reading the will himself (as when
notary). he is illiterate) and enabling him to object if they do not
- However, no such reading was proved or shown in this accord with his wishes.
case. Thus, the will should be declared invalid. - Rino read the testator’s will and codicil aloud in the presence
- The rationale behind the reading of the will to the blind of the testator, his three instrumental witnesses, and the
testator is to make the provisions thereof known to him, so notary public.
that he may be able to object if they are not in accordance - Prior and subsequent thereto, the testator affirmed, upon
with his wishes. being asked, that the contents read corresponded with his
- A person who is not blind but is similarly incapacitated to instructions.
read the will is within the ambit of Art 808. - Only then did the signing and acknowledgment take place.
- There is no evidence that the contents of the will and the
Alvarado v. Gaviola, Jr. codicil were not sufficiently made known and communicated
to the testator.
- On 5 November 1977, 79-year old Brigido Alvarado - With four persons, mostly known to the testator, following
executed a notarial will entitled “Huling Habilin” wherein he the reading word for word with their own copies, it can be
disinherited an illegitimate son, petitioner Cesar Alvarado, safely concluded that the testator was reasonably assured
and expressly revoked a previously executed holographic that what was read to him were the terms actually appearing
will at the time awaiting probate before the RTC of Laguna. on the typewritten documents.
- According to Bayani Ma. Rino, private respondent, he was - Art. 808 of the New Civil Code provides: “If the testator is
present when the said notarial will was executed, together blind, the will shall be read to him twice; once, by one of the
with three instrumental witnesses and the notary public, subscribing witnesses, and again, by the notary public
where the testator did not read the will himself, suffering as before whom the will is acknowledged.”
he did from glaucoma. - The rationale behind the requirement of reading the will to
- Rino, a lawyer, drafted the eight-page document and read the testator if he is blind or incapable of reading the will to
the same aloud before the testator, the three instrumental himself (as when he is illiterate), is to make the provisions
witnesses and the notary public, the latter four following the thereof known to him, so that he may be able to object if
reading with their own respective copies previously they are not in accordance with his wishes.
furnished them. - Although there should be strict compliance with the
- Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng substantial requirements of law in order to insure the
Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May authenticity of the will, the formal imperfections should be
Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed brushed aside when they do not affect its purpose and
changing some dispositions in the notarial will to generate which, when taken into account, may only defeat the
cash for the testator’s eye operation. testator’s will.
- Said codicil was likewise not read by Brigido Alvarado and
was read in the same manner as with the previously - See Abangan v. Abangan.
executed will.
- When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will ART. 809. In the absence of bad faith, forgery, or
was not executed and attested as required by law; that the fraud, or undue and improper pressure and
testator was insane or mentally incapacitated due to senility
and old age; that the will was executed under duress, or
influence, defects and imperfections in the
influence of fear or threats; that it was procured by undue form of attestation or in the language used
pressure and influence on the part of the beneficiary; and therein shall not render the will invalid if it is
that the signature of the testator was procured by fraud or proved that the will was in fact executed and
trick.

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attested in substantial compliance with all the proceedings for the probate of the will had to be heard and
requirements of Article 805. resolved first.
- In the course of the proceedings, petitioners opposed to the
allowance of the testator’s will on the ground that on the
 According to JBL Reyes, “Liberalization Running Riot,” alleged date of its execution, the testator was already in
instead a possible rewording would be – poor state of health such that he could not have possibly
In the absence of bad faith, forgery, or executed the same. Also the genuineness of the signature of
fraud, or undue and improper pressure and the testator is in doubt.
influence, defects and imperfections in the - On the other hand, one of the attesting witnesses and the
form of attestation or in the language used notary public testified that the testator executed the will in
therein shall not render the will invalid if question in their presence while he was of sound and
such defects and imperfections can be disposing mind and that the testator was in good health and
supplied by an examination of the will itself was not unduly influenced in any way in the execution of his
and it is proved that the will was in fact will.
executed and attested in substantial - Probate court then rendered a decision declaring the will in
compliance with all the requirements of question as the last will and testament of the late Mateo
Article 805. Caballero.
- CA affirmed the probate court’s decision stating that it
 Examples substantially complies with Article 805. Hence this appeal.
1. A failure by the attestation clause to state that
the testator signed every page can be liberally WON, the attestation clause in the will of the testator is fatally
defective or can be cured under the art. 809.
construed, since that fact can be checked by a
- No. It does not comply with the provisions of the law.
visual examination.
- Ordinary or attested wills are governed by Arts. 804 to 809.
2. Failure by the attestation clause to state that The will must be acknowledged before a notary public by the
the witnesses signed in one another’s testator and the attesting witnesses. The attestation clause
presence should be considered a FATAL need not be written in a language known to the testator or
FLAW since the attestation clause is the only even to the attesting witnesses.
textual guarantee of compliance. - It is a separate memorandum or record of the facts
 The rule is that omission which can be supplied by an surrounding the conduct of execution and once signed by
examination of the will itself, without the need of the witnesses it gives affirmation to the fact that compliance
resorting to extrinsic evidence, will not be fatal and, with the essential formalities required by law has been
correspondingly, would not obstruct the allowance to observed.
probate of the will being assailed. - The attestation clause, therefore, provides strong legal
 However, those omissions which cannot be supplied guaranties for the due execution of a will and to insure the
except by evidence aliunde would result in the authenticity thereof.
invalidation of the attestation clause and ultimately, of - It is contended by petitioners that the attestation clause in
the will itself. the will failed to specifically state the fact that the attesting
witnesses witnessed the testator sign the will and all its
CASES pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the
Caneda v. CA
presence of the testator and of each other. And the Court
agrees.
- On December 5, 1978, Mateo Caballero, a widower without
- The attestation clause does not expressly state therein the
any children and already in the twilight years of his life,
circumstance that said witnesses subscribed their respective
executed a last will and testament at his residence before 3
signatures to the will in the presence of the testator and of
witnesses.
each other.
- He was assisted by his lawyer, Atty. Emilio Lumontad.
- The phrase, “and he has signed the same and every page
- In the will, it was declared that the testator was leaving by
thereof, on the space provided for his signature and on the
way of legacies and devises his real and personal properties
left hand margin,” obviously refers to the testator and not the
to several people all of whom do not appear to be related to
instrumental witnesses as it is immediately preceded by the
the testator.
words” as his last will and testament.”
- 4 months later, Mateo Caballero himself filed a case seeking
- Clearly lacking is the statement that the witnesses signed
the probate of his last will and testament, but numerous
the will and every page thereof in the presence of the
postponements pushed back the initial hearing of the
testator and of one another. That the absence of the
probate court regarding the will.
statement required by law is a fatal defect or imperfection
- On May 29, 1980, the testator passed away before his
which must necessarily result in the disallowance of the will
petition could finally be heard by the probate court.
that is here sought to be probated.
- Thereafter one of the legatees, Benoni Cabrera, sought his
- Also, Art. 809 does not apply to the present case because
appointment as special administrator of the testator’s estate.
the attestation clause totally omits the fact that the attesting
- Thereafter, the petitioners, claiming to be nephews and
witnesses signed each and every page of the will in the
nieces of the testator, instituted a second petition for
presence of the testator and of each other. The defect in this
intestate proceedings. They also opposed the probate of the
case is not only with respect to the form or the language of
testator’s will and the appointment of a special administrator
the attestation clause. The defects must be remedied by
for his estate.
intrinsic evidence supplied by the will itself which is clearly
- Benoni Cabrera died and was replaced by William Cabrera
lacking in this case.
as special administrator and gave an order that the testate

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- Therefore, the probate of the will is set aside and the case - Pilar Achacoso filed an alternative petition for the probate of
for the intestate proceedings shall be revived. a pervious will praying that if the will submitted by the widow
- Article 809 cannot be used to cure the defects of the will be rejected, the other will be admitted in lieu thereof.
when it does not pertain to the form or language of the will. - The previous will names Pilar Achacoso as one of the heirs,
This is because there is not substantial compliance with a statement absent in the 2nd will.
Article 805.
- Pilar opposes the probate of the 2nd for lack of attestation
Cases for Arts. 807-809 clause, or if there be one that it is not signed by the
instrumental witnesses, a defect which invalidates the will.
Gil v. Murciano - The will winds up with the ff. clause: In witness whereof, I
sign this testament or last will….in the presence of the 3
- The CFI of Manila admitted to probate the alleged will and witnesses…
testament of the deceased Carlos Gil. The oppositor Pilar Gil
Vda. de Murciano appealed to the SC, arguing that the will Whether the attestation clause is valid.
was void since the attestation clause thereof does not state - Yes. The only anomaly is that it appears to be an attestation
that the alleged testator signed the will. It declares only that made by the testator himself more than by the instrumental
it was signed by the witnesses. witnesses. This, however, is not serious or substantial as to
affect the validity of the will, it appearing that right under the
Whether or no the will is valid. signature of the testator, there appear the signatures of the 3
- NO. This is a fatal defect, for the precise purpose of the instrumental witnesses.
attestation clause is to certify that the testator signed the will, - Instrumental witness is one who takes part in the execution
this being the most essential element of the clause. of an instrument or writing, he does not merely attest to the
- Without it there is no attestation at all. It is said that the court signature of the testator but also to the proper execution of
may correct a mere clerical error. the will. The fact that the 3 witnesses have signed the will
- This is too much of a clerical error for it affects the very immediately under the signature of the testator, show that
essence of the clause. Alleged errors may be overlooked or they have in fact attested not only the genuineness of his
corrected only in matters of form which do not affect the signature but also to the due execution of the will as
substance of the statement. embodied in the attestation clause.
- Correction may not be cured by inference considering the - The object of the solemnities surrounding the execution of
clear, unequivocal, language of the statute as to how the the wills is to close the door against bad faith and fraud, to
attestation clause should be made. It is to be supposed that avoid substitution of the wills and testament and to
the drafter of the alleged will read the clear words of the guarantee their truth and authenticity. Therefore the laws on
statute when he prepared it. For the court to supply alleged this subject should be interpreted in such a way as to attain
deficiencies would be against the evident policy of the law. these primordial ends. But on the other hand also one must
- In adopting liberal construction of a will, evidence aluinde is not lose sight of the fact that it is not the object of the law to
not allowed to fill the void or supply missing details. What is restrain and curtail the exercise of the right to make a will.
permitted is a probe into the will, an exploration within its So when an interpretation already given assures such ends,
confines, to ascertain its meaning or to determine the any other interpretation whatsoever, that adds nothing but
existence or absence of the requisite formalities of the law. demands more requisites entirely unnecessary, useless and
- The right to make a testamentary disposition of one's frustrative of the testator’s will must be disregarded.
property is purely of statutory creation, and is available only
upon a compliance with the requirements of the statute. The Abada v. Abaja
formalities which the Legislature has prescribed for the
execution of a will are essential to its validity, and cannot be - Spouses Abada and Toray died without legitimate children.
disregarded. - Alipio Abaja filed with the CFI a petition for the probate of the
- The mode so prescribed is the measure for the exercise of will of Abada. Abada allegedly names his testamentary heirs
the right, and the heir can be deprived of his inheritance only his natural children: Eulogio and Rosario. Alipio is the son of
by a compliance with this mode. Eulogio.
- For the purpose of determining whether a will has been - Caponong opposed the petition on the ground that Abada
properly executed, the intention of the testator in executing it left no will when he died.
is entitled to no consideration. - Caponong alleged that the will should be disallowed on the
- For that purpose only the intention of the Legislature, as following reasons: (1) it was not executed and attested as
expressed in the language of the statute, can be considered required by law; (2) it was not intended as the last will of the
by the court, and whether the will as presented, shows a testator; and (3) it was procured by undue and improper
compliance with the statute. pressure and influence on the part of the beneficiaries.
- Later, Caponong-Noble was named as Special Administratix
of the estate of Abada and Toray. Caponong-Noble moved
for the dismissal of the petition for probate of the will of
Abada but such motion was denied.
- When the case was submitted for decision, a Resolution
Cuevas v. Achacoso was rendered where it was held that there was a substantial
compliance with the formalities of the will. In the said
- Valentina Cuevas, filed a petition for the probate of the will Resolution, the trial court only determined whether the will of
of Jose Venzon, her husband. Abada has an attestation clause as required by law.
- Upon appeal, the CA affirmed the trial court’s Resolution.
Hence, this appeal.

Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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Whether the CA erred in sustaining the trial court in admitting ART. 810. A person may execute a holographic
to probate the will of Abada.
will which must be entirely written, dated, and
- NO. The SC affirmed the decision of the Court of Appeals.
signed by the hand of the testator himself, It
What laws apply to the probate of the last will of Abada? is subject to no other form, and may be made
- Abada executed his will on June 1932. The laws in force at in or out of the Philippines, and need not be
that time are the Old Civil Code and the Code of Civil witnessed.
Procedure.
 Simplicity of the holographic will is its obvious
Whether the will of Abada requires acknowledgement before a
advantage, along with other benefits such as
notary public.
1. Secrecy
- NO. What Caponong-Noble cited was Arts. 804 & 806 of the 2. Inexpensiveness
NCC. In this case, the Code of Civil Procedure applies 3. Brevity
where the intervention of a notary is not necessary in the
execution of any will. Thus, Abada’s will does not require  But that very simplicity brings about disadvantages –
acknowledgment before a notary public. 1. Danger of forgery
2. Greater difficulty of determining testamentary
Whether the will must expressly state that it is written in a
capacity
language or dialect known to the testator.
3. Increased risk of duress
- NO. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in  REQUIREMENTS OF A HOLOGRAPHIC WILL
the will. This is a matter that a party may establish by proof 1. COMPLETELY HANDWRITTEN BY THE
aliunde. In this case, Alipio’s testimony sufficiently proves TESTATOR
that Abada speaks the Spanish Language.
• If testator executes only part of the will in
Whether the will has an attestation clause. his handwriting and other parts are not so
- YES. written, the ENTIRE will is void because the
article would be violated.
Whether the attestation clause states the number of pages on
which the will was written. 2. DATED BY HIM
- YES. It showed that the pages are numbered correlatively • Date – Specification or mention, in a
with the phrase containing “UNO y DOS” meaning “ONE” written instrument, of the time [day, month
and “TWO”. and year] it was made [executed]. – Black’s
Law Dictionary
Whether the attestation clause states that the testator signed • As a general rule, the date in a
the will in its every page in the presence of 3 witnesses. holographic will should include the day,
- The English translation of the attestation clause clearly month, and year of its execution. However,
states that Abada signed the will and its every page in the when there is no appearance of fraud, bad
presence of the witnesses. faith, undue influence and pressure and the
- However, the SC held that Caponong-Noble was correct is
authenticity of the Will is established and the
saying that the attestation clause does not indicate the
only issue is whether or not the date FEB./61
number of witnesses. On this point, the Court agreed with
the CA in the application of the rule on substantial is a valid compliance, probate of the
compliance in determining the number of witnesses. While holographic will should be allowed under the
the attestation clause does not state the number of principle of substantial compliance.
witnesses, a close inspection of the will shows that 3 • A complete date is required to provide
witnesses signed it. against such contingencies as –
a) Two competing wills executed on the
Whether the attestation clause states that the witnesses same day, or
witnessed and signed the will and all its pages in the presence b) Of a testator becoming insane in the
of the testator and each other. day on which a will was executed.
- YES. The last part of the attestation clause shows that the • The law does not specify a particular
attesting witnesses witnessed the signing of the will of the location where the date should be placed in
testator, and that each signed the will in the presence of one the will. The only requirements are that the
another and of the testator. date be in the will itself and executed in the
- The question on the number of witnesses is answered by an hand of the testator.
examination of the will itself and without the need for
presentation of evidence aliunde. 3. SIGNED BY TESTATOR
- Precision of language in drafting an attestation clause is • Must signature be at the will’s end [at
desirable. However, it is not imperative that a parrot-like least the logical end]? YES, article 812 seems
copy of the words of the state be made. It is sufficient if from to imply this.
the language employed it can reasonable deduced that the
attestation clause fulfills what the law expects of it. • May the testator sign by means of a
thumbprint? NO, article says will must be

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“entirely handwritten, dated and signed by the - The intention to show March 17 1968 as the date of the
hand of the testator himself.” execution is plain from the tenor of the succeeding words of
the paragraph. It states that “this being in the month of
CASES March 17th day, in the year 1968, and this decision and or
Roxas v. De Jesus instruction of mine is the matter to be followed. And the one
who made this writing is no other than Melecio Labrador,
- After the death of the de Jesus spouses, Simeon Roxas their father.”
(brother of the deceased Bibliana Roxas de Jesus) filed a - This clearly shows that this is a unilateral act of Melecio who
special proceeding to settle the intestate estate of the de plainly knew that he was executing a will.
Jesus spouses. - Article 810 of the Civil Code
- Later, Simeon delivered to the court a document purporting
to be the holographic will of Bibliana. He stated that after
being appointed as administrator, he found a notebook of
Bibliana which contained the letter-will addressed to her
ART. 811. In the probate of a holographic will, it
children written and signed by Bibliana. shall be necessary that at least one witness
- The will was dated “FEB./61” and this was confirmed by the who knows the handwriting and signature of
testimonies of Simeon as and the 2 children of Bibliana. the testator explicitly declare that the will and
- Henson, another compulsory heir, opposed the probate of the signature are in the handwriting of the
the holographic will contending that it was not dated as testator. If the will is contested, at least three
required by Art. 810.
- She contends that the law requires that the will should of such witnesses shall be required.
contain the day, month, and year of its execution and this In the absence of any competent witness
should be complied with. referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony
WON the holographic will dated as “FEB./61” was properly may be resorted to,
dated.
- YES. If the testator attempts to comply with all the requisites,
 Article applies only to POST MORTEM probates, it
although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such does not apply to Ante Mortem probates since in such
requisite is actually attained by the form followed by the cases the testator himself files the petition and will
testator. identify the document itself.
- SC found no evidence of bad faith and fraud in the execution
of the will, nor was there substitution of wills. Neither is there  The three witness provision in case of contested
any question as to the genuineness and due execution of holographic wills is DIRECTORY, not mandatory.
the will.  Testamentary wills – mandatory
- The objection put forth by Henson is too technical to be  Holographic wills – directory
entertained.
- GR: The date in a holographic will should include the day,  Witnesses must:
month and year of execution. 1. Know the handwriting and signature of the
- E: In the absence of appearance of fraud, bad faith, undue testator
influence, and pressure and the authenticity of the will is 2. Truthfully declare that handwriting and
established, and the only issue is the validity of the date signature is that of the testator
“FEB.61” appearing on the will, the probate should be
allowed under the principle of substantial compliance.  In the probate of a holographic will, the document itself
must be produced. Therefore, a holographic will cannot
be probated.
Labrador v. CA
 The execution and contents of a lost or destroyed
- Melecio died leaving behind a parcel of land to his heirs. holographic will MAY NOT BE PROVED by the bare
However, during probate proceedings, Jesus and testimony of witnesses who have seen and/or read
Gaudencio filed an opposition on the ground that the will has such will. However, attested wills MAY BE PROVED by
been extinguished by implication of law alleging that before testimonial evidence.
Melecio’s death, the land was sold to them evidenced by
 Why the difference in rules?
TCT No. 21178. Jesus eventually sold it to Navat.
- Trial court admitted the will to probate and declared the TCT  Because of the nature of the wills. In holographic
null and void. However, the CA on appeal denied probate on wills, the only guarantee of authenticity is the
the ground that it was undated. handwriting itself. In attested wills, the testimony of
subscribing or instrumental witnesses and of the
Whether or not the alleged holographic will is dated, as notary guarantees authenticity of the will.
provided for in Article 810 of the Civil Code  Loss of the holographic will entails loss of the only
- SC held that it is dated because: medium of proof while loss of the ordinary will
- The law does not specify a particular location where the date leaves the subscribing witnesses available to
should be placed in the will. The only requirements are that authenticate.
the date be in the will itself and executed in the hand of the
testator.

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SUCCESSION REVIEWER 1ST SEM 2006-2007

 In the case of ordinary wills, it would be more - Art 811 requiring three witnesses in the probate of a
difficult to convince 3 witnesses plus the notary to contested holographic will is merely directive and not
deliberately lie. mandatory.
 Considering the holographic will may consist of 2-3
pages and only one of them need be signed, the Codoy v. Calugay
substitution of the unsigned pages may go
undetected. - On 6 April 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
 In the case of a lost ordinary will, the 3 subscribing
holographic will of the deceased Matilde Seño Vda. de
witnesses would be testifying as to a FACT which Ramonal, filed a petition for probate of the said will.
they saw, namely the act of the testator of - They attested to the genuineness and due execution of the
subscribing the will. Whereas in the case of a lost will on 30 August 1978.
holographic will, the witnesses would testify as to - Eugenio Ramonal Codoy and Manuel Ramonal filed their
their OPINION of the handwriting which they opposition claiming that the will was a forgery and that the
allegedly saw, an opinion which cannot be tested in same is even illegible.
court nor directly contradicted by the oppositors - They raised doubts as regards the repeated appearing on
because the handwriting itself is not at hand. the will after every disposition, calling the same out of the
ordinary.
 EXCEPTION – may be proved by a photographic or - If the will was in the handwriting of the deceased, it was
photostatic copy, even a mimeographed or carbon improperly procured.
copy, or by other similar means, if any, whereby the - Evangeline Calugay, etc. presented 6 witnesses and various
authenticity of the handwriting of the deceased may be documentary evidence.
exhibited and tested before the probate court. - The first witness was the clerk of court of the probate court
who produced and identified the records of the case bearing
CASES the signature of the deceased.
Azaola v. Singson - The second witness was election registrar who was made
to produce and identify the voter’s affidavit, but failed to as
- The subject of this case is the holographic will of Fotunata
the same was already destroyed and no longer available.
Yance.
- Francisco Azaola submitted the said holographic will - The third, the deceased’s niece, claimed that she had
whereby Maria Azaola was made the sole heir of the acquired familiarity with the deceased’s signature and
deceased. handwriting as she used to accompany her in collecting
- The probate of the will is contested on the ground that the rentals from her various tenants of commercial buildings and
will was executed under undue influence, that the document the deceased always issued receipts.
was not intended to be the will of the deceased and that the - The niece also testified that the deceased left a holographic
proponent of the will failed to present at least three will entirely written, dated and signed by said deceased.
witnesses who could declare the will and the signature - The fourth witness was a former lawyer for the deceased in
therein to be in the writing of the testatrix. the intestate proceedings of her late husband, who said that
- In this case, the proponent of the will only presented one the signature on the will was similar to that of the deceased
witness to prove that the body of and signature in the will but that he can not be sure.
was that of the testator
- The fifth was an employee of the DENR who testified that
Whether or not the three-witness rule is mandatory and she was familiar with the signature of the deceased which
applicable in this case appeared in the latter’s application for pasture permit.
- The SC held that the petitioner is not bound to produce more - The fifth, respondent Evangeline Calugay, claimed that
than one witness as the authenticity of the will is not in she had lived with the deceased since birth where she had
question. become familiar with her signature and that the one
- Granting also that the genuineness of the will is contested, appearing on the will was genuine.
the provision of Art 811 should not be interpreted to require - Codoy and Ramonal’s demurrer to evidence was granted by
the compulsory presentation of the three witnesses. the lower court. It was reversed on appeal with the Court of
- First, it should be noted that in holographic wills, no witness Appeals which granted the probate.
is required in the execution thereof, thus the existence of the
witnesses possessing the requisite qualifications is a matter Whether or not Article 811 of the Civil Code, providing that at
beyond the control of the proponent. least three witnesses explicitly declare the signature in a
contested will as the genuine signature of the testator, is
- Second, the law itself contemplates a situation where no
mandatory or directory.
competent witness can be produced thus allowing the court - YES. The word “shall” connotes a mandatory order, an
to resort to expert evidence to supply the deficiency. imperative obligation and is inconsistent with the idea of
- To clarify further, the option to require expert evidence discretion and that the presumption is that the word “shall”,
depends on the discretion of the court. If the court is when used in a statute, is mandatory.
convinced by the testimony of the witnesses, it may no - In the case at bar, the goal to be achieved by the law, is to
longer ask for expert evidence. However, if there is no give effect to the wishes of the deceased and the evil to be
competent witness or if those produced were not convincing, prevented is the possibility that unscrupulous individuals
the court may accordingly call for expert evidence. who for their benefit will employ means to defeat the wishes
- Thus, the case is remanded to allow the parties to adduce of the testator.
additional evidence including expert testimony.

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- The paramount consideration in the present petition is to - In opposition to said proceedings, the surviving husband
determine the true intent of the deceased. Ildefonso Yap asserted that the deceased had not left any
will, nor executed any testament during her lifetime.
Whether or not the witnesses sufficiently establish the - After hearing the parties, the court refused to probate the
authenticity and due execution of the deceased’s holographic alleged will. The will itself was not presented.
will. - Sometime in 1950, Felicidad Esguerra mentioned to her first
- NO. We cannot be certain that the holographic will was in cousin Vicente Esguerra her desire to make a will. However,
the handwriting of the deceased. she wanted it to be a secret because she said that it would
- The clerk of court was not presented to declare explicitly that be useless if her husband discovered or knew about it.
the signature appearing in the holographic will was that of - So Vicente consulted with the nephew of Felicidad and
the deceased. found out that it could be done provided that the document
- The election registrar was not able to produce the voter’s was entirely in her handwriting, signed and dated by her.
affidavit for verification as it was no longer available. - As a result of this, Felicidad proceeded with the making of
- The deceased’s niece saw pre-prepared receipts and letters her will. Though it was a secret, she would show people who
of the deceased and did not declare that she saw the would visit her will.
deceased sign a document or write a note. - After evaluating the pieces of evidence presented before the
- The will was not found in the personal belongings of the court, the trial judge had to accept the oppositor’s evidence
deceased but was in the possession of the said niece, who that Felicidad did not and could not have executed such
kept the fact about the will from the children of the holographic will.
deceased, putting in issue her motive. - Hence this appeal.
- Evangeline Calugay never declared that she saw the
decreased write a note or sign a document. WON, a lost holographic will can be admitted to probate.
- The former lawyer of the deceased expressed doubts as to - No. Articles 810-814 govern holographic wills. It is stated
the authenticity of the signature in the holographic will. that, “A person may execute a holographic will which must
- (As it appears in the foregoing, the three-witness be entirely written, dated and signed by the hand of the
requirement was not complied with.) testator himself. It is subject to no other form and may be
- A visual examination of the holographic will convinces that made in our out of the Philippines, and need not be
the strokes are different when compared with other witnessed.”
documents written by the testator. - Unlike ordinary wills, holographic wills need not observe the
- The records are remanded to allow the oppositors to rules laid down in Art. 805 for its compliance with the law. As
adduce evidence in support of their opposition. long as it is written entirely, dated and signed by the testator
- The object of solemnities surrounding the execution of wills himself, then it will be sufficient proof that it has been
is to close the door against bad faith and fraud, to avoid executed in accordance with law.
substitution of wills and testaments and to guaranty their - However, witnesses may be brought in so as to verify that
truth and authenticity. Therefore, the laws on this subject the will and the signature are in the handwriting of the
should be interpreted in such a way as to attain these testator. The witnesses so presented do not need to have
primordial ends. But, on the other hand, also one must not seen the execution of the holographic will.
lose sight of the fact that it is not the object of the law to - In the case hand however, the will holographic will was not
restrain and curtail the exercise the right to make a will. presented to the court. Obviously, when the will itself is not
- However, we cannot eliminate the possibility of a false submitted, these means of opposition and, of assessing the
document being adjudged as the will of the testator, which is evidence are not available. And then the only guaranty of
why if the holographic will is contested, the law requires authenticity – the testator’s handwriting – has disappeared.
three witnesses to declare that the will was in the - It is therefore to be concluded that the execution and the
handwriting of the deceased. contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
- Article 811, paragraph 1. provides: “In the probate of a and/ or read such will.
holographic will, it shall be necessary that at least one - This is because the only guaranty of the authenticity is the
witness who knows the handwriting and signature of the handwriting itself. The loss of the holographic will entails the
testator explicitly declare that the will and the signature are loss of the only medium of proof.
in the handwriting of the testator. If the will is contested, at - That even if oral testimony were admissible to establish and
least three of such witnesses shall be required.” probate a lost holographic will, the evidence submitted by
- The word “shall” connotes a mandatory order, an imperative the petitioner is so tainted with improbabilities and
obligation and is inconsistent with the idea of discretion and inconsistencies that it fails to measure up to that clear and
that the presumption is that the word “shall”, when used in a distinct proof required by Rule 77.
statute, is mandatory. - Rejection of the alleged will must be sustained
- The execution and the contents of a lost or destroyed
Gan v. Yap holographic will may not be proved by bare testimony of
witnesses who have seen and/or read such will. The will
- On November 20, 1951, Felicidad Esguerra Alto Yap died of itself must be presented; otherwise, it shall produce no
heart failure in the UST hospital leaving properties in effect. The law regards the document itself as material proof
Bulacan and in Manila. of authenticity.
- On March 17, 1952, Fausto E. Gan initiated these
proceedings in CFI Manila for probate the holographic will Rodelas v. Aranza
executed allegedly by the deceased.
- The probate court ordered the dismissal of Rodelas’ petition
for the allowance of the holographic will of deceased

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Ricardo B. Bonilla on the ground that the alleged photostatic 2. If additional dispositions before the last are not
copy of the will which was presented for probate, cannot signed and not dated, but the last disposition is
stand in lieu of the lost original, for the law regards the signed and dated, what happens to the
document itself as the material proof of the authenticity of intermediate ones?
the said will. • If made on one occasion – last disposition
signed and dated validates all.
Whether a holographic will which was lost or can not be found
can be proved by means of a photostatic copy
• If on different occasions – intermediate
- Pursuant to Article 811 of the Civil Code, probate of additions are void.
holographic wills is the allowance of the will by the court • But distinction is practically worthless
after its due execution has been proved. because circumstances of execution of
- The probate may be uncontested or not. If uncontested, at holographic wills are often difficult to
least one identifying witness is required and, if no witness is prove.
available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
- However, if the holographic will has been lost or destroyed ART. 814. In case of any insertion, cancellation,
and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the erasure or alteration in a holographic will, the
testator in said will. It is necessary that there be a testator must authenticate the same by his
comparison between sample handwritten statements of the full signature.
testator and the handwritten will.
- But, a photostatic copy or xerox copy of the holographic will  Full signature does not mean testator’s full name, only
may be allowed because comparison can be made with the his usual and customary signature.
standard writings of the testator. Even a mimeographed or  Effect of non-compliance – the change [insertion,
carbon copy; or by other similar means, if any, whereby the cancellation, etc.] is simply considered NOT MADE.
authenticity of the handwriting of the deceased may be The will is not thereby invalidated as a whole, but at
exhibited and tested before the probate court, may be
most only as regards the particular words erased,
allowed.
corrected or inserted UNLESS the portion involved is
- If the holographic will has been lost or destroyed and no an essential part of the will, such as the date.
other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the CASE
testator in said will. Kalaw v. Relova

- Natividad Kalaw left a holographic will. It is not contested


ART. 812. In holographic wills, the dispositions of that the will was in her handwriting as certified by the NBI.
the testator written below his signature must The will however has alterations/insertions. The will
be dated and signed by him in order to make originally named Rosa, the decedent’s sister as her sole heir
and administrator, but this was crossed out and changed to
them valid as testamentary dispositions. her brother Gregorio. Such alteration was however not
authenticated by the full signature of the decedent.
ART. 813. When a number of dispositions - Hence, the will was denied probate by the trial court
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and a date, such date
Whether the will is valid or not.
validates the dispositions preceding it, - It is invalid. Ordinarily, when a number of erasures,
whatever be the time of prior dispositions. corrections and interlineations made by the testator in a
holographic sill have not been noted under his signature, the
 Formal Requirements for Additional Dispositions in a will in not thereby invalidated as a whole, but at most only as
Holographic Will respects the particular words erased, corrected or interline.
1. Signature - However, in this case, the will in dispute had only one
2. Date substantial provision, which was altered by substituting the
original heir with another, but which alteration did not have
 When there are Several Additional Dispositions the signature of the testator, the effect must be that the
1. Signature and date, or entire will is voided for the reason that nothing remains in
2. Each additional disposition signed and the will after that which could remain valid.
undated, but the last disposition signed and - To state that the will as first written should be given efficacy
dated. 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
 NOTES
affixing her full signature.
1. If several additional dispositions, each of which
is dated, but only the last is dated and signed, - When a number of unauthenticated erasures, corrections
then only the last additional disposition is valid. and interlineations are made by the testator in a holographic
will, the same is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected

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or interlined. Except however, if after all the alterations were


voided, nothing remains in the will.  In relation to Articles 15 and 17 of the NCC
Art. 15. Laws relating to family rights and
Comments – The holding that the insertion of the name of Gregorio duties, or to the status, condition and legal
cannot be given effect for not having been done in accordance with capacity of persons are binding upon citizens of
the requirement of Art814 is beyond question. Why, however, was the Philippines, even though living abroad.
the cancellation of the original testamentary institution given
effect? That cancellation was not done in the way mandated by the • NATIONALITY PRINCIPLE – Philippine law
article. follows Filipino citizens wherever they may be.
To say, as the decision does, that “to state that the will as first
written should be given efficacy is to disregard the seeming Art. 17. The forms and solemnities of contracts,
change of mind of the testatrix,” is no argument, because it is not wills and other public instruments shall be governed by
enough that the testator manifest his intent – he must manifest in a the laws of the country in which they are executed.
manner required by law.
When the acts referred to are executed before the
diplomatic or consulate officials of the Republic of the
Philippines in a foreign country, the solemnities
ART. 815. When a Filipino is in a foreign country, established by Philippine laws shall be observed in
he is authorized to make a will in any of the their execution.
forms established by the law of the country in Prohibitive laws concerning persons, their acts or
which he may be. Such will may be probated property and those which have for their object public
in the Philippines. order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated
or by determinations or conventions agreed upon in a
ART. 816. The will of an alien who is abroad foreign country.
produces effect in the Philippines if made
with the formalities prescribed by the law of • LEX LOCI CELEBRATIONIS – contracts, wills
and other public instruments follow the formalities
the place in which he resides, or according to of the law where they are executed.
the formalities observed in his country, or in
conformity with those which this Code  Every testator, whether Filipino or Alien, wherever he
prescribes. may be, has five choices as to what law to follow for the
form of his will:
ART. 817. A will made in the Philippines by a 1. Law of his Citizenship – Arts 816-817 for Aliens,
Art15 for Filipinos
citizen or subject of another country, which is
2. Law of place of Execution – Art17
executed in accordance with the law of the 3. Law of Domicile – Art816 for aliens abroad,
country of which he is a citizen or subject, applying to aliens in the Philippines
and which might be proved and allowed by and to Filipinos by analogy
the law of his own country, shall have the 4. Law of Residence - Art816 for aliens abroad,
same effect as if executed according to the applying to aliens in the Philippines
laws of the Philippines. and to Filipinos by analogy
5. Philippine Law – Arts 816-817 for aliens, Art15 for
Filipinos by analogy

