PART ONE:CONCEPT OF SUCCESSION

001: What is succession?

Manresa: legal mode by virtue of which the property rights & obligations which in life belong to a person is transmitted to his heirs

Scaevola: The mode of acquiring ownership by virtue of w/c the inheritance of a person is transmitted to us, either accdg to his express will & words, or, if by some natural or accidental circumstances he has made no will, accdg to his presumed will provided for by law as analogous to what he would have made had he executed one.

Gomez: It is a mode of acquisition, by virtue of w/c one succeeds to the universality of the transmissible rights, active & passive, of a person who has died.

While Scaevola’s definition is detailed, it did not capture one principle w/c was contained in Manresa’s definition, i.e., “w/c in life belongs to a person”

002: What are JBL Reyes’ observations on the New Civil Code?

He observes that, in A782, the distinction bet heir & legatee isn’t drawn w/ precision, & yet the distinction is all important, for A854 (preterition) & 918 (disinheritance) provide cases where the institution of heir is void but the legacies & devices remain valid. The Code omits to state the fundamental difference: that heirs are instituted to the whole estate or to an aliquot portion thereof, i.e., to the whole or a fraction of the whole; while a legatee or devisee is given individualized items of prop. As noted by Ferrara, the quality of heir doesn’t depend on the appellation given by the testator; it doesn’t arise ex voluntate, sed ex re.A782 makes it impossible to differentiate the voluntary heirs instituted

by will from the legatees. In limiting legatees & devisees to persons to whom gifts of property are given, it would logically follow that the quality of legatee or devisee results from a donation mortis causa. This isn’t a differential criterion, since donations mortis causa must have the formalities of wills. Furthermore, under A782, there would be no justification for a separate regulation of legacies, as is done in §7, ch. 2 of the project, since all testamentary legatees would be heirs under A782. A660, CC of 1889 should be revived in lieu of the present A782.

003: Who are the subjects of succession?

The subjects of succession are the DECEDENT and the HEIRS.The decedent is the person who owns the property (see A775). Note

that A775 does not distinguish bet juridical persons & natural persons. So, can a corporation be a decedent? Succession as a mode of acquisition is based (1) on the will of the decedent, & (2) on his presumed will based on his blood relations—if he dies w/o a will, it is presumed that he will prefer his blood relatives over strangers. These 2 foundations of succession do not obtain in the case of a juridical person—it has no will of its own, nor any relatives. And so, how can a corporation leave a will after its death commanding how its property should be distributed? Its properties are distributed in accordance with the law. When the reason behind the law ceases, the law ceases.The heir is the person who’ll acquire ownership over the property.

Again, A782 doesn’t distinguish bet juridical & natural persons. But while a juridical person can be an heir, a cat cannot be an heir. Although the code doesn’t define what a natural person is, the underlying principle is that a natural person must be a human being. And although heirs are not limited to human beings, in order for one to qualify as a “person” under A782, the ff. requisites must concur:(1)he must have juridical capacity or civil personality(2)he must have capacity to act. (to accept)

004: What are the kinds of heirs according to what is inherited?

The kinds of heirs according to what is inherited are the instituted heir, & the devisee & legatee. The instituted heir is given the entire inheritance or an aliquot part (a determinate portion of the estate, but as to what properties are included in that portion, we do not know) thereof. The devisee & legatee are persons to whom gifts of real & personal property are respectively given by virtue of a will (A782).

005: What are the kinds of heirs according to how instituted?

The kinds of heirs according to how instituted are the compulsory, voluntary or testamentary, & legal or intestate heirs. The compulsory heir succeeds regardless of decedent’s will. The voluntary or testamentary heir succeeds by reason of such will. And the legal or intestate heir succeeds in the absence of such will.

006: When does differentiating between an heir & a devisee or legatee become important?

In cases of preterition (854) the institution of an heir is annulled, but the devises & legacies shall be valid insofar as they are not inofficious.

When the estate is to be divided. Where the will instituted heirs as well as legatees or devisees, but the estate is not enough to cover these voluntary heirs, the legatee or devisees will be preferred because by stating the particular property to be given to a particular person, the intention to give is more specific. Whereas, in case of the heirs, the intention of the testator is presumed to be to give only what is left of the property. So, if nothing is left, the heirs will also get nothing.

007: If X in his will provided the ff: “I give to Mr. Santos as his legacy 1/2 of my estate”, is Mr. Santos an heir or a legatee?

He’s an heir, because for there to be a legatee, the property should be specified. Accdg to JBLR, no matter what name the testator gives the recipient, it’s his characterization in the law or the provision of the law w/c controls. Accdg to Caguioa, he is neither a legatee nor a devisee because no specific personal or real property is given him. Hence, A782 applies & he is considered an heir since he’s been called to the succession & is neither legatee not devisee. But remember that in succession it is the will of the testator w/c is the law. So should he not be considered a legatee? No answer is given. DC: Here, the law prevails over testator’s will, as succession is purely statutory.

008: Can one be both an heir & a legatee (devisee) at the same time?

Nothing will prevent the testator from giving him the entire or aliquot portion of the estate & at the same time give him a specific movable or immovable property.

009: What is the object of succession?

The object of succession is inheritance. Not all the properties, rights & obligations of decedent are part of the inheritance. Excluded are those extinguished by death. CC doesn’t say w/c rights & obligations extinguished by death of owner. But Tolentino enumerates some & provides general rules.Heirs are no longer personally liable for the debts of the deceased; such

must be collected only from estate. If estate insufficient, heirs can’t be made to pay. (A1311) But if heirs paid, they can’t recover since it has been converted to a nat. obligation. (A1429)A corpse may not be inherited because it is outside the commerce of

man (A1347). FC merely provides for who’s to give proper burial. Accordingly, a testator may not dispose of his body in his will. But RA 1056 allows for giving away of all or part of the human body after one’s death by way of legacy for medical, surgical or scientific purposes. But this is “legacy” in a loose sense, inasmuch as the legacy is executed by operation of the law, that is, it becomes effective upon the death of the testator (even w/o waiting for probate of the will & even if the will is not probated or is declared invalid for testamentary purposes, to the extent that it was executed in good health) & provided certain requirements are satisfied.

010: Is the sale of future inheritance before death of the decedent valid?

Under A1347(2), it is not. A1461(1), w/c provides that “things having a potential existence may be the object of the contract of sale” is not the exception contemplated by A1347. What the exception in A1347 refers to are contracts concerning future property w/c are allowed by law. A future inheritance cannot be made an object of sale because the right to the inheritance will be vested only when the testator dies. Until then, the will of the testator may change. Successional rights are mere expectancy until the moment of death w/c makes it immutable. For a contract upon future property to fall within the exception provided in A1347, the following must concur:1. it is a contract2. it is a contract on future inheritance, &3. the law expressly authorizes it.Following this, DC enumerates only 2 exceptions under the New Civil Code:1. donation propter nuptias in CC A1302. partition inter vivos under A1080, as held by SC in the case of

Sumaya.. For DC, SC erroneously decided this case.

011: Explain how donation propter nuptias of future property is contemplated as an exception under A1347(2).

No. FC, A41 is limited to remarriage. Likewise, survivorship rules under ROC do not apply to succession. Conversely, CC A43 applies to succession, not the ROC.

012: Do FC, A41 & the survivorship rules under the ROC apply to succession?

Donation propter nuptias is a conveyance of property by one spouse to another or by a third person to either spouse. Donation propter nuptias relating to future property concerns future inheritance because the conveyance takes place mortise causa. That is the important factor—the date of conveyance. Consequently, donation propter nuptias relating to future property is an exception to A1347(2) inasmuch as it involves future inheritance, it is expressly exepted by law & it is a contract (because it is not revocable except on grounds provided by law).But does this still hold despite the revocation of CC A130 by FC A84?

Under FC A84, donation propter nuptias relating to future property is now covered by the laws of succession. Thus it is now revocable at will & is no longer a contract. But FC A86, w/c provides the grounds for the revocation of donations made by reason of marriage, qualifies revocability of donation propter nuptias.Reconciled: The reference to the provision of testamentary succession

in FC A84 relates only to the form of executing the donation of future property & does not in any way imply that such a donation takes the character of a will because it still remains irrevocable, except as regards the cases enumerated in FC A86.

013: What are the kinds of succession?

According to A778, succession may be testamentary, legal or intestate, or mixed. However, in reality, there is no mixed succession. There is no set of rules particularly applicable to mixed succession. As to those dispositions mentioned in the will, testamentary rules apply. The rest are governed by the rules on intestate succession. From this, it is evident that mixed succession is not a mode but only a description of what rules apply. It is not a mode of succession as no separate rules therefor apply.

014: Is there a definition of intestate succession in the Civil Code?

No, there is none. There was a proposed definition: that intestate succession is that which takes place by operation of law when there’s no valid will. But the Code Commission suppressed this definition since it was wrong. There can still be intestate succession even if there’s a valid will. So, they just opted to enumerate instances when intestate succession takes place. Even so, A960 isn’t exclusive.

015: Is donation propter nuptias a case of contractual succession?

This is not settled. Contractual succession was allowed in the New Civil Code under A130. But this was amended by FC. Under the strict view, donation propter nuptias is no longer a contract but is a testamentary. But others opine that it is still a contract because it cannot be revoked at the will of the donor.DC: It seems, from the deliberations of the Code Commission, the intent

was to make donation propter nuptias a pure case of testamentary succession. Thus, taking it out as a form of contractual succession.

016: What is a donation inter vivos & a donation mortis causa?