 RULES OF FORMAL VALIDITY ART. 818. Two or more persons cannot make a
1. FILIPINO ABROAD will jointly, or in the same instrument, either
• According to the law in the country in for their reciprocal benefit or for the benefit of
which he may be a third person.
• And may be probated in the Philippines
 JOINT WILL – one document which constitutes the wills
2. ALIEN ABROAD
of two or more individuals.
• Has effect in the Philippines if made
 If there are separate documents, each serving as one
according to:
independent will even if written on the same sheet, they
a) Law of place where he resides
are not joint wills prohibited by the article.
b) Law of his own country
c) Philippine law  Reason for Prohibition of Joint Wills
3. ALIEN IN THE PHILS. 1. Limitation on modes of revocation
• Valid in Philippines / As if executed • One of the testators would not be able to
according to Philippine laws, if: destroy the document without also revoking it
a) Made according to law of country as the will of the other testator, or in any
which he is a citizen or subject, and even, as to the latter, the problem of
b) May be proved and allowed by law of unauthorized destruction would come in
his own country 2. Diminution of testamentary secrecy

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3. Danger of undue influence formalities prescribed by law nor for lack of testamentary
4. Danger of one testator killing the other capacity of the testatrix.
• When a will is made jointly or in the same - On appeal, the CA reversed said Decision holding that the
instrument, the spouse who is more dominant decedent did not comply with Articles 313 and 314 of the
is liable to dictate the terms of the will for his NCC. It found that certain dispositions in the will were either
or her own benefit or for that of the third unsigned or undated, or signed by not dated. It also found
that the erasures, alterations and cancellations made had
persons whom he or she desires to favor.
not been authenticated by decedent.
• Where the will is not only joint but - Hence, this appeal.
reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked, Whether the CA erred in holding that Articles 813 and 814 of
faithless or desperate, knowing as he or she the NCC were not complies with.
does the terms of the will whereby the whole - YES. The SC reversed the decision of CA.
property of the spouses both conjugal and - A reading of Article 813 shows that its requirement affects
paraphernal goes to the survivor, may be the validity of the dispositions contained in the holographic
tempted to kill or dispose of the other. will, but not its probate. If the testator fails to sign and date
 In Germany, joint wills are allowed but only between some of the dispositions, the result is that these dispositions
spouses. cannot be effectuated. Such failure, however, does not
render the whole testament void.
- Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of
ART. 819. Wills, prohibited by the preceding Article 814.
article, executed by Filipinos in a foreign - Unless the authenticated alterations, cancellations or
country shall not be valid in the Philippines, insertions were made on the date of the holographic will or
even though authorized by the laws of the on testator’s signature, their presence does not invalidate
country where they may have been executed. the will itself. The lack of authentication will only result in
disallowance of such changes.
- It is also proper to note that he requirements of
 Outline on Joint Wills
authentication of changes and signing and dating of
1. By Filipinos in the Philippines – VOID Art818 dispositions appear in provisions (Article 813 and 814)
2. Filipinos Abroad – VOID Art819, even if allowed separate from that which provides for the necessary
by law in place of execution. This is an conditions for the validity of the holographic will (Article 810).
exception to the permissive provisions of - This separation and distinction adds support to the
Arts17 and 815. interpretation that only the requirements of Article 810 of the
3. Aliens Abroad – VALID, Art816 NCC – and not those found in Articles 813 and 814 – are
4. Aliens in Philippines – Controverted, on one view essential to the probate of a holographic will.
it is void because of public policy, another - Section 9, Rule 76 of the Rules of Court and Article 839 of
view says it is valid because Art817 the Civil Code enumerate the grounds for disallowance of
governs. wills. These lists are exclusive; no other grounds can serve
5. Filipino and Alien – Always VOID as to the to disallow a will.
Filipino, but either #3 or #4 governs, - In a petition to admit a holographic will, the only issues to be
depending if he is abroad or in the Phils. resolved are:
o whether the instrument submitted is,
Cases for Arts. 810-819 indeed, the decedent’s last will and
testament;
o whether said will was executed in
Ajero v CA
accordance with the formalities prescribed
by law;
- The holographic will of Annie San was submitted for
o whether the decedent had the necessary
probate.
testamentary capacity at the time the will
- Private respondent opposed the petition on the grounds that:
was executed; and
neither the testament’s body nor the signature therein was in
o whether the execution of the will and its
decedent’s handwriting; it contained alterations and
corrections which were not duly signed by decedent; and, signing were the voluntary acts of the
the will was procured by petitioners through improper decedent.
pressure and undue influence. - The object of the solemnities surrounding the execution of
- The petition was also contested by Dr. Ajero with respect to wills is to close the door against bad faith and fraud;
the disposition in the will of a house and lot. He claimed that accordingly, laws on this subject should be interpreted to
said property could not be conveyed by decedent in its attain these primordial ends.
entirety, as she was not its sole owner. - In the case of holographic wills, what assures authenticity is
- However, the trial court still admitted the decedent’s the requirement that they be totally authographic or
holographic will to probate. handwritten by the testator himself. Failure to strictly observe
- The trial court held that since it must decide only the other formalities will no result in the disallowance of a
question of the identity of the will, its due execution and the holographic will that is unquestionable handwritten by the
testamentary capacity of the testatrix, it finds no reason for testator.
the disallowance of the will for its failure to comply with the

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Subsection 4 – Witnesses to Wills


WON the witnesses who attested to Gabriel’s will are qualified
to be such.
ART. 820. Any person of sound mind and of the - YES. It is enough that the qualifications in Art. 820 are
age of eighteen years or more, and not blind, complied with, such that the soundness of his mind can be
deaf or dumb, and able to read and write, may shown by or deduced from his answers to questions
be a witness to the execution of a will propounded to him. And hi age is proven as well as the fact
mention in Article 805 of this Code. that he is not deaf and dumb and that he is able to read and
write, and that he is not disqualified under Art. 821.
- There is no mandatory requirement that the witness testify
ART. 821. The following are disqualified from initially or at any time during the trial as to his good standing
being witnesses to a will: in the community, his reputation or trustworthiness and
(1) Any person not domiciled in the reliability.
Philippines - His honesty and uprightness in order that his testimony may
(2) Those who have been convicted of be believed and accepted by the trial court.
falsification of a document, perjury or - The contention that the term “credible” should be given the
same meaning as that in the Naturalization Law is
false testimony. untenable. In naturalization proceedings, the character
witnesses must prove their good standing, reputation and
 SIX QUALIFICATIONS OF WITNESSES reliability.
1. Of Sound Mind - In probate proceedings, the instrumental witnesses are not
2. At Least 18 years of age character witnesses for they merely attest the execution of a
3. Not Blind, Deaf or Dumb will or testament and affirm the formalities attendant to said
4. Able to read and write execution.
5. Domiciled in the Philippines - Art. 820, NCC: Any person of sound mind and of the age of
6. Must not have been convicted of falsification of 18 years or more, and not blind, deaf or dumb, and able to
a document, perjury or false testimony. read and write, may be a witness to the execution of a will
mentioned in Art. 805.
 As to applicability to wills executed abroad, testator may
resort to either executing a holographic will or following - Art. 821, NCC: The following are disqualified from being
the law of the place of execution, if no such witnesses witnesses to a will:
are readily available. 1. Any person not domiciled in the Philippines
2. Those who have been convicted of falsification of a
 Competence v. Credibility
document, perjury or false testimony.
(Other assignments of error discussed in the case are factual.
 The competency of a person to be an instrumental SC did not reverse the findings of the CA.)
witness to a will is determined by the statute under
Arts 820-821, whereas his credibility depends on
the appreciation of his testimony and arises from
the belief and conclusion of the Court that said
ART. 822. If the witnesses attesting the execution
witness is telling the truth.
of a will are competent at the time of
attesting, their becoming subsequently
CASES incompetent shall not prevent the allowance
Gonzales v. CA of the will.

- Santiago filed a petition with the CFI for the probate of the  As in the case of testamentary capacity under Art801,
will allegedly executed by the deceased Gabriel. the time of the execution of the will is the only relevant
- Gonzales opposed the probate. Among other grounds, she temporal criterion in the determination of the
contends that the witnesses who attested to the due competence of the witnesses.
execution of the will were not qualified witnesses.
- She argues that the requirement in Art. 806 of the NCC that
the witness must be credible is an absolute requirement
which must be complied with before a last will and testament ART. 823. If a person attests the execution of a
may be admitted. will, to whom or to whose spouse, or parent,
- She claims that to be ca credible witness, there must be or child, a devise or legacy is given by such
evidence on record that the witness has good standing in will, such devise or legacy shall, so far only
the community, or that he is honest and upright, or reputed as concerns such person, or spouse, or
to be trustworthy and reliable.
- Gonzales further contends that “credible” is not synonymous
parent, or child of such person, or any one
with “competent” because a witness may be competent claiming under such person or spouse, or
under Arts. 820 and 821 of the NCC, and still not credible as parent, or child, be void, unless there are
required by Art. 805. three other competent witnesses to such will.
- She further asserts that “credible” in the NCC should receive However, such person so attesting shall be
the same well-settled meaning it has under the
Naturalization Law.

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admitted as a witness as if such devise or ART. 825. A codicil is a supplement or addition to


legacy had not been made or given. a will, made after the execution of a will and
annexed to be taken as a part thereof, by
 Article is misplaced here because it talks about which disposition made in the original will is
CAPACITY TO SUCCEED and not capacity to be a explained, added to, or altered.
witness.

 Article 823 lays down a disqualification of a witness to


ART. 826. In order that a codicil may be effective,
succeed to a legacy or devise when there are only 3 it shall be executed as in the case of a will.
witnesses. Competence of the person as a witness is
NOT AFFECTED.  Codicil v. Subsequent Will
 Assuming all other requisites for formal validity are  Codicil – explains, adds to or alters a disposition in
met, the will is perfectly valid but the witness [or a prior will.
relatives specified in the article] cannot inherit.  Subsequent will – makes independent and distinct
dispositions.
 Article also applies to HEIRS. The intent of the law is to  But the distinction is purely academic because
cover all testamentary institutions. Art826 requires that the codicil be in the form of a
will anyway.
 Disqualification applies only to the testamentary
disposition made in favor of the witness or the specified  Must the Codicil conform to the form of the will to which
relatives. If the party is also entitled to a legitime or an it refers? NO. A holographic will can have an attested
intestate share, that portion is not affected by the codicil and vice versa. Both may also be of the same
party’s witnessing the will. kind.

 Question – Supposing there are 4 witnesses, each a


recipient of a testamentary disposition, are the ART. 827. If a will, executed as required by this
dispositions to them valid or void? Code, incorporates into itself by reference
• Arguable any document or paper, such document or
• May say that dispositions are VALID paper shall not be considered a part of the
because the law only requires that there be 3 will unless the following requisites are
other competent witnesses to such will for the present:
disposition to be valid. For the witnesses to be (1) The document or paper referred to in
competent, they need only meet the
the will must be in existence at the
qualifications in Art820 and have none of the
disqualifications in Art821. time of the execution of the will;
• May also say that dispositions are (2) The will must clearly describe and
INVALID because the intent of the law is to identify the same, stating among other
avoid witnesses from attesting to the will based things the number of pages thereof;
on the dispositions as a consideration for such (3) It must be identified by clear and
act. If all of the witnesses are recipients of satisfactory proof as the document or
testamentary dispositions, then there is greater paper referred to therein; and
chance that they are all witnessing because a (4) It must be signed by the testator and
consideration has been given to them.
the witnesses on each and every
page, except in case of voluminous
books of account or inventories.
ART. 824. A mere charge on the estate of the
testator for the payment of debts due at the  Article only refers to documents such as:
time of the testator’s death does not prevent 1. Inventories
his creditors from being competent witnesses 2. Books of Accounts
to his will. 3. Documents of Title
4. Papers of Similar Nature
 Because the debt or charge is not a testamentary  DOES NOT include documents that make testamentary
disposition. dispositions, or else the formal requirements of a will
would be circumvented.
 Can holographic wills incorporate documents by
Subsection 5 – Codicils and Incorporation reference?
 NO. Par4 of Art827 requires signatures of the
By Reference
testator and the witnesses on every page of the
incorporated document [except voluminous
annexes]. It seems therefore that only attested wills

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can incorporate documents by reference, since ART. 830. No will shall be revoked except in the
only attested wills are witnessed. following cases:
 Unless testator executes a holographic will and (1) By implication of law; or
superfluously has it witnessed. (2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, canceling, or
Subsection 6 – Revocation of Wills obliterating the will with the intention of
And Testamentary Dispositions revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction. If burned, torn,
ART. 828. A will may be revoked by the testator at cancelled, or obliterated by some other
any time before his death. Any waiver or person, without the express direction of
restriction of this right is void. the testator, the will may still be
established, and the estate distributed in
 A will is essentially REVOCABLE or AMBULATORY.
accordance therewith, if its contents, and
 This characteristic cannot be waived even by the
testator. There is no such thing as an irrevocable will. due execution, and the fact of its
 This characteristic is consistent with the principle in unauthorized destruction, cancellation, or
Art777 that successional rights vest only upon death. obliteration are established according to
the Rules of Court.

ART. 829. A revocation done outside the


Philippines, by a person who does not have
his domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of  MODES OF REVOKING A WILL UNDER
the place in which the testator had his PHILIPPINE LAW
1. BY OPERATION OF LAW
domicile at the time; and if the revocation
• May be total or partial
takes place in this country, when it is in
• Examples of revocation by operation of
accordance with the provisions of this Code. law
a) Preterition – Art854
 RULES FOR REVOCATION b) Legal Separation – Art63 par4 FC
 Revocation made in the Philippines. c) Unworthiness to succeed – Art1032
• Philippine Law d) Transformation, alienation or loss of
the object devised or bequeathed –
 Revocation made Outside Philippines. Art957
e) Judicial demand of a credit given as a
1. Testator not domiciled in Phils. legacy - Art936
• Law of place where the WILL was made
• Law of place where the testator was 2. BY A SUBSEQUENT WILL OR CODICIL
domiciled at time of revocation. • Requisites for valid revocation by a
2. Testator domiciled in Phils. [Art829] subsequent instrument –
• Philippine Law – consistent with a) Subsequent instrument must comply
domiciliary principle followed by this article with formal requirements of a will
b) Testator must possess testamentary
• Law of place of Revocation – principle of capacity
lex loci celebrationis c) Subsequent instrument must either
• Law of place where the WILL was made – contain an express revocatory clause
by analogy with rules on revocation where or be incompatible with the prior will
testator is a non-Philippine domiciliary. d) Subsequent instrument must be
probated to take effect
 Curious that the law departs from the nationality theory • Revocation by subsequent will may be
and adopts the domiciliary theory. Total or Partial, Express or Implied
a) Total – whole prior instrument is
revoked

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b) Partial – only certain provisions or • Loss or unavailability of a will may, under


dispositions of the prior instrument is certain circumstances, give rise to the
revoked presumption that it had been revoked by
c) Express – revocation of prior physical destruction
instrument is stated in the  Where a will which cannot be found is
subsequent instrument shown to have been in the possession
d) Implied – incompatibility between of the testator when last seen, the
provisions of prior and subsequent presumption is, in the absence of other
instruments. competent evidence, that the same
was cancelled or destroyed.
3. BY PHYSICAL DESTRUCTION  Same presumption arises where it is
• Four ways to destroy – shown that testator had ready access
a) Burning to the will and it cannot be found after
b) Tearing his death.
c) Cancelling  But such presumptions may be
d) Obliterating overcome by proof that the will was not
destroyed by the testator with intent to
• Physical destruction may be done by the revoke it.
testator personally or by another person
acting in his presence and by his express CASES
direction.
 Unauthorized if without express Testate Estate of Adriana Maloto v. CA
direction of testator. But what if with
express direction but not in his - The nieces and nephews of Adriana Maloto, including
presence? Constancio Maloto and Aldina Casiano, thought that the
latter died intestate.
 Arguable. May say that it is authorized
- Thus they filed an intestate proceeding for the settlement of
and therefore the destroyed instrument
the decedent’s estate.
is revoked because of the intent and - In the course of the proceeding, the said relatives executed
consent of the testator to revoke and an extrajudicial petition of the estate, where they adjudicated
destroy, and that the law does not among themselves the properties in the ratio of ¼ each.
provide that without the testator’s - Three years after, a document was delivered to the same
presence, destruction will become court, which was believed to be the last will and testament of
unauthorized. Adriana Maloto.
 On the other hand, it may be argued - In the said will, Aldina and Constancio have shares that are
that the testator’s presence is required bigger, different and more valuable than the one obtained by
because at any time during the actual them in the extrajudicial partition. There were also other
burning, destroying, etc. he may put a legatees named in the will.
stop to the destruction if he changes - Thus, Casiano and Aldina filed a petition for the allowance of
his mind, and that is precisely why his the will in the Special Proceeding initially filed by them.
presence is required? - The CFI denied the motion to reopen the proceedings on the
ground that it has been filed out of time.
• Effect of unauthorized destruction – Will
Whether or Not the CFI correctly dismissed the petition.
may still be proved as lost or destroyed
- SC held in the affirmative.
[Art830 NCC and Rule 76 RoC]
- The probate court has no jurisdiction to entertain the petition
 However, this is possible only if the will for the probate of the alleged will of Adriana Maloto in the
is attested; if the will is holographic, it prior Intestate Proceeding.
cannot be probated if lost, even if the - First, the motion to reopen the proceedings has been filed
loss or destruction was unauthorized, out of time.
unless a copy survives. - Second, it is not proper to make a finding in an intestate
estate proceeding that the discovered will has been revoked.
• Elements of a Valid Revocation by - The more appropriate remedy for them is to initiate a
Physical Destruction separate proceeding for the probate of the alleged will.
a) CORPUS – physical destruction itself; - In this view, the order in the prior special proceeding is not a
there must be evidence of physical bar for the filing of a petition for the probate of the will of
destruction Adriana Maloto.
b) ANIMUS – - It is not proper to make a finding in an intestate proceeding
 Capacity and intent to revoke that a discovered will has been revoked. A separate petition
for probate of the alleged will should be ordered filed.
 Testator must have completed
everything he intended to do
• Both corpus an animus must concur.

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ART. 831. Subsequent wills which do not revoke  It must be remembered that dependent relative
the previous ones in an express manner, revocation applies only if it appears that the testator
annul only such dispositions in the prior wills intended his at of revocation to be conditioned on the
as are inconsistent with or contrary to those making of a new will or on its validity or efficacy.
contained in the latter wills.  In Molo v. Molo, the Samson v. Naval doctrine was
cited, providing that “A subsequent will, containing a
 Revocation of a will by a subsequent will or codicil may clause revoking a previous will, having been disallowed,
be express [through a revocatory clause] or implied for the reason that it was not executed in conformity
[through incompatibility]. with the provisions of the Code of Civil procedure as to
 In the old Civil Code, mere fact of a subsequent will, the making of wills, cannot produce the effect of
provided that it is valid, revoked the prior one, except annulling the previous will, inasmuch as said revocatory
only if the testator provides in the posterior will that the clause is void.”
prior will was to subsists in whole or in part.
 The present rule provides that the execution of a  Question – supposing the institution of heirs, legatees
subsequent will does not ipso facto revoke a prior one. or devisees in the subsequent will is subject to a
suspensive condition, is the revocation of the prior will
absolute or conditional?
ART. 832. A revocation made in a subsequent will  Depends on the testator’s intent.
shall take effect, even if the new will should  If the subsequent will contains a revocatory clause
become inoperative by reason of the which is absolute or unconditional, the revocation
incapacity of the heirs, devisees or legatees will be absolute regardless of the happening or
designated therein, or by their renunciation. non-happening of the suspensive condition.
 But if the testator states in the subsequent will that
 Efficacy of the revocatory clause does not depend on the revocation of the prior will is subject to the
the testamentary disposition of the revoking will, occurrence of the suspensive condition, or if the
UNLESS the testator so provides. Revocation is will does not contain a revocatory clause, the
generally speaking, an absolute provision, independent revocation will depend on whether the condition
of the acceptance or capacity of the new heirs. happens or not.
• If the suspensive condition does not
 An EXCEPTION is where the testator provides in the occur, the institution is deemed never to
subsequent will that the revocation of the prior one is have been made and the prior institution
dependent on the Capacity or Acceptance of the heirs, will be given effect. [i.e. no revocation of
devisees or legatees instituted in the subsequent will. prior will]
• DEPENDENT RELATIVE REVOCATION • This is in accord with the juridical nature
of suspensive conditions, and is an
instance of dependent relative revocation.

 Is the rule on dependent relative revocation applicable if


the revocation of the will is by physical destruction?
 DEPENDENT RELATIVE REVOCATION
 YES. If testator executes a subsequent will
 Where the act of destruction is connected with the revoking the prior will but conditioned on the
making of another will as fairly to raise the validity of the subsequent will, then if the
inference that the testator meant the revocation of subsequent will is declared invalid, the prior will
the old to depend upon the efficacy of the new subsists.
disposition intended to be substituted, the
 In Molo v. Molo, in an obiter, SC held that the
revocation will be conditional and dependent upon
physical destruction of the will DID NOT revoke it,
the efficacy of the new disposition; and if, for any
based on the inference made by the court in that
reason, the new will intended to be made as a
case, that the testator meant the revocation to
substitute is inoperative, the revocation fails and
depend on the validity of a new will.
the original will remains in full force.
 This is the doctrine of dependent relative  But apart from the fact that the statement is obiter
revocation. The failure of the new testamentary because the facts did not clearly show that the will
disposition, upon whose validity the revocation had been destroyed, it is arguable whether the
depends, is equivalent to the non-fulfillment of a prior will should be deemed to subsist despite its
suspensive condition, and hence prevents the physical destruction. Can it not be argued that the
revocation of the original will. But a mere intent to act of the testator in destroying the will in fact
make at some time a will in place of that destroyed confirmed his intent to revoke it?
will not render the destruction conditional. It must  In the case of Diaz v. De Leon, the testator
appear that the revocation is dependent upon the executed a prior will but destroyed it and executed
valid execution of a new will. [Molo v. Molo] another will revoking the former. However, the
second will was found to be not executed with all

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the necessary requisites to constitute sufficient be void, probate will not be possible, UNLESS a copy of
revocation. The court then held that the intention of the holographic will survives.
revoking the will was manifest from the fact that the
testator was anxious to withdraw or change the  The rule regarding nullity of revocation for an illegal
provisions he had made in his first will. Therefore, cause limits the freedom of the testator to revoke based
the court concluded that original will presented on an illegal cause, but this is due to public policy
having been destroyed with animo revocandi, the considerations.
original will and last testament cannot be probated  It must be noted that the illegal cause should be stated
and was effectively revoked. in the will as the cause of the revocation.
 In Molo, revocation of the prior will was not allowed
because the court inferred that the testator meant
revocation to depend on the validity of the new will, ART. 834. The recognition of an illegitimate child
so in that case the rule on dependent relative does not lose its legal effect, even though the
revocation was applied. will wherein it was made should be revoked.
 However, in De Leon, court held that the testator’s
intent to revoke the prior will was not dependent on  The part of the will which recognizes an illegitimate
the validity of the subsequent will so even if the child is NOT revocable because recognition is an
second will was void and insufficient as revocation, irrevocable act. Therefore, even if the will is revoked,
the prior will was still revoked because such the recognition remains effective.
revocation was not dependent on the validity of the
second will [?!!]  Under the Family Code, admission of illegitimate
filiation in a will would constitute proof of illegitimate
filiation. According to Article 175 of the Family Code –
ART. 833. A revocation of a will based on a false Art175. Illegitimate children may establish
cause or an illegal cause is null and void. their illegitimate filiation in the same way and on
the same evidence as legitimate children.
 Wills are revocable ad nutum or at the testator’s The action must be brought within the same
pleasure. The testator does not need to have a reason period specified in Art173, except when the
to revoke the will. action is based on the second paragraph of
 However, precisely because the law respects the Art172, in which case the action may be brought
testator’s true intent, this article sets aside a revocation during the lifetime of the alleged parent.
that does not reflect such intent.
 Basically, the principle laid down in Art834 remains
unaltered regarding these admissions contained in
wills.

 REQUISITES FOR A FALSE / ILLEGAL CAUSE TO


RENDER REVOCATION VOID –
1. CAUSE MUST BE CONCRETE, FACTUAL
AND NOT PURELY SUBJECTIVE Subsection 7 – Republication and
• If a testator revoked on the stated ground Revival of Wills
that the heir was Ilocano and all Ilocanos are
bad, it would just be prejudice and the
revocation is valid because it is based on a ART. 835. The testator cannot republish, without
subjective cause. reproducing in a subsequent will, the
dispositions contained in a previous one
2. IT MUST BE FALSE which is void as to its form.
3. THE TESTATOR MUST NOT KNOW OF ITS
FALSITY ART. 836. The execution of a codicil referring to a
4. IT MUST APPEAR FROM THE WILL THAT previous will has the effect of republishing
THE TESTATOR IS REVOKING BECAUSE OF the will as modified by the codicil.
THE CAUSE WHICH IS FALSE.
 If the testator wishes to republish a will that is void as to
 If the revocation is by physical destruction, and the
form, the only way to republish it is to execute a
revoked will is holographic, then though the revocation

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subsequent will and reproduce [copy out] the


dispositions of the original will. Mere reference to the
prior will in the subsequent will is not enough. RE-CAP OF FORMAL REQUIREMENTS
OF A WILL
 A will is void as to form if it does not comply with the
requirements of Arts804-818; 810-814; 818-819.
k. Defects and imperfections in form of attestation and
language used shall not make the will invalid if
there is substantial compliance with requirements
RE-CAP OF FORMAL REQUIREMENTS of Art805.
l. Law to be followed
OF A WILL a. Filipino abroad
b. Alien abroad
1. ATTESTED/ORDINARY WILL c. Alien in the Philippines
a. Must be in writing m. Prohibition on joint wills, especially by Filipinos
b. Executed in a language or dialect known to testator even if executed in foreign country allowing joint
wills.
c. Subscribed by the testator or his agent in his n. Witnesses must possess all the qualifications in
presence and by his express direction at the end Art820 and none of the disqualifications in Art821.
thereof, in the presence of the witnesses
2. HOLOGRAPHIC WILL
d. Attested and subscribed by at least 3
a. Must be entirely written
credible witnesses in presence of the testator & of
b. Executed in a language or dialect known to testator
one another
c. Dated by the testator
e. Testator, or his agent, must sign every page, d. Signed by the hand of the testator himself
except the last, on the left margin in the presence e. Witnesses required
of the witnesses a) Knows the handwriting and signature of the
f. The witnesses must sign every page, except the testator
last, on the left margin in the presence of the b) Explicitly declares that the will and the
testator and of one another. signature are in the handwriting of the testator
f. Dispositions below testator’s signature must also be
g. All pages numbered correlatively in letters on the dated and signed.
upper part of each page. g. When several additional dispositions are signed but
h. Attestation clause, stating: not dated, the last disposition must be signed and
a) Number of pages of the will dated to validate the dispositions preceding it.
b) Fact that the testator or his agent h. Any insertion, cancellation, erasure or alteration must
under his express direction signed the will and be authenticated by the testator’s full signature,
every page thereof, in the presence of the otherwise it shall be deemed as not made.
witnesses i. Prohibition on joint wills, especially by Filipinos even if
executed in a foreign country where joint wills are
c) Fact that the witnesses witnessed
allowed.
and signed the will and every page thereof in
the presence of the testator and of one
another.
i. Acknowledgement before a notary public by the
 If the testator wishes to Republish a will that is either:
testator and the witnesses.
1. VOID for a reason other than a formal defect,
j. Handicapped Testator or
a) Deaf or deaf-mute – personally read the will if
able to do so, otherwise designate 2 persons
2. Previously REVOKED
to read and communicate it to him.  The only thing necessary to republish it is for the
b) Blind – read to him twice, once by a testator to execute a subsequent will or codicil
referring to the previous will. There is no need to
reproduce the provisions of the prior will in the
subsequent instrument.

 Why the difference on the rules between nullity as to


form and nullity based on other grounds? Prof. Balane
says because Art835 is from Argentine Law whole
Art836 is from California Law. Go figure.

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ART. 837. If after making a will, the testator suppressing the will or tearing or destroying it, and then take
makes a second will expressly revoking the steps in leading to the probate of the 1918 will.
- Had the oppositors in this case not filed an opposition and
first, the revocation of the second will does
had limited their objection to the intrinsic validity of the will,
not derive the first will, which can be revived their plan to defeat the will and secure the intestacy of the
only by another will or codicil. deceased would have been accomplished.
- If the said will was denied probate, it is due to oppositor’s
 Illustration fault and is unfair to impute bad faith to petitioner simply
In 1985, X executed will 1 because she exerted effort to protect her own interest and
In 1987, X executed will 2 and expressly revoked prevent the intestacy of the deceased.
will 1
In 1990, X executed will 3, revoking will 2 WON, notwithstanding the disallowance of the 1939 will, the
- When will 3 revoked will 2, it did not revive will 1. revocatory clause is valid and still nullifies the 1918 will.
- SC held that the clause is likewise void because:
 This article is based on the theory of INSTANT - The Court held in Samson v. Naval that it cannot produce
REVOCATION the effect of annulling the previous will since said revocatory
clause is void.
 That the revocatory effect of the 2nd will is
- If it was really the intention of the deceased to revoke the
immediate.
first will, with the assumption that he in fact destroyed the
 However, such theory is inconsistent with the original copy of the 1918 will since it cannot be found at
principle that wills take effect mortis causa. present, he should also destroyed the duplicate copy of the
 Furthermore, to be effective for the purpose of said will which he had given to his wife. But he did not do so.
revoking the first will, the second will must be Hence, it is possible that because of the long lapse of 21 yrs
probated. But it has already been revoked by the since the 1st will was executed, the original will had been
third will. A revoked will now has to be submitted to misplaced or lost and forgetting there was a copy, he
probate? deemed it wise to execute another.
- Granting that he did destroy the 1st will, the 1918 will can still
 Article applies only when the revocation of the first will be admitted under the principle of “dependent relative
by the second will is EXPRESS. If the revocation by the revocation,” which is predicated on the theory that the
second will is implied due to incompatible provisions, testator did not intend to die intestate.
the article will not apply and the effect will be that the - The doctrine of dependent relative revocation is established
first will is revived. where the act of destruction is connected with the making of
 However, when will 3 is itself inconsistent with will another will so as fairly to raise the inference that the
1, there is still revocation. testator meant the revocation of the old to depend upon the
efficacy of the new disposition intended to be substituted,
 Also keep in mind Article 831 – Implied the revocation will be conditional and dependent upon the
Revocations only annul such dispositions in the efficacy of the new disposition; and if, for any reason, the
prior wills as are inconsistent with or contrary to new will intended to be made as a substitute is inoperative,
those contained in the latter wills. the revocation fails and the original will remains in full force.

 EXCEPTION – when the second will is holographic and


it is revoked by physical destruction, because then the Gago v. Mamuyac
possibility of its probate is foreclosed, unless of course
a copy survives. - On 27 July 1918, Miguel Mamuyac of Agoo, La Union
executed a last will and testament.
Cases for Arts. 828-837 - After his death, Francisco Gago asked the court for the
probate of the will but was opposed by Cornelio Mamuyac,
Molo v. Molo Ambrosio Lariosa, Feliciano Bauzon, and Catalina
Mamuyac.
- After the probate of the said will was denied, another will
- Mariano Molo died and was survived by his herein petitioner alleged to have been executed on 16 April 1919 was
wife and his herein oppositors nieces and nephews. He left presented for probate to which the same oppositors resisted.
two wills one dated 1918 and the other 1939. The 2 nd will - The oppositors argued that such will was not the original and
contains a clause which expressly revokes the former will. was a mere copy; that the same had been cancelled and
- Upon death, his wife filed a petition for probate of the 1939 revoked by the testator; and that the same was not the last
will which was later on admitted. However, oppositors will and testament of Mamuyac.
eventually filed a petition which resulted to the denial of - The probate of the second will was likewise turned down for
probate of the said will. Petitioner wife then filed a petition having been cancelled and revoked.
for probate of the 1918 will, which was likewise denied by - According to witnesses, the original of the said will was in
the oppositors in this case. the possession of Mamuyac before his death who revoked
the same.
Whether or not petitioner voluntarily and deliberately frustrated
the probate of the 1939 will. WON Miguel Mamuyac’s last will has indeed been cancelled
- SC held that she did not because if it was indeed her and revoked and therefore not admissible to probate.
intention, she could have accomplished her desire by merely

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- YES. There is positive proof, not denied, that the will in - The original will herein presented for probate having been
question had been cancelled in 1920. destroyed with animo revocandi cannot now be probated as
- The law does not require any evidence of the revocation or the will and last testament of Jesus de Leon.
cancellation of a will to prove the same. - Judgment affirmed.
- The fact that such cancellation or revocation has taken place - The destruction of a will with animo revocandi constitutes, in
must either remain unproved or be inferred from evidence itself, a sufficient revocation.
showing that after due search the original will cannot be
found. If it be shown that the will was in the possession of
the testator when last seen, the presumption is, in the Subsection 8 – Allowance and
absence of other competent evidence, that the same was Disallowance of Wills
cancelled or destroyed.
- The same presumption governs when the testator had ready
access to the will and it cannot be found after his death. ART. 838. No will shall pass either real or
- No presumption of destruction by any other person without
the knowledge or authority of the testator.
personal property unless it is proved and
- The force of presumption is never conclusive but may be allowed in accordance with the Rules of
overcome by proof that the will was not destroyed by the Court.
testator with intent to revoke it. The testator himself may, during his
- Copies of wills should be admitted by courts with great lifetime, petition the court having jurisdiction
caution in view of the difficulty of finding witnesses and other for the allowance of his will. In such case, the
evidence.
- The duplicate may be admitted to probate if it was in the
pertinent provisions of the Rules of Court for
same manner executed with all formalities and requirements the allowance of wills after the testator’s
of the law. death shall govern.
- The fact that such cancellation or revocation has taken place The Supreme Court shall formulate such
must either remain unproved or be inferred from evidence additional Rules of Court as may be
showing that after due search the original will cannot be necessary for the allowance of wills on
found.
- If it be shown that the will was in the possession of the
petition of the testator.
testator when last seen, the presumption is, in the absence Subject to the right of appeal, the
of other competent evidence, that the same was cancelled allowance of the will, either during the lifetime
or destroyed. of the testator or after his death, shall be
- The same presumption governs when the testator had ready conclusive as to its due execution.
access to the will and it cannot be found after his death.
- No presumption of destruction by any other person without
 Probate of a will is MANDATORY.
the knowledge or authority of the testator.
- In a proceeding to probate a will, the burden of proof is upon  TWO KINDS OF PROBATE
the proponent to establish not only the execution of the will
but also its existence. 1. POST MORTEM – after the testator’s death
2. ANTE MORTEM – during his lifetime, features:
Diaz v. De Leon • Easier for the courts to determine mental
condition of a testator
- In this case, Diaz, the petitioner, denies that the will
• Fraud, intimidation and undue influence
executed by the decedent Jesus de Leon.
are minimized
- However, the contestant says otherwise and alleging that
the testator revoked his will by destroying it, and by • Easier correction of formal defects in the
executing another will expressly revoking the former. will
- Hence, this appeal. • Once a will is probated ante mortem, the
only questions that may remain for the courts
WON, the will executed by the Jesus de Leon, now deceased, to decide after the testator’s death will refer to
was revoked by him. the intrinsic validity of the testamentary
- The court finds that the will executed by the deceased is not dispositions.
clothed with all the necessary requisites to constitute a
sufficient revocation.  Rules on Probate for both post and ante mortem are
- But according to the statute governing the subject in this found in Rule 76 of the Rules of Court.
jurisdiction, the destruction of a will with animo revocandi
 Finality of a Probate Decree
constitutes, in itself, a sufficient revocation.
- From the evidence presented, the decedent asked that the  Once a decree of probate becomes final in
same be returned to him. accordance with the rules of procedure, it is res
- The instrument was returned to the testator who ordered his judicata.
servant to tear the document. This was done in his presence
and before a nurse who testified to this effect.  Scope of a Final Decree of Probate
- The intention of revoking the will is manifest from the  A final decree of probate is conclusive as to the
established fact that the testator was anxious to withdraw or due execution of the will, i.e. as to the will’s
change the provisions he has made in his first will. extrinsic and formal validity only.

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invoke the testamentary dispositions made therein in her


favor, whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and bequests,
devised to her a portion of the large parcel of land described
in the will.
- But a little over four years after the testator's demise, she
commenced the present action against Ernesto;
- It was only during the trial of this case that she presented the
will to the court, not for the purpose of having it probated but
only to prove that the deceased Victorino had acknowledged
her as his natural daughter.
 Gallanosa v. Arcangel enumerates what are - Upon that proof of acknowledgment she claimed her share
covered by the term Formal Validity and of the inheritance from him, but on the theory or assumption
therefore conclusively settled by a final decree that he died intestate, because the will had not been
of probate – probated, for which reason, she asserted, the betterment
a) That the testator was of sound and therein made by the testator in favor of his legitimate son
disposing mind Ernesto should be disregarded.
b) That his consent was not vitiated
c) That the will was signed by the Whether the procedure adopted by Rosario Guevara is legal?
- If the decedent left a will and no debts and the heirs and
required number of witnesses, and
legatees desire to make an extrajudicial partition of the
 That all the formal requirements of the estate, they must first present that will to the court for
law have been complied with. probate and divide the estate in accordance with the will.
d) That the will is genuine. - They may not disregard the provisions of the will unless
 Another way of defining the scope of a final decree those provisions are contrary to law.
of probate is to refer to art839. Any action based - Neither may they do away with the presentation of the will to
on any of the grounds for disallowance of a will the court for probate, because such suppression of the will is
enumerated in Article 839 can no longer be contrary to law and public policy.
pursued once there is a final decree of probate. - The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to
 GENERAL RULE – A decree of probate, therefore does
dispose of his property by will may be rendered nugatory, as
not concern itself with the question of INTRINSIC
is attempted to be done in the instant case.
validity and the probate court should not pass upon that - Absent legatees and devisees, or such of them as may have
issue. no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might
 EXCEPTION - When the probate of a will might become agree to the partition of the estate among themselves to the
an idle ceremony if on its face it appears to be exclusion of others.
intrinsically void. Where practical considerations - Even if the decedent left no debts and nobody raises any
demand that the intrinsic validity of the will be passed question as to the authenticity and due execution of the will,
upon, even before it is probated, the court should meet none of the heirs may sue for the partition of the estate in
the issue. accordance with that will without first securing its allowance
or probate of the court:
 On the authority of Nepomuceno v. Ca, a probate court - The presentation of a will to the court for probate is
may pass upon the issue of intrinsic validity if on the mandatory and its allowance by the court is essential and
face of the will, its intrinsic nullity is patent. indispensable to its efficacy.
- In fact, to ensure the presentation of the will to the court for
CASE probate the law punishes a person who neglects his duty to
Guevara v. Guevara present it to the court (w/ a fine not exceeding P2000) and if
he should persist in not presenting it, he may be committed
- Ernesto M. Guevara and Rosario Guevara, legitimate son to prison and kept there until he delivers the will.
and natural daughter, respectively, of the deceased - The law expressly provides that "no will shall pass either real
Victorino L. Guevara, are litigating here over their or personal estate unless it is proved and allowed in the
inheritance from the latter. proper court";
- Victorino made a will distributing his estate to his children - The probate of a will, which is a proceeding in rem, cannot
and granting devises to certain individuals. He also set aside be dispensed with and substituted by any other
100 hectares of land either to be disposed of by him during proceeding, judicial or extrajudicial, without offending
his lifetime or for the payment of all his pending debts and against public policy designed to effectuate the
expenses up to the time of his death. testator's right to dispose of his property by will in
- Victorino died. His last will and testament, however, was accordance with law and to protect the rights of the heirs
never presented to the court for probate, nor has any and legatees under the will thru the means provided by law,
administration proceeding ever been instituted for the among which are the publication and the personal notices to
settlement of his estate. each and all of said heirs and legatees.
- Rosario Guevara, who appears to have had her father's last
will and testament in her custody, did nothing judicially to De la Cerna v. Potot

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- The court dismissed said action. However, the court set


- Spouses Bernabe de la Serna and Gervasia Rebaca, aside the dismissal after the heirs filed a motion for
executed a joint last will ad testament where they willed that reconsideration. Hence, this appeal.
their 2 parcels of land be given to Manuela Rebaca, their
niece and that while each of them are living, he/she will Whether the legal heirs have a cause of action for the
continue to enjoy the fruits of the lands mentioned. “annulment” of the will of Florentino and for the recovery of the
- Bernabe died. Gervasia submitted the will for probated. By 61 parcels of land adjudicated under that will to the petitioners.
order of Oct. 31, 1939, the Court admitted for probate the - NO. The SC held that the lower court committed a grave
said will but only for the part of Bernabe. abuse of discretion in setting aside its order of dismissal and
- When Gervasia died, another petition for probate was ignoring the testamentary case and the first civil case which
instituted by Manuela, but because she and her attorney is the same as the instant case. It is evident that second civil
failed to appear in court, the petition was dismissed. case is barred by res judicata and by prescription.
- When the same was heard, the CFI declared the will void for
being executed contrary to the prohibition on joint wills. On - The decree of probate is conclusive as to the due
appeal, the order was reversed. execution or formal validity of the will. That means that
the testator was of sound and disposing mind at the time he
Whether or not the will may be probated executed the will and was not acting under duress, menace,
- Admittedly the probate of the will in 1939 was erroneous, fraud, or undue influence; that the will was signed by him in
however, because it was probated by a court of competent the presence of the required number of witnesses, and that
jurisdiction it has conclusive effect and a final judgment the will is genuine.
rendered on a petition for the probate of a will is binding - Accordingly, these facts cannot again be questioned in a
upon the whole world. However, this is only with respect to subsequent proceeding, not even in a criminal action for the
the estate of the husband but cannot affect the estate of the forgery of the will.
wife; considering that a joint will is a separate will of each - After the finality of the allowance of a will, the issue as to the
testator. voluntariness of its execution cannot be raised anymore.
- The joint will being prohibited by law, its validity, in so far as - The SC also held that the decree of adjudication, having
the estate of the wife is concerned, must be reexamine and rendered in a proceeding in rem, is binding upon the whole
adjudicated de novo. world. Moreover, the dismissal of the first civil case, which is
- The undivided interest of the wife should pass upon her a judgment in personam, was an adjudication on the merits.
death to her intestate heirs and not to the testamentary heir. Thus. It constitutes a bar by former judgment under the
Thus as to the disposition of the wife, the will cannot be Rules of Court.
given effect. - The SC also held that the lower court erred in saying that the
- A decree of probate decree is conclusive on the due action for the recovery of the lands had not prescribed. The
execution and the formal validity of the will subject to such SC ruled that the Art. 1410 of NCC (the action or defense for
probate. the declaration of the inexistence of a contract does not
prescribe) cannot apply to last wills and testaments.
Gallanosa v. Arcangel - The Rules of Court does not sanction an action for
“annulment” of a will.
- Florentino Hitosis was a childless widower and was survived - A final decree of probate is conclusive as to the due
by his brother Lito. execution of the will.
- In his will, Florentino bequeathed his ½ share in the conjugal - A decree of adjudication in a testate proceeding is binding
estate to his second wife, Tecla, and, should Tecla on the whole world.
predecease him, as was the case, his ½ share would be - After the period for seeking relief from a final order or
assigned to spouses Gallanosa. Pedro Gallanosa was judgment under Rule 38 of the Rules of court has expired, a
Tecla’s son by her first marriage who grew up under the final judgment or order can be set aside only on the grounds
care of Florentino. His other properties were bequeathed to of: (a) lack of jurisdiction or lack of due process of law or (b)
his protégé Adolfo Fortajada. that the judgment was obtained by means of extrinsic or
- Upon his death, a petition for the probate of his will was wile. collateral fraud. In the latter case, the period for annulling
Opposition was registered by Florentino’s brother, nephews the judgment is four (4) years from the discovery of fraud.
and nieces. - The Civil Law rule that an action for declaration of
- After a hearing, where the oppositors did not present any inexistence of a contract does not prescribe cannot be
evidence, the Judge admitted the will to probate. applied to last wills and testaments.
- The testator’s legal heirs did not appeal from the decree of
probate and from the order of partition and distribution.
- Later, the legal heirs filed a case for recovery of 61 parcels
Nepomuceno v. CA
of land against Pedro alleging that they had been in
continuous possession of those lands and praying that they
- Martin Jugo died in 1974, leaving a last Will and Testament
be declared owners thereof.
signed by him and 3 other witnesses, in accordance with the
- Pedro moved for a dismissal which was later granted by the formalities prescribed by the law.
Judge on the ground of res judicata. - Martin named and appointed Sofia Nepomuceno as his sole
- The legal heirs did not appeal from the order of dismissal. and only executor of his estate.
- 15 years after the dismissal of the first civil case and 28 - The will specifically stated that Jugo was legally married to
years after the probate of the will, the legal heirs filed a case Rufina Gomez, by whom he has 2 children. But since 1962,
for “annulment of the will” alleging fraud and deceit. they have been estranged and Martin had been living with

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Sofia as husband and wife. Martin and Sofia were married in signed should be his will at the time of
Tarlac before the Justice of the Peace. affixing his signature thereto.
- Martin devised to his forced heirs (Rufina and their 2
children) his entire estate, and the free portion thereof to
Sofia.  An Exclusive Enumeration of the grounds for
- Sofia filed a petition for the probate of the last will and disallowance of a will.
testament of Martin.  These are matters involved in formal validity. Once a
- Rufina and her children opposed. probate decree is final, such decree forecloses any
- CFI denied probate on the ground that Martin admitted in his subsequent challenge on any of the matters
will that he had been unlawfully cohabiting with Sofia. enumerated in this article.
- CA reversed and admitted the will to probate, but declared  If any of these grounds for disallowance are proven, the
that the devise in favor of Sofia is void. will shall be set aside as VOID.
- Sofia contends that the validity of the testamentary provision  A will is either valid or void. If none of the defects
in her favor should be assailed in another proceeding and enumerated in this article are present, it is valid; if
that the only purpose of the probate is to conclusively any one of these defects is present, the will is void.
establish that will was executed with the formalities required The issue of formal validity or nullity is precisely
by law and that the testator has the mental capacity to what the probate proceedings will determine.
execute the same.
 There is no such thing as a Voidable Will.
WON the probate court validly passed upon the intrinsic
validity of the testamentary provision in favor of Sofia.
- YES.  GROUNDS FOR DISALLOWANCE OF A WILL
- The general rule is that in probate proceedings, the court’s 1. FORMALITIES
area of inquiry is limited to an examination and resolution of • Those referred to in Articles 804-818, 818-
the extrinsic validity of the will. 819 and 829-821
- Such rule is not inflexible and absolute. Given exceptional 2. TESTATOR INSANE OR MENTALLY
circumstances, the probate court is not powerless to pass
INCAPABLE AT TIME OF EXECUTION
upon certain provisions of the will.
- A will no matter how valid it may appear extrinsically may be • Articles 798 – 801 on testamentary
void. A separate proceeding to determine its intrinsic validity capacity and intent
would be superfluous. 3. FORCE, DURESS, INFLUENCE OF
- Sofia cannot claim good faith. She knew that Martin had a FEAR OR THREATS
pre-existing marriage when they got married. • Force or Violence – when in order to wrest
- Further, donations between persons living in adultery or
consent, serious or irresistible force is
concubinage is prohibited by the Civil Code.
employed.
- GR: In probate proceedings, the probate court is usually
limited to an examination and resolution of the extrinsic • Duress or Intimidation – when one of the
validity of the will. contracting parties is compelled by a
- E: For “practical considerations,” the probate court is not reasonable and well-grounded fear of
powerless to pass upon certain provisions of the will even imminent and grave evil upon his person or
before it is probated. property, or upon the person or property of
his spouse, descendants or ascendants, to
give his consent. Age, sex and condition of
the person are borne in mind. Threat to
ART. 839. The will shall be disallowed in any of
enforce a just or legal claim through
the following cases: competent authority does not vitiate consent.
(1) If the formalities required by law have
not been complied with; 4. UNDUE & IMPROPER PRESSURE AND
INFLUENCE
(2) If the testator was insane, or
• Undue Influence – when a person takes
otherwise mentally incapable of
improper advantage of his power over the will
making a will, at the time of its of another, depriving the latter of a
execution; reasonable freedom of choice. Circumstances
(3) If it was executed through force or such as the following shall be considered:
under duress, or the influence of fear, confidential, family, spiritual and other
or threats; relations between parties, or fact that person
(4) If it was procured by undue and unduly influenced was suffering from mental
improper pressure and influence, on weakness or ignorant or in financial distress.
the part of the beneficiary or of some 5. SIGNATURE PROCURED THROUGH FRAUD
other person; • Fraud – when through insidious words or
(5) If the signature of the testator was machinations of one of the contracting
procured by fraud; parties, the other is induced to enter into a
(6) If the testator acted by mistake or did contract which, without them, he would not
not intent that the instrument he have agreed to.

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6. MISTAKE OR TESTATOR DID NOT INTENT - Exceptions:


INSTRUMENT TO BE HIS WILL WHEN HE 1. When the defect of the will is apparent on its face
AFFIXED HIS SIGNATURE THERETO and the probate of the will may become a useless
• Mistake – must refer to substance of the ceremony if it is intrinsically invalid.
thing which is the object of the contract, or to 2. When "practical considerations" demanded it as
those conditions which have principally when there is preterition of heirs
3. When the testamentary provisions are of doubtful
moved one or both parties to enter into the
legality.
contract. Mistake as to identity or
4. When the parties agree that the intrinsic validity be
qualifications only vitiates consent when such first determined, the probate court may also do so.
were the principal cause of the contract. A
simple mistake of account gives rise to Balanay v. Martinez
correction.
- Leodegaria Julian, in her will, partitioned her paraphernal as
well as all the conjugal properties as if they were all owned
by her, disposing of her husband's one-half share, and
providing that the properties should not be divided during
her husband's lifetime but should remain intact and that the
legitimes should be paid in cash to be satisfied out of the
fruits of the properties.
- Felix Balanay, Jr. filed a petition for the approval of his
mother's will which was opposed by the husband and some
of her children.
Cases for Arts. 838-839 - Thereafter, Felix Jr. submitted to the court a document
showing his father's conformity to the testamentary
Reyes v. CA distribution, renouncing his hereditary rights in favor of his
children in deference to the memory of his wife.
- Torcuato Reyes died and left all his property to his wife - The Court gave effect to the affidavit and conformity of the
Asuncion Reyes. surviving spouse.
- His recognized natural children with Galolo and his natural - Meanwhile, a certain Atty. David Montaña, Sr. moved to
children with Agape opposed the probate of the will on the dismiss the probate proceedings on the ground that the will
ground that Asuncion is not the legal wife of Torcuato since was void because Leodegaria cannot validly dispose of her
she was a relative within the fourth civil degree and she was husband’s share.
previously married to a certain Lupo Ebarle. - Said motion was granted by the probate court.
- Petitioner impugned the order of dismissal claiming that Atty.
Whether or not the will must be denied probate. Montaña had no authority to ask for the dismissal of the
- SC held that the will must be admitted because: petition for allowance of will and that the court erred in
o The only issues decided during probate are: declaring the will void before resolving the question of its
formal validity.
(a) whether the testator has animus testandi, (b)
whether vices of consent attended the execution of
Whether the probate court erred in passing upon the intrinsic
the will, and (c) whether the formalities of the will
validity of the will, before ruling on its allowance or formal
had been complied with. Hence, the declaration of
validity, and in declaring it void.
the testator that Asuncion is his wife already
- NO. In view of certain unusual provisions of the will, which
involves an inquiry on the intrinsic validity of the
are of dubious legality, the trial court acted correctly in
will and need not be inquired by probate court.
passing upon the will’s intrinsic validity even before the
o There was never an open admission in the
formal validity had been established.
will of any illicit relationship which could be a - The probate of a will might become an idle ceremony if on
reason for deciding on such issue during probate. its face it appears to be intrinsically void. Where practical
(One of the exceptions is when on the defect is considerations demand that the intrinsic validity of the will be
evident on the face of the will.) passed upon, even before it is probated, the court should
o Testimonies of the witnesses against meet the issue. (In this case, the preterited heir was the
Asuncion were merely hearsay and even uncertain surviving spouse)
as to the whereabouts of existence of Lupo Ebarle.
o A will is a testator speaking after death. All Whether the court erred in converting the testate proceeding
doubts must be resolved in favor of the testator’s into an intestate proceeding
having meant just what he said. - YES. The rule is that "the invalidity of one of several
- GR: Courts in probate proceedings are limited to pass only dispositions contained in a will does not result in the
upon the extrinsic validity of the will sought to be probated. invalidity of the other dispositions unless it is to he presumed
Thus, the court merely inquires on its due execution, that the testator would not have made such other
whether or not it complies with the formalities prescribed by dispositions if the first invalid disposition had not been
law, and the testamentary capacity of the testator. It does made" (Art. 792, Civil Code).
not determine nor even by implication prejudge the validity - "Where some of the provisions of a will are valid and others
or efficacy of the will's provisions. The intrinsic validity is not invalid, the valid parts will be upheld if they can be
considered since the consideration thereof usually comes separated from the invalid without defeating the intention of
only after the will has been proved and allowed.

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the testator or interfering with the general testamentary “destroy his free agency and make him express the will of
scheme, or doing injustice to the beneficiaries" another rather than his own.”
- Void provisions in the will: - The testator was an intelligent man, a lawyer by profession,
1. The statement of the testatrix that she owned the appears to have his known his own mind, and may well have
"southern half" of the conjugal lands is contrary to law been actuated only by a legitimate sense of duty in making
because, although she was a co-owner thereof, her provisions for the welfare of his illegitimate son and by a
share was inchoate and pro indiviso proper feeling of gratitude in repaying Rosario Lopez for the
2. that the properties of the testatrix should not be sacrifices she had made for him.
divided among her heirs during her husband's lifetime - Mere affection, even if illegitimate, is not undue influence
but should be kept intact and that the legitimes and does not invalidate a will.
should be paid in cash is contrary to article '080 of - No imposition or fraud has been shown in the present case.
the Civil Code - To be sufficient to avoid a will, the influence exerted must be
of a kind that so overpowers and subjugates the mind of the
Whether an heir may validly renounce his share testator as to destroy his free agency and make him express
- YES. Felix Balanay, Sr. could validly renounce his hereditary the will of another, rather than his own.
rights and his one-half share of the conjugal partnership - Mere affection, even if illegitimate, is not undue influence
(Arts. '79['] and '04', Civil Code) but insofar as said and does not invalidate a will.
renunciation partakes of a donation of his hereditary rights - No imposition or fraud has been shown in the present case.
and his one-half share in the conjugal estate (Art. '050['] Civil - Influence gained by kindness and affection will not be
Code), it should be subject to the limitations prescribed in regarded as ‘undue’, if no imposition or fraud be practiced,
articles 750 and 752 of the Civil Code. A portion of the even though it induces the testator to make an unequal and
estate should be adjudicated to the widower for his support unjust disposition of his property in favor of those who have
and maintenance. Or at least his legitime should be contributed to his comfort and ministered to his wants, if
respected. such disposition is voluntarily made.
- Generally, the probate of a will is mandatory and it is the
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically
void.
- A will is not rendered null and void by reason of the Macam v. Gatmaitan
existence of some illegal or void provisions since the
invalidity of one of several dispositions contained in a will - On March 27, 1933, Nicolasa Macam filed in the CFI a
does not result in the invalidity of the other dispositions petition for probate of the will date July 12, 1932 and of the
unless it is to be presumed that the testator would not have codicil thereof dated February 17, 1933, executed by
made such other dispositions if the first invalid disposition Leoanarda Macam who died on March 18, 1933.
had not been made; - With the judge absent that there being no opposition to the
- Testacy is favored. Doubts are resolved in favor of testacy probate of the will, upon the instructions of the judge, clerk of
especially where the will evinces an intention on the part of court took the evidence relative to the probate of the will.
the testator to dispose of practically his whole estate. - Inasmuch as Gatmaitan opposed to the probate of the
codicil, the clerk of court deemed himself unauthorized to
Coso v. Daza take evidence relative thereto and refrained from doing so.
- The judge then entered an order allowing the probate of the
- The testator, a married man, had illicit relations with Rosario will.
Lopez in Spain, having met her in 1898. - Hearing then was heard for the opposition on the probate of
- Rosario Lopez took care of the testator in the said foreign the codicil, which Gatmaitan filed, one of the legatees
land when he had been severely ill from 1909 to 1916, and instituted in the will which had already been allowed by final
bore an illegitimate son by him. and executory judgment.
- When the testator came back to the Philippines in 1918, - Probate of the codicil was denied.
Rosario followed, as her heart did dictate, and kept close - Hence this petition.
until the testator’s death in 1919.
- Undue influence is said to have been exerted over the WON, the probate of a will by final judgment prior to that of a
testator’s mind by Rosario as the will gave the tercio de libre codicil thereof a bar to the probate of said codicil. (With respect
disposicion to their illegitimate son and provided for the to the appeal of Macam regarding the probate of the will.)
payment to Rosario of 1,900 Spanish duros by way of - No, the fact that a will has been allowed without any
reimbursement for the expenses incurred by Rosario in opposition and the order allowing the same has become
taking care of him. final and executory is not a bar to the presentation and
probate of a codicil, provided it complies with all necessary
Whether or not Rosario Lopez exerted undue influence over formalities for executing a will required by the Civil Code.
the testator of such character as to vitiate his will. - It is not necessary that the will and the codicil be probated
- NO. The parties challenging the will on the ground of undue together, as the codicil may be concealed by an interested
influence were not able to discharge the burden of proving party and it may not be discovered until after the will has
the same. already been allowed.
- While it is shown that the testator entertained strong - This is because the purpose of the probate is merely to
affections for Rosario Lopez, it does not appear that her determine whether or not the will and the codicil meet all the
influence so overpowered and subjugated his mind as to legal requisites.

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WON, the failure to file the opposition to the probate of a will


constitute a bar to the presentation of the codicil for probate.  Even if the will does not contain any testamentary
(With respect to the opposition of Gatmaitan to the probate of disposition, it will be formally valid provided it complies
the codicil.) with all the formal requisites. This is in keeping with the
- No, the fact that Gatmaitan failed to file opposition to the character of wills as dispositive of property under
probate of the will does not prevent her from filing opposition Art783.
to the probate of the codicil thereof.
- This is because the will may satisfy all the external  HOW MUCH CAN BE DISPOSED OF BY WILL?
requisites necessary for its validity, but the codicil may, at
1. No Compulsory Heirs – Entire hereditary
the time of is execution, not be in conformity therewith.
estate
- Hence, the order appealed from is reversed and it is ordered
that the probate for the codicil and the opposition thereto be
2. There are Compulsory Heirs – the disposable
reinstated. portion or the net hereditary estate minus the
- The fact that a will has been probated and the order allowing legitimes.
the same has become final and executory, is not a bar to the
presentation and probate of a codicil, although its existence  The amount of the legitimes depends on the kinds
was known at the time of the probate of the will. and number of compulsory heirs. Various
- The failure of the oppositor to the probate of a codicil to fill combinations are possible and so the amount of
opposition to the probate of the will, having knowledge of disposable portion is also variable.
such proceedings, does not constitute an abandonment of a
right, nor does it deprive someone of the right to oppose the  If the testator disposes by will of LESS than he is
probate of said codicil. allowed to, there will be MIXED succession –
 Testamentary succession as to the part disposed
of by will, and
 Intestate succession as to the part not disposed of
by the will.
 The legitimes, of course, pass by strict operation of
law.

SECTION 2 – INSTITUTION OF HEIR


ART. 843. The testator shall designate the heir by
ART. 840. Institution of heir is an act by virtue of his name and surname, and when there are
which a testator designates in his will the two persons having the same names, he shall
person or person who are to succeed him in indicate some circumstance by which the
his property and transmissible rights and instituted heir may be known.
obligations. Even though the testator may have
omitted the name of the heir, should he
 Rules on institution of heir set forth in this section apply designate him in such manner that there can
as well to institution of Devisees and Legatees. be no doubt as to who has been instituted,
the institution shall be valid.

ART. 841. A will shall be valid even though it ART. 844. An error in the name, surname, or
should not contain an institution of an heir, or circumstances of the heir shall not vitiate the
such institution should not comprise the institution when it is possible, in any other
entire estate, and even though the person so manner, to know with certainty the person
instituted should not accept the inheritance instituted.
or should be incapacitated to succeed. If among the persons having the same
In such cases the testamentary names and surnames, there is a similarity of
dispositions made in accordance with law circumstances in such a way that, even with
shall be complied with and the remainder of the use of the other proof, the person
the estate shall pass to the legal heirs. instituted cannot be identified, none of them
shall be an heir.
ART. 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of  REQUIREMENT FOR DESIGNATION OF HEIR
it in favor of any person having capacity to  The heir, legatee or devisee must be identified in
succeed. the will with sufficient clarity to leave no doubt
One who has compulsory heirs may as to the testator’s intention.
dispose of his estate provided he does not  The basic rule in testamentary succession always
contravene the provisions of this Code with is respect for and compliance with the testator’s
regard to the legitime of said heirs. wishes.

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designated their shares, therefore Art846 applied


 The designation of name and surname is DIRECTORY. to C and D.
What is required is that the identity of the designated
successor be sufficiently established. This is usually
done by giving the name and surname, but there are ART. 847. When the testator institutes some heirs
other ways as can be gleaned from Art843 par2, such
as to one’s ‘eldest first cousin’.
individually and others collectively as when
he says, “I designate as my heirs A and B,
 If there is any AMBIGUITY in the designation, it should and the children of C,” those collectively
be resolved in light of Art789 – by the context of the will designated shall be considered as
and any extrinsic evidence available, except the individually instituted, unless it clearly
testator’s oral declarations. appears that the intention of the testator was
 If it is not possible to resolve the ambiguity, the otherwise.
testator’s intent becomes indeterminable and
therefore intestacy as to that portion will result.  Equality and Individuality of Designation
 This article follows the basic rule of equality in the
previous article. In addition, it established the
ART. 845. Every disposition in favor of an PRESUMPTION that the heirs collectively referred to
unknown person shall be void, unless by are designated per capita along with those
some even or circumstance his identity separately designated.
becomes certain. However, a disposition in  If the testator intends a block designation, he should so
favor of a definite class or group of persons specify.
shall be valid.

 Unknown Person ART. 848. If the testator should institute his


 This article refers to a successor whose identity cannot brothers and sisters, and he has some of full
be determined because the designation in the will is so blood and others of half blood, the
unclear or so ambiguous as to be incapable of inheritance shall be distributed equally unless
resolution. a different intention appears.
 This does not refer to one with whom the testator is not
personally acquainted. The testator may institute  Once again, this article follows the general rule of
somebody who is a perfect stranger to him, provided equality laid down in Art846.
the identity is clearly designated in the will  Also, if the testator intends an unequal apportionment,
he should so specify.

ART. 846. Heirs instituted without designation of  DIFFERENT RULE IN INTESTACY


shares shall inherit in equal parts.  Art848 only applies to testamentary succession,
wherein siblings, regardless of whether full or half
 GENERAL PRESUMPTION blood, get equal shares except if a different
intention of the testator appears.
 Equality in cases of collective designation.
 If the testator intends an unequal apportionment,  In INTESTACY, the rule is different. The applicable
he should so specify. provision is Art 1006 which establishes a
 The article applies only in testamentary succession, proportion of 2:1 between full and half blood
and only among testamentary heirs or devisees or brothers and sisters, but without prejudice to the
legatees. rule prohibiting succession ab intestato between
 It will NOT APPLY to an heir who is both a legitimate and illegitimate siblings. [Art992]
compulsory and a testamentary heir, for in that Art. 1006. Should brother and sisters of
case the heir will get his legitime and his the full blood survive together with brothers
testamentary portion. and sisters of the half blood, the former
 Not explicitly covered by this article is an instance shall be entitled to a share double that of
where the shares of some of the heirs are designated the latter.
and those of others are not.
Art. 992. An illegitimate child has no
 Example – “I institute to ¼ of my estate A, B, C and
right to inherit ab intestate from the
D, of which A will get 1/3 and B is to get ¼.” The
legitimate children and relatives of his
shares of C and D are unspecified. Are they to
father or mother; nor shall such children or
divide equally the remaining portion of the ¼ of the
relatives inherit in the same manner from
estate, after deducting A’s and B’s portions [The
remainder is 5/12 of ¼?] the illegitimate child.
 YES, because the article talks about heirs instituted
 RE-CAP
without designation of shares. A and B have been

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 Testamentary Succession – equality in shares of Cruz-Salonga, all of whom had been assumed and declared
full and half blood brothers and sisters unless the by Basilia as her own legally adopted children.
testator provides otherwise [Art848] - More than two years after her will was allowed to probate,
 Intestacy – Proportion of 2:1 between full and half Basilia died.
blood brothers and sisters [Art1006], and only if the - The petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are
disqualification in Art992 does not apply.
the nearest of kin of Basilia, and that the five respondents
Perfecto Cruz, et al., had not in fact been adopted by the
 Question – Does Art848 apply even to illegitimate decedent in accordance with law, in effect rendering these
brothers and sisters, in cases where the testator is of respondents mere strangers to the decedent and without
legitimate status and vice versa? YES. Art848 does not any right to succeed as heirs. According to petitioners, the
distinguish. language used in the will gives rise to the inference that the
late Basilia was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to the
ART. 849. When the testator calls to the respondents Perfecto Cruz, et al. as the latter's legitime.
succession a person and his children they are
Whether or not the institution of heirs would retain efficacy in
all deemed to have been instituted the event there exists proof that the adoption of the said heirs
simultaneously and not successively. by the decedent is false.
- YES. If the impelling reason or cause for the institution of the
 Article lays down the same rule as Arts. 846 and 847. respondents as her heirs was the testatrix's belief that under
 Equality and Individuality of institution are presumed. the law she could not do otherwise, she did not make it
 If the testator desires a different mode of known in her will. Surely if she was aware that succession to
apportionment, he should so specify. the legitime takes place by operation of law, independent of
her own wishes, she would not have found it convenient to
name her supposed compulsory heirs to their legitimes. Her
express adoption of the rules on legitimes should very well
ART. 850. The statement of a false cause for the indicate her complete agreement with that statutory scheme.
institution of an heir shall be considered as But even this, like the petitioners' own proposition, is highly
not written, unless it appears from the will speculative of what was in the mind of the testatrix when she
that the testator would not have made such executed her will.
institution if he had known the falsity of such - One fact prevails, however, and it is the decedent's will does
cause. not state in a specific or unequivocal manner the cause for
such institution of heirs. We cannot annul the same on the
 GENERAL RULE – the falsity of the stated cause for basis of guesswork or uncertain implications. Such
the testamentary institution DOES NOT AFFECT the institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not
validity or efficacy of the institution.
have made the institution if he had known the cause for it to
 Reason – testamentary disposition is ultimately be false.
based on liberality. - Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was
done in this case.
 EXCEPTION – the falsity of the stated cause for - The legality of the adoption of the respondents by the
institution will set aside the institution if the following testatrix can be assailed only in a separate action brought
factors are present: for that purpose, and cannot be the subject of a collateral
1. Cause for institution is stated in the will attack.
2. Cause must be shown to be false - Before the institution of heirs may be annulled under article
3. It appears on the face of the will that if the 850 of the Civil Code, the following requisites must concur:
testator had known of the falsity of such cause, First, the cause for the institution of heirs must be stated in
he would not have instituted the heir. the will; second, the cause must be shown to be false; and
third, it must appear from the face of the will that the testator
CASE would not have made such institution if he had known the
Austria v. Reyes falsity of the cause.
- So compelling is the principle that intestacy should be
- Basilia Austria filed a petition for probate, ante mortem, of avoided and the wishes of the testator allowed to prevail,
that we could even vary the language of the will for the
her last will and testament. The probate was opposed by the
purpose of giving it effect. Where the testator was
petitioners Ruben, Consuelo and Lauro Austria, and still
possessed of testamentary capacity and her last will
others who, like the petitioner, are nephews and nieces of
executed free from falsification, fraud, trickery or undue
Basilia. This opposition was, however, dismissed and the
influence this Court held, it is its duty to give full expression
probate of the will allowed
to her will.
- The bulk of the estate of Basilia, admittedly, was destined
under the will to pass on to the respondents Perfecto Cruz,
Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz

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ART. 851. If the testator has instituted only one  ART. 852 – the total of all the portions is less than the
heir, and the institution is limited to an aliquot whole estate or the whole disposable portion.
part of the inheritance, legal succession takes Therefore, a proportionate increase is necessary.
place with respect to the remainder of the  The difference cannot pass by intestacy because
the testator’s intention is clear to give the instituted
estate.
heirs the entire amount.
The same rule applies if the testator has
instituted several heirs, each being limited to  ART. 853 – the reverse occurs, the total exceeds the
an aliquot part, and all the parts do not cover whole estate or the whole disposable portion. Thus a
the whole inheritance. proportionate reduction must be made.

 The wording of the article, according to Prof. Balane, is


FORMULA FOR PROPORTIONATE
erroneous because legal succession does not take
place with respect to the remainder of the estate but to INCREASE OR DECREASE
the remainder of the disposable portion.
P HEIR’S SHARE = X
 There may after all be compulsory heirs whose
.
legitimes will therefore cover part of the estate, the and
P TOTAL DISPOSED P TOTAL ESTATE
the legitimes do not pass by legal or intestate DISPOSABLE
succession.