Donation inter vivos is where ownership over the property is vested on the donee at the time of the perfection of the donation. Donation mortis causa is where ownership vests after the death of the donor. Donation mortis causa is actually a will governed by law on testamentary succession (CC A7)

017: A donation stipulates: “I transfer my house to C to be delivered to him after my death.” Is this a donation inter vivos or a donation mortis causa?

This is a donation inter vivos, not a donation mortis causa. After death, you’ll only deliver the property w/c is not essential for perfection of donation.

PART TWO:WILLS

018: What are the characteristics of a will?

1. purely statutory2. free & voluntary act3. solemn & formal4. disposition of property5. essentially revocable6. testator has testamentary capacity7. testator has animus testandi8. unilateral act9. mortis causa10. individual act11. purely personal act

019: Is a document disinheriting a person considered a will?

Yes. Disinheritance is actually a disposition of property since the share of the disinherited heir goes to the other heirs. (Indirect disposition) Hence, the document containing the disinheritance is actually a will.

020: What about the acknowledgement of an illegitimate child? If in the affirmative, is the probate of the document acknowledging the illegitimate child necessary?

Yes, an acknowledgment of an illegitimate child is an indirect disposition since it entitles the illegitimate child to a share in the estate of his father. Thus, the document acknowledging him partakes of a will.According to Paras & Tolentino, & as held in Guevarra v. Guevarra, no

probate of the document is needed. Also, according to DC, there is no practical purpose that would be served by the probate of the will. It’s a fait accompli even if the document is not probated. Probate would only be necessary if the instrument of acknowledgement is a forgery. But note that in probate, what is determined is only the solemnities & formalities of the will. So why probate? The will, to be probated, must contain a direct disposition of property. Otherwise, probate is not needed.

021: Is a document appointing an executor a will?

According to Tolentino, disposition of a property is not an essential characteristic of a will. Thus, the document is a will. However, no probate is needed.According to Caguioa, the document is not a will because under A783, a

will disposes of property. The document above is not a will as there is no disposition of property.According to Paras, if the document doesn’t dispose of property, no

probate is needed.

022: What if the will says “none of my property will ever go to ‘Patricia’”, is this a will? If in the affirmative, what kind of succession ensues?

Yes. There is herein an indirect disposition. Intestate succession ensues (see A960). The grounds therein are not exclusive. Note that there is no designation of heir by implication.

023: What is the difference between a donation mortis causa & a contract of agency?

In a contract of agency, the revocation is a resolutory condition, while in a donation mortis causa, it is a suspensive condition, hence no rights accrue yet.

024: Now, A had 3 kids. A died. He is survived by his spouse B & his 3 kids. The 4 then divide the inheritance. Half goes to B as his share in the conjugal property. The other half is divided among the 4 of them. After the division, the oldest child wanted to get his inheritance already from B. B consults a lawyer on whether it was valid to write as a condition that upon her death, the eldest would not share in the inheritance she would leave. The said document was thus executed as described. Is this valid?

No. There was here a waiver by B.

025: Is the situation above governed by A828?

No. A828 refers to the change of a testator’s will. The waiver here executed is for a contract of future inheritance.

026: A contract was entered into by A & B whereby A instituted B as his heir in his will. B gave him a ring on the assurance that A would not revoke said will. Is this valid?

No. No such waiver contract is allowed. But A must return the ring to B.

027: What is testamentary capacity and why is it required?

Testamentary capacity is the ability to discern & deliberate. It is required so that the will would contain the true desire of the owner of the property. The testator, then, must have the capacity to discern the import & effect of a gratuitous disposition.

028: What if a will is dictated to an attorney? Is it valid?

The will is valid as long as the dispositions contained therein are the desires of the testator. The disposition of the testator’s property must be in accordance with his wishes & not in accordance with the wishes of 3rd persons. Under A784, the making of a will is a strictly personal act & can’t be left in whole or in part to the discretion of a 3rd person or accomplished thru the instrumentality of an agent or atty. But the mechanical act of drafting of the desires of the testator by third persons is permissible.

029: The father died without a will. He left behind 3 heirs. A accepts his inheritance & immediately sells the car which was part of the estate left by the decedent. Is it valid?

Yes. Death automatically opens succession. But the transmission of property is not automatic. Acceptance of the inheritance is needed. Upon the death of the testator, all heirs automatically become co-owners of all the properties of the estate. So the 3 heirs are co-owners of the car. But the sale is nevertheless valid (A is to deliver his part of the car) but for the failure to deliver the entire car, he is liable for damages. Thus, the sale is valid up to A’s share.This is known as the doctrine of “relativity of contract.” As to some

parties, the contract is valid. As to others, it is void. WON the contract is valid thus depends on whose point of view one is using.Note that the mere fact that a person dies & his heir accepts does not

mean that transmission automatically ensues because the document left by the testator may not be a will. The following are the requisites therefor:1. A will or law,2. Death of the testator,3. Acceptance, &4. Probate of the will. A will not probated does not transmit any property.