 Suggested Rewording –
Art. 851. If the testator has instituted only
ART. 854. The preterition or omission of one,
one heir, and the institution is limited to an some, or all of the compulsory heirs in the
aliquot part of the inheritance, less than the direct line, whether living at the time of the
entire disposable portion, legal succession takes execution of the will or born after the death of
place with respect to the remainder of the the testator, shall annul the institution of heir;
estate. but the devises and legacies shall be valid
The same rule applies if the testator has insofar as they are not inofficious.
instituted several heirs, each being limited to an If the omitted compulsory heirs should
aliquot part, and all the parts do not cover the die before the testator, the institution shall be
whole inheritance. effectual, without prejudice to the right of
representation.
 Moreover, this article states exactly the same rule laid
down in Art841. there is absolutely no need for the
redundancy.  PRETERITION – means omission, but from what? The
answer to that question is the basic problem in
preterition.
ART. 852. If it was the intention of the testator  Manresa’s Definition – “Preterition consists in the
that the instituted heirs should become sole omission of an heir in the will, either because he is not
heirs to the whole estate, or the whole free named, or, although he is named as a father, son, etc.,
portion, as the case may be, and each of them he is neither instituted as an heir or expressly
has been instituted to an aliquot part of the disinherited, nor assigned any part of the estate, thus
inheritance and their aliquot parts together do being tacitly deprived of his right to the legitime.
not cover the whole inheritance, or the whole
 Castan’s Definition – “By preterition is meant the
free portion, each part shall be increased
omission in the will of any of the compulsory heirs,
proportionally. without being expressly disinherited. It is thus a tacit
deprivation of the legitime, as distinguished from
ART. 853. If each of the instituted heirs has been disinheritance, which is an express deprivation.”
given an aliquot part of the inheritance, and
the parts together exceed the whole  OMISSION THAT CONSTITUTES PRETERITION
inheritance, or the whole free portion, as the • If the heir in question is instituted in the
case may be, each part shall be reduced will but the portion given to him by the will is less
proportionally. than his legitime – there is no preterition.
 In the case of Reyes v. Baretto-Datu:
 In both articles – 1. There was a compulsory heir in the
1. There are more than 1 instituted heir direct line
2. Testator intended them to get the whole estate 2. Such heir was instituted in the will
or the whole disposable portion 3. The testamentary disposition given
3. Testator designated a definite portion for each. to such heir was less than her
legitime

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 Based on these, the holding was that there • If the heir is not mentioned in the will nor
was NO PRETERITION. was a recipient of a donation inter vivos from the
testator, but not all of the estate is disposed of by
 The reason was there was no TOTAL
the will – there is no preterition.
OMISSION, inasmuch as the heir received
 The omitted heir in this instance would
something from the inheritance. The heir’s
receive something by intestacy, from the
remedy is not found in Art854 but in Arts.
portion not disposed of by the will [the
906 and 907 for Completion of Legitime.
vacant portion]. The right of the heir, should
Art. 906. Any compulsory heir to the vacant portion be less than his legitime,
whom the testator has left by any title will simply be to demand completion of his
less than the legitime belonging to legitime, under Articles 906 and 907.
him may demand that the same may
be fully satisfied.  For there to be preterition, therefore, the heir in
Art. 907. Testamentary dispositions question must have received NOTHING from the
that impair or diminish the legitime of testator by way of:
1. Testamentary succession
the compulsory heirs shall be reduced
2. Legacy or devise
on petition of the same, insofar as
3. Donation inter vivos, or
they may be inofficious or excessive.
4. Intestacy
 Preterition means therefore – TOTAL OMISSION IN
• If the heir is given a legacy or devise, THE INHERITANCE.
there is no preterition.
 Should the value of the legacy or devise be  WHO ARE INCLUDED WITHIN THE TERMS OF THE
less than the recipient’s legitime, his ARTICLE?
remedy is only for completion of legitime  A compulsory heir in the direct line, whether living
under Articles 906 and 907. at the time of the execution of the will or born after
the death of the testator.
• If the heir received a donation inter vivos
from the testator – the better view is that there is 1. COMPULSORY HEIRS IN THE DIRECT LINE
no preterition –
 Reason – donation inter vivos is treated as • Covers children or descendants, and in
an advance on the legitime under Articles proper cases [in default of children or
906, 909, 910 and 1062. descendants] parents or ascendants
• Surviving Spouse – does not fall within the
Art. 909. Donations given to children purview of this article because although a
shall be charged to their legitime. compulsory heir, is not in the direct line.
Donations made to strangers shall be • Under Art964 par2, direct line is that
charged to that part of the estate of which constituted by the series of degrees
the testator could have disposed by his among ascendants and descendants.
last will.
Insofar as they may be inofficious or 2. Are ILLEGITIMATE DESCENDANTS OR
may exceed the disposable portion, they ASCENDANTS within the coverage of
shall be reduced according to the rules “compulsory heirs in the direct line”?
established by this Code. • Manresa – YES, Scaevola – NO.
• Manresa’s seems to be the better opinion,
Art. 910. Donations which an since the law does not distinguish.
illegitimate child may have received
during the lifetime of his father or mother, 3. QUASI-POSTHUMOUS CHILDREN –
shall be charged to his legitime.
Should they exceed the portion that
• There is a flaw in the wording of the
article. The phrase “whether living at the
can be freely disposed of, they shall be
time of the execution of the will or born
reduced in the manner prescribed by this
after the death of the testator” does not,
Code.
by its terms, include those compulsory
heirs in the direct line born after the
Art. 1062. Collation shall not take
execution of the will but before the
place among compulsory heirs if the
testator’s death [los cuasi posthumous].
donor should have so expressly provided,
• However, such children are, without
or if the donee should repudiate the
doubt, to be included within the purview of
inheritance, unless the donation should be
the protection of this article.
reduced as inofficious.
4. PREDECEASE OF PRETERITED
COMPULSORY HEIR –

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• 2nd paragraph of Art 854 provides: If the so instituted a share in the inheritance. As to the
omitted compulsory heirs should die heir, the will is inexistent.
before the testator, the institution shall be  In that case, the only provision in the will was the
effectual, without prejudice to the right of institution of the petitioner a universal heir. That
representation. institution, by itself, was held null and void.
• Should the preterited heir predecease or Therefore, intestate succession ensued.
be unworthy to succeed the testator, the
question of preterition of that heir  However, this was muddled in the case of Solano
becomes moot. v. CA wherein it was ruled that the preterition of
• However, should there be a descendant of illegitimate children should annul the institution of
that heir who is himself preterited, then the heir “only insofar as the legitime of the omitted
the effects of preterition will arise. heirs is impaired”.
• Example – X has 2 legit kids: A and B. X  Prof. Balane says this is not annulment but
makes a will which results in preterition of reduction, and this would erase the distinction
A. A dies before X but leaves a legit child, between the effect of preterition on the institution of
A-1, who is himself completely omitted the heir and its effect on legacies and devises.
from the inheritance [A-1 being entitled to
succeed X by representation]. Art854 will  Fortunately, this was cleared up in Acain v. CA
apply, not because A was preterited but wherein it was held that “Preterition annuls the
because A-1 was preterited. institution of an heir and annulment throws open to
intestate succession the entire inheritance. The
5. ADOPTED CHILDREN only provisions which do not result in intestacy are
• Case of Acain v. IAC answers the the legacies and devises made in the will for they
question of whether an adopted child is should stand valid and respected, except insofar as
within the contemplation of this article as the legitimes are concerned.”
“compulsory heir in the direct line” and
rules in favor of the adopted child’s  RE-CAP – the correct rule of preterition is that:
inclusion in the phrase.  Preterition abrogates the institution of heir but
• An adopted child therefore, if totally respects legacies and devises insofar as these do
omitted in the inheritance, is preterited not impair the legitimes. Thus, if the will contains
within the contemplation of Art854 and only institutions of heirs and there is preterition,
can invoke its protection and TOTAL INTESTACY will result.
consequences.  If there are legacies or devises and there is
• Acain’s logic is that since an adopted child preterition, the legacies or devises will stand, to the
is given by law the same rights as a extent of the free portion [merely to be reduced and
legitimate child, vis-à-vis the adopter, then not set aside, if the legitimes are impaired] but the
the adopted child can, in proper cases, institution of heirs, if any, will be swept away.
invoke Art854 in the same manner that a
legitimate child can.  PRETERITION v. INEFFECTIVE DISINHERITANCE
• The law cited was Art39 of PD603 or the
Child and Youth Welfare Code as
 Preterition is total omission from the inheritance,
without the heir being expressly disinherited. The
supplanted by Art189[1] of the Gamily
implied basis of the rule is inadvertent omission by
Code, likewise supplanted by Secs 17 and
the testator.
18 of RA8552 or the Domestic Adoption
Act of 1998.  Thus, if the testator explicitly disinherits the heir,
this article will not apply.
 EFFECT OF PRETERITION  Should the disinheritance be ineffective, for
 Annulment of the institution of an heir but validity of absence of one or other of the requisites for a valid
legacies and devisees to the extent that these disinheritance, the heir is simply entitled to demand
latter do not impair legitimes. his rightful share.
 Distinction between heirs and legatees/devisees –
CASES
This in the only instance when there is still a
Reyes v. Baretto-Datu
practical effect in the distinction between an heir
and a legatee or devisee in Art782.
- Bibiano Barretto, married to Maria Gerardo, died and left his
 According to the case of Nuguid v. Nuguid, properties to his daughters Salud and Milagros, except for
annulment of institution of heir means only the the usufruct of a fishpond which he reserved for his widow.
legacies and devises will merit consideration if - Maria Gerardo as administratrix, by a project of partition,
expressly given in the will. Art854 does not mean distributed the estate and delivered the shares of the heirs.
that the mere institution of a universal heir in a will Salud took immediate possession of her share and procured
– void because of preterition – would give the heir the issuance of land titles to her name.

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- Upon Maria Gerardo’s death, it was discovered that she Whether the estate should pertain to Duncan and Garcia in
executed 2 wills, in the first she instituted both Salud and equal shares or whether the inheritance of Duncan as
Milagros as heirs and in the second she revoked the same instituted heir should be merely reduced to the extent
and left all her properties to Milagros alone. The 2nd will was necessary to cover the legitime of Garcia, equivalent to ¼ of
probated and it was proved that Salud was not the daughter the entire estate.
of Maria. - In order that the right of a forced heir may be limited only to
- Having lost her share in the estate of Maria, Salud went after the completion of his legitime (instead of the annulment of
the remnant of Bibiano’s estate, which was given in usufruct the institution of heirs) is it necessary that he should be
to Maria, by filing an action for the recovery of ½ thereof. recognized or referred to in the will as heir?
- This action afforded Milagros an opportunity to set up her - The SC set aside the project of partition. It remanded the
right of ownership not only of the fishpond but sought case with instruction to partition the hereditary estate by
recovery of all the properties acquired by Salud from giving to Garcia no more than the portion corresponding to
Bibiano, because Salud is a spurious heir not entitled to any her legitime, equivalent to ¼ of the hereditary estate.
share. - The case is not a case of preterition but a case of
- Milagros also alleged that since what was allotted in her completion of legitime. The institution in the will not be
father’s will to her was smaller than her legitime, then there annulled. There would be no intestacy.
is preterition, thus annulling the institution of heirs in the will. - The Court mentioned Manresa and 3 decisions of the SC of
Spain. In each of those case, the testator left to one who
Whether Salud may inherit from Bibiano was a forced heir a legacy worth less than the legitime, but
- Yes. Salud admittedly has been instituted heir in the without referring to the legatee as an heir or even as a
Bibiano’s will together with Milagros. Hence, the partition relative, and will the rest of the estate to other persons. It
had between them could not be one such had with a party was held that in such cases, the heir could not ask that the
who was not believed to be an heir without really being one, institution of heirs be annulled entirely, but only that the
and was not null and void. The legal precept does not legitime be completed.
speak of children or descendants but of heirs, and the fact - The Court viewed such as in consonance with the
that Salud happened not to be a daughter of the testator expressed wishes of Edward as may be observed from the
does not preclude her being one of the heirs expressly provisions of his will. He refused to acknowledge Garcia as
named in his testament; For Bibiano was at liberty to assign his natural daughter and limited her share to a legacy of Php
the free portion of his estate to whomsoever he choose. 3600. The fact that she was subsequently declared judicially
While the ½ share assigned to Salud impinged on the to possess such status is no reason to assume that had the
legitime of Milagros, Salud did not for that reason cease to judicial declaration come during his lifetime his subjective
be a testamentary heir of Bibiano. attitude towards her would have undergone any change and
that he would have will his estate equally to her and to
Whether there was preterition Duncan, who alone was expressly recognized by him
- None. There was no preterition even if Milagros was allotted - There is no preterition if the heir is given a legacy or devise.
a smaller share than her legitime because there was no total - Art. 854 of the NCC: The preterition or omission of one,
omission of a forced heir. some, or all of the compulsory heirs in the direct line,
- If the heir in question is instituted in the will but the portion whether living at the time of the execution of the will or born
given to him by the will is less than his legitime, there is no after the death of the testator, shall annul the institution of
preterition. heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
Aznar v. Duncan - Art. 906 of the NCC: Any compulsory heir whom the testator
has left by any title less than the legitime belonging to him
- Edward Christensen, a citizen of California with domicile in may demand that the same be fully satisfied.
the Philippines, died leaving a will. - Preterition is the omission of the heir in the will, either by
- The will was admitted to probate. In the same decision, the not naming him at all or, while mentioning him as father,
court declared that Maria Helen Christensen Garcia was a son, etc., by not instituting him as heir without disinheriting
natural child of Edward. him expressly, nor assigning to him some part of the
- In his will, Edward expressly mentioned that he bequeath properties.
unto Helen Garcia Php 3,600 notwithstanding the fact she is - Whether the testator gave a legacy to a person, whom he
not in any way related to him, nor has she been at any time characterized in the testamentary provision as not related to
adopted by him. him, but later his person was judicially declared to be his
- The court then issued an order approving the project acknowledged natural child, the case is not a case of
partition submitted by the executor wherein the properties of preterition but a case of completion of legitime. The
the estate were divided equally between Maria Lucy institution in the will not be annulled. There would be no
Christensen Duncan, whom the testator had expressly intestacy.
recognized in his will as his natural daughter and Helen
Garcia, who had been judicially declared as such after his Acain v. IAC
death.
- The said order was based on the proposition that since - Constantino Acain filed with the RTC a petition for the
Garcia had been preterited in the will, the institution of probate of the will of the late Nemesio Acain.
Duncan as heir was annulled, and hence the properties - In the said will, Nemesio instituted his brother Segundo as
passed to both of them as if the deceased had died the heir. In case Segundo pre-deceased him, Segundo’s
intestate. Thus, Duncan appealed. children (Constantino and his brothers & sisters) would

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receive Nemesio’s share in the conjugal property of neither instituted as heirs nor are expressly disinherited."
Nemesio and Rosa. Disinheritance, in turn, "is a testamentary disposition
- Segundo pre-deceased Nemesio. Now, the children of depriving any compulsory heir of his share in the legitime for
Segundo are claiming to be heirs of Nemesio. a cause authorized by law."
- Rosa (the widow) and Virginia Fernandez (a legally adopted - Preterition under Article 854 of the Civil Code, we repeat,
daughter of Nemesio) opposed the probate. "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary
WON Rosa and Virginia were preterited. dispositions in the form of devises or legacies. In ineffective
- As to the widow (Rosa), Art. 854 does not apply, although disinheritance under Article 918 of the same Code, such
she is a compulsory heir. disinheritance shall also "annul the institution of heirs", put
- Even if the surviving spouse is a compulsory heir, there is no only "insofar as it may prejudice the person disinherited",
preterition even if she is omitted from the inheritance, as she which last phrase was omitted in the case of preterition.
is not in the direct line. Better stated yet, in disinheritance the nullity is limited to that
- As to the adopted child (Virginia), there is preterition since portion of the estate of which the disinherited heirs have
she was totally omitted in the inheritance. been illegally deprived.
- The Child and Youth Welfare Code gives an adopted
person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal
heir of the adopter. ART. 855. The share of a child or descendant
- Since preterition annuls the institution of heir and no devises omitted in a will must first be taken from the
or legacies having been provided in the will, the probate of part of the estate not disposed of by the will,
the will must be denied. An intestate settlement of the estate if any; if that is not sufficient, so much as may
should proceed. be necessary must be taken proportionally
- Art. 854, NCC: The preterition or omission of compulsory from the shares of the other compulsory
heirs in the direct line, whether living at the time of the heirs.
execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and  Article is redundant and completely unnecessary of it is
legacies shall be valid insofar as they are not inofficious.
made to apply to cases of preterition. If there is
- Preterition consists in the omission in the testator’s will of preterition, only Art854 need be applied.
the forced heirs because they were not mentioned therein,  Proper Application of Art855 – in cases where a
or though mentioned, they are neither instituted as heirs not compulsory heir is not preterited but left something
are expressly disinherited. [because not all the estate is disposed of by will] less
than his legitime. Art855 really talks of a completion of
Nuguid v. Nuguid legitime.
- Rosario Nuguid died, single without descendants but was  HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED
survived by her legitimate parents and 6 legitimate siblings. LEGITIME?
- One of which was instituted as the universal heir and he filed
 From the portion of the estate left undisposed of by
an action for probate of the decedent’s will which was
will.
opposed by her parents on the ground that they were
preterited and thus the institution of the universal heir is  From the shares of the testamentary heirs,
void. legatees and devisees, proportionally.

Whether or not the will is void.  Superfluity and Inaccuracy of Art855 –


- YES. SC held that it is because: The will completely omits  Superfluity – article, properly understood, does not
the parents; thus, depriving them of their legitime. This is a apply to preterition but to completion of legitime, it
clear case of preterition.
is redundant, because the rules and manner of
- Petitioner herein was instituted as the universal heir and no
completing impaired legitimes are laid down with
specific legacies or bequests are provided for; hence, nullity
greater detail in Articles 906, 907, 909, 910 and
of the will is complete.
- Even if Art. 1854 provides that notwithstanding the 911.
annulment, the devises and legacies shall be valid insofar as  Inaccuracy – two inaccuracies
they are not officious, the will is inexistent since there was 1. Coverage should extend not only to children
no testamentary disposition separate from the nullified and descendants but to all compulsory heirs.
institution of the heir. Hence, intestate succession ensues. As subsequent articles [906, etc.] mandate,
- This is a case of preterition and not disinheritance since the any compulsory heir whose legitime is
will does not expressly disinherits the forced heirs. It simply impaired may demand that the same be fully
omits their names. satisfied.
- To consider the institution of an heir to be the same as 2. Proportionate reductions [after consuming the
legacy will defeat the purpose of Art. 854 on total or partial
undisposed portion] should be borne not by
nullity.
the compulsory heirs as such but by the
- Preterition "consists in the omission in the testator's will of testamentary heirs, including the devisees and
the forced heirs or anyone of them, either because they are legatees.
not mentioned therein, or, though mentioned, they are

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• To make the compulsory heirs qua


compulsory heirs bear the reduction would Kind of PRE- INCA- RENUN- DISINHE
mean reducing their own legitimes – a Heir DECEAS PACITY CIATIO RI-
patent absurdity. E N TANCE
TN R TN R TN R TN R
• That would be solving one problem by
COMPUL       
creating another. -SORY
• As correctly stated by Art907, it is VOLUNT    NA NA

testamentary dispositions that must be ARY


LEGAL NA NA
reduced if they impair or diminish the     
legitimes of compulsory heirs.
TN – Transmits nothing
 Senator Tolentino comments that article should be R - Representation
rephrased as follows -
The share of the compulsory heir
omitted in a will must first be taken from the
part of the estate not disposed of by the will,
if any; if that is not sufficient, so much as
may be necessary must be taken
proportionally from the shares of the other
heirs given to them by will.
Cases for Articles 854-856

Rabadilla v. CA
ART. 856. A voluntary heir who dies before the
testator transmits nothing to his heirs. - Aleja Belleza, in a codicil appended to her Last Will and
A compulsory heir who dies before the Testament, bequeathed a lot to Dr. Jorge Rabadilla subject
testator, a person incapacitated to succeed, to certain conditions:
and one who renounces the inheritance, shall A.) That should Jorge die before the testator, the
property shall be inherited by the latter’s spouse and
transmit no right to his own heirs except in
children
cases expressly provided for in this Code. B.) That if the ownership of the property is finally
transmitted to Jorge, he shall be liable to deliver until
 Observations on the Article he dies 75 piculs of sugar a year to Maria Belleza
 Inaccurate and misleading because it suggests that while she is still alive.
there are exceptions to the rule that an heir, in C.) That in case of Jorge’s death, his heirs shall also be
case of predecease, incapacity or renunciation, imposed the same obligation.
transmits nothing to his own heirs. D.) And that if the heir shall later sell, lease, mortgage
• This rule of non-transmission is this said Lot, the buyer, lessee, mortgagee, shall
ABSOLUTE and there is no exception to it. have also the obligation to deliver yearly 100 piculs of
• Representation does not constitute an sugar to Maria Belleza, provided that the buyer,
lessor or mortgagor be near descendants and sister
exception because in representation the
of the testator.
person represented does not transmit - The will also provided that in case the buyer, lessor or
anything to his heirs. Representation is rather mortgagor fails to fulfill said obligations, Maria Belleza is
a form of subrogation. entitled to forfeit the lots in favor of the testator’s
 It says too much because the article is in the descendants.
chapter on testamentary succession under - Jorge Rabadilla died, and his spouse and children
institution of heir, therefore it should speak only of succeeded him.
voluntary or testamentary heirs. - Now, Maria Belleza filed a complaint against Jorge’s heirs
 It says too little because it does not mention legal due to alleged violations of the Codicil and asked for the
or intestate heirs nor does it provide for cases of property to be reconveyed to the near descendants of Aleja
disinheritance. Belleza on the ground that:
A.) the lot was mortgaged to PNB, not a near
 Rather, the complete statement of the rule is – descendant of the testator,
B.) that the heirs failed to deliver the piculs of sugar beg.
 An heir, whether compulsory, voluntary or legal,
1985,
transmits NOTHING to his heirs in case of
C.) that PNB also did not comply with the obligation to
predecease, incapacity, renunciation or deliver 100 piculs of sugar/year.
disinheritance. However, in case of predecease or - RTC dismissed the claim. On Appeal, the CA ruled that
incapacity of compulsory or legal heirs, as well as indeed the heirs violated the obligations imposed upon them
disinheritance of compulsory heirs, the rules on and therefore the land should be seized and reconveyed to
representation shall apply. the estate of Aleja. However, they should file a separate
proceeding to re-open the estate and have it distributed to
 Outline of Rules Aleja’s heirs.

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- Belleza Appealed. - The other two siblings, Rebecca Viado-Non and Delia Viado
are the petitioners in this case.
Whether or not the Article 882 of the CC on modal institutions - As the two parties lived in the Isarog property, Alicia and her
govern the disposition rather than the provisions on institution two children demanded Rebecca and Delia to vacate;
through simple substitution. Rebecca and Delia raised co-ownership as a defense.
- The SC affirmed the decision of the Court of Appeals in - Alicia claimed absolute ownership as evinced by a deed of
applying Art 882 of the Civil Code.
donation in which the late Julian Viado donated his conjugal
- The Court held that the disposition in question in favor of
share of the property to Alicia’s deceased husband.
Jorge Rabadilla could neither be simple substitution or
fideicommissary. - There was also a deed of extrajudicial settlement where
- In simple substitutions, the second heir takes the inheritance Rebecca Viado-Non and the late Leah Viado (without Delia
in default of the first heir by reason of incapacity, Viado’s participation) waived their rights and interests over
predecease or renunciation. their share of the property inherited from their mother
- In the case under consideration, the provisions of subject Virginia.
Codicil do not provide for said 3 conditions. What the Codicil - Thus, the property was titled in the name of the heirs of Nilo
provides is that, should Dr. Jorge Rabadilla or his heirs not Viado.
fulfill the conditions imposed in the Codicil, the property - An action for partition was brought by Rebecca Viado-Non
referred to shall be seized and turned over to the testatrix's and Delia Viado in which the court ruled in favor of Alice and
near descendants. her children.
- It could not also be a fideicommissary because the element
Whether or not the deeds were valid despite allegations of
that the first heir is obliged to preserve and transmit the
fraud, forgery and undue influence.
property to a second heir is not present.
- YES, on account of the following:
- In this case, the instituted heir is in fact allowed under the
- First, while asserting the employment of fraud, forgery and
Codicil to alienate the property provided the negotiation is
undue influence in procuring the signatures of the parties to
with the near descendants or the sister of the testatrix.
the deeds of donation and of extrajudicial settlement,
Without the duty to preserve, there is no fideicommissary
Rebecca Viado-Non and Delia Viado are vague on how and
substitution.
in what manner those supposed vices occurred.
- Also, the second heir or the fideicommissary to whom the
- Second, there no proof shown as to why Julian Viado should
property is transmitted must not be beyond one degree from
the first heir or the fiduciary. be held incapable of exercising sufficient judgment in ceding
- In this case, the second heir or the fideicommissary to whom his rights and interest over the property to Nilo Viado.
the property is transmitted must not be beyond one degree - Third, the fact alone that the two deeds were registered only
from the first heir or the fiduciary. five (5) years after their execution would not affect their
- The disposition was in the nature of modal institutions. Here, validity or point to fraud.
the testator imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution. Whether or not there was preterition in the deed of extrajudicial
- In conditional substitution however, the efficacy of the settlement with respect to the retardate Delia Viado.
inheritance is subject to the condition. - YES. The exclusion of Delia Viado has the effect of
- In case of doubt, the institution must be considered as modal preterition.
and not institutional. - This kind of preterition, however, in the absence of fraud and
- In simple substitutions, the second heir takes the inheritance bad faith, does not justify a collateral attack on the new title.
in default of the first heir by reason of incapacity, - Article 1104 provides the remedy: where the preterition is
predecease or renunciation. not attended by bad faith and fraud, the partition shall not be
- Elements in Fideicommissary Sub: rescinded but the preterited heir shall be paid the value of
the share pertaining to her.
A) the first heir is obliged to preserve and transmit the - Article 1104 provides: where the preterition is not attended
property to a second heir by bad faith and fraud, the partition shall not be rescinded
B) the second heir or the fideicommissary to whom the but the preterited heir shall be paid the value of the share
property is transmitted must not be beyond one pertaining to her.
degree from the first heir or the fiduciary.
- In modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left
by the testator, or (3) the charge imposed by the testator SECTION 3 – SUBSTITUTION OF HEIRS
upon the heir. A "mode" imposes an obligation upon the heir
or legatee but it does not affect the efficacy of his rights to Art. 857. Substitution is the appointment of
the succession. another heir so that he may enter into the
inheritance in default of the heir originally
Non v. CA
instituted.
- Deceased spouses Julian and Virginia Viado owned several
properties, among them a house and lot located at Isarog  The definition of substitution is incomplete because it
St., La Loma, Quezon City; they had four children. covers only simple substitution and excludes the
- Leah Viado Jacobs and Nilo Viado both died in 1987, with fideicommissary. In the fideicommissary, the 2nd heir
Nilo leaving behind his wife, Alicia, and two children, herein does not succeed in default, but AFTER the first.
respondents.

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 The complete definition of substitution should be –


“Substitution is the appointment of another heir so that
he may enter into the inheritance in default of, or ART. 859. The testator may designate one or
subsequent to, the heir originally substituted.” more persons to substitute the heir or heirs
 With respect to Simple Substitution, this section is
instituted in case such heir or heirs should
properly a part of the next section on conditional die before him, or should not wish, or should
testamentary dispositions. be incapacitated to accept the inheritance.
 Simple substitution is really a form of conditional A simple substitution, without a statement
institution. of the cases to which it refers, shall comprise
 The right to provide for substitutions is based on the there mentioned in the preceding
testamentary freedom. paragraph, unless the testator has otherwise
 In simple substitutions, the testator simply makes a provided.
second choice, in case the first choice does not inherit.
 In fideicommissary substitutions, the testator imposes
 This article provides for SIMPLE or VULGAR
what is essentially a RESTRICTION OR BURDEN on
substitution.
the first heir, coupled with a selection of a subsequent
recipient of the property.
 CAUSES OF SIMPLE SUBSTITUTION
1. Predecease of the first heir
2. Renunciation of the first heir
3. Incapacity of the first heir

 HOW TESTATOR MAY PROVIDE FOR SIMPLE


SUBSTITUTION WITH ALL 3 CAUSES
1. By specifying all 3 causes
2. By merely providing for a simple substitution

Art. 858. Substitution of heirs may be:


(1) Simple or common;
(2) Brief or compendious;  Restricted Simple Substitution – the testator may limit
(3) Reciprocal; or the operation of simple substitution by specifying only
(4) Fideicommissary. one or two of the 3 causes.

 Under the old Spanish Code, in addition to the 4  QUESTIONS –


enumerated, there were pupilar and ejemplar  May the testator provide for a substitution on
substitutions under Arts. 775 and 776, providing that an grounds other than those provided in this article?
ascendant or the parent may substitute the descendant  In case of renunciation by the first heir, must the
below 14 years old in case the descendant should die substitute have capacity at the time of the
before age 14; and that a substitute may be designated renunciation? Supposing the substitute dies before
by an ascendant for a descendant who is over 14 but the first heir manifests his renunciation, may the
has been declared incompetent by reason of mental successors of the substitute acquire the
incapacity, but such substitution shall be ineffective by a testamentary disposition?
will executed by the incompetent during a lucid interval • Must have capacity – Art1034 par 3
or after he ahs recovered his mental faculties. providing that “If the institution, devise or
legacy should be conditional, the time of the
 KINDS OF SUBSTITUTION UNDER ART858 compliance with the condition shall also be
1. Simple or Common [vulgar] – Art859 considered.” As a simple substitution is a
form of conditional substitution, therefore
2. Brief or Compendious [brevilocua / Art1034 can be applied.
compendiosa] – Art860 • Need not have capacity – Art1042 and
3. Reciprocal [reciproca] – Art861 533 par2 which provides that the effects of
4. Fideicommissary [fideicomisaria] – Art863 the acceptance or repudiation of the
inheritance shall always retroact to the
 In reality, there are only 2 kinds of substitutions – the moment of the death of the decedent” and
simple or common and the fideicommissary. These two that “one who validly renounces an
are MUTUALLY EXCLUSIVE, a substitution must be inheritance is deemed never to have
one or the other and cannot be both at the same time. possessed the same.”
 Brief or compendious and reciprocal substitutions are  Will the substitute be disqualified if the cause of the
merely variations of either the simple or first heir’s predecease is that the substitute killed
fideicommissary. him?

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½ share in the proportion of 2:1 because their


ART. 860. Two or more persons may be respective testamentary shares are ½ and 1/6.
substituted for one; and one person for two Should B predecease, A and C will get his portion
or more heirs. in the proportion of 3:1 because their respective
shares are ½ and 1/6. Should C predecease, A
and B will get C’s 1/6 portion in the proportion of
 Brief or Compendious substitution is a possible
3:2 for the same reason.
variation of either a simple or fideicommissary
substitution.