030: When does death occur? Why is it important to know when a person died?

Death occurs when such fact is proven by the presentation of the death certificate. But in the absence thereof, other evidence may be admitted, since the term “death” includes presumptive death. It is important to know when a person died to determine who the heirs are. (see CC A40)

031: What are the two types of presumptive death? Why do they require different periods?

The two types of presumptive death are ordinary presumption (A390) & extraordinary presumption (A391). Under A390, succession opens after 10 yrs. Under A391, it opens after 4 years. The period required in A390 is longer because the reason for the disappearance is unknown. In contrast, under A391, there is a known possibility that a person is already dead because of the danger existing at the time of his disappearance. Thus, the period required by law is shorter. Under A390, the death is considered to have occurred on the lapse of the required period for reappearance. Under A391, he is considered dead on the day he disappeared.

032: If a will does not name heirs, only legatees, is there testamentary succession?

Yes. “Heir” here is used in its general sense.

033: What are the requirements for testamentary succession?

A will & designation of heirs

034: Is a recorded will valid?

No. See A804. Note that while A783 says “any act”, it is qualified by the phrase “with the formalities prescribed by law.” Thus, wills are limited to written instruments.

035: If a will admits of different interpretations, in case of doubt, how do we interpret it?

If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (A788) This is because there is a presumption that the testator wanted to have a will. So, the interpretation should favor validity.

036: If there is ambiguity in the will, how do we resolve it?

According to Caguioa, there are 2 kinds of ambiguities: latent & patent.A latent or intrinsic ambiguity is one w/c can’t be seen from a mere

perusal or reading of the will but w/c appears only upon consideration of the extrinsic circumstances. For example, T gives a legacy to “my cousin Pedro” & it turns out that he has 2 cousins named Pedro. A latent ambiguity may arise either:1. when the will names a person as the heir, devisee or legatee, & there

are 2 or more persons that answer to such name or meets the description;

2. where there is a misdescription of the beneficiary or of the thing given gratuitously.

On the other hand, a patent or extrinsic ambiguity is one which appears upon the face of the instrument.According to Caguioa, then, if the ambiguity is latent, all kinds of

competent evidence is admissible to show the intention of the testator. Hence, parol or evidence aliunde my be admitted. However, excepted to this are declarations of the testator.

But if the ambiguity is patent, intrinsic evidence is enough to discover the ambiguity so that only the will itself is needed to resolve it. Extrinsic evidence is not admissible.Accdg to Tolentino & Paras, even if the ambiguity is patent, extrinsic

evidence may be admitted, except oral declarations. CC no longer distinguishes bet latent or patent ambiguities except to exclude oral declarations as a means of resolving ambiguity. So, all kinds of evidence may be used to resolve ambiguity, except oral declarations.Under the Code, then (A789), when there is an imperfect description, or

when no person or property exactly answers the description, mistakes & omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding oral declarations of the testator as to his intention; & when an uncertainty arises upon the face of the will as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under w/c it was made, excluding oral declarations.

037: According to A791, no part of the will should be discarded unless it is in conflict with some other part, in which case, that part which expresses the intention of the testator will be enforced. Why?

No.

038: If a property is acquired after the making of a will, is this property included in the will that should pass to the heirs?

No.

039: In case a devise or legacy is given, what is the extent of interest that is given?

No.

040: May a testator convey a larger interest?

No.

041: If a lot is given, does it include the house built thereon?

No.

042: If a will is valid at the time of its execution but is invalid as to form at the time of the testator’s death, is the will void?

No.

043: What if a will which is invalid at the time of its execution becomes valid at the time of the death of the testator due to some amendment in the law. What is the status of the will?

No.

044: If a will is valid at the time of its execution, but years before the death of the testator, the law as to form was amended making the will invalid at that point in time & the testator knowing the amendment in the law did not change his will accordingly until his death. Is the will valid?

No.

045: In case of a Filipino citizen who is a resident of the US & who made a will in the Philippines observing US law, is the will valid?

No.

046: If a Filipino citizen abroad executes an act in the presence of diplomatic & consular officials of the Philippines, what laws shall govern?

No.

047: If there are no diplomatic officials, can Filipinos choose to execute a will according to the solemnities of Philippine law?

No.

048: If a

PART THREE:TESTAMENTARY CAPACITY AND INTENT

049: Who may make a will?

All persons who are:1. Qualified, &2. Not expressly prohibited by law (hence, can’t be disqualified by

implication). (A796)

050: What is meant by “must be qualified”?

He must not be less than 18 yrs of age & must be of sound mind. If he is below 18 or of unsound mind, the will is invalid because the testator had no testamentary capacity (no discretion or discernment).

051: When is a person considered 18 yrs old & hence, capable of making a will?

There are two views:1. Spanish view is that a person is not 18 until after the day marking the

last day of his 18th year has lapsed. (he is 18 on the eve of his 18th birthday. –DC says follow this)

2. American view is that a person is 18 as soon as the last day preceding his 18th has lapsed & the first day of his 18th years has begun.

052: What is the status of a will executed 5 days before his 18th birthday but finished after he is already 18 yrs old?

Even if the provisions were written before he was 18 yrs old, the will is valid because it is the signing of the will w/c makes a will. The reckoning time is the completion of the will upon signing & dating.

053: Person was born 2/7/60, & made his will 2/4/78. Is the will valid?

Yes. One must count years using 365 days per year, not calendar years. Once a day starts, it is considered to have elapsed.

054: Are spendthrifts, prodigals under guardianship, or persons under civil interdiction prohibited by law from making a will?

Spendthrifts & prodigals under guardianship may make a will because the law does not expressly prohibit them from making one. A person under civil interdiction may also make a will but only for properties disposed by acts inter vivos & not by acts mortis causa.

055: Is the degree of soundness of mind required in making a will the same as the degree of soundness of mind required in other acts?

No. For soundness of mind to execute a will, the testator should know: The nature of the estate to be disposed of (objects under

ownership), The proper objects of his bounty (proper people as heirs), & The character of the testamentary act (animus testandi; essentially

gratuitous).

056: What is the rule on presumption of soundness of mind?

In general, capacity is presumed & the burden of proof lies on the person contesting capacity. (Std Oil v. Arenas) A person is presumed to be of sound mind, the burden of proof lies on the person claiming otherwise.But if the testator is publicly known to be insane 1 month (30 days)

before the will is executed, burden of proof lies on the person claiming will was executed during a lucid interval. (DC: there’s a problem with this rule. When is a person considered “publicly known to be insane?” The law does not say.)

057: What’s the status of a will executed by a person of sound mind who later becomes insane?

The will remains valid. Supervening incapacity doesn’t invalidate an effective will. (A801)

058: Suppose if he is incapacitated to make a will but despite this incapacity, he made a will. Later on, he has recovered & is now capable of making a will, what is the status of the will?

The will remains void & isn’t validated by the supervening capacity to make a will. (A801)

PART FOUR:SOLEMNITIES OF WILLS

059: J

TESTAMENTARY SUCCESSION

II. WILLS1. DefinitionARHAOART 783. A will is an act whereby a person is permitted, with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death.Tolentino:• A will is a personal, solemn, revocable 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 Civil Code seems to limit the concept of a will to a disposition of property to take effect upon and after death. The Code considers a will as a species of conveyance whereby a person is permitted, with the formalities prescribed by law. to control in a certain degree the disposition of his property, to take effect after his death. It is only when the will disposes of . . property either directly or indirectly, that it has to be probated. Art. 338 provides that "no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." When there is no disposition of property, it is submitted that, although the instrument may be considered as a will, it does not have to be probated; its dispositions which are provided by law. such as the acknowledgment of a natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be given effect even without probating the will.• The law permits a testator to disinherit a compulsory heir for any of the causes provided by law, and the disinheritance is expressly required to be made in a .will (art. 916) A valid disinheritance is in effect a disposition of the property in favor of those who would succeed in the absence of the disinherited heir. Unless the will is probated, the disinheritance cannot be given effect.• The characteristics of a win are:(a) It is a purely personal act;(b) It is a free act, without violence, fraud or deceit;(c) It disposes of property;(d) It is essentially revocable;(e) It is formally executed;(f) The testator has testamentary capacity;(g) It is a unilateral act; and(h) It is an act mortis causa, or takes effect upon thedeath of the testator.The fourth characteristic, that of revocability, springs from the fact that the will does not take effect except upon the death of the testator.MAGIC NOTES:Q: What are the characteristics of a will?A: 1. purely statutory2. free and voluntary act3. solemn and formal4. disposition of property5. essentially revocable6. testator has testamentary capacityPage 9 of 2077. testator has animus testandi8. unilateral act9. mortis causa,10. individual act11. purely personal act2. Characteristics a. purely statutoryART 783. A will is an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death.MAGIC NOTES:Q: Why is it a purely statutory act? A: Because under Art 783, it is the law which person to make a will."permits" aQ: May Congress enact a law prohibiting making a will?A: Yes. Anyone can make a will but such will may not beenforced by court action. It becomes obligatory simplybecause the law makes it one.b. free and voluntary actART 839. The will shall be disallowed in any of the following cases:(3) If it was executed through force or under duress, or the influence of fear, or threats;(4) If it is was procured by undue and improper pressure and influence on the part ________of the beneficiary or of some other person.MAGIC NOTES:Q: Why free and voluntary act?A: Because no one is forced to make one. See Art. 839(3) and (4). If it were otherwise, then the will would no longer be the testator's but the will of the one causing fear, etc.c. solemn or formal• Solemn- follows certain ceremony. Ex. 3 witness rule• Formal- it must be in the required formMAGIC NOTES:Q: What is meant by solemn?A: The law prescribes a ritual.Q: what is meant by formal? A: The law prescribes a form.