 Distinctions ART. 862. The substitute shall be subject to the


 Brief – 2 or more substitutes for 1 original heir same charges and conditions imposed upon
 Compendious – 1 substitute for 2 or more orig. the instituted heir, unless the testator has
 However, most commentators use the terms expressly provided the contrary, or the
interchangeably. charges or conditions are personally
applicable only to the heir instituted.
 If 1 is substituted for 2 or more original heirs –
 Effect of default of one but not all of the original  The substitute merely takes the place of the original
heirs is that substitution will NOT take place but the heir, so the former is also subjected to all the liabilities
share left vacant will accrue to the surviving original as well as rights of the latter, including charges and
co-heir or co-heirs. conditions imposed upon the original heir.
 Substitution will take place only if ALL the
original heirs are disqualified.
 The exception is where the testator provides for ART. 863. A fideicommisary substitution by virtue
substitution in the event of the death or of which the fiduciary or first heir instituted is
renunciation or incapacity of any one of the original entrusted with the obligation to preserve and
heirs. to transmit to a second heir the whole or part
of the inheritance, shall be valid and shall
take effect, provided such substitution does
not go beyond one degree from the heir
originally instituted, and provided further, that
the fiduciary or first heir and the second heir
ART. 861. If heirs instituted in unequal shares are living at the time of the death of the
should be reciprocally substituted, the testator.
substitute shall acquire the share of the heir
who dies, renounces, or is incapacitated,  First heir – fiduciary ; Second heir – fideicommissary
unless it clearly appears that the intention of
the testator was otherwise. If there are more  ELEMENTS OF FIDEICOMISARIA
than one substitute, they shall have the same 1. A 1st heir who takes the property upon the
share in the substitution as in the institution. testator’s death
• Fiduciary enters upon the inheritance, like
 Reciprocal substitution is a possible variation of the every other heir, upon the opening of the
simple or fideicommissary substitution. succession, which is when the testator
 If the heirs in a will are given unequal shares, and they dies.
are reciprocal substitutes of each other, the substitute
shall, in addition to his given share, acquire the share of 2. A 2nd heir who takes the property subsequently
the heir who he is substituting for due to predecease, from the fiduciary
renunciation or incapacity. • The fideicommissary heir does not receive
 Example, A gets ¼ and B gets ¼. They are the property until the fiduciary’s right
reciprocally substituted. If A predeceases the expires.
testator, B will substitute and get the share of A [¼] • BOTH heirs enter into the inheritance, one
in addition to his share, so in total he gets ½.
after the other, each in his own turn. This
 The second sentence of Art861 provides for
distinguishes the fideicomisaria from the
Proportionate Accrual. If there are more than 1 heir
vulgar, in which the substitute inherits only
instituted, and they are reciprocally substituted, the
if the first heir fails to inherit.
substitutes will acquire the share of the original heir in
the same proportion as they were given in the • NOTE – though the fideicommissary heir
testamentary disposition. does not receive the property upon the
 Example, A gets ½, B gets 1/3 and C gets 1/6. If a testator’s death, his right thereto VESTS
predeceases the testator, B and C will acquire A’s at that time and merely becomes subject

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to a period, and that right passes to his born if it is alive at the time it is completely
own heirs should he die before the delivered from the mother's womb. However, if
fiduciary’s right expires. the fetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies
within twenty-four hours after its complete
3. The 2nd heir must be 1 degree from the first delivery from the maternal womb.
heir
• Qualified – according to Articles 1024-
• Means 2 things
1034.
a) Only one transmission/transfer is
allowed, from the first heir to the Art. 1024. Persons not incapacitated by law may
second heir succeed by will or ab intestato.
b) Second heir must be in the first The provisions relating to incapacity by will are
equally applicable to intestate succession.
degree of relationship with the first
heir. The second heir must either be Art. 1025. In order to be capacitated to inherit, the
a child or parent of the first heir heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper.
4. Dual obligation imposed upon the 1st heir to: A child already conceived at the time of the
a) Preserve the property, and death of the decedent is capable of succeeding
b) To transmit it after the lapse of the provided it be born later under the conditions
period to the fideicommissary heir. prescribed in article 41.
Art. 1026. A testamentary disposition may be made to
• This requisite is the essence of the the State, provinces, municipal corporations,
fideicomisaria. This makes the position of private corporations, organizations, or
the fiduciary basically that of a associations for religious, scientific, cultural,
usufructuary, with the right to use and educational, or charitable purposes.
All other corporations or entities may succeed
enjoy the property but WITHOUT JUS under a will, unless there is a provision to the
DISPONENDI. contrary in their charter or the laws of their
• If there is no absolute obligation to creation, and always subject to the same.
preserve and transmit, there is no Art. 1027. The following are incapable of succeeding:
fideicommissary substitution. (1) The priest who heard the confession of the
• The institution is not necessarily void, it testator during his last illness, or the minister
may be valid as some other disposition of the gospel who extended spiritual aid to him
but it is not a fideicomisaria. during the same period;
• In PCIB v. Escolin, the institution was held (2) The relatives of such priest or minister of the
to be a simultaneous institution, a gospel within the fourth degree, the church,
order, chapter, community, organization, or
resolutory condition on the part of the institution to which such priest or minister may
husband while subject to a suspensive belong;
condition on the part of the brothers- and (3) A guardian with respect to testamentary
sisters-in-law and not a fideicomisaria dispositions given by a ward in his favor before
because no obligation is imposed upon the final accounts of the guardianship have
the husband to preserve the estate or any been approved, even if the testator should die
part thereof for anyone else. after the approval thereof; nevertheless, any
• If the testator DID NOT specify a day provision made by the ward in favor of the
guardian when the latter is his ascendant,
when the fiduciary will deliver the property descendant, brother, sister, or spouse, shall be
to the fideicomissary, or when the time of valid;
delivery is in doubt, it shall be understood (4) Any attesting witness to the execution of a
to have been left to the fiduciary’s will, the spouse, parents, or children, or any
discretion, which means the delivery one claiming under such witness, spouse,
should be upon the FIDUCIARY’S parents, or children;
DEATH. This is based on the presumption (5) Any physician, surgeon, nurse, health officer
that the testator intended the fiduciary to or druggist who took care of the testator during
his last illness;
enjoy the property during his lifetime.
(6) Individuals, associations and corporations not
permitted by law to inherit.
5. Both heirs must be living and disqualified to
succeed at the time of the testator’s death. Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
• Living – according to Articles 40-41 testamentary provisions.
Art. 40. Birth determines personality; but the Art. 1029. Should the testator dispose of the whole or
conceived child shall be considered born for all part of his property for prayers and pious works
purposes that are favorable to it, provided it be for the benefit of his soul, in general terms and
born later with the conditions specified in the without specifying its application, the executor,
following article. with the court's approval shall deliver one-half
Art. 41. For civil purposes, the fetus is considered thereof or its proceeds to the church or

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denomination to which the testator may belong, judgment is rendered, and in the case falling
to be used for such prayers and pious works, and under No. 4, the expiration of the month allowed
the other half to the State, for the purposes for the report.
mentioned in Article 1013. If the institution, devise or legacy should be
Art. 1030. Testamentary provisions in favor of the conditional, the time of the compliance with the
poor in general, without designation of particular condition shall also be considered.
persons or of any community, shall be deemed
limited to the poor living in the domicile of the • NOTE – this 2-fold requirement is to be
testator at the time of his death, unless it should met only upon the testator’s death, and this applies not
clearly appear that his intention was otherwise. only to the fiduciary but to the second heir as well.
The designation of the persons who are to be
considered as poor and the distribution of the
property shall be made by the person appointed
by the testator for the purpose; in default of such
person, by the executor, and should there be no • Thus, the 2nd heir need not survive the first
executor, by the justice of the peace, the mayor, heir, if the 2nd heir dies before the first heir, the 2nd
and the municipal treasurer, who shall decide by heir’s own heirs merely take his place.
a majority of votes all questions that may arise.
In all these cases, the approval of the Court of
First Instance shall be necessary.
The preceding paragraph shall apply when the ART. 864. A fideicommissary substitution can
testator has disposed of his property in favor of never burden the legitime.
the poor of a definite locality.
Art. 1031. A testamentary provision in favor of a  Legitime passes by strict operation of law, therefore the
disqualified person, even though made under the testator has no power over it.
guise of an onerous contract, or made through an
intermediary, shall be void.
Art. 1032. The following are incapable of succeeding
by reason of unworthiness: ART. 865. Every fideicommisary substitution
(1) Parents who have abandoned their children or must be expressly made in order that it may
induced their daughters to lead a corrupt or be valid.
immoral life, or attempted against their virtue; The fiduciary shall be obliged to deliver
(2) Any person who has been convicted of an
attempt against the life of the testator, his or the inheritance to the second heir, without
her spouse, descendants, or ascendants; other deductions than those which arise from
(3) Any person who has accused the testator of a legitimate expenses, credits and
crime for which the law prescribes improvements, save in the case where the
imprisonment for six years or more, if the
accusation has been found groundless;
testator has provided otherwise.
(4) Any heir of full age who, having knowledge of
the violent death of the testator, should fail to  FIDEICOMISARIA SHOULD BE EXPRESSLY
report it to an officer of the law within a month, IMPOSED.
unless the authorities have already taken  2 ways of making an express imposition –
action; this prohibition shall not apply to cases
wherein, according to law, there is no
1. By the use of the term fideicommissary or
obligation to make an accusation; 2. By imposing upon the first heir the absolute
(5) Any person convicted of adultery or obligation to preserve and to transmit to the
concubinage with the spouse of the testator; second heir.
(6) Any person who by fraud, violence,
intimidation, or undue influence should cause
 Allowable Deductions
the testator to make a will or to change one
already made; 1. GR – fiduciary should deliver property INTACT
(7) Any person who by the same means prevents and UNDIMINISHED to the fideicommissary heir
another from making a will, or from revoking upon the arrival of the period.
one already made, or who supplants, conceals, 2. The only Deductions allowed, in the absence
or alters the latter's will; of a contrary provision in the will are –
(8) Any person who falsifies or forges a supposed a) Legitimate expenses – only
will of the decedent. necessary and useful expenses and NOT
Art. 1033. The cause of unworthiness shall be without ornamental expenses
effect if the testator had knowledge thereof at b) Credits
the time he made the will, or if, having known of c) Improvements - only necessary and
them subsequently, he should condone them in useful improvements and NOT ornamental
writing.
improvements
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of  Damage or Deterioration to Property
the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article  If caused by a fortuitous event or ordinary wear and
1032, it shall be necessary to wait until final tear – fiduciary is not liable

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 If caused by fiduciary’s fault or negligence – • If there is a fideicomisaria, the limit is the


fiduciary is liable. first heir’s lifetime.
• If there is no fideicomisaria, the limit is 20
years.
ART. 866. The second heir shall acquire a right to
the succession from the time of the testator’s 3. Imposes upon the heir the charge of paying a
certain income or pension to various persons
death, even though he should die before the
successively, beyond the limit prescribed in article
fiduciary. The right of the second heir shall 863
pass to his heirs. • There can only be 2 beneficiaries of the
pension, one after the other, and the
 In connection with Art863 on element of second must be one degree from the first.
fideicommissary that both heirs must be living and But there is no prohibition on
disqualified to succeed at the time of the testator’s simultaneous beneficiaries.
death.
 The second heir’s right vests upon the testator’s death, 4. Leave to a person the whole part of the
conformably with Art777 and Art878 since as far as the hereditary property in order that he may apply or
second heir is concerned, the institution of him is one invest the same according to secret instructions
subject to a suspensive term. communicated to him by the testator.
 Thus, the second heir does not have to survive the first • The ostensible heir here is in reality only a
heir in order for the substitution to be effective. The dummy, because in reality, the person
second heir’s own heirs simply take his place by intended to be benefited is the one to
succeeding to the vested right already possessed by whom the secret instructions refer. The
the second heir. purpose of such a surreptitious disposition
is to circumvent some prohibition or
disqualification
ART. 867. The following shall not take effect: • This paragraph makes the ENTIRE
(1) Fideicommissary substitutions which PROVISION VOID. The problem is the
are not made in an express manner, difficulty of establishing the fact of
either by giving them this name, or circumvention. Supposing the ostensible
imposing upon the fiduciary the heir conceals or destroys the secret
instructions and claims as heir under the
absolute obligation to deliver the
testamentary provision as worded?
property to a second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a
ART. 868. The nullity of the fideicommissary
temporary one, beyond the limit fixed
substitution does not prejudice the validity of
in article 863.
the institution of the heirs first designated;
(3) Those which impose upon the heir the
the fideicommissary clause shall simply be
charge of paying to various persons
considered as not written.
successively, beyond the limit
prescribed in article 863, a certain  If the fideicommissary substitution is void or ineffective,
income or pension; the institution of the first heir simply becomes pure and
(4) Those which leave to a person the unqualified.
whole part of the hereditary property  Nullity or ineffectivity of the institution of the first heir –
in order that he may apply or invest article does not provide for a case where it is the
the same according to secret institution of the first heir that is void or ineffective. What
instructions communicated to him by is the rule in such a case?
the testator.

 Provisions that shall NOT TAKE EFFECT ART. 869. A provision whereby the testator leaves
1. Fideicommissary substitutions which are not to a person the whole or part of the
made in an express manner inheritance, and to another the usufruct, shall
• Lack of this element does not, by that fact be valid. If he fives the usufruct to various
alone, nullify the institution. It only means persons, not simultaneously, but
that the institution is not a fideicomisaria. successively, the provisions of Article 863
shall apply.
2. Perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in article
 If the testator institutes successive usufructuaries, there
863.
can only be two usufructuaries, one after the other, and

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as to the two of them, all the requisites of Art863 must


be present. KINDS OF SUBSTITUTIONS
1. SIMPLE or COMMON
 Causes of Simple Substitution
ART. 870. The dispositions of the testator 1) Predecease of the first heir
declaring all or part of the estate inalienable 2) Renunciation of the first heir
for more than twenty years are void. 3) Incapacity of the first heir

 If the testator imposes a longer period than 20 years, 2. BRIEF or COMPENDIOUS


the prohibition is valid only for 20 years.  Distinctions
 If there is a fideicommissary substitution, this time o Brief – 2 or more substitutes for 1 orig. heir
limitation will not apply. Rather, Art863 applies, which o Compendious – 1 sub for 2 or more orig.
allows as a period, the lifetime of the first heir. o However, most commentators use the
terms interchangeably.
 If 1 is substituted for 2 or more original
heirs, default of one but not all of the original
heirs does not lead to substitution but the share
left vacant will accrue to the surviving original
co-heir or co-heirs.

3. RECIPROCAL
 If the heirs in a will are given unequal
shares, and they are reciprocal substitutes of
each other, the substitute shall, in addition to his
given share, acquire the share of the heir who
he is substituting for due to predecease,
renunciation or incapacity.
 The second sentence of Art861 provides
for Proportionate Accrual. If there are more than
1 heir instituted, and they are reciprocally
substituted, the substitutes will acquire the
share of the original heir in the same proportion
as they were given in the testamentary
disposition.

4. FIDEICOMMISSARY
 Elements of a Fideicommissary
1) A 1st heir who takes the property
upon the testator’s death
2) A 2nd heir who takes the property
subsequently from the fiduciary
3) The 2nd heir must be 1 degree
from the first heir
4) Dual obligation imposed upon the
1st heir to:
a. Preserve the property, and
b. To transmit it after the lapse of the
period to the fideicommissary heir.
5) Both heirs must be living and
disqualified to succeed at the time of the
testator’s death.
 Fideicommissary substitution should be

Cases for Articles 857-870

Ramirez v. Ramirez

- Jose Eugenio Ramirez, a Filipino national, died in Spain on


Dec. 11, 1964 with his only his widow as compulsory heir.
- His will was admitted by the CFI and Maria Luisa Palacios
was appointed administratrix of the estate. And she

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submitted an inventory of the estate. (look at the case for the


inventory)
- The administratrix then submitted a project of partition. The
property of the deceased shall be divided to two parts. Arañas v. Arañas
- One part shall go to the widow as part of her legitime; the
other part or free portion shall go to Jorge and Roberto - Fr. Teodoro Aranas, a priest of the Roman Catholic Church,
Ramirez. Furthermore, 1/3 of the free portion is charged with died on January 19, 1953. He had executed on June 6, 1946
the widow’s usufruct and the remaining 2/3 with a usufruct in his Last Will and Testament which was admitted to probate
favor of Wanda. on August 31, 1956.
- Jorge and Roberto opposed the project of partition saying - In said Last Will and Testament, Fr. Teodoro Aranas
that: (a) provisions for vulgar substitution in favor of Wanda directed that certain properties acquired by him during his
with respect to the usufructs are invalid because the first lifetime be given to his brothers Aniceto and Carmelo.
heirs survived the testator; (b) the fideicommissary - He likewise appointed as special administration of the
substitutions are also invalid because 1st heirs not related to remainder of the estate Vicente Aranas, a faithful and
second heirs within the 1st degree; (c) that the grant of the serviceable nephew, and designated him also as recipient of
usufruct to Wanda violates the constitution. 1/2 of the produce of the properties (those parcels of land to
- Notwithstanding their objections, the lower court approved be given to Fr. Aranas’ brothers) after deducting the
the project of partition. Hence this appeal. expenses for the administration and the other 1/2 of the
WON, the vulgar substitution in favor of Wanda in relation to produce to be given to the Catholic Church for the eternal
the usufructs are void. repose of the testator's soul.
- No. With respect to the vulgar substitution in favor of Wanda - Vicente’s right to enjoy the fruits of the property was to end
in relation to the usufructs, the said substitutions are not upon his death or his refusal to act as administrator.
void. Although, Wanda survived the testator or stated - Herein Petitioners challenged the validity of the disposition,
differently because she did not predecease the testator, this relying on Art. 870, which provides: “The dispositions of the
does not avoid the substitution. testator declaring all or part of the estate inalienable for
- Dying before the testator is not the only case for vulgar more than twenty years are void.”
substitution for it also includes refusal or incapacity to accept
the inheritance as provided in Art. 859. Is the disposition in favor of Vicente valid?
- Hence the vulgar substitution is valid. - YES. Vicente Aranas as a usufructuary has the right to enjoy
the property of his uncle with all the benefits which result
WON, the fideicommissary substitutions are valid. from the normal enjoyment (or exploitation) of another's
- No. With respect to the fideicommissary, the appellants were property, with the obligation to return, at the designated time,
correct in their claim that is void. either the same thing, or in special cases its equivalent.
- The substitutes are not related to Wanda, the heir originally - This right of Vicente to enjoy the fruits of the properties is
instituted. The Civil Code specifically provides that to be temporary and therefore not perpetual as there is a limitation
valid, the substitution should not go beyond one degree from namely his death or his refusal. Likewise his designation as
the heir originally instituted. administrator of these properties is limited by his refusal
- Furthermore, there is no absolute duty imposed on Wanda and/or death and therefore it does not run counter to Art.
to transmit the usufruct to the substitutes as required by 870 of the Civil Code.
Arts. 865 and 867. - Be it noted that Vicente Aranas is not prohibited to dispose
- In fact, the testator contradicts the establishment of a of the fruits and other benefits arising from the usufruct.
fideicommissary substitution when he permits the proper Neither are the naked owners (the other heirs) of the
subject of the usufruct to be sold upon mutual agreement of properties, the usufruct of which has been given to Vicente
the usufructuaries and naked owners. prohibited from disposing of said naked ownership without
prejudice of course to Vicente's continuing usufruct.
WON, the grant of the usufruct to Wanda is void under the - To void the designation of Vicente as usufructuary and/or
constitution. administrator is to defeat the desire and the dying wish of
- No. With respect to the usufruct in favor of Wanda, albeit a the testator to reward him for his faithful and unselfish
real right, does not vest title to the land in the usufructuary services rendered during the time when said testator was
and it is the vesting of title to land in favor of aliens which is seriously ill or bed-ridden.
proscribed by the Constitution. In this case, no title vests - The proviso must be respected and be given effect until the
upon Wanda. death or until the refusal to act as such of the instituted
- A vulgar substitution of heirs is valid even if the heir usufructuary/administrator, after which period, the property
designated survives the testator; inasmuch as vulgar can be properly disposed of, subject to the limitations
substitution can take place also by refusal or incapacity to provided in Art. 863 of the Civil Code concerning a
inherit of the first heir. fideicommissary substitution.
- Article 863: "A fideicommissary substitution by virtue of
- A fideicommissary substitution is void if first heir is not which the fiduciary or first heir instituted is entrusted with the
related in the 1st degree to the 2nd heir. obligation to preserve and to transmit to a second heir the
- The constitutional provision which allows aliens to acquire whole or part of the inheritance, shall be valid and shall take
lands by succession does not apply to testamentary effect, provided such substitution does not go beyond one
succession. degree from the heir originally instituted, and provided
- An alien may be bestowed usufructuary rights over a parcel further, that the fiduciary or first heir and the second heir are
of land in the Philippines. living at the time of the death of the testator."

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PCIB v. Escolin
SECTION 4 – CONDITIONAL TESTAMENTARY
- Linnie Jane Hodges died in Iloilo leaving a will wherein she DISPOSITIONS AND TESTAMENTARY
bequeathed all of her propertied to her husband, Charles DISPOSITIONS WITH A TERM
Newton Hodges.
- The will contained a disposition saying “at the death of my GENERAL PROVISIONS
said husband, I give, devise and bequeath all of the rest,
residue and remainder of my estate, both real and personal,
wherever situation to be equally dived among my brothers
ART. 871. The institution of an heir may be made
and sisters, share and share alike. conditionally, or for a certain purpose or
- Charles was appointed executor, when he died Joe Hodges cause.
and Fernando Mirasol replaced him, which in turn was
replaced by PCIB pursuant to an agreement of all the heirs
of Hodges.  3 KINDS OF TESTAMENTARY DISPOSITIONS
- The Higdons, composed of brothers and sisters of Linnie 1. Conditional dispositions
now claims their share to her estate. 2. Dispositions with a term
- PCIB, however, contends that there was no substitution in
3. Dispositions with a mode [modal dispositions]
this case and that the testamentary disposition in favor of the
brothers and sisters are inoperative and invalid.
 Inaccuracies in Section heading and wording of this
Whether there is substitution. article
- None. There is no vulgar substitution because there is not  Incomplete Section Heading – should include4
provision in the will for either: 1. predecease of the testator modal dispositions
by the designated heir, 2. refusal or 3. incapacity of the latter  Incomplete wording of Article – does not include
to accept the inheritance as required by art. 859. dispositions with a term
- There is neither a fideicommissary substitution because no
obligation is imposed thereby upon Charles to preserve the  Definitions
estate or any part thereof for anyone else.  CONDITION – defined obliquely in Art1179 par1.
Art. 1179. Every obligation whose
Whether the disposition in favor of the brothers and sisters is performance does not depend upon a
inoperative future or uncertain event, or upon a past
- No. The brothers and sisters of Mrs. Hodges are not event unknown to the parties, is
substitutes for Charles because, under her will, they are not demandable at once.
to inherit what Hodges cannot, would no or may not inherit, Every obligation which contains a
but would inherit what he would not dispose of from his resolutory condition shall also be
inheritance. demandable, without prejudice to the
- Therefore, they are also heirs instituted simultaneously with effects of the happening of the event.
Charles, subject to certain conditions, partially resolutory
insofar as Hodges was concerned and correspondingly
 TERM – defined obliquely in Art1173 pars 1 & 3
suspensive with reference to his brothers and sisters-in-law.
Art. 1193. Obligations for whose fulfillment a
- Hence, while Charles could completely and absolutely
day certain has been fixed, shall be
dispose of her estate during his lifetime, all his rights to what
demandable only when that day comes.
may remain upon his death would then go his brothers and
Obligations with a resolutory period
sisters-in-law.
take effect at once, but terminate upon
- If no obligation is imposed upon the first heir to preserve the
arrival of the day certain.
property and to transmit it to the second heir, then there is
A day certain is understood to be that
no fideicomisaria.
which must necessarily come, although it
may not be known when.
If the uncertainty consists in whether
the day will come or not, the obligation is
conditional, and it shall be regulated by
the rules of the preceding Section.

 MODE – defined obliquely in Art882.


Art. 882. The statement of the object of the
institution, or the application of the
property left by the testator, or the charge
imposed by him, shall not be considered
as a condition unless it appears that such
was his intention.
That which has been left in this
manner may be claimed at once provided

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that the instituted heir or his heirs give thereof which is not affected by the impossible or
security for compliance with the wishes of unlawful condition shall be valid.
the testator and for the return of anything The condition not to do an impossible thing
he or they may receive, together with its shall be considered as not having been agreed
fruits and interests, if he or they should upon.
disregard this obligation.
 Reason for difference in rule
 Proper Order of Provisions in this Section  Testamentary dispositions and donations are both
1. General provisions – Arts 871 and 872 gratuitous and spring from the grantor’s liberality.
2. Conditions – Arts 873, 874, 875, 876, 877, 883 The imposition of a condition does not displace
par. 2, 879, 880, 881 and 884 liberality as the basis of the grant.
3. Terms – Arts 878 and 885  On the other hand, in obligations which are
4. Modes – Arts 882 and 883 par.1 onerous, the condition that is imposed becomes an
integral part of the causa of the obligation. The
GENERAL PROVISIONS elimination of that condition for being impossible or
 Art871 – The right of the testator to impose conditions, illegal results in a failure of cause.
terms or modes springs from testamentary freedom. If
he has the right to dispose of his estate mortis causa,
then he has the right to make the disposition subject to ART. 874. An absolute condition not to contract a
a condition, term or mode.
first or subsequent marriage shall be
considered as not written unless such
condition has been imposed on the widow or
ART. 872. The testator cannot impose any charge,
widower by the deceased spouse or by the
condition or substitution whatsoever upon
latter’s ascendants or descendants.
the legitimes prescribed in this Code. Should
Nevertheless, the right of usufruct, or an
he do so, the same shall be considered as not
allowance or some personal prestation may
imposed.
be devised or bequeathed to any person for
the time during which he or she should
 The legitime passes by strict operation of law,
independent of the testator’s will. This article is a logical remain unmarried or in widowhood.
consequence of that principle.
 This article is echoed by Art904 par2.  Conditions prohibiting marriage
 If a first marriage is prohibited – condition always
considered as not imposed
DISPOSITION WITH CONDITIONS  If subsequent marriage is prohibited
1. If imposed by the deceased spouse or by
– MAY BE BOTH RESOLUTORY his/her ascendants or descendants – valid
OR SUSPENSIVE. 2. If imposed by anyone else – considered as not
written
ART. 873. Impossible conditions and those
contrary to law or good customs shall be  The 2nd paragraph of the article may provide the
considered as not imposed and shall in no testator, if he so desires, a means of terminating the
manner prejudice the heir, even if the testator testamentary benefaction should the heir contract
should otherwise provide. marriage, even a first one. The wording of the
disposition will be crucial, it should not be so worded as
to constitute a prohibition forbidden in the first
 The impossible or illegal condition is simply considered
paragraph.
as not written. The testamentary disposition itself is not
annulled; on the contrary it becomes PURE.
 Necessity of Caución Muciana – since this condition,
assuming it is validly imposed, is NEGATIVE in nature,
 The rule on Donations is the same. – considered as not
a Caución Muciana is required, as in Art879.
imposed
 Art. 727. Illegal or impossible conditions in simple
 Condition to contract marriage – This article does not
and remuneratory donations shall be considered as
prohibit the imposition of a condition to marry, either
not imposed.
with reference to a particular person or not.
 On the other hand, the rule in Obligations is different. –
 Neither does this article declare void a relative
annuls the obligation
prohibition.
 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 ART. 875. Any disposition made upon the
condition that the heir shall make some

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provision in favor of the latter of the testator 2. Casual Condition – one that depends on the
or of any other person shall be void. will of a third person or on chance
3. Mixed Condition – one that depends partly on
 Scriptura Captatoria – Legacy-hunting dispositions, the will of the heir/devisee/legatee and partly
whether to heirs or legatees, are void. either on the will of a third person or chance.

 Reasons for the Prohibition  RULES ON POTESTATIVE, CASUAL AND MIXED


CONDITIONS
1. The captatoria converts testamentary grants A. POTESTATIVE
into contractual transactions • Positive – to do something
2. It deprives the heir of testamentary freedom a) GR – must be fulfilled as soon as the
3. It gives the testator the power to dispose heir learns of the testator’s death
mortis causa not only of his property but also b) E – if the condition was already
of his heir’s. complied with at the time the heir learns
of the testator’s death, and the condition
 What is declared void – it is not merely the condition is of such a nature that it cannot be
that is declared void but the testamentary disposition fulfilled again.
itself which contains the condition. c) Constructive compliance – Art883
par2 – condition is deemed fulfilled.

ART. 876. Any purely potestative condition • Negative – not to do something


imposed upon an heir must be fulfilled by him a) Heir must give security to guarantee
a soon as he learns of the testator’s death. [caucion muciana] the return of the value
of the property, fruits, and interests, in
This rule shall not apply when the
case of contravention.
condition, already complied with, cannot be b) 3 Instances when a Caucion Muciana
fulfilled again. is Required
 Art879 – if the potestative
ART. 877. If the condition is casual or mixed, it conditions is negative
shall be sufficient if it happen or be fulfilled at  Art885 par2 - The designation of
any time before or after the death of the the day or the time when the
testator, unless he has provided otherwise. effects of the institution of an heir
Should it have existed or should it have shall commence
been fulfilled at the time the will was executed  Art882 – When there is a
and the testator was unaware thereof, it shall statement of the object of the
be deemed as complied with. institution, or the application of the
If he had knowledge thereof, the condition property left by the testator, or the
shall be considered fulfilled only when it is of charge imposed by him.
such a nature that it can no longer exist or be
complied with again. B. CASUAL or MIXED
• GR – may be fulfilled at any time, before
ART. 883, par. 2. If the person interested in the or after the testator’s death, unless the
testator provides otherwise.
condition should prevent its fulfillment,
• QUALIFICATIONS – if already fulfilled at
without the fault of the heir, the condition the time of the execution of the will
shall be deemed to have been complied with. a) If testator UNAWARE of fulfillment –
deemed fulfilled
ART. 879. If the potestative condition imposed b) If testator was AWARE of fulfillment
upon the heir is negative or consists in not  Can no longer be fulfilled again –
doing or not giving something, he shall deemed fulfilled
comply by giving a security that he will not do  Can be fulfilled again – must be
or give that which has been prohibited by the fulfilled again
testator, and that in case of contravention he • Constructive Compliance - Art883 par2
will return whatever he may have received, a) If casual – not applicable
together with its fruits and interests. b) If mixed
 If dependent partly on chance –
not applicable
 These articles govern POTESTATIVE, CASUAL and
MIXED conditions.  If dependent partly on will of a
1. Potestative Conditions – one that depends third party
solely on the will of the heir/devisee/legatee. • If interested 3rd party –
applicable

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• If not an interested party – not Art. 1179. Every obligation whose performance does
applicable not depend upon a future or uncertain event, or
upon a past event unknown to the parties, is
demandable at once.
Every obligation which contains a resolutory
ART. 880. If the heir be instituted under a condition shall also be demandable, without
suspensive condition or term the estate shall prejudice to the effects of the happening of the
event.
be placed under administration until the
condition is fulfilled, or until it becomes Art. 1180. When the debtor binds himself to pay when
his means permit him to do so, the obligation shall
certain that it cannot be fulfilled, or until the be deemed to be one with a period, subject to the
arrival of the term. provisions of Article 1197.
The same shall be done if the heir does Art. 1181. In conditional obligations, the acquisition of
not give the security required in the rights, as well as the extinguishment or loss of
preceding article. those already acquired, shall depend upon the
happening of the event which constitutes the
condition.
Art. 1182. When the fulfillment of the condition
depends upon the sole will of the debtor, the
conditional obligation shall be void. If it depends
ART. 881. The appointment of the administrator upon chance or upon the will of a third person, the
of the estate mentioned in the preceding obligation shall take effect in conformity with the
article, as well as the manner of provisions of this Code.
administration and the rights and obligations Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
of the administrator shall be governed by the by law shall annul the obligation which depends
Rules of Court. upon them. If the obligation is divisible, that part
thereof which is not affected by the impossible or
 Between the time of the testator’s death and the time of unlawful condition shall be valid.
the fulfillment of the suspensive condition or of the The condition not to do an impossible thing shall
certainty of its non-occurrence – property is to be be considered as not having been agreed upon.
placed under administration. Art. 1184. The condition that some event happen at a
1. If condition happens – the property will be determinate time shall extinguish the obligation as
turned over to the instituted heir soon as the time expires or if it has become
2. If it becomes certain that condition will not indubitable that the event will not take place.
happen – property will be turned over to a Art. 1185. The condition that some event will not
secondary heir [if there is one] or to the happen at a determinate time shall render the
intestate heirs, as the case may be. obligation effective from the moment the time
indicated has elapsed, or if it has become evident
that the event cannot occur.
 Not applicable to institutions with a TERM – despite the If no time has been fixed, the condition shall be
wording of the article, it should not be applied to deemed fulfilled at such time as may have probably
institutions with a term, which are governed by Art885 been contemplated, bearing in mind the nature of
par 2. Otherwise, there will be an irreconcilable conflict the obligation.
with that article, which mandates that before the arrival Art. 1186. The condition shall be deemed fulfilled
of the term, the property should be given to the legal when the obligor voluntarily prevents its fulfillment.
heirs. Art. 1187. The effects of a conditional obligation to
give, once the condition has been fulfilled, shall
nd
 2 paragraph – the property shall be in the executor’s retroact to the day of the constitution of the
or administrator’s custody until the heir furnishes the obligation. Nevertheless, when the obligation
caucion muciana. imposes reciprocal prestations upon the parties, the
fruits and interests during the pendency of the
 Procedural rules governing appointment of condition shall be deemed to have been mutually
compensated. If the obligation is unilateral, the
administrator – Rules 77-90 RoC.
debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances
of the obligation it should be inferred that the
ART. 884. Conditions imposed by the testator intention of the person constituting the same was
upon the heirs shall be governed by the rules different.
In obligations to do and not to do, the courts shall
established for conditional obligations in all determine, in each case, the retroactive effect of
matters not provided for by this Section. the condition that has been complied with.
Art. 1188. The creditor may, before the fulfillment of
 Suppletorily governing conditional institutions are the condition, bring the appropriate actions for the
Articles 1179 and 1192 on conditional obligations. preservation of his right.

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The debtor may recover what during the same


time he has paid by mistake in case of a suspensive
ART. 878. A disposition with a suspensive term
condition.
does not prevent the instituted heir from
Art. 1189. When the conditions have been imposed
with the intention of suspending the efficacy of an
acquiring his rights and transmitting them to
obligation to give, the following rules shall be his heirs even before the arrival of the term.
observed in case of the improvement, loss or
deterioration of the thing during the pendency of  When the heir’s right vests – in dispositions with a term,
the condition: the heir’s right vests upon the testator’s death,
(1) If the thing is lost without the fault of the conformably with Art777. Therefore, should the heir die
debtor, the obligation shall be extinguished;
before the arrival of the suspensive term, he merely
(2) If the thing is lost through the fault of the
debtor, he shall be obliged to pay damages; it transmits his right to his own heirs who can demand the
is understood that the thing is lost when it property when the term arrives.
perishes, or goes out of commerce, or  The rule in this article is similar to Art866 in
disappears in such a way that its existence is fideicommissary substitutions.
unknown or it cannot be recovered;  The rule in conditional institutions – what is the rule if
(3) When the thing deteriorates without the fault the instituted heir dies before the happening of the
of the debtor, the impairment is to be borne by condition? The section is silent on this matter. But
the creditor; under Art1034, par3, “if the institution, devise or legacy
(4) If it deteriorates through the fault of the
should be conditional, the time of the compliance with
debtor, the creditor may choose between the
rescission of the obligation and its fulfillment, the condition shall also be considered.
with indemnity for damages in either case;  The import is that in conditional institutions, the heir
(5) If the thing is improved by its nature, or by should be Living and Qualified to succeed BOTH at
time, the improvement shall inure to the the time of the testator’s death and at the time of
benefit of the creditor; the happening of the condition.
(6) If it is improved at the expense of the debtor,
he shall have no other right than that granted
to the usufructuary. (1122)
ART. 885. The designation of the day or the time
Art. 1190. When the conditions have for their purpose
the extinguishment of an obligation to give, the when the effects of the institution of an heir
parties, upon the fulfillment of said conditions, shall shall commence or cease shall be valid.
return to each other what they have received. In both cases, the legal heir shall be
In case of the loss, deterioration or improvement considered as called to the succession until
of the thing, the provisions which, with respect to
the debtor, are laid down in the preceding article the arrival of the period or its expiration. But
shall be applied to the party who is bound to return. in the first case he shall not enter into
As for the obligations to do and not to do, the possession of the property until after having
provisions of the second paragraph of Article 1187 given sufficient security, with the intervention
shall be observed as regards the effect of the
extinguishment of the obligation. of the instituted heir.
Art. 1191. The power to rescind obligations is implied
in reciprocal ones, in case one of the obligors  If term is Suspensive – before the arrival of the term,
should not comply with what is incumbent upon the property should be delivered to the intestate heirs.
him. A caucion muciana has to be posted by them. This is
The injured party may choose between the the 2nd instance where a caucion muciana is required to
fulfillment and the rescission of the obligation, with be posted.
the payment of damages in either case. He may  If term is Resolutory – before the arrival of the term, the
also seek rescission, even after he has chosen property should be delivered to the instituted heir. No
fulfillment, if the latter should become impossible. caucion muciana is required.
The court shall decree the rescission claimed,
unless there be just cause authorizing the fixing of
a period.
This is understood to be without prejudice to the
rights of third persons who have acquired the thing,
in accordance with Articles 1385 and 1388 and the
Mortgage Law.
Art. 1192. In case both parties have committed a
breach of the obligation, the liability of the first
infractor shall be equitably tempered by the courts.
If it cannot be determined which of the parties first DISPOSITION WITH MODES
violated the contract, the same shall be deemed
extinguished, and each shall bear his own damages.
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
DISPOSITION WITH TERMS

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him, shall not be considered as a condition - Hence, this appeal.


unless it appears that such was his intention.
Whether Article 882 applies in this case. (Petitioner maintains
That which has been left in this manner
that Article 882 does not apply as there was no modal
may be claimed at once provided that the institution and the testatrix intended a mere simple substation
instituted heir or his heirs give security for – Jorge was to be substituted by Aleja’s near descendants
compliance with the wishes of the testator should there be noncompliance with the obligation to deliver
and for the return of anything he or they may the sugar to Maria.)
receive, together with its fruits and interests, - YES. The SC held that the CA erred in not ruling that the
institution of Jorge under the codicil is in the nature of a
if he or they should disregard this obligation. modal institution.

 The 1st paragraph defines a mode obliquely. A mode is - The codicil does not imply substitution. In simple
an obligation imposed upon the heir, without substitutions, the 2nd heir takes the inheritance in default of
suspending the effectivity of the institution [which a the first heir by reason of incapacity, predecease or
renunciation. In this case, the provisions of the codicil do
condition does].
not provide that should Jorge default due to predecease,
 A mode must be clearly imposed as an obligation incapacity or renunciation, the testatrix’s near descendants
in order to be considered as one. Mere preferences would substitute him. What the codicil provides is that
or wishes expressed by the testator are not modes. should Jorge or his heirs not fulfill the conditions imposed,
 A mode functions similarly to a resolutory condition. the property shall be seized and turned over to Aleja’s near
In fact, modes could very well have been absorbed descendants.
by the concept of resolutory conditions. - In this case, Aleja did not make Jorge’s inheritance and the
effectivity of his institution as a devisee dependent upon on
 Caucion Muciana – should be posted by the instituted the performace of the said obligation.
heir [3rd instance of caucion muciana] - It is clear, though, that should the obligation be not
complied with, the property shall be turned over to the
Aleja’s near descendants.
CASE - The manner of institution of Jorge is evidently modal in
Rabadilla v. CA nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
- In the codicil of Aleja Belleza, appended to her last will and - Also, since testamentary dispositions are generally acts of
testament, Dr. Jorge Rabanilla was instituted as a devisee
liberality, an obligation imposed upon the heir should not be
of parcel of land.
considered a condition unless it clearly appears from the
- The said codicil contained the following provisions:
Will itself that such was the intention of the testator. In case
o That should Jorge die ahead of the testator, the property of doubt, the institution should be considered as modal
shall be inherited by the children and spouse; and not condition.
o That if ownership of the property is transmitted to Jorge, - The SC affirmed the decision of the CA.
he shall have the obligation until he dies to give to Maria - Articles 882 and 883 of the NCC.
Belleza 75 piculs of export sugar and 25 piculs of
domestic sugar until the said Maria dies; - The institution of an heir in the manner prescribed in Article
o That in case of Jorge’s death, his hears shall be imposed 882 is what is known in the law of succession as an
the same obligation; institucion sub modo or modal institution.
o That if the heir shall later sell, lease, mortgage the said - In a modal institution, the testator states:
lot, the buyer, lessee, mortgagee shall have also the o the object of the institution;
obligation to deliver yearly 100 piculs of sugar to Maria; o the purpose or application of the property left by the
and testator; or
o That should the buyer, lessee or the mortgagee fails to o the charge imposed by the testator upon the heir.
respect Aleja’s command, Maria shall immediately seize
the lot and turn it over to Aleja’s near descendants and
- A “mode” imposes an obligation upon the heir or legatee
the latter shall have the same obligation of delivering 100 but it does not affect the efficacy of his rights to the
piculs of sugar to Maria. succession.
- For alleged violations of the codicil, Maria filed a complaint - In a conditional testamentary disposition, the condition
against Jorge’s heirs and asked for the property to be must happen or be fulfilled in order for the heir to be entitled
reconveyed to the near descendants of Aleja on that to succeed the testator. The condition suspends but does
ground that: not obligate; and the mode obligates but does not suspend.
o the lot was mortgaged to PNB and Republic Planters To some extent, it is similar to a resolutory condition.
Bank, not a near descendant of Aleja; - Since testamentary dispositions are generally acts of
o the heirs failed to deliver the sugar; and liberality, an obligation imposed upon the heir should not be
o the banks failed to comply with the obligation to deliver considered a condition unless it clearly appears from the
sugar to Maria. Will itself that such was the intention of the testator. In case
- The RTC dismissed the case. of doubt, the institution should be considered as modal
- On appeal, CA set aside the decision of RTC and ordered and not condition.
that the heirs of Jorge reconvey title over the lot with its - A will cannot be subject of a compromise agreement which
fruits and interests. would thereby defeat the very purpose of making a will.

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Case for Arts 871-885

Miciano v. Brimo
ART. 883 par1. When without the fault of the heir,
an institution referred to in the preceding - The subject of this case is the partition of the estate of the
article cannot take effect in the exact manner late Joseph Brimo.
stated by the testator, it shall be complied - Miciano, the appointed judicial administrator, filed a partition
scheme.
with in a manner most analogous to and in
- Andre Brimo, one of Joseph’s borthers, opposed stating that
conformity with his wishes. the partition was not in accordance with Turkish laws,
 The intention of the testator should always be the Jospeh being a Turkish citizen.
guiding norm in determining the sufficiency of the - Andre contends that this was void because the Civil Code
analogous performance. states that legal and testamentary successions shall be
governed by the national law of the person whose
succession is in question.
- Andre was excluded from as a legatee because of a clause
SECTION 5 – LEGITIME in the will where Joseph wished that his property be
distributed in accordance with Philippine laws, and any
legatee who fails to comply with this would be prevented
 System of Legitimes – our successional system, closely from receiving his legacy.
patterned after that of the Spanish Code, reserves a - Since the institution of legatees was conditioned upon
portion of the net estate of the decedent in favor of Joseph’s wish, it is claimed that Andre is excluded by
certain heirs, or groups of heirs or combination of heirs. questioning the validity of applying Philippine laws in the
 The portion that is so reserved is called the LEGITIME. partition of the estate (which was against his brother’s wish).
 The portion that is left available for testamentary
WON Andre Brimo can be validly excluded as a legatee.
disposition after the legitimes have been covered is the
- NO. The condition imposed by the will of the testator is
free or disposable portion.
contrary to law because it ignores the testator’s national
 The heirs for whom the law reserves a portion are
law, when according to the Civil Code, such national law of
called compulsory heirs. the testator is to govern his testamentary dispositions.
- As such, the condition is considered unwritten and the
 Nature of Legitimes – the legitimes are set aside by institution of legatees in the will is unconditional and
mandate of law. Thus, the testator is required to set consequently valid and effective even as to Andre.
aside or reserve them. Otherwise stated, the testator is - The remaining clauses of the will are valid despite the nullity
prohibited from disposing by gratuitous title, either inter of the clause stating that the testator’s testamentary
vivos or mortis causa, of these legitimes. Dispositions dispositions be governed by Philippine laws.
by onerous title are not prohibited because in theory, - Art. 792, (Old) Civil Code: Impossible conditions and those
nothing is lost from the estate in an onerous disposition, contrary to law or good morals shall be considered as not
since there is merely an exchange of values. imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise
 Because the testator is compelled to set aside the provide.
legitimes, the heirs in whose favor the legitimes are set
aside are called compulsory heirs. The compulsion is
not on the part of the heirs, who are free to accept or ART. 886. Legitime is that part of the testator's
reject the inheritance, but on the part of the testator. property which he cannot dispose of because
the law has reserved it for certain heirs who
 Major changes in the law of legitimes are, therefore, called compulsory heirs.
1. Abolition of the major or betterment in the
Spanish Code
2. The surviving spouse’s share is upgraded from  This article gives the statutory definition of legitime.
a usufructuary interest to full ownership, albeit a
very variable share.
3. The grant of legitimary rights to children
classified under the New Civil Code as illegitimate
other than natural or spurious, and further change
under the Family Code abolishing the distinction
between natural and spurious children and giving
all illegitimate children the same legitimary shares.

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children should share in the legitime. However,


they will share EQUALLY regardless of age,
ART. 887. The following are compulsory heirs: sex or marriage of origin.
1) Legitimate children and 2. Legitimate Descendants – the GR is the
descendants, with respect to their nearer exclude the more remote. Thus,
legitimate parents and ascendants; children, if all qualified, will exclude
2) In default of the foregoing, grandchildren and so on. The qualification to
legitimate parents and ascendants, with this rule is representation when proper.
respect to their legitimate children and
descendants;  LEGITIMATE PARENTS / ASCENDANTS
3) The widow or widower; 1. Legitimate Parents
4) Acknowledged natural children, 2. Legitimate Ascendants – Only in default of
and natural children by legal fiction; parents. The rule – absolute in the ascending
5) Other illegitimate children referred line – is that the nearer exclude the more
to in Article 287. remote. [Arts889-890]
Compulsory heirs mentioned in Nos. 3, 4,  SURVIVING SPOUSE
and 5 are not excluded by those in Nos. 1 and 1. The spouse of the decedent, not the spouse of
2; neither do they exclude one another. a child who has predeceased the decedent.
In all cases of illegitimate children, their 2. Marriage between the decedent and his/her
surviving spouse must be either VALID or
filiation must be duly proved. VOIDABLE. If voidable, there should have
The father or mother of illegitimate been no final decree of annulment at the time
children of the three classes mentioned, shall of the decedent’s death.
inherit from them in the manner and to the • Question – if the consort dies during the
extent established by this Code. pendency of a petition for declaration of
nullity under Art36 or for nullity under
Art40 of the FC, should the proceedings
 This article enumerates the compulsory heirs. The be dismissed or should they proceed?
enumeration is EXCLUSIVE and may be classified as • Mere estrangement is not a ground for the
follows: disqualification of the surviving spouse as
1. Primary compulsory heirs – legitimate children heir.
and / or descendants • Effect of Decree of Legal Separation
• So called because they are preferred a) On the offending spouse –
over, and exclude the secondary heirs. disqualification
b) On the innocent spouse - nothing
2. Secondary compulsory heirs – legitimate
parents and / or ascendants ; illegitimate parents • Death of either spouse during pendency
• So called because they receive legitimes of a petition for Legal Separation –
only in default of the primary heirs. Dismissal of the Case.
• Legitimate parents/ascendants – only in
default of legitimate children/  ILLEGITIMATE CHILDREN / DESCENDANTS
descendants. 1. Illegitimate Children – Family Code has
• Illegitimate parents – only in default of any abolished the distinction between natural and
kinds of children/descendants. spurious children and gives all of them –
indiscriminately called illegitimate children –
3. Concurring compulsory heirs – surviving equal legitimary portions. However, pursuant
spouse; illegitimate children and / or descendants to Art777, if death occurred before effectivity of
• So called because they succeed as the Family Code on August 3, 1988, the old
compulsory heirs together with primary or distinctions will apply and the spurious child
secondary heirs, except only that gets only 4/5 of the share of the natural child.
illegitimate children / descendants exclude [Art895]
illegitimate parents.
2. Illegitimate Descendants – Same rule applies
 THE COMPULSORY HEIRS as in the legitimate descending line, the nearer
 LEGITIMATE CHILDREN / DESCENDANTS exclude the more remote, without prejudice to
representation when proper.
1. Legitimate Children – specified in Arts164 and It should be noted that the illegitimate
54 of the Family Code. Legitimated children child can be represented by both legitimate
fall under this classification [Art179 FC]. The and illegitimate descendants, as distinguished
law does not specify how the legitimate from the legitimate child, who can be

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represented only by legitimate descendants.


[Art902 and 992]

 ILLEGITIMATE PARENTS
1. Unlike the legitimate ascending line, which
includes ascendants in whatever degree, the
illegitimate ascending line only includes the
parents, it does not go beyond the parents.
2. The illegitimate parents are secondary heirs of
a lower category that legitimate parents,
because the illegitimate parents are excluded
by legitimate and illegitimate children [Art903]
whereas legitimate parents are excluded only
by legitimate children/ descendants.

 Variations in the Legitimary Portions


 The legitimary system of the Philippine Code rests
on a double foundation – EXCLUSION and
CONCURRENCE.

 GENERAL RULE – there is a basic amount of ½ that is


given to one heir or one group of heirs. This General
Rule admits only of 3 EXCEPTIONS:
1. Art894 – surviving spouse and illegitimate
children
2. Art900 par2 – surviving spouse in a marriage
in articulo mortis, with the conditions specified
in that article
3. Art903 – surviving spouse and illegitimate
parents.

 The term “legitimate child” or “legitimate children”


includes a legally adopted child under Sec18 of
RA8552 or the Domestic Adoption Act of 1998.

 Question – Is an adopted child entitled to a legitime


from his biological parents or ascendants? Uncertain.
 Art189[3] of the FC provides that the adopted shall
remain an intestate heir of his parents and other
blood relatives.
 Thus, the adopted child was entitled to a legitime
BOTH from his adopter and his biological parents.
 But now, the law is silent and it neither gives nor
denies an adopted child the right to a legitime from
his biological parents.
 Sec16 of the law provides that “all legal ties
between the biological parents and the adoptee
shall be severed” but that is unavailing to answer
the question because sec16 only has to do with
parental authority.

 The term “legitimate child” or “legitimate children” shall,


in proper cases, include legitimate descendants other
than children.

 The term “legitimate parents” includes, in proper cases,


legitimate ascendants other than parents.

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DIFFERENT COMBINATIONS OF COMPULSORY HEIRS


CODE COMBINATION SHARE CODAL PROVISION NOTES
LC Legitimate ½ of estate Art. 888. The legitime of Adopted Child has the same
Children Alone divided equally legitimate children and rights as LC
[Art888] descendants consists of one- If there is more than 1 legitimate
half of the hereditary estate of child, the ½ of the estate shall
the father and of the mother. be divided equally among them.
The latter may freely dispose of If there are legitimate children
the remaining half, subject to and grandchildren, the nearer
the rights of illegitimate descendants exclude the farther,
children and of the surviving so as long as there are
spouse as hereinafter provided. legitimate children, the
grandchildren cannot inherit.
If legitimate children
PREDECEASE the testator or are
INCAPACITATED to inherit, the
grandchildren get their
respective parents’ [the
legitimate children] shares by
virtue of REPRESENTATION.
But if ALL the legitimate children
RENOUNCE, the grandchildren
inherit in their own right and the
½ estate is divided equally
among them.
But if only a few of the legitimate
children RENOUNCE or not all
renounce, the share of those
who renounce accrue to the
other legitimate children.
1LCSS One Legitimate ½ of the estate Art. 892. If only one legitimate
Child and to the child or descendant of the
Surviving legitimate child deceased survives, the widow
Spouse ¼ of the estate or widower shall be entitled to
to the surviving one-fourth of the hereditary
spouse [taken estate. In case of a legal
from the free separation, the surviving
spouse may inherit if it was the
disposable
deceased who had given cause
portion of the
for the same.
estate] If there are two or more
[Art892 par1] legitimate children or
descendants, the surviving
spouse shall be entitled to a
portion equal to the legitime of
each of the legitimate children
or descendants.
In both cases, the legitime of
the surviving spouse shall be
taken from the portion that can
be freely disposed of by the
testator.

LCSS Legitimate ½ of estate to Art. 892. If only one legitimate LEGAL SEPARATION between the
Children and legitimate child or descendant of the testator and the surviving
Surviving children deceased survives, the widow spouse
Spouse Share equal to or widower shall be entitled to If there is a final decree of legal
that of 1 child one-fourth of the hereditary separation

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for the estate. In case of a legal 1. surviving spouse is


surviving separation, the surviving the innocent party – he/she
spouse [taken spouse may inherit if it was the gets her legitime [Art63
from the free deceased who had given cause par4 FC]
disposable for the same. 2. surviving spouse is
portion of the If there are two or more the offending spouse –
estate] legitimate children or he/she is disqualified from
descendants, the surviving inheriting [Art63 par4 FC]
[Art892par2]
spouse shall be entitled to a If after the final decree of legal
portion equal to the legitime of separation there was a
each of the legitimate children reconciliation between the
or descendants. parties, the reciprocal right to
In both cases, the legitime of succeed is restored because
the surviving spouse shall be reconciliation sets aside the
taken from the portion that can decree [Art66 par2 FC]
be freely disposed of by the
testator.

LCIC Legitimate ½ of estate to Illegitimate child only gets half


Children and the legitimate the share of a legitimate child. In
Illegitimate children case total of the shares of all
Children ½ of the share illegitimate children exceed the
of 1 legitimate amount of the estate, their
child to the shares shall be reduced equally.
illegitimate The shares of the legitimate
children cannot be reduced.
children
[Art176 FC]

CODE COMBINATION SHARE CODAL PROVISION NOTES


1LCICSS One legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
child, illegitimate legitimate the acknowledged natural illegitimate children exceed the
children and children children and each of the natural amount of the estate, their
surviving Each children by legal fiction shall shares shall be reduced equally.
spouse illegitimate consist of one-half of the The shares of the legitimate
child will get ½ legitime of each of the legitimate children and the surviving
of the share of children or descendants. spouse cannot be reduced.
The legitime of an illegitimate
a legitimate
child who is neither an
child
acknowledged natural, nor a
¼ of estate to natural child by legal fiction,
the surviving shall be equal in every case to
spouse, whose four-fifths of the legitime of an
share is acknowledged natural child.
preferred over The legitime of the illegitimate
those of the children shall be taken from the
illegitimate portion of the estate at the free
children, which disposal of the testator, provided
shall be that in no case shall the total
reduced if legitime of such illegitimate
necessary children exceed that free
[Art895] portion, and that the legitime of
the surviving spouse must first
be fully satisfied.

LCICSS Legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
children, legitimate the acknowledged natural illegitimate children exceed the
illegitimate children children and each of the natural amount of the estate, their
children and Each children by legal fiction shall shares shall be reduced equally.
surviving illegitimate consist of one-half of the The shares of the legitimate
spouse child will get ½ legitime of each of the legitimate children and the surviving
of the share of children or descendants. spouse cannot be reduced.
The legitime of an illegitimate

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one legitimate child who is neither an


child acknowledged natural, nor a
A share equal natural child by legal fiction,
to that of 1 shall be equal in every case to
legitimate child four-fifths of the legitime of an
for the acknowledged natural child.
surviving The legitime of the illegitimate
children shall be taken from the
spouse, whose
portion of the estate at the free
share is
disposal of the testator, provided
preferred over that in no case shall the total
those of the legitime of such illegitimate
illegitimate children exceed that free
children which portion, and that the legitime of
shall be the surviving spouse must first
reduced if be fully satisfied.
necessary.
[Art895]
LP Legitimate ½ of estate Art. 889. The legitime of There is NO RIGHT OF
parents alone [Art889] legitimate parents or ascendants REPRESENTATION in the
consists of one-half of the Ascending Line.
hereditary estates of their If the one of the legitimate
children and descendants. parents PREDECEASE or is
The children or descendants may INCAPACITATED to inherit,
freely dispose of the other half, his/her share accrues to the
subject to the rights of other parent [tama ba?]
illegitimate children and of the
surviving spouse as hereinafter
provided.

LPIC Legitimate ½ of estate to Art. 896. Illegitimate children For the illegitimate children or
parents and legitimate who may survive with legitimate descendants, the sharing shall
illegitimate parents parents or ascendants of the depend on whether death
children ¼ of estate to deceased shall be entitled to occurred before or during the
illegitimate one-fourth of the hereditary effectivity of the Family Code.
children estate to be taken from the
portion at the free disposal of
the testator.

LPSS Legitimate ½ of estate to Art. 893. If the testator leaves no


parents and legitimate legitimate descendants, but
surviving parents leaves legitimate ascendants,
spouse ¼ of estate to the surviving spouse shall have a
surviving right to one-fourth of the
spouse hereditary estate.
This fourth shall be taken from
the free portion of the estate.

CODE COMBINATION SHARE CODAL PROVISION NOTES


LPICSS Legitimate ½ of estate Art. 899. When the widow or For the illegitimate children or
parents to the widower survives with legitimate descendants, the sharing shall
illegitimate legitimate parents or ascendants and with depend on whether death
children and parents illegitimate children, such occurred before or during the
surviving ¼ of estate surviving spouse shall be entitled effectivity of the Family Code.
spouse to the to one-eighth of the hereditary
illegitimate estate of the deceased which must
be taken from the free portion, and
children
the illegitimate children shall be
1/8 of estate
entitled to one-fourth of the estate
to the

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surviving which shall be taken also from the


spouse disposable portion. The testator
may freely dispose of the
remaining one-eighth of the
estate.
SS Surviving ½ of the estate Art. 900. If the only survivor is the
spouse alone or 1/3 if the widow or widower, she or he shall
marriage, be entitled to one-half of the
being in hereditary estate of the deceased
articulo mortis, spouse, and the testator may
falls under freely dispose of the other half.
Art900 par 2 If the marriage between the
[Art900par1] surviving spouse and the testator
was solemnized in articulo mortis,
and the testator died within three
months from the time of the
marriage, the legitime of the
surviving spouse as the sole heir
shall be one-third of the hereditary
estate, except when they have
been living as husband and wife
for more than five years. In the
latter case, the legitime of the
surviving spouse shall be that
specified in the preceding
paragraph.
SSIC Surviving 1/3 of estate to Art. 894. If the testator leaves For the illegitimate children or
spouse and surviving illegitimate children, the surviving descendants, the sharing shall
illegitimate spouse spouse shall be entitled to one- depend on whether death
children 1/3 of estate to third of the hereditary estate of occurred before or during the
illegitimate the deceased and the illegitimate effectivity of the Family Code.
children children to another third. The
remaining third shall be at the free
disposal of the testator.
SSIP Surviving ¼ of estate to Art. 903. The legitime of the
spouse and surviving parents who have an illegitimate
illegitimate spouse child, when such child leaves
parents ¼ of estate to neither legitimate descendants,
illegitimate nor a surviving spouse, nor
parents illegitimate children, is one-half of
[Art903] the hereditary estate of such
illegitimate child. If only legitimate
or illegitimate children are left, the
parents are not entitled to any
legitime whatsoever. If only the
widow or widower survives with
parents of the illegitimate child,
the legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the surviving
spouse also one-fourth of the
estate.
IC Illegitimate ½ of estate Art. 901. When the testator dies For the illegitimate children or
children alone [Art901] leaving illegitimate children and no descendants, the sharing shall
other compulsory heirs, such depend on whether death
illegitimate children shall have a occurred before or during the
right to one-half of the hereditary effectivity of the Family Code.
estate of the deceased.
The other half shall be at the free
disposal of the testator.
IP Illegitimate ½ of estate Art. 903. The legitime of the
parents alone [Art903] parents who have an illegitimate
child, when such child leaves
neither legitimate descendants,
nor a surviving spouse, nor

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illegitimate children, is one-half of


the hereditary estate of such
illegitimate child. If only legitimate
or illegitimate children are left, the
parents are not entitled to any
legitime whatsoever. If only the
widow or widower survives with
parents of the illegitimate child,
the legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the surviving
spouse also one-fourth of the
estate.

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W/N a widow is an intestate heir of a mother-in-law.


CASE - SC held that no provision in the Civil Code states that a
Baritua v. CA widow is an intestate heir of a mother-in-law since she does
not inherit by right or by right of representation.
- The tricycle being driven by Bienvenido Nacario met an
accident with a bus, driven by Edgar Bitancor and owned W/N the decision of the TC is final as to the widow.
and operated by Jose Baritua. - SC held that the decision is final because:
- The accident caused the death of Nacario. - 1. The widow is considered a third person as regards the
- No civil or criminal case was filed against the driver and estate of the parent-in-law.
Baritua. Instead, an extra-judicial settlement was entered - 2. The provision in Art. 887 refers to the estate of the
into between Nacario’s spouse Alicia Baracena and the deceased spouse in which case the surviving spouse is a
petitioners and the bus’ insurer (Philippine First Insurance compulsory heir. It does not apply to the estate of the
Company). parent-in-law
- In that settlement, the spouse was given P18,500 and in - 3. Petitioner cannot assert the same rights as that of the
consideration for what she received, the widow executed grandchild because she has no filiation by blood with her
an affidavit of desistance in filing any case against the mother-in-law.
petitioners. - 4. The right of the widow’s husband was extinguished at the
- A year after, the parents of Nacario filed a complaint for time of his death; thus, grandchild succeeded from
damages against the petitioners alleging that the petitioners decedent by right of representation and not from his
promised to indemnify for the death of their son, the funeral deceased father.
expenses and the damages caused to the tricycle but - Art. 887 of the Civil Code: Intestate or legal heirs are
instead the petitioners paid to the estranged wife. classified into two groups namely those who inherit by their
- The CFI ruled in favor of Baritua and the driver but the CA right and those who inherit by the right of representation.
reversed the decision upon appeal. Hence, this petition. (Art. 981)

Whether or Not CA erred in ruling that the petitioners are still Lapuz v. Eufemio
liable to pay to the Nacarios’ parents
- SC held that this ruling is erroneous. Note – under the Lapuz ruling, it does not matter who dies,
- The Court recognized that payment is one of the whether it be the offending or innocent spouse.
recognized modes in extinguishing obligations.
- According to Art 1240 of the CC, to effect extinguishment, De Aparicio v. Paraguya
payment must be made either to the person to whom the
obligation is made, to his successors-in-interest, or to - Trinidad Motilde had a love affair with a priest, Fr. Felipe
anyone authorized. Lumain and in the process she conceived.
- It is clear under Article 887 that a surviving spouse and the - When Trinidad was almost four months and in order to
legitimate children are the compulsory heirs of a decedent. conceal the affair, Trinidad decided to marry Anastacio
- As such, the petitioners correctly paid Alicia and her son, MAmburao.
who are the successors-in-interest of Nacario. - When Fr. Lumain died, he left a last will and testament
- On the other hand, the parents of the deceased succeed wherein he acknowledged Consolacion as his daughter and
only when the latter dies without any legitimate instituted her as the sole and universal heir of all his
descendants. Since Nacario and Alicia begot a son, the property rights and interests.
legitimate ascendants are excluded from succession. - Soon after reaching the age of majority, Consolacion filed
- This is so even if Alicia had been estranged from an action for the recovery of certain parcels of land and for
Bienvenido. Mere estrangement is not a legal ground for damages against Hipolito Paraguya.
the disqualification of a surviving spouse as an heir of the - Motilde claims that she has inherited these lands from her
deceased spouse. biological father.
- Legitimate ascendants succeed only in default of legitimate - During the trial, it was found that the subject of the action
descendants whereas a spouse is a concurring heir and were the three parcels of land originally owned by the
succeeds together with all classes of heirs. Parents of Fr. Lumain, the spouses Roman Lumain and
- Mere estrangement is not a legal ground for the and Filomena Cesare.
disqualification of a surviving spouse as an heir of the - Paraguya claims ownership over the second parcel of land
deceased spouse. by virtue of a Pacto de retro sale executed by Roman
Lumain and the former.
- Paraguya also claimed another portion of the lands in
question, described as portion G, which he said he bought
Rosales v. Rosales
from Pelagio Torrefranca.
- Above all this, Paraguya also contended that Motilde had
Rosales v. Rosales
no right over the properties of Fr. Lumain.
- Mrs. Petra Rosales died intestate. She was survived by her
- He averred that by virtue of Art 255 of the Family Code,
husband and her two children. Her son predeceased her
children born after 180days of the marriage are presumed
but left a grandchild and his widow, who is the petitioner
to a legitimate child.
herein.
- Paraguya further averred that the exceptions to the rule
- The trial court awarded ¼ each to the deceased husband,
were not duly proved by Consolacion.
two daughters and grandchild.
- Finally, he contended that the acknowledgement by Fr.
- Petitioner daughter-in-law now seeks reconsideration.
Lumain that Consolacion was his child cannot prevail over
the said presumption of legitimacy.

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the tine, great grandchildren cannot inherit unless all


Whether or Not Paraguya is entitled to the lot subject to a the children and grandchildren renounce.
right of repurchase
- SC held that Paraguya is entitled to the 2nd parcel of land  The only qualification to the rule that the nearer exclude
subject of the Pacto de retro sale. It is evident that the the more remote in the descending line is
period to redeem the property, which is four years from the representation when proper [Arts970-977]
date of the contract, has already expired.
- Paraguya is also entitled to the land described as section G  There is no limit to the number of degrees in the
with all the improvements thereon. descending line that may be called to succeed, whether
- The evidence adduced shows that this Section is outside in their own right or by representation.
the land of Roman Lumain.

Whether or Not Paraguya is entitled to the land described as


ART. 889. The legitime of legitimate parents or
Section G
- SC held in the affirmative. ascendants consists of one-half of the
- Paraguya questions the right of Consolacion over the hereditary estates of their children and
properties of Fr. Lumain on the premise that she is the descendants.
legitimate spouses of the mamburaos.
The children or descendants may freely
Whether or Not Consolacion is entitled to inherit from Fr. dispose of the other half, subject to the rights
Lumain of illegitimate children and of the surviving
- The SC held that it is unnecessary to establish the paternity spouse as hereinafter provided.
of Consolacion in this case.
- This is because, in the Last Will and Testament of Fr.
Lumain, he did not only acknowledge Consolacion as his
daughter but also instituted her as his sole heir. ART. 890. The legitime reserved for the legitimate
- As Fr. Lumain died without no compulsory heir, parents shall be divided between them
Concolacion as the sole heir is entitled to all the properties equally; if one of the parents should have
of the former. died, the whole shall pass to the survivor.
- One who has no compulsory heir may dispose by will of all
of his estate or any part of it in favor of any person having If the testator leaves neither father nor
the capacity to succeed. mother, but is survived by ascendants of
- One who has no compulsory heir may dispose by will of all equal degree of the paternal and maternal
of his estate or any part of it in favor of any person having lines, the legitime shall be divided equally
the capacity to succeed.
between both lines. If the ascendants should
be of different degrees, it shall pertain entirely
to the ones nearest in degree of either line.
ARTICLES GOVERNING THE
PARTICULAR COMBINATIONS
 Legitimate parents/ascendants as secondary
compulsory heirs – the legitimate ascending line
ART. 888. The legitime of legitimate children and succeeds only in default of the legitimate descending
descendants consists of one-half of the line.
hereditary estate of the father and of the
mother.  3 BASIC RULES ON SUCCESSION IN THE
ASCENDING LINE
The latter may freely dispose of the 1. The nearer exclude the more remote.
remaining half, subject to the rights of • This rule in the ascending line admits of
illegitimate children and of the surviving no qualification, since there is no
spouse as hereinafter provided. representation in the ascending line.
[Art972 par1]
 Equal sharing – the legitimate children share the ½ in 2. Division by line.
equal parts, regardless of age, sec or marriage of • This rule will apply if there are more than
origin. The provision should have been explicit about one ascendant in the nearest degree. The
this. The counterpart provision in intestacy [Art979 par1 legitime shall then be divided in equal
and Art980] is quite explicit on this. parts between the paternal line and the
maternal line.
 Descendants other than children – the GR is that the
nearer exclude the more remote. Hence, grandchildren 3. Equal division within the line.
cannot inherit, since the children will bar the, unless all • After the portion corresponding to the line
the children renounce, in which case the grandchildren has been assigned, there will be equal
become the nearest in degree. The rule goes on down apportionment between or among the
recipients within the line, should there be
more than one.

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 Termination of Marriage by REAPPEARANCE of prior


 Note – also, there is no right of representation in the Spouse / Decree of ANNULMENT or ABSOLUTE
ascending line. NULLITY of marriage
 Arts 41-43 of FC govern a subsequent marriage
 The operation of the principles of Division By Line and contracted by a party whose spouse has been
Equal Division within the Line may cause inequality of absent for the specified period and lay down the
shares among ascendants of identical degrees. requisites therefor.
 For example, if both legitimate parents of testator  The reappearance of the prior spouse
predecease him and testator has no other TERMINATES the second marriage. One of the
legitimate descendants, if there are 2 surviving effects of the termination as given in Art43[5] is –
maternal grandparents but only 1 surviving “The spouse who contracted the subsequent
paternal grandparent – the ½ estate is divided marriage in BAD FAITH shall be disqualified to
equally between the maternal and paternal lines, inherit from the innocent spouse by testate and
but the 2 maternal grandparents must share the ¼ intestate succession.
portion of the maternal line [they get 1/8 each]  The implication of Art43 is that –
while the sole paternal grandparent gets the whole 1. If both consorts in the second marriage were in
¼ portion of the paternal line. GOOD FAITH, they continue to be heirs of
each other.
2. If only one of said consorts acted in bad faith,
the innocent one will continue by testate and
ART. 892. If only one legitimate child or intestate succession.
descendant of the deceased survives, the
widow or widower shall be entitled to one-  PROBLEM – A and B are married. A disappears
fourth of the hereditary estate. In case of a and is absent for the required period. B then
legal separation, the surviving spouse may contracts a second marriage with C, both in good
inherit if it was the deceased who had given faith. Out of nowhere, A reappears [surprise!], and
cause for the same. so the marriage between B and C is terminated.
Under Art43[5] the reciprocal right of succession
If there are two or more legitimate between A and B as the original spouses remains.
children or descendants, the surviving What if B dies? Can A and C inherit from him/her?
spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children  The same problem arises in cases of marriages
or descendants. judicially annulled or declared void ab initio,
because of the provisions of Art50 par1 of the
In both cases, the legitime of the Family Code – “The effects provided for by
surviving spouse shall be taken from the paragraphs 2,3,4 and 5 of article 43 and by article
portion that can be freely disposed of by the 44 shall also apply in the proper cases to
testator. marriages which are void ab initio or annulled by
final judgment under Articles 40 and 45.

 1 LEGITIMATE CHILD / SURVIVING SPOUSE – the  The problem here will arise should either or both
sharing is ½ for the legitimate child and ¼ for the partners in the defective marriage remarry later.
surviving spouse.
 Balane says that prescinding from the practical
 If there has been LEGAL SEPARATION between the
problem of having 2 husbands [or 2 wives] claiming
testator and the surviving spouse the right to a legitime, the very principle underlying
 If there is a final decree of legal separation the rule is questionable – why should consorts of a
1. surviving spouse is the innocent party – he/she terminated marriage, or an annulled one, or one
gets her legitime [Art63 par4 FC] declared void ab initio continue to be heirs of each
2. surviving spouse is the offending spouse – other? The marriage – which forms the basis of the
he/she is disqualified from inheriting [Art63 right of succession no longer exists.
par4 FC]
 If after the final decree of legal separation there  LEGITIMATE CHILDREN / SURVIVING SPOUSE –
was a reconciliation between the parties, the The sharing is ½ for the children collectively and for the
reciprocal right to succeed is restored because spouse, equivalent to that of each of the legitimate
reconciliation sets aside the decree [Art66 par2 FC] children or descendants.
 Determination of surviving spouse’s share
 DEATH PENDENTE LITE – if either spouse dies during 1. As long as at least 1 of several children
the pendency of the proceedings for legal separation, inherits in his own right, the determination of
the proceedings are TERMINATED and the surviving the share of the surviving spouse presents no
spouse inherits from the deceased spouse, no matter problem. It will always be equivalent of one
which spouse died. child’s share.