Q: Why does the law prescribe solemnities and formalities? A: In order to prevent fraud. When testator is already dead it is hard to ascertain his intention.Q: What is the effect of non-compliance with the solemnitiesand formalities? A: The will will be invalid.d. disposition of propertyART 783. A will_is_an act whereby a person js___\REVIEWER IN SUCCESSION

2007Apermitted with the formalities prescribed by law to control to a certain degree the disposition of his estate, to take effect after his death.___ __• The testator, through a will, disposes of the property in accordance with the law.MAGIC NOTES:Q: Is a document disinheriting a person considered a will?A: Yes. Disinheritance is actually a disposition of propertysince the share of the disinherited heir goes to otherheirs. (Indirect disposition)Hence, the document containing thedisinheritance is actually a will.Q: What about the acknowledgment of an illegitimate child? A: This is an indirect disposition since it entitles theillegitimate child to a share in the estate of his father. The document acknowledging him thereforepartakes the nature of a will.Q: In the instance above, is the probate of the documentacknowledging the legitimate child necessary? A: According to Paras and Tolentino and as held in thecase of Guevarra v. Gucvarra, no probate of thedocument is needed.Also, Danny Con stated that there is no practicalpurpose that would be served by the probate of thewill. It's a fait accompli even if the document is not O probated. Probate would only be necessary if the XC instrument of acknowledgement is a forgery. But note V- that in probate, what is determined is only the Q solemnities and formalities of the will. So why probate? .<: The will, to be probated, must contain a directdisposition of property. Otherwise, probate is notneeded.Q: Is a document appointing an executor a will?A: According to Tolentino, disposition of a property is notan essential characteristic of a will. Therefore, thedocument is a will. However, nc probate is needed. According to Caguioa, the document is not a willbecause under Art. 783, a will disposes of property.The document above is not a will as there is nodisposition of property.According to Paras, if the document does notdispose of property, no probate is needed.Q: What if the will says "none of my property will ever go to'Patricia', is this a will? A: Yes. There is herein an indirect disposition.Q: What Kind of succession ensues?A: Intestate. See Art. 960. The grounds therein are notexclusive. Note that there is no designation of heir byimplication.e. essentially revocableART 828. A will may be revoked by the testator at anytime before his death. Any waiver or ___restriction of this right is void.____ __TOLENTINO:• Revocability is an inseparable quality of every will. Wills by their very nature are ambulatory and inoperative till the death at the testator.Revocation is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward and visible act or sign, symbolic thereof.• Revocation and Nullity - Both revocation and nullity of will have the common purpose of depriving a last will of legal effect. But they differ in the following respects:(a) Revocation is by act of the testator, while nullity proceeds from the law.(b) Revocation presupposes a valid act, while nullity is inherent in the testament, be it an intrinsic or extrinsic defects.(c) Revocation takes place during the lifetime of the testator, while nullity is invoked after his death by his intestate or compulsory heirs.(d) The testator cannot renounce the right to revoke, while the nullity of a will can be disregarded by the heirs through voluntary compliance therewith.MAGIC NOTES: Q: When may a will be revoked?A will may be revoked for whatever reasons before the death of the testator.Q: Why is revocation allowed?A: Revocability is the essence of a will. A will is not a contract; heirs do not pay a consideration. The provisions in a will are pure liberalities which the testator may change at any time without third parties acquiring vested right thereto before the death of the testator.Q: What is the difference between & donation mortis causa and a contract of agency?A: In a contract of agency, the revocation is a resolutory condition whiie in a donation mortis causa, it is a suspensive condition, hence, no rights accrue yet.

Q: Note Art 828. Now. A had three children. A died. He is survived by his spouse B and his three children. The four then divide the inheritance. Half goes to B as his share in the conjugal property. The other half is divided among the four of them. After the division, the oldest child wanted to get his inheritance already from B. B consults a lawyer on whether the request by B is possible. B wanted to write as a condition that upon her death, the eldest would not share in the inheritance she would leave. The said document was thus executed as described. Valid?A: INVALID. There was here a waiver by B.Q: 'Is the situation above governed by Art. 828?A: No. Art. S28 refers to the change of a testator's will. Thewaiver here executed is for a contract of futureinheritance.Q: A contract was entered into by A and B whereby A instituted B as his heir in his will. B gave him a ring on the assurance that A would not revoke said will. Valid?A: No. No such waiver contract is allowed. But A must return to B the ring.Page 10 of 207REVIEWER IN SUCCESSION