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2. But supposing ALL the children predecease or • The legitime of the spurious child will only
are disinherited or are unworthy to succeed? be 4/5 that of a natural child, according to
Since all the grandchildren would then inherit the ratio established in Art895 par2.
BY REPRESENTATION and therefore in • This ratio of 5:4 among natural and
different amounts, the practical solution will still spurious children should be observed in
be to give the spouse the share that each child all cases under the Civil Code where they
would have gotten if qualified. concur.
3. Supposing ALL the Children RENOUNCE, the
grandchildren would inherit PER CAPITA or in
their own right and therefore equally. Should
the spouse’s share still be computed on the
basis of the children’s share had they
accepted? If so, then when will the word “or ART. 895. The legitime of each of the
descendants” in the second paragraph of this
acknowledged natural children and each of
article ever be operative?
the natural children by legal fiction shall
consist of one-half of the legitime of each of
ART. 893. If the testator leaves no legitimate the legitimate children or descendants.
descendants, but leaves legitimate The legitime of an illegitimate child who is
ascendants, the surviving spouse shall have neither an acknowledged natural, nor a
a right to one-fourth of the hereditary estate. natural child by legal fiction, shall be equal in
This fourth shall be taken from the free every case to four-fifths of the legitime of an
portion of the estate. acknowledged natural child.
The legitime of the illegitimate children
 LEGITIMATE ASCENDANTS / SURVIVING SPOUSE shall be taken from the portion of the estate at
- the sharing is ½ for the ascendants collectively and ¼ the free disposal of the testator, provided that
for the surviving spouse. in no case shall the total legitime of such
 For the parents or ascendants, the sharing will be in illegitimate children exceed that free portion,
accordance with Articles 889-890. [Legitimate and that the legitime of the surviving spouse
parents/ascendants as secondary compulsory heirs – must first be fully satisfied.
the legitimate ascending line succeeds only in default of
the legitimate descending line.]
 This article has been pro tanto amended by Articles
163, 165 and 176 of the Family Code.

ART. 894. If the testator leaves illegitimate  ONE LEGITIMATE CHILD / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE – the sharing is ½
children, the surviving spouse shall be
for the illegitimate child, ¼ for the surviving spouse, and
entitled to one-third of the hereditary estate of ¼ for each illegitimate child. These sharings are based
the deceased and the illegitimate children to on Art.892 of NCC and Art176 of FC.
another third. The remaining third shall be at
the free disposal of the testator.  LEGITIMATE CHILDREN / ILLEGITIMATE CHILDREN
/ SURVIVING SPOUSE - the sharing is ½ for the
legitimate children collectively, a share equal to that of
 ILEGITIMATE CHILDREN / SURVIVING SPOUSE –
one legitimate child for the surviving spouse, and ½ the
the sharing is 1/3 for the illegitimate children or
share of one legitimate child for each illegitimate child.
descendants collectively and 1/3 for the surviving
spouse.
 SHARING PRIOR TO THE FAMILY CODE
 If death occurred before the effectivity of the Family
 Sharing among illegitimate children
Code, this article will govern – consequently,
1. If the decedent died during the effectivity of the
should the natural and spurious children concur in
FAMILY CODE – the sharing will be equal,
the succession, each spurious child will get 4/5 the
inasmuch as the Family Code has abolished
share of one natural child, and each natural child
the old distinction between natural and
gets ½ the share of one legitimate child. Example -
illegitimate children other than natural or
spurious [Arts 163, 165 and 178 of FC] • 5 legitimate children and total estate is
1M. ½ of estate [500,000] divided by 5 so
2. If the decedent died BEFORE the effectivity of 1 Legit child – 100,000
the Family Code, the old distinctions must be • Natural child – 50,000
observed.
• Spurious child – 40,000

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 Should there be no natural children but only


spurious children, each spurious child will get 2/5  The 2 articles are merely reiterations of the rules
share of one legitimate child. already laid down in Articles 892 and 895 and need not
• 1 legit child – 100,000 be explained.
• No natural children
• Spurious child – 40,000
ART. 899. When the widow or widower survives
 REDUCTION OF SHARES with legitimate parents or ascendants and
 Depending on the number of legitimate and with illegitimate children, such surviving
illegitimate children, the possibility exists that the spouse shall be entitled to one-eighth of the
total legitimes will exceed the entire estate. hereditary estate of the deceased which must
Reductions, therefore will have to be made in be taken from the free portion, and the
accordance with the following rules –
illegitimate children shall be entitled to one-
1. The legitimes of the legitimate children should
never be reduced, they are PRIMARY and
fourth of the estate which shall be taken also
PREFERRED compulsory heirs from the disposable portion. The testator may
2. The legitime of the surviving spouse should freely dispose of the remaining one-eighth of
never be reduced, this article prohibits this. the estate.
3. The legitimes of the illegitimate children will be
reduced pro rata and without preference  LEGITIMATE PARENTS / ILLEGITIMATE
among them. CHILDREN / SURVIVING SPOUSE – the sharing is ½
for the legitimate parents collectively, ¼ for the
illegitimate children collectively and 1/8 for the surviving
ART. 896. Illegitimate children who may survive spouse.
with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the  For the parents or ascendants, the sharing will be
hereditary estate to be taken from the portion in accordance with the rules laid down in Articles
at the free disposal of the testator. 889-890.
 For the illegitimate children or descendants, the
sharing shall depend on whether death occurred
 ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS before or during the effectivity of the Family Code.
the sharing is ½ for the legitimate parents collectively
and ¼ for the illegitimate children collectively.
ART. 900. If the only survivor is the widow or
 For the parents or ascendants, the sharing will be widower, she or he shall be entitled to one-
in accordance with the rules laid down in Articles half of the hereditary estate of the deceased
889-890.
spouse, and the testator may freely dispose
 For the illegitimate children or descendants, the
sharing shall depend on whether death occurred
of the other half.
before or during the effectivity of the Family Code. If the marriage between the surviving
spouse and the testator was solemnized in
articulo mortis, and the testator died within
ART. 897. When the widow or widower survives three months from the time of the marriage,
with legitimate children or descendants, and the legitime of the surviving spouse as the
acknowledged natural children, or natural sole heir shall be one-third of the hereditary
children by legal fiction, such surviving estate, except when they have been living as
spouse shall be entitled to a portion equal to husband and wife for more than five years. In
the legitime of each of the legitimate children the latter case, the legitime of the surviving
which must be taken from that part of the spouse shall be that specified in the
estate which the testator can freely dispose preceding paragraph.
of.
 SURVIVING SPOUSE AS SOLE COMPULSORY HEIR
ART. 898. If the widow or widower survives with –
legitimate children or descendants, and with  General rule – ½ of the estate
illegitimate children other than acknowledged  Exception – 1/3 of the estate, if the following
natural, or natural children by legal fiction, circumstances are present –
the share of the surviving spouse shall be the a) The marriage was in articulo mortis
same as that provided in the preceding b) The testator died within 3 months
article. from the time of the marriage

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c) The parties did not cohabit for more surviving spouse, nor illegitimate children, is
than 5 years, and one-half of the hereditary estate of such
d) The spouse who died was the party in illegitimate child. If only legitimate or
articulo mortis at the time of the marriage. illegitimate children are left, the parents are
not entitled to any legitime whatsoever. If only
 NOTE – the last requisite is not explicit in the article but the widow or widower survives with parents
can be derived from the sense and intent of the of the illegitimate child, the legitime of the
provision. The law does not regard such marriages with
eager approval.
parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse
also one-fourth of the estate.

 ILLEGITIMATE PARENTS ALONE – they get ½ of the


estate. Note that in the illegitimate ascending line, the
right DOES NOT go beyond the parents.

ART. 901. When the testator dies leaving  ILLEGITIMATE PARENTS / SURVIVING SPOUSE –
illegitimate children and no other compulsory the sharing is ¼ for the parents collectively and ¼ for
heirs, such illegitimate children shall have a the spouse.
right to one-half of the hereditary estate of the
deceased.  Illegitimate parents EXCLUDED by all kinds of children
– as secondary compulsory heirs, the illegitimate
The other half shall be at the free disposal parents are inferior to legitimate parents. Whereas
of the testator. legitimate parents are excluded only by legitimate
children, illegitimate parents are excluded by all kinds of
children, legitimate or illegitimate.
 ILLEGITIMATE CHILDREN ALONE – they get ½ of the
estate collectively. The sharing among the illegitimate
children or descendants will depend on whether death
occurred before or during the effectivity of the Family
Code. 

End of Midterms Coverage


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.

 Right of representation to the legitimate and illegitimate


descendants of an illegitimate child.

 Rule of Article 902 compared with Rule of Article 992 –


In the case of descendants of legitimate children, the
right of representation is given only to legitimate
descendants, by virtue of Art992.

 The net effect of all this is that the right of


representation given to descendants of illegitimate
children is BROADER than the right of representation
given to descendants of legitimate children. Thus, an
illegitimate child of a predeceased legitimate child
cannot inherit by representation [Art992], while an
illegitimate child of an illegitimate child can [Art902]. A
classic instance of unintended consequence.

ART. 903. The legitime of the parents who have


an illegitimate child, when such child leaves
neither legitimate descendants, nor a

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3. Reversion Legal
4. Reversion Adoptiva

• Purpose of the Reserva Troncal


 The reserve troncal is a special
rule designed primarily to assure the return of the
reservable property to the 3rd degree relatives
belonging to the line from which the property
originally came, and to avoid its being dissipated by
the relatives of the inheriting ascendant [the
reservista].
 Also to avoid the danger that
property existing for many years in a family’s
patrimony might pass gratuitously to outsiders
through the accident of marriage and untimely
death.

RESERVA TRONCAL

• PROCESS – 3 Transmissions Involved

Art. 891. The ascendant who inherits from his


1. First Transfer – by
gratuitous title, from a person to his descendant,
descendant any property which the latter may brother or sister.
have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
2. Second Transfer – by
operation of law, from the transferee in the first
reserve such property as he may have transfer [prepositus] to another ascendant
acquired by operation of law for the benefit of [reservista]. It is this second transfer that creates
relatives who are within the third degree and the reserva.
who belong to the line from which said 3. Third Transfer – from
property came. the transferee in the second transfer [reservista] to
the relatives within the 3rd degree of the
• The Reserva Troncal Prepositus, coming from the line of the Origin.

Origin Reservista Reservatarios  If there are only two


(Relative w/in transmissions, there is no reserva [Gonzales v CFI]
3rd degree of
Prepositus)
By Gratuitous By Operation
Title of Law

Prepositus

 The Prepositus inherits a piece


of land from his father, the Origin. Subsequently, the
Prepositus dies intestate, single and without issue,
and the land is in turn inherited by his mother, the
Reservista. The Reservista is then required to
reserve the property in favor of the Prepositus’
paternal relatives within the 3rd degree
(Reservatarios).

• Reservas and Reversiones in the Spanish Code


1. Reserva Viudal
2. Reserva Troncal

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o He is either the ascendant or a brother or sister


REQUISITES OF RESERVA TRONCAL of the Prepositus.
o Ascendant from any degree of ascent.
1. That the o Brother/Sister – 2 Schools of Thought
property was acquired by a descendant
a) Relationship must be of HALF
[prepositus] from an ascendant or from a
BLOOD – because otherwise the
brother or sister [origin] by gratuitous title.
property would not change lines. This
o The term descendant should read person means that if the relationship is Full
because if the grantor is a brother or sister, Blood, there is no reserve because then
the one acquiring obviously is not a it would not be possible to identify the
descendant. line of origin.
o Acquisition is by gratuitous title when the b) It does not matter whether the
recipient does not give anything in return. It fraternal relationship is of the full or half-
blood. In either case, a reserve may
encompasses transmissions by donation or
by succession of whatever kind. arise. Since the law makes no distinction,
we should not make one.
2. That said
2. PREPOSITUS
descendant [prepositus] died without an
o He is either the descendant or a brother/ sister
issue.
of the Origin who receives the property from the
o Should read – “that said person died without Origin by gratuitous title. Thus, in the scheme of
legitimate issue, because only legitimate the reserva troncal, he is the FIRST transferee
descendants will prevent the property from of the property.
being inherited by the legitimate ascending o While the property is still with the Prepositus,
line by operation of law. there is yet NO RESERVA. The reserva arises
only upon the second transfer.
3. That the o Consequently, while the property is owned by
property is inherited by another ascendant the Prepositus, he has all the rights of
[reservista] by operation of law; and ownership over it and may exercise such rights
in order to prevent a reserva from arising. He
o Transmission by operation of law is limited can do this by –
by succession, either to the legitime or by a) Substituting or alienating the property
intestacy. b) Bequeathing or devising it either to the
potential reservista or to 3rd persons
4. That there are [subject to constraints of the legitime]
relatives within the 3rd degree belonging to c) Partitioning in such a way as to assign
the line from which said property came the property to parties other than the
[reservatarios]. potential reservista [again subject to the
constraints of the legitime].
o In this sense, the Prepositus is deemed the
Arbiter of the Reserva Troncal.

3. RESERVISTA
[RESERVOR]
• 2 BASIC RULES o He is an ascendant of the Prepositus, of
I. No whatever degree. The Reservista must be an
inquiry is to be made beyond the Origin/ ascendant other than the Origin/ Mediate
Mediate Source. It does not matter who the Source [if the latter is also an ascendant].
owner of the property was before it was o The law is clear - it refers to the Origin/ Mediate
acquired by the Origin. Source as another ascendant. If these two
II. All the parties are the same person, there would be no
relationships among the parties must be reserva troncal.
legitimate. The provisions of Art891 only apply
to legitimate relatives.
o Should the Origin/Mediate Source and the
• 4 PARTIES TO THE RESERVA TRONCAL Reservista belong to Different Lines?
- Example: A receives by donation a parcel
1. ORIGIN OR THE of land from his paternal grandfather X.
MEDIATE SOURCE Upon A’s death, the parcel passes by
intestacy to his father Y [X’s son]. The

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property never left the line, is Y obliged to conceived and born after the Prepositus’
reserve? death.
- One View – NO, because another
ascendant is one belonging to a line other o Preference Among the Reservatarios
than that of the reservista. - Upon death of the ascendant reservista,
- Another View – YES, because [1] the law the reservable property should pass, not to
makes no distinction, and [2] the purpose of all the reservatorios as a class, but only to
the reserve is not only curative but also those NEAREST in degree to the
preventive, i.e. to prevent the property from descendant [prepositus], excluding those
leaving the line. reservatarios of more remote degree.
[Padura v. Baldovino]
4. RESERVATARIOS - In other words, the reserve troncal merely
[RESERVEES] determines the group of relatives
o The reserva is in favor of a class, collectively [reservatarios] to whom the property should
referred to as the Reservatarios [reservees]. be returned; but within that group, the
o REQUIREMENTS TO BE A RESERVATARIO: individual right to the property should be
decided by the applicable rules of ordinary
1) He must be within the 3rd
intestate succession, since Art891 does not
degree of consanguinity from the
specify otherwise.
Prepositus.
- Thus, according to the Padura ruling, which
2) He must belong to the line subjects the choice of reservatarios to the
from which the property came. This is rules of intestate succession, those
determined by the Origin/Mediate reservatarios nearer in degree of
Source. relationship to the Prepositus will exclude
- If an ascendant, the Mediate Source is those more remotely related.
either of the paternal or maternal line.
o Representation Among the Reservatarios
- If a half-brother or half-sister, the same
is true. - As in intestate succession, the rule of
- If however, it is a brother or sister of preference of degree among reservatarios
the full blood, it would not be possible is qualified by the rule of representation.
to distinguish the lines. - The right of representation cannot be
- To those who hold the opinion that a alleged when the one claiming the same as
reserva would not exist in such case of a reservatario of the reservable property is
full blood siblings, Manresa’s comment not among the relatives within the 3rd
should be the norm: “that the question degree belonging to the line from which
of line would be indifferent.” such property came, inasmuch as the right
granted by the Civil Code in Art811 is in the
o Question – must the Reservatario also be highest degree personal and for the
related to the Mediate Source? exclusive benefit of designated persons
- Manresa says NO, the article speaks who are the relatives withint the 3rd degree
of the person from whm the reservable
solely of 2 lines, the paternal and the
property came. Therefore, relatives of the
maternal of the descendant, without regard
4th degree and the succeeding degrees can
to subdivisions.
never be considered as reservatarios since
- Sanchez Roman says YES, otherwise
the law does not recognize them as such.
results would arise completely contrary to
the purpose of this reserva, which is to - Nevertheless, there is a right of
prevent the property from passing to representation on the part of the
persons not of the line of origin. reservatarios who are within the 3rd degree
mentioned by law, as in the case of
o Reserva in favor of reservatarios as a CLASS - nephews of the deceased person from
whom the reservable property came. These
to be qualified as a reservatario, is it necessary
that one must already be LIVING when the reservatarios have the right to represent
their ascendants [fathers and mothers] who
prepositus dies?
are the brothers of the said deceased
- NO, because the reserva is established in person and relatives within the 3rd degree in
favor of a GROUP or CLASS, the relatives accordance with Art811. [Florentino v.
within the 3rd degree, and not in favor of Florentino]
specific individuals.
- Actually, there will only be 1 instance of
- As long, therefore, as the reservatario is representation among the reservatarios,
alive at the time of the reservarista’s death, which is in case of the Prepositus being
he qualifies as such, even if he was survived by brothers/sisters and children of

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a predeceased or incapacitated brother or


sister.

• Juridical Nature of Reserva Troncal


 The juridical nature of the
reserve troncal may be viewed from 2 aspects –
from that of the reservista and that of the
reservatarios.
2. Juridical Nature from the viewpoint of the
1. Juridical Nature from RESERVATARIOS
the viewpoint of the RESERVISTA
- Manresa says that “the ascendant is in the
- The nature of the reservatarios’ right is,
Manresa says, that “during the whole
first place a USUFRUCTUARY who should
period between the constitution in legal
use and enjoy the things according to their
form of the right required by law to be
nature, in the manner and form already set
reserved and the extinction thereof, the
forth in the Code referring to use and
relatives within the 3rd degree, after the
usufruct.”
right that in their turn may pertain to them
- But since in addition to being the has been assured, have only an
usufructuary, he is, even though EXPECTATION and therefore they do not
CONDITIONALLY, the owner in fee simple even have the capacity to transmit that
of property, he CAN DISPOSE of it in the expectation to their heirs.”
manner provided in Articles 974 and 976 of - The relatives within the 3rd degree in whose
the Code.
favor the right is reserved cannot dispose
- The conclusion is that the person required of the property, first because it is in no way,
by Art811 to reserve the right has, beyond either actually, constructively or formally, in
any doubt at all, the rights of use and their possession; and, moreover, because
usufruct. He has, moreover, the LEGAL they have no title of ownership or of fee
TITLE and DOMINION, although under a simple which they can transmit to another,
CONDITION subsequent [whether or not on the hypothesis that only when the
there exist at the time of his death relatives person who must reserve the right should
within the 3rd degree of the descendant die before them will they take their place in
from whom they inherit in the line whence the succession of the descendant of whom
the property proceeds]. they are relatives within the 3rd degree, that
- Clearly, he has, under an express provision is to say, a second contingent place in said
of law, the right to dispose of the property legitimate succession in the fashion of
reserved, and to dispose of is to alienate, aspirants to a possible future legacy.
although under a condition. He has the [Edroso v. Sablan]
right to recover it, because he is the one - The reserva instituted by law instituted by
who possesses or should possess it and law in favor of the heirs within the 3rd
have title to it, although a limited and degree belonging to the line from which the
revocable one. In a word, the legal title and reservable property came, constitutes a
dominion, even though under a condition, REAL RIGHT which the reserve may
reside in him while he lives. After the right alienate and dispose of, albeit conditionally,
required by law to be reserved has been the CONDITION being that the alienation
assured, he can do anything that a genuine shall transfer ownership to the vendee only
owner can do. [Edroso v Sablan] if an when the reserve survives the person
obliged to reserve. [Sienes v. Esparcia]
 From Edroso, the following may
be derived:  From Sienes, the following may
A. The reservista’s right over the reserved be derived:
property is one of ownership. A. The reservatarios have a right of
B. The ownership is subject to a expectancy over the property.
RESOLUTORY CONDITION, i.e. the B. The right is subject to a SUSPENSIVE
existence of reservatorias at the time of the
CONDITION, i.e. the expectancy ripens into
reservista’s death.
ownership if the reservatarios survive the
C. The right of ownership is alienable, but
reservista.
subject to the same resolutory condition.
C. The right is alienable, but subject to the
D. The reservista’s right of ownership is
same suspensive condition.
registerable.
D. The right is registerable.

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reservable property from the reservista. This is


 Florentino v. Florentino also not true. The reservatario is not the reservista’s
held that the reservista has NO POWER to appoint, successor mortis causa nor is the reservable
by will, which specific individual of the reservatarios property part of the reservista’s estate; the
were to get the reserved property. [As also held in reservatario receives the property as a
Gonzales v. CFI]. conditional heir of the Prepositus, said property
merely reverting to the line of origin from which
it had temporarily and accidentally strayed
 The reservees do not inherit
during the reservista’s lifetime.
from the reservoir but from the PREPOSITUS, of
whom the reservees are the heirs mortis causa o It is a consequence of these principles that
subject to the condition that they must survive the upon the death of the reservista, the
reservor. [Padura v. Baldovino as cited in Gonzales reservatario nearest to the prepositus becomes,
v. CFI] automatically and by operation of law, the
owner of the reservable property. As already
stated, that property is no part of the estate of
the reservista, and does not even answer for
 The rule in this jurisdiction, the debts of the latter. Hence, its acquisition by
therefore, is that upon the reservista’s death, the the reservatario may be entered in the property
property passes by strict operation of law records without necessity of estate proceedings,
[according to the rules of intestate succession, since the basic requisites therefor appear of
as held in Padura], to the proper reservatarios. record. [Cano v. Director]
Thus, the selection of which reservatarios will
get the property is made by law and not by the o Of course, where the registration decree merely
reservista. specifies the reservable character of the
property, without determining the identity of the
• The Property Reserved reservatario or where several reservatarios
dispute the property among themselves, further
 Any kind of property is proceedings are unavoidable.
reservable. A sugar quota allotment, as incorporeal
property, was held to be reservable in Rodriguez v.
Rodriguez.
o As a consequence of the rule laid down in
Cano, since the reserved property is not
computed as part of the reservista’s estate,
 Effect of Substitution
it is not taken into account in determining
o The very same property must go through the
the legitimes of the reservista’s compulsory
process of transmissions, in order for the
heirs.
reserva to arise. Thus, the same property must
come from the Mediate Source, to the
 RESERVA MAXIMA –
Prepositus by gratuitous title, and to the
RESERVA MINIMA
reservista by operation of law.
o Problem: if 2 circumstances occur
o If the prepositus substitutes the property by - The prepositus makes a will instituting the
selling, bartering or exchanging it, the substitute ascendant-reservista to the whole or a part
cannot be reserved. of the free portion, and
o Note that while the property is with the - There is left in the Prepositus’ estate, upon
Prepositus, there is yet no reserva, which his death, in addition to the reserved
commences when the property id received by property, property not reservable.
the reservista.
o Consequently, the Prepositus has, over the o 2 Theories have been Advanced
property, plenary powers of ownership, and he - Reserva Maxima – as much of the
may exercise these powers to thwart the potentially reservable property as possible
potential reserva. The Prepositus is the arbiter must be deemed included in the part that
of the reserva. passes by operation of law. This
“maximizes” the scope of the reserva.
 QUESTION – would there be a - Reserva Minima – every single property in
reserva if the Prepositus sold the property under the Prepositus’ estate must be deemed to
pacto de retro and then redeemed it? pass, partly by will and partly by operation
of law, in the same proportion that the part
 Reserved Property Does Not given by will bears to the part not so given.
Form Part of the Reservista’s Estate Upon his Death o Reserva Minima is more widely accepted.
o The contention that an intestacy proceeding is
still necessary rests upon the assumption that • Rights and Obligations
the reservatario will succeed in, or inherit, the

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 There are no specific - This is an appeal by Beatriz Gonzales from the decision of
implementing articles on the reserva troncal. the CFI of Manila for dismissing her complaint for partition,
 Under the Old Code, the accounting, reconveyance, damages, and holding as not
provisions viudal were extended to the troncal, thus subject to reserva troncal, the properties which her mother
the rights of the reservatarios and the corresponding inherited in 1943 from Filomena.
obligations of the reservista were: - Benito Legarda y De la paz, the son of Benito Legarda y
Tuason died in 1933 and was survived by widow Filomena
a. To inventory the reserved properties
and their seven children.
b. To annotate the reservable character [if
- In 1939, real properties left by Benito Legarda y Tuason
registered immovables] in the Registry of were partitioned in three equal portions by his daughters
Property within 90 days from acceptance by and the heirs of the deceased son who were represented
the reservista. by Benito Legarda.
c. To appraise the immovables - Mrs. Legarda then executed in 1947 an affidavit
d. To secure by means of mortgage: [i] the adjudicating extrajudicially to herself the properties which
indemnity for any deterioration of or damage she inherited from her deceased daughter, Filomena
to the property occasioned by the reservista’s Legarda.
fault or negligence, and [ii] the payment of the - As a result of the affidavit of adjudication, Filomena Roces
value of such reserved movables as may succeeded her deceased daughter Filomena Legarda as
have been alienated by the reservista co-owner of the properties held proindiviso by her other six
onerously or gratuitously. children.
- Then in 1953, Mrs. Legarda executed two handwritten
 The abolition of the reserva identical documents wherein she disposed of the properties
viudal has caused some uncertainty whether these which she inherited from her daughter, in favor of the
requirements still apply. children of her sons.
- Then from the period of 1958 to 1959, Mrs. Legarda and
her children partitioned the properties consisting of the one-
 It was held in Sumaya v. IAC third share in the estate of Benito Legarda y Tuason which
that the requirement of annotation remains, despite the children inherited in representation of their father,
the abolition of reserva viudal, as based on Sec51 of Benito Legarda y De la Paz.
PD1529 providing for conveyance and other - On 1967, Mrs. Legarda died and on 1968 her holographic
dealings by registered owners. will was admitted to probate.
- During such proceeding, Beatriz Gonzales filed a motion to
exclude from the inventory of her mother’s estate the
 Sumaya is however, silent on 2 properties which she inherited from her deceased daughter,
points: Filomena on the ground that such properties are reservable
1. Within what period properties which should be inherited by Filomena Legarda’s
must the annotation be made, and three sisters and three brothers and not by the children of
2. Whether the other Benito, Alejandro and Jose. This was opposed by the
requirements of the old viudal also remain. administrator.
- She then filed an ordinary civil action for the purpose of
• Extinguishment of the Reserva Troncal securing a declaration that the said properties are
 The reserve troncal is reservable properties which Mrs. Legarda could not
extinguished by: bequeath in her will. This was dismissed.
1. Death of the - Hence this appeal.
Reservista
WON, the properties in question are subject to reserve troncal
2. Death of ALL the
under Article 891 of the Civil Code.
Reservatarios
- Yes, the properties in the instant case were reservable
3. Renunciation by ALL
properties in the hands of Mrs. Legarda. Undoubtedly she
the Reservatarios, provided that no other was a reservoir.
reservatario is born subsequently - The reservation became a certainty when at the time of her
4. Total fortuitous loss of death the reserves or relatives within the third degree of the
the reserved property prepositus Filomena Legarda were living or they survived
5. Confusion or merger of Mrs. Legarda.
rights, as when the reservatarios acquire the
reservista’s right by a contract inter vivos WON, Mrs. Legarda as reservor can convey the reservable
6. Prescription or adverse properties by will or mortis causa to the reserves within the 3 rd
possession degree to the exclusion of the reserves in the 2nd degree, her
daughters and sons.
- No, she cannot convey these as they never really formed
CASES part of her estate.
- The reservor cannot make a disposition morits causa of the
Gonzales v. CFI reservable properties as long as the reserves survived the
reservoir.
- The nearest relatives should be the one who will inherit the
property and Mrs. Legarda could not choose to whom the

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reservable property should be given and deprive the other spouse, brothers, sisters, nephews or nieces, what should
reservees of their share therein. apply in the distribution of his estate are Articles 1003 and
- Ignoring the second degree reservees would be a glaring 1009 of the Civil Code. (see Doctrine portion)
violation of Article 891. - Both plaintiff-appellee and defendant-appellant being
- Hence, the reservable properties should go to Mrs. relatives of the decedent within the third degree in the
Legarda’s children and not to the grandchildren. collateral line, each, therefore, shall succeed to the subject
- In reserva troncal,l (1) a descendant inherited or acquired estate 'without distinction of line or preference among them
by gratuitous title property from an ascendant or from a by reason of relationship by the whole blood,' and is entitled
brother or sister; (2) the same property is inherited by to one-half (1/2) share and share alike of the estate.
another ascendant or is acquired by him by operation of law - As regards Concordia’a ½ share--inasmuch as Concordia
from the said descendant, and (3) the said descendant had agreed to deliver the estate of the deceased to the
should reserve the said property for the benefit of relative foundation in honor of his mother, Salustia. she is bound by
who are within the third degree from the deceased that agreement. It is true that by that agreement, she did
descendant and who belong to the line from which the said not waive her inheritance in favor of Celedonia, but she did
property came. Three transmissions are involved. agree to place all of Esteban's estate in the "Salustia
- Reserva contemplates legitimate relationship Solivio Vda. de Javellana Foundation" which Esteban, Jr.,
during his lifetime, planned to set up to honor his mother.
- The persons involved in reserva troncal are:
Solivio v. CA "1. The person obliged to reserve is the reservor
(reservista) — the ascendant who inherits by operation of
- As Esteban’s parents died while he was still young, Salustia law property from his descendants.
and her sister, Celedonia brought up Esteban, Jr. Salustia, "2. The persons for whom the property is reserved are
Esteban’s mother, brought to her marriage paraphernal the reservees (reservatorios) — relatives within the third
properties, but no conjugal property was acquired during degree counted from the descendant (propositus), and
her short-lived marriage to Esteban, Sr. belonging to the line from which the property came.
- Salustia died, leaving all her properties to her only child, "3. The propositus — the descendant who received by
Esteban, Jr., gratuitous title and died without issue, making his other
- Esteban died of a heart attack. His only surviving relatives ascendant inherit by operation of law.
are: (1) his maternal aunt, petitioner Celedonia Solivio, the - "ART. 1003. If there are no descendants, ascendants,
spinster half-sister of his mother, Salustia Solivio; and (2) illegitimate children, or a surviving spouse, the collateral
the private respondent, Concordia Javellana-Villanueva, relatives shall succeed to the entire estate of the deceased
sister of his deceased father, Esteban Javellana, Sr. in accordance with the following articles.
- Celedonia told Concordia about Esteban's desire to place - "ART. 1009. Should there be neither brothers nor
his estate in a foundation to be named after his mother, sisters, nor children of brothers or sisters, the other
from whom his properties came, for the purpose of helping collateral relatives shall succeed to the estate.
indigent students in their schooling. Concordia agreed to - "The latter shall succeed without distinction of lines or
carry out the plan of the deceased. preference among them by reason of relationship by the
- The probate court declared Celdonia as sole heir of the whole blood."
estate of Esteban. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the
deceased and proceeded to set up the "SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION".
- Four months later, Concordia filed a motion for
reconsideration of the court's order declaring Celedonia as Nieva v. Alcala
"sole heir" of Esteban, Jr., because she too was an heir of
the deceased. - Juliana Nieva married Francisco Deocampo and with whom
she begot a son named Alfeo Deocampo. Juliana died
Whether the decedent's properties were subject to reserva intestate and her son Alfeo inherited from her several
troncal in favor of Celedonia, his relative within the third parcels of land. However, Alfeo died intestate and without
degree on his mother's side from whom he had inherited issue, so the aforementioned parcels of land passed to his
them; father Francisco. Francisco subsequently married Manuela
- NO. Clearly, the property of the deceased, Esteban Alcala, with whom he had a son, Jose Deocampo. When
Javellana, Jr., is not reservable property, for Esteban, Jr. Francisco died, his widow and his son took possession of
was not an ascendant, but the descendant of his mother, the said lands.
Salustia Solivio, from whom he inherited the properties in - Segunda Maria Nieva sought to recover the parcels of land
question. in question, as she is the acknowledged natural daughter of
- Therefore, he did not hold his inheritance subject to a Juliana. According to her birth records, Juliana gave birth
reservation in favor of his aunt, Celedonia Solivio, who is to her and lived with her before Juliana’s marriage to
his relative within the third degree on his mother's side. The Francisco. Segunda was treated and publicly exhibited as
reserva troncal applies to properties inherited by an Juliana’s legitimate daughter.
ascendant from a descendant who inherited it from another
ascendant or a brother or sister. It does not apply to Whether or not the law on reserva troncal applies to
property inherited by a descendant from his ascendant, the illegitimate relatives.
reverse of the situation covered by Article 891. No. While there are no previous cases on the subject, the
- Since the deceased, Esteban Javellana, Jr., died without Court thought it proper to adopt the writings of Manresa and
descendants, ascendants, illegitimate children, surviving Scaevola on the matter.

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- While the provision of law does not make a distinction, it


has to be recognized that this is so because the legitimate In a case of reserve troncal where the only reserves surviving
relationship forms the general rule and the natural the reservista and belonging to the line of origin, are nephews
relationship the exception; which is the reason why, the law of the descendants but some are nephews for the half blood
in many articles, speaks only of children or parents, or and the otheres are nephews of the whole blood, should the
ascendants and descendants, and in them reference is of reserved properties be apportioned among them equally or
course made to those who are legitimate; and when it should the nephews of the whole blood take a share twice as
desires to make a provision applicable only to natural large as that of the nephews of the half blood?
relationship, it does not say father or mother, but natural - The SC held that the reserves nephews of the whole blood
father or natural mother; it does not speak of ascendants, are entitled to s share twice as large that of the others.
brothers or parents but of natural ascendants, natural - The stated purpose of the reserva is accomplished once
brothers or natural parents. Thus, as the law does not the property has devolved to the specified relatives of the
qualify, the general rule applies that it only refers to line of origin. But from this time on, there is no further
legitimate ascendants. occasion for its application.
- The provision on reserva troncal treats of legitimate - In the relations between one reservatorio and another of
relationship. The person obliged to reserve is a legitimate the same degree, there is no call for applying Art. 891 any
ascendant who inherits from a descendant property which longer. Thus, the respective share of each in the
proceeds from the same legitimate family, and this being reversionary property should be governed by the ordinary
true, there can be no question, because the line from which rules of intestate succession.
the properties proceed must be the line of that family and - Upon the death of the ascendant reservista, the reservable
only in favor of that line is the reservation established. property should pass, not to all reservatorios as a class, but
Remember: the object is to protect the patrimony of the only to those nearest in degree to the descendant
legitimate family. (prepositus), excluding those reservatorios of the more
remote degree.

Padura v. Baldovino - The reserva troncal merely determines the group of


relatives (reservatorios) to whom the property should be
returned; but within that group the individual right to the
- Agustin Padura contracted 2 marriages during his lifetime. property should be decided by the applicable rules of
With his first wife, Gervacia, he had one child whom they ordinary intestate succession.
named Manuel Padura. Wih his second wife, Benita, he - Reservatorios nearer in degree of relationship to Prepositus
had two children named Fortunator and Candelaria Padura will exclude those more remotely related.
Baldovino.
- Proximity of degree and right of representation are basic
- Upon his death, the properties were left among his children principles of ordinary intestate succession; so is the rule
and surviving spouse, Benita. that whole blood bothers and nephews are entitled to a
- Fortunato was adjudicated 4 parcels of land. share double that of brothers and nephews of half blood. If
- Fortunato died unmarried without having executed a will. in determining the rights of the reservatorios inter se,
Thus, the parcels of land were inherited exclusively by his proximity of degree and the right of representation of
mother, Benita. nephews are made to apply, the rule double share for
- She applied for and later was issued a TCT in her name, immediate collaterals, of the whole blood should likewise be
but subject to the condition that the properties were operative.
reservable in favor of relatives within the 3rd degree
belonging to the line from which said property came.
- Candelaria died leaving as her only heirs her four legitimate
children,
- Years later, Manuel also died. Surviving him are his
legitimate children.
- Upon the death of Benita (the reservista), appellants and
appellees took possession of the reservable properties. Florentino v. Florentino
- In a resolution of the CFI, the legitimate children of the
deceased Manuel and Candelaria were declared to be the - Apolonio II married Antonia with whom he has 9 children
rightful reserves and as such, entitled to the reservable (Encarnacion, et. al. – the plaintiffs in this case). Antonia
properties. died.
- The instant petitioner filed by the heirs of Candelaria seeks - Apolonio II again married. This time with Severina and had
to have this properties partitioned, such that ½ of the same 2 children, Mercedes and Apolonio III, the latter being born
be adjudicated to them, and the other half to the appellees, after the father’s death.
allegedly on the basis that they inherited by right of - The father left a will instituting all his children from both
representation from their respective parents, the original marriages and Severina as the universal heirs.
reserves. - Apolonio III died ahead of his mother and the latter
- On the other hand, appellees maintained that they should succeeded to all the son’s property. Upon the death of
all (the eleven reservees) be deemed as inheriting in their Severina, Mercedes succeeded her and the property she
own right, under which, they claim each should have an received included those which her mother received from
equal share. Apolonio III.
- The lower court declared all the reservees (without - The plaintiffs (which include the children of the deceased
distinction) co-owners, pro-indiviso, in equal shares of the brothers and sisters of Encarnacion who inherit by virtue of
parcels of land.” their right to representation) now claim that the property

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received by Severina from her son was reservable property - Lot 3368 originally belonged to Saturnino Yaeso.
and thus, they are each entitled to 1/7 of the fruits of the - Saturnino had four children with his first wife Teresa
reservable property. Ruales- Agaton, Fernando, Paulina and Cipriana.
- Defendants demurred claiming that the object of the law is - Saturnino also had a second wife, Andrea Gutang,
to avoid the transfer of the reservable property to those with whom he had an only son named Francisco.
extraneous to the family of the owner. They claim that since - When Saturnino died, Francisco inherited the
the property was transferred to Mercedes (who was part of western portion of Lot 3368. hence, it was accordingly
the family), the object of the law has not been violated and transferred in the name of Francisco.
thus the property has lost its reservable character. - After reaching the age of 20, still being single,
Francisco died with no other heir except his mother Andrea.
WON the property was reservable. - Andrea, then executed an extra-judicial settlement
- YES. Even if Severina left in her will said property, together and sale, where he sold the land to appellants. Thus, the
with her own, to her only daughter and forced heiress, vendees demanded from Paulina Yaeso the surrender of
Mercedes, nevertheless this property had not lost its the OCT covering the said land, but the latter refused.
reservable nature inasmuch as it originated from the - Subsequently, Cipriana and Paulina Yaeso, the
common ancestor of the litigants, Apolonio Isabelo; was surviving half-sisters of Francisco, declared the property in
inherited by his son Apolonio III; was transmitted by same their name and executed a deed of sale in favor of the
(by operation of law) to his legitimate mother and spouses Fidel Esparcia and Paulina Sienes. The spouses
ascendant, Severina. procured a TCT over the land in their name.
- Severina was duty bound, according to article 811 of the - Andrea Gutang died in December 1951 while being
Civil Code, to reserve the property thus acquired for the survived by Cipriano Yaeso.
benefit of the relatives, within the third degree, of the line
from which such property came. Whether or not there was Reserva Troncal
- As to the children of the brothers and sisters of - SC held that there is Reserva Tronacal.
Encarnacion, SC held that there is right of representation - It is clear from the facts that Francisco Yaeso
on the part of reservatarios who are within the third degree inherited by operation of law from his father Saturnino.
mentioned by law, as in the case of nephews of the Upon Francisco’s death, unmarried and without
deceased person from whom the reservable property came. descendants, Andrea Gutang as the sole heir inherited the
These reservatarios have the right to represent their land from the former.
ascendants (fathers and mothers) who are the brothers of - Hence she is under obligation to reserve it for the
the said deceased person and relatives within the third benefit of relatives within the third degree belonging to the
degree. line from which said property came.
- If this property was in fact clothed with the character and
condition of reservable property when Severina inherited Whether or Not the Spouses Esparcia are entitle to the land
same from her son Apolonio III, she did not thereby acquire sold to them by Cipriana yaeso
the dominion or right of ownership but only the right of - As between the transfer made by Andrea Gutang and
usufruct or of fiduciary with the necessary obligation to the transfer made by Cipriana, the latter is the only one
preserve and to deliver or return it as such reservable deemed valid and binding.
property to her deceased son's relatives within the third - First, although Andrea Gutang inherited the land, she
degree, among whom is her daughter, Mercedes. only inherits it as a reservista. She therefore has the
- According to the provisions of law, ascendants do not inherit obligation to preserve the property for the reservatorios or
the reservable property, but its enjoyment, use or trust, reservees. In this case, these are the half-sisters of
merely for the reason that said law imposes the obligation to Francisco.
reserve and preserve same for certain designated persons - Second, the transferee in the sale made by Andrea
who, on the death of the said ascendants reservists acquire only acquires the latter’s revocable and conditional
the ownership of said property owenership of the property. Hence, if Andrea dies and she
is survived by the reservees, title pass to the latter by
- Said property reverts to said line as long as the operation of law.
aforementioned persons who, from the death of the - Cipriana, having survived Gutang, now obtains
ascendant-reservists, acquire in fact the right of exclusive ownership over the land and the sale made by
reservatarios (person for whom property is reserved), and Gutang is of no legal effect.
are relatives, within the third degree, of the descendant from - Third, Cipriana as the reservee, had the right to
whom the reservable property came. alienate the property even before Gutang’s death. In which
- Reservable property neither comes, nor falls under, the case, the sale becomes absolute if the reservee survives
absolute dominion of the ascendant who inherits and the reservista. The sale therefore made by Cipriana and
receives same from his descendant, therefore it does not Pualina is deemed effective.
form part of his own property nor become the legitimate of - However, in so much as the Esparcia spouses did
his forced heirs. It becomes his own property only in case not appeal the decision reverting the property in the estate
that all the relatives of his descendant shall have died of Cipriano, they can not recover the same.
(reservista) in which case said reservable property losses - The reserved property is subject to two suspensive
such character. conditions: a) death of the ascendant obliged to reserve, b)
the survival, at the time of death, or relatives within the third
Edroso v. Sablan degree belong to the line from which the property came.
- The reservatorios have a right of expectancy over the
Sienes v. Esparcia property. The expectancy ripens into ownership if the
reservatorios survive the reservists.

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- The right is alienable but subject to the same suspensive - That Balbino died intestate surivived by his legit children by
condition. The right is registrable. his wife and legit grandchildren.
- In the partition of his estate, 3 parcels of land were
adjudicated as the inheritance of the late Toribia Tioco, but
Cano v. Director as she had predeceased her father, the 3 parcels of land
devolved upon her 2 legit children one of which is Faustino
- In a Land Registration case, a final decree and title Dizon.
over a parcel of land was adjudicated in favor of Maria - Faustino then died intestate leaving his ½ share in the 7
Cano, subject to Reserva Troncal in favor of Eustaqia parcels of land to his father Eustacio subject to reserve
Guerrero. troncal.
- It appears from the stipulation of facts in the - Trinidad Dizon-Tongko died intestate and her rights and
registration case that the subject lot was acquired by Maria interests in the parcels of land were inherited by her only
Cano from her deceased daughter, who in turn inherited the child, Dalisay Camacho.
same from her father Evaristo Guerrero. Hence, falling - Eustacio then died survived only by his only legit
squarely under Art 891. descendant , the child mentioned above.
- It was found that Eustaquia Guerrero was of the - Dalisay now owns ½ of all the 7 parcles of land. She now
nearest kin of Evaristo, hence the former excludes all other also claims the other half the said parcels of land by virtue
relatives. of the reserve troncal upon the death of Faustino Dizon.
- Thereafter the counsel of Eustaqia fileda motion with - The lower court declared the plaintiffs Francisco Tioco,
the Cadastral Court alleging the death of maria Cano, the Manuel Tioco and Nicolas Tioco as well as Dalisay
reservista,a nd hat the Oct therefore be cancelled and a Camacho, entitled as reservatorios, to one-half of the seven
new one issued in favor of Eustaqia Guerrero. parcels of land in dispute.
- Despite opposition, the lower court granted the - Hence this appeal.
petition for the new issuance of a new certificate.
- The oppositors, heirs of Maria Cano, insisted that the WON, all relatives of the praepositus within the 3rd degree in
ownership of the reservatorio requires a separate judicial the appropriate line succeed without distinction to the
administration proceeding (intestestate proceeding), where reservable property upon the death of the reservista
there will be first a declaration that the elements of reserve - Yes, they succeed without distinction. And the rules on
troncal are existing. intestacy shall govern as held in a previous decision by this
Court.
Whether or not a separate judicial proceeding is required - Nephews and nieces of whole blood were each entitled to a
- There is no need for a separate intestate proceeding. share double that of each of the nephews and nieces of half
- First, the stipulation of facts in the registration blood in accordance with the Civil Code.
proceedings already manifests the existence of reserve - Reserva merely determines the group of relatives to whom
troncal infavor of Esuataqia. The proceeding being final, the the property should be returned; but within that group, the
oppositors are barred from questioning the existence individual right to the property should be decided by the
thereof. applicable rules of ordinary intestate succession since Art.
- The contention that there is a need for a separate 891 does not specify otherwise.
proceeding rests upon the assumption that the reservatorio - Reversion of the reservable property being governed by the
will succeed or inherit the reserved property from the rules on intestate succession, the plaintiffs-appelless must
reservista, which is not the case. be held without any right thereto because, as aunts and
uncles, respectively of Faustino Dizon, they are excluded
- Upon the death of the reservista, the reservatario
from the succession by his niece, the defendant-appellant,
becomes, automatically and by operation of law, the although they are related to him within the same degree as
owner of the reserved property. the latter.
- The property is no part of the estate of the reservista, - Had the property been passed directly, there is no doubt
hence its acquisition by the reservatario may be entered in that they would have been excluded by the defendants-
the property records without the necessity of estate appellees under the rules of intestate succession. There is
proceedings. no reason why a different rule would apply in this case.
- The reserved property is not part of the reservista’s estate - The Defendant-appellee Dalisay Camacho is entitled to the
and the reservatario acquires the property automatically and entirety of the reversionary property to the exclusion of the
by operation of law. plaintiffs-appellees.
- Lower court judgment is reversed and the complaint is
dismissed.
De Papa v. Camacho - In reserva troncal, the successional rights of the relatives of
the praepositus within the 3rd degree are determined by,
- Defendant Camacho and Plaintiffs are legitimate relatives, and subject to the rules of intestate succession; so as to
plaintiffs being the grandaunt and granduncles of the exclude uncles and aunts of the descendant from the
defendant. reservable property by his niece or nephew.
- They have a common ancestor the late Balbino Tioco,
father of the plaintiffs and great grandfather of defendant.
- Romana Tioco, the sister of Balbino gratuitously donated to Frias v. CFA
the legitimate sister of plaintiffs 4 parcels of land.
- And that sister died intestate in 1915, survived by her - In the first marriage of Jose Frias Chua with Patricia
husband and 2 legit children and leaving the four parcels of S. Militar, he sired three children, namely: Ignacio, Lorenzo
land as the inheritance of her said 2 children in equal pro and Manuel. When Militar died, Jose contracted a second
indiviso shares.

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marriage with Consolacion de la Torre with whom he had a is that the person who transmits it does so gratuitously,
child by the name of Juanito. Manuel died without leaving from pure generosity, without requiring from the transferee
any issue. Then Jose died intestate leaving his widow any prestation.
Consolacion and his son Juanito, Ignacio, and Lorenzo. In
the Intestate Proceeding, the court issued an
orderadjudicating, among others, the one-half (1/2) portion De Los Reyes v. Paterno
of Lot No. 399 and the sum of P8,000.00 in favor of
Consolacion, the other half in favor of Juanito, P3,000.00 in - The subject properties were the conjugal property of
favor of Lorenzo; and P1,550.00 in favor of Ignacio. Tomas G. Del Rosario and his wife, Juana Reyes. Juana
- Juanito died intestate without any issue. After his died and her daughter Concepcion was declared to be her
death, is mother Consolacion succeeded to his pro-indiviso sole heir. However, Concepcion died at the age of 9 and all
share of her son Juanito. Consolacion then died intestate her rights to the half of the property passed to her father,
leaving no direct heir either in the descending or ascending Tomas, who was then already the owner of the other half.
line except her brother and sisters. Tomas registered the properties and after a year his title
- In the "Intestate Estate of Consolacion de la Torre", thereto became absolute and complete.
the petitioners herein, Ignacio, and Dominador and - After 6 years, plaintiff in this case seeks to recover
Remedios Chua, the supposed legitimate children of the one half of the subject properties, on the basis of reserva
deceased Lorenzo filed the complaint praying that the one- troncal.
half (1/2) portion of Lot No. 399 which formerly belonged to
Juanito Frias Chua but which passed to Consolacion, be Whether or not the plaintiff may still recover the property after
declared as reservable property for the reason that the lot the lapse of one year from the finality of the registration
in question was subject to reserva troncal pursuant to proceedings on the ground of reserve troncal.
Article 981 of the New Civil - No.
- The CFI rendered a decision dismissing the - The reservable right may be lost to the holder when
complaint of petitioners. According to it, the property in he fails or neglects to oppose the registration of the land in
question was not acquired by Consolacion and Juanito which such right exists under the Torrens System.
gratuitously but for a consideration, namely, that the - Unless a reservable right is protected during the pendency
legatees were to pay the interest and cost and other fees of the action for the registration of land, or within the
resulting from Civil Case No. 5300 to Standard Oil Co. of allowable period to contest such as prescribed by law, such
New York the amount of P3,971.20 right is lost forever.

Whether the property in question as acquired by Juanito Frias Sumaya v. IAC


Chua from his father, Jose Frias Chua, gratuitously or not.
- It is evident from the record that the transmission of the - Raul Balantakbo inherited 1/3 interest in a parcel of land
property in question to Juanito upon the death of his father from his father (1st property) and a 1/7 interest in 10
Jose was by means of a hereditary succession and parcels of lands from his maternal grandmother (2nd
therefore gratuitous. property).
- The obligation of paying the Standard is imposed upon - Raul died intestate, single, and leaving only his mother,
Consolacion and Juanito not personally by the deceased Consuelo, as his sole surviving heir to the real properties.
Jose in his last will and testament but by an order of the - Subsequently, Consuelo adjudicated unto herself the said
court. As long as the transmission of the property to the properties by way of an affidavit.
heirs is free from any condition imposed by the deceased - Consuelo sold the first property to Sumaya. Sumaya sold it
himself and the property is given out of pure generosity, it is Villa Honorio which transferred and assigned it in favor of
gratuitous. The order of the court does not change the Agro-Industrial.
gratuitous nature of the transmission of the property to him. - The documents were registered in the RD of Laguan and
As far as the deceased Jose is concerned the transmission
corresponding certificates of titles were issued.
of the property to his heirs is gratuitous. This being the case
the lot in question is subject to reserva troncal under Art. - Consuelo later sold the 2nd property to Villa Honorio which
891 of the New Civil Code. later transferred and assigned the same to Laguna Agro-
- In order that a property may be impressed with a Industrial.
reservable character the following requisites must exist, to - The parties admit that the certificates of titles covering
wit: (1) that the property was acquired by a descendant these properties do not contain any annotation of its
from an ascendant or from a brother or sister by gratuitous reservable character.
title; (2) that said descendant died without an issue: (3) that - When Consuelo died, the brothers in full blood of Raul and
the property is inherited by another ascendant by operation the surviving children of another brother of Raul filed a case
of law; and (4) that there are relatives within the third to recover the properties which they claimed were subject
degree belonging to the line from which said property to reserva troncal in their favor.
came. - The trial court ordered the petitioners to return the parcels
- The transmission is gratuitous or by gratuitous title when of land the plaintiffs and to account and pay for the
the recipient does not give anything in return It matters not produces from the said properties.
whether the property transmitted be or be not subject to any - The CA affirmed the decision.
prior charges; what is essential is that the transmission be - Hence, this petition.
made gratuitously, or by an act of mere liberality of the
person making it, without imposing any obligation on the Whether the defendants were innocent purchasers for value.
part of the recipient; and that the person receiving the - NO. The fact remains that the affidavit of self-adjudication
property gives or does nothing in return; the essential thing executed by Consuelo stating the source of the properties

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thereby showing the reservable nature thereof was - Jose married Marcelina and had one child who died before
registered with the RD of Laguna. This is sufficient notice to Jose.
the whole world. - Mariano left a will dividing his property between Santiago
- It was clearly stated in the affidavit that the properties were and Jose, giving the latter 11 parcels of land. Upon Jose’s
inherited by Raul from his father and maternal grandmother death, he named his wife Marcelina as his only heir.
respectively. - When Jose’s will was going to be probated, Marcelina and
- In this case, the affidavit executed by Conseulo which Maria (the mother) entered into a contract where they
contained a statement that the property was inherited from divided the property left by Jose between themselves.
a descendant, Raul, which has likewise inherited by the - Maria later sold parcels 1-6, 10 and 11 to Marcelina, who
latter from another descendant, was registered with the RD. later sold them to Pablo Rocha. Pablo later returned
The failure of the RD to annotate the reservable character parcels 1-6 to Maria saying that they were erroneously
of the property in the certificate of title cannot be attributed included in the sale made by Maria to Marcelina.
to Consuelo. - Magin (the daughter of Santiago) is now claiming that she
- Moreover, there is sufficient proof that the petitioners had and her sister Consolacion had a share in the 11 parcels
actual knowledge of the reservable character of the passed on to Marcelina by Jose.
properties before they bought the same from Consuelo.
- Moreover, the court found that the the partiers were long WON the 11 parcels were reservable properties.
time acquaintances. They knew all along that the properties - YES. The 11 parcels of land were acquired by Jose by
litigated in this case were inherited by Raul from his father lucrative title from his father Mariano and that after the
and from his maternal grandmother and that Consuelo death of Jose, they passed on to Maria by operation of law.
inherited these from his son Raul. - Magin and Consolacion were the nearest relatives within
the 3rd degree of the line from which the property came.
Whether the cause of action of private respondents has - Maria was ordered to acknowledge the right of Magin and
prescribed. Consolacion to the reservation of the parcels of land, which
- No. The cause of action of the reservees did not commence was to be recorded in the RD.
upon the death of the propositus Raul Balantakbo but upon - As to Marcelina and Pablo, they could not have acquired a
the death of the reservor Consuelo. The reserva is better title than that held by Maria Corral and if the latter's
extinguished upon the death of the reservor, as it then title was limited by the reservation and the obligation to
becomes a right of full ownership on the part of the note it in the registry of deeds.
reservatarios, who can bring a reivindicatory suit therefor. - Pablo was also ordered to register parcels 10 and 11 as
- When a conveyance has been properly recorded, such reservable property in the RD since he knew that the
record is constructive notice of its contents and all interests, property was reservable. He was a legatee in the will.
legal and equitable, included therein. - For purposes of reservation and the rights and obligations
- Under the rule of notice, it is presumed that the purchaser created thereby, in connection with the relatives benefited,
has examined every instrument of record affecting the title. the property must not be deemed transmitted to the heirs
Such presumption is irrebutable. from the time the extrajudicial partition was made, but from
- Consistent with the rule in reserva viudal where the person the time said partition was approved by the court.
obliged to reserve (the widowed spouse) had the obligation - The reservoir is bound to register the reservation within 90
to annotate in the Registry of Property the reservable days from the date of adjudication of the property to the
character of the property, in reserva troncal, the reservor heirs by the court.
(the ascendant who inherited from a descendant property - Where a reservable property is sold by the reservoir, without
which the latter inherited from another descendant) has the having registered its reservable character, the obligation to
duty to reserve and therefore, the duty to annotate also. register the same is transferred to the purchaser, if the latter
- The jurisprudential rule requiring annotation in the Registry knew of the reservable character of the property.
of Property of the right reserved in real property subject of
reserva viudal insofar as it is applied to reserva troncal
stays despite the abolition of reserva viudal in the New Civil
Code. This rule is consistent with the rule provided in the
second paragraph of Section 51 of P.D. 1529, which
provides that: "The act of registration shall be the operative
act to convey or affect the land insofar as third persons are
concerned."

Rioso v. Rocha

- Maria was married to Mariano. They had 3 children,


Art. 904. The testator cannot deprive his
Santiago, Jose, Severina. Severina died during infancy.
- Santiago (now deceased) was married to Francisca and compulsory heirs of their legitime, except in
had 2 children, Magin and Consolacion. cases expressly specified by law.

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Neither can he impose upon the same any Art. 905. Every renunciation or compromise as
burden, encumbrance, condition, or regards a future legitime between the person
substitution of any kind whatsoever. owing it and his compulsory heirs is void, and
the latter may claim the same upon the death
• As already laid down in Art886, the legitime is not within of the former; but they must bring to collation
the testator’s control. It passes to the compulsory heirs whatever they may have received by virtue of
by strict operation of law. the renunciation or compromise.
• Testator Devoid of Power to Deprive Compulsory • Reason for the Rule
Heirs of Legitime
 Before the predecessor’s death,
 It is the law, not the testator, the heir’s right is simply inchoate.
which determines the transmission of the legitimes.
Consequently, it is not within the testator’s power to
• Duty to Collate
deprive the compulsory heirs of their legitime.
 Any property which the
 EXCEPTION – the only instance compulsory heir may have gratuitously received
in which the law allows the testator to deprive the from his predecessor by virtue of the renunciation or
compulsory heirs of their legitimes is compromise will be considered an advance on his
DISINHERITANCE under Arts915-923, the grounds legitime and must be duly credited.
being set forth under Arts919-921.

• Testator Devoid of Power to Impose Burdens on


Legitime • Scope of Prohibition
 As also reiterated in Art872, the  This article applies only to
testator cannot impair the legitime, as a transactions of compromise or renunciation between
consequence of the principle that the legitime the predecessor and the prospective compulsory
passes by strict operation of law. heir.

• EXCEPTIONS – When the Law grants the Testator • QUESTION – Is a transaction between the prospective
Some Power over the Legitime compulsory heir and another prospective compulsory
1. Article 1080 par2 – heir, or between a prospective compulsory heir and a
“A parent who, in the interest of his or her stranger, interdicted?
family, desires to keep any agricultural, industrial,  YES under Article 1347 par2:
or manufacturing enterprise intact, may avail “No contract may be entered into upon future
himself of the right granted him in this article, by inheritance except in cases expressly provided by
ordering that the legitime of the other children to law.”
whom the property is not assigned, be paid in
cash.”
Art. 906. Any compulsory heir to whom the
2. Article 1083 par1 – testator has left by any title less than the
“Every co-heir has a right to demand the legitime belonging to him may demand that
division of the estate unless the testator should the same be fully satisfied.
have expressly forbidden its partition, in which
case the period of indivision shall not exceed 20 • RIGHT OF COMPLETION OF LEGITIME
years as provided in article 494. This power of the
testator to prohibit division applies to the legitime.”  This rule applies only to
transmissions by gratuitous title.
• Restrictions on Legitime Imposed by Law
A. Article 159, Family Code • Cross-References, related articles
“The Family Home shall continue despite the  Art855 – if the title by which the
death of one or both spouses or of the unmarried testator transmitted property is intestate succession
head of the family for a period of 10 years or for Art. 855. The share of a child or descendant
as long as there is a minor beneficiary, and the omitted in a will must first be taken from the
heirs cannot partition the same unless the court part of the estate not disposed of by the will, if
finds compelling reasons therefor. This rule shall any; if that is not sufficient, so much as may be
apply regardless of whoever owns the property or necessary must be taken proportionally from the
shares of the other compulsory heirs.
constituted the family home.”

B. The Reserva Troncal  In relation to Arts909 and 910

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• The principle underlying this rule on completion of


legitime is that anything that a compulsory heir
receives by gratuitous title from the predecessor is
considered an advance on legitime and is deducted MANNER OF COMPUTING THE
therefrom HEREDITARY ESTATE
 EXCEPTIONS
1. Art1062 – if the predecessor gave the 1. Inventory all the Existing Assets
compulsory heir a donation inter vivos and a) This will involve appraisal/valuation
provided that it was not to be charged against of the existing assets at the time of the
the legitime. decedent’s death
2. Art1063 – testamentary dispositions b) These assets include only those
made by the predecessor to the compulsory properties that survive the decedent, i.e.
heir, unless the testator provides that it those which are not extinguished by his
should be considered part of the legitime. death [in relation to articles 774 and 777].
c) The value determined by this
inventory will constitute the GROSS
Art. 907. Testamentary dispositions that impair or ASSETS.
diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, 2. Deduct Unpaid Debts and Charges
insofar as they may be inofficious or a) All unpaid obligations of the
excessive. decedent should be deducted from the
gross assets.
• Based on the same principle as art904. If the b) Only those obligations with
testamentary dispositions exceed the disposable portion, monetary value which are not extinguished
the compulsory heirs may demand their reduction to the by death are considered. Thus, those
extent hat the legitimes have been impaired. To allow the obligations which are purely personal are
testator to make testamentary dispositions that impair the not taken into account.
legitime would in effect allow him to deprive the c) The difference between the gross
compulsory heirs of part of their legitime – an act which assets and the unpaid obligations will be
is prohibited by Art904. the AVAILABLE ASSETS.
• This article should be read together with Art911.
3. Add the Value of Donations Inter Vivos
a) To the available assets should be
Art. 908. To determine the legitime, the value of added all the inter vivos donations made
the property left at the death of the testator by the decedent.
shall be considered, deducting all debts and b) The donations inter vivos shall be
charges, which shall not include those valued as of the time they were
imposed in the will. respectively made. Any increase or
To the net value of the hereditary estate, decrease in value from the time they were
shall be added the value of all donations by made to the time of the decedent’s death
the testator that are subject to collation, at the shall be for the account of the donee, since
the donation transfers ownership to the
time he made them.
donee.
• The NET HEREDITARY ESTATE c) The sum of the available assets and
 Articles 888-903 set forth the all the donations inter vivos is the NET
legitimes of the compulsory heirs, either inheriting HEREDITARY ESTATE.
alone or in various combinations. Those articles
gave the legitimes in the form of fractions, or • COLLATION
proportions of the decedent’s estate.  Collation is the act by virtue of
 This article makes possible the which descendants or other forced heirs who
computation of the absolute amounts of the intervene in the division of the inheritance of an
legitimes by laying down the manner of computing ascendant bring into the common mass, the property
the net value of the estate [the net hereditary which they received from him, s that the division
estate], on which the proportions are based.

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may be made according to law and the will of the  Exception


testator. o This rule of imputation to the legitime will not
 Collation is only required of apply if the donor provided otherwise [in relation
compulsory heirs succeeding with other compulsory to Article 1062], in which case the donation will
heirs and involves property or rights received by be imputed to the disposable portion of the
donation or gratuitous title during the lifetime of the estate.
decedent.
 The purpose is to attain equality • Donations Inter Vivos to Strangers
among the compulsory heirs in so far as possible for  A stranger is anyone who does
it is presumed that the intention of the testator or not succeed as a compulsory heir.
predecessor in interest in making a donation or  Donations inter vivos to
gratuitous transfer to a forced heir is to give him strangers are necessarily imputed to the
something in advance on account of his share in the DISPOSABLE PORTION.
estate, and that the predecessor’s will is to treat all
his heirs equally, in the absence of any expression
to the contrary.
 Collation does not impose any
lien on the property or the subject matter of Art. 911. After the legitime has been determined
collationable donation. What is brought to collation is in accordance with the three preceding
not the property donated itself, but rather the value articles, the reduction shall be made as
of such property at the time it was donated, the follows:
rationale being that the donation is a real alienation (1) Donations shall be respected as long as
which conveys ownership upon its acceptance,
the legitime can be covered, reducing or
hence any increase in value or any deterioration or
loss thereof is for the account of the heir or donee. annulling, if necessary, the devises or
[Vizconde v CA] legacies made in the will;
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction
Art. 909. Donations given to children shall be whatever.
charged to their legitime. If the testator has directed that a
Donations made to strangers shall be certain devise or legacy be paid in
charged to that part of the estate of which the preference to others, it shall not suffer
testator could have disposed by his last will. any reduction until the latter have been
Insofar as they may be inofficious or may applied in full to the payment of the
exceed the disposable portion, they shall be legitime.
reduced according to the rules established by
this Code. (3) If the devise or legacy consists of a
usufruct or life annuity, whose value may
Art. 910. Donations which an illegitimate child be considered greater than that of the
may have received during the lifetime of his disposable portion, the compulsory heirs
father or mother, shall be charged to his may choose between complying with the
legitime. testamentary provision and delivering to
Should they exceed the portion that can the devisee or legatee the part of the
be freely disposed of, they shall be reduced in inheritance of which the testator could
the manner prescribed by this Code. freely dispose.

• Donations Inter Vivos to Compulsory Heirs • This provision implements the principle laid down in
 Donations inter vivos to a Articles 872, 886 and 904 - the inviolability of the
compulsory heir shall be imputed to his legitime, i.e. legitime.
considered as an advance on his legitime. • Thus, if the legitimes are impaired, the gratuitous
dispositions of the testator [either inter vivos or mortis
 Coverage of Rule causa] have to be set aside or reduced as may be
o Applies to ALL compulsory heirs required to cover the legitimes.
o Note that these 2 articles omit [inadvertently]
ascendants who succeed as compulsory heirs. • Method of Reduction
This rule applies to them as well.  There is an order of priorities to
o For obvious reasons, this rule has no be observed in the reduction of the testator’s
gratuitous dispositions, thus –
application to a surviving spouse.
A. First, reduce pro rata the non-preferred legacies
and devises [Art911 (2)], and the testamentary

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dispositions [Art907]. Among these legacies,


devises and testamentary dispositions, there is • RULES
no preference. 1. If the extent of reduction is LESS THAN ½ of
B. Second, reduce pro rata the preferred legacies the value of the thing – it should be given to
and devises [Art911, last par.] the devisee.
C. Third, reduce the donations inter vivos 2. If the extent of reduction is ½ OR MORE of the
according to the inverse order of their dates [i.e. value of the thing – it should be given to the
the oldest is the most preferred] [Art773]. compulsory heir.

 These reductions shall be to the • In either case, there should be pecuniary reimbursement
extent required to complete the legitimes, even if in to the party who did not get his physical portion of the
the process the disposition is reduced to nothing. thing devised.

 An apparent conflict exists


between this article and Art950, regarding the Art. 913. If the heirs or devisees do not choose to
order of preference among legacies and devises, avail themselves of the right granted by the
should reductions be necessary. [See discussions preceding article, any heir or devisee who did
under Art950] not have such right may exercise it; should
the latter not make use of it, the property shall
be sold at public auction at the instance of
• DEVISES/LEGACIES OF USUFRUCT/ LIFE any one of the interested parties.
ANNUITIES/ PENSIONS UNDER PAR. 3
 The following principles shall be
borne in mind: • This article applies if neither party [the compulsory heir/s
A. If, upon being capitalized according to and the devisee] elects to exercise his right under
actuarial standards, the value of the grant Art912.
exceeds the free portion [i.e. it impairs the
legitime], it has to be reduced, because the • How the Thing Devised Should be Disposed Of:
legitime cannot be impaired. A. Any other heir or devisee, who elects to do so,
B. The testator can impose no usufruct or may acquire the thing and pay the parties [the
any other encumbrance on the part that passes compulsory heir and the devisee in question] their
as legitime. respective shares in money.
C. Subject to the 2 rules stated, the
compulsory heirs may elect between: B. If no heir or devisee elects to acquire it, it shall be
i. Ceding to the devisee/legatee sold at public auction and the net proceeds
the free portion[or the proportional part accordingly divided between the parties
thereof corresponding to the said concerned.
legacy/devise, in case there are other
dispositions], or • Note – this rule of constructive partition is similar to that
ii. Complying with the terms of the in co-ownership [Art498] and in partition of the
usufruct or life annuity or pension. decedent’s estate [Art1086], except that, in these two
latter cases, the acquisition by one of the co-owners or
co-heirs can be done only if all the co-owners or co-heirs
Art. 912. If the devise subject to reduction should agree to such acquisition.
consist of real property, which cannot be
conveniently divided, it shall go to the
Art. 914. The testator may devise and bequeath
devisee if the reduction does not absorb one-
the free portion as he may deem fit.
half of its value; and in a contrary case, to the
compulsory heirs; but the former and the
• Simply a re-statement of Art842.
latter shall reimburse each other in cash for
what respectively belongs to them. CASES
The devisee who is entitled to a legitime
may retain the entire property, provided its Vizconde v. CA
value does not exceed that of the disposable
portion and of the share pertaining to him as Vda. De Tupas v. RTC
legitime.
- The petition is brought by Paternza Lucerna, wife of
Epifanio Tupas, as the sole heir to the estate of the latter.
• This rule covers cases where:
- It was found that a year before Epifanio’s death, he donated
1) The devise has to be reduced, and
some three parcels of land in favor of Tupas Foundation,
2) The thing given as a devise is indivisible Inc.

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- The wife is contending that the donationw as inofficious as


it left her destitute of any inheritance.
- Hence, she prayed to have the donation declared REQUISITES OF A VALID DISINHERITANCE
inofficious insofar as it prejudiced her legitime, therefore
reducible by such proportion as might be deemed justified 1. It must be made in a Will
and the resulting deduction delivered to her. - Must be formally valid and admitted to probate
- The lower court contended that a) Article 900 relied upon
by plaintiff is not applicable because the properties which 2. It must be for a Cause specified by law under
were disposed of by way of donation were no longer part of Articles 916 in relation to Articles 919-921
his hereditary estate at the time of his death b) the donated - For Descendants [Article 919]
properties were Epifanio's capital or separate estate; and a) Guilty of an Attempt Against the Life of
(3) Tupas Foundation, Inc. being a stranger and not a the Testator or the latter’s spouse,
compulsory heir, the donation inter vivos made in its favor descendants or ascendants
was not subject to collation under Art. 106 1. b) Accused Testator of Crime punishable
by 6 years or more, and the accusation is
Whether or not the lower court decided correctly. found to be Groundless
- SC held in the negative. c) Convicted of Adultery or Concubinage
- First, although the court recognized the right of individuals with Spouse of the Testator
to donate, the same is subject to certain limitations, one of d) By Fraud, Violence, Intimidation or
which is that he cannot give by donation more than he can Undue Influence causes Testator to Make
give by will