2007Af. testator has testamentary capacityART 796. All persons who are not expressly prohibited by law may make a will._________ART 797. Persons of either sex under eighteen years of age cannot make a will.______________TOLENTINO:• The law requires the testator to be 18 years of age or over. The most important question that arises in this 'connection is the method of computing the age.• Authors on the Roman Law generally consider that it is sufficient that the last day of the required year shall have begun, because the computation is made, not from day to day, but from year to year. The more accepted rule, among Spanish authors, however, is to the effect that the las! day of the required year should have passed, before the person can be considered as having the requisite age for making a will.• Anglo-American jurisprudence, in the absence of statutory provisions on the manner of computation sustains the view that the required age is reached at the commencement of the day preceding the anniversary of the birthday: that is, it is sufficient that the last day of the eighteenth year shall have commenced. The law does not recognise fractions of a day. Under this rule, a person born on February 1, at 11 p.m., may make a will at 1am of of Januarys 1 of his 18th year; that is, 46 hours before the completion of 18 full years.• It is submitted that the Anglo-American rule should be followed in this jurisdiction.ART 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. - - .g. unilateral• A will is the product of the act of only one side, that of the testator. Only one side is necessary for a valid will.Page 11 of 207TOLENTINO:• The law presumes capacity to make a will; hence, in order that a person may be disqualified to make one. he must be expressly prohibited by law.• A person under civil interdiction can make a will; he is disqualified for dispositions of property only by acts inter vivos, but not by act mortis causa.MAGIC NOTES:Q: why is testamentary capacity required?A: So that the will contains the true desire, of the owner of the property. The testator then, must have the capacity to discern the import and effect of a gratuitous disposition.Q: What is meant by testamentary capacity? A: It is the ability to discern and deliberate.Q: Does a child of 10 years Have testamentary capacity? A: No. At 10 years, of age, a child has no discretion yet.• Acceptance is not necessary for the validity of a will. Acceptance or non-acceptance only determines whether the provisions will be enforced.h. mortis causaART 777. The rights to the succession are transmitted from the moment of the death of the decedent.(For Tolentino's comments, please see Chapter I, No. 4) The disposition is effective only upon the death of the testator.

i. testator must have animus testandi• Animus testandi- intention to dispose by willMAGIC NOTES: Q: What is animus testandi?A: It is the intention of the testator to part with his property and to make the instrument his last will and testament.Montinola v. Herbosa

j. IndividualART 818. Two or more persons cannot make a will jointly or in the same instrument, either, for their reciprocal benefit or for the benefit of a third person._________________________one person, one willTwo or more persons may not make a single will. Or in

other words, there can be no joint will (where a singleREVIEWER IN SUCCESSION

2007Ainstrument is made the wiH of two or more persons and is jointly signed by them).TOLENTINO:• A joint will is where the same instrument is made the will of two or more persons and is jointly signed by them. Such a will contained in a single instrument is the will of each of the makes, and at the death of one mat be probated as the will of the latter. Such wills are usually executed to make testamentary dispositions of joint property.• Mutual wills may be defined as the separate wills of two persons which are reciprocal in their provisions. A will that is both joint and mutual is one executed jointly by two or more persons. The provisions of which are reciprocal, and which shows on its face that the devises are made by one in consideration of the other• Reasons for prohibition- A joint will is prohibited because:(a) a will is a purely personal and unilateral act. and this is defeated if 2 or more persons make their wills in the same instrument.(b) It is contrary to the revocable character of a will; if one testator revokes his will by burning the instrument, the other testator would have no document left containing his testamanetary dispositions.(c) A joint will, if mutual or reciprocal, may expose the testator to undue influence, and may even tempt one of the testators to kill the other.• The Civil Code does not prohibit mutual or reciprocal wills, provided they are not conjointly made. The real prohibition in the Code refers to the execution of a joint will, or the expression by two or more testators of their wills in a single document or text and by one act. The law does not invalidate two distinct wills, independent of each other which are written on the same sheet of paper, one on each side, or even on the same side but separated by a line between.k. purely personal actpersons, institutions or establishments, to which such property or sums of money are to be given or applied._______________________ART 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person or accomplished through the Instrumentality of an agent i>r attorney._______TOLENTINO: ART AO• It is the making of the disposition, the expression of the will of the testator, that is not subject to delegation. The testator cannot substitute the mind or will of another for his own. But the mere mechanical act of drafting the will may be done by a third person.ART 785. The duration or efficacy of the Designation of heirs, devisees, or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person.ART 786. The testator may entnjst to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and a/so the designation of theTOLENTINO:• In the cases contemplated by this article, there is no delegation of the will or testamentary disposition. The testator has expressed his will, by leaving specific property or sums of money in general to specified classes or causes.ART 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.__________________Page 12 of 207TOLENTINO:• To delegate to a third person the power to determine whether or not a testamentary disposition is to be operative is in effect delegating the power to make the testamentary disposition; this is not permitted, because it would violate the general principle embodied in art. 784.• The present article denies to the testator the power to make a testamentary disposition in such manner that another person has to determine whether it is to be operative or not. It is not only the delegation which is void; the testamentary disposition whose effectivity will depend upon the determination of the third person is the one which cannot be made. Hence, the disposition itself is void.MAGIC NOTES:• The disposition of the testator's property must be in accordance with his wishes and not in accordance with the wishes of third persons. Under Art 784, the making of a will is a strictly personal act and cannot be left in whole or in part to the discretion of a third person or accomplished through the instrumentality of an agent or attorney. However, the mechanical act of drafting of the desires of the testator by third persons is permissible.Q: What if a will is dictated to an attorney? A: The will is valid as long as the dispositions contained therein are the desires of the testator.NOTE: Death automatically opens succession. But the transmission of property is not automatic. Acceptance of the inheritance is needed. (Remembering this principle, let's now answer the next question.)

Q: The father died without a will. He left behind three heirs. A accepts his inheritance and immediately sells the car which was part of the estate left by the decedent. Valid?A: Upon the death of the testator, all heirs automatically become co-owners of all the properties of the estate. So the three heirs are co-owners of the car. But the sale is nevertheless valid (A is to deliver his part of the car) but for the failure to deliver the entire car, he is liable for damages. Thus, the sale is valid up to A's share.This is known as the doctrine of "relativity of contract." As to some parties, the contract is valid. As to others, it is void. WON the contract is valid thus depends on whose point of view one is using.REVIEWER IN SUCCESSION

2007ANote that the mere fact that a person dies and his heir accepts does not mean that transmission automatically ensues because the document left by the testator may not be a will. The following are the requisites therefor:(1) A will or law(2) Death of the testator(3) Acceptance(4) Probate of the will. A will not probated does not transmit any property.Q: When does death occur?A: When such fact is proven by the presentation of the death certificate. But in the absence thereof, other evidence may be admitted, the term "death" includes presumptive death.Q: What are the two types of presumptive death? A: Ordinary presumption (Art. 390) and extraordinary presumption (Art. 391).Q: Why do they require different periods? A: Because the reason for the disappearance in Art. 390 is unknown. Therefore, the period is longer.Under Art. 391, we know that there is a possibility that a person is already dead because of the danger existing at the time of his disappearance. Thus, the period required by law is shorter.Remember, under Art. 39C, succession opens after 10 years Under Art. 391. after 4 years.Under Art. 390. death is considered to have accured on the lapse of the required period for reappearance. Under Art. 391, he is considered dead on the day he disappeared.Q: Why is it important to know when a person died? A: To determine who the heirs are. See Art. 40 of CC.Q: If a will does not name heirs, only legatees, is theretestamentary succession? A: Yes. "Heir" here is used in its general sense.Q: When does intestate succession occur?A: See Art. 960. But there is no provision defining what it means. Intestate succession may take place even if there's a valid will (as in the case of mixed succession).Q: Comment on Art. 780 on mixed succession.A: It is a wrong provision or classification. There is no suchtype of succession, only testate ana intestatesuccession exists.Q: Suppose a testator leaves a will but not all his property are disposed of by will. Therefore, there's mixed succession. But what rules do we apply in this case?A: There is no set of rules applicable for mixed succession. Thus, as to those mentioned in the will, testamentary rules apply. The rest are governed by the rules on intestate succession.From this, it is evident that mixed succession is not a mode but only a description of what rules apply. It is not a mode of succession as no separate rulesQ: What are the requirements for testamentary succession? A: A will and designation of heirs.Q: Is a recorded will valid?A: No. See Art. 804. Note that while Art. 783 says "any act", it is qualified by the phrase "with the formalities prescribed by law." Thus, wills are limited to wntren instruments.3. Interpretation of willsa. interpretation should favor validityART 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be prefen-ed.________________TOLENTINO:• The intention of the testator is the controlling factor in the juridical relations arising from the will; hence,- it is necessary to interpret that intention rationally and in such manner as not to render ineffective the testamentary disposition.MAGIC NOTES:Q: // a wiH admits of different interpretations, in case of doubt, how do we interpret it?A: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Art 788.Q: Why?A: There is a presumption that the testator wanted to have a will. Thus, the interpretation should favor validity.b. in case of ambiguitiesART 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and onu'ssions must be corrected, if the error appears from the context of the will or from extrinsic

evidence, excluding the oral declarations of the testator as to his intention; and when an 'uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations.______therefore apply.Page 13 of 207ARITflONote: The first clause of the provision is incomplete.' It refers to latent ambiguity.TOLENFINO:• There are two kinds of ambiguity in a will:(a) patent or extrinsic ambiguity - A patent or extrinsic ambiguity is one which appears upon the face of the instrument, such as when the testator gives a devise or legacy to "some of the six children of my brother Juan."(b) latent or intrinsic ambiguity - A latent or intrinsic ambiguity, on the other hand, is one which cannot be seen from a mere perusal or reading of the will, but which appears only upon consideration of extrinsicREVIEWER IN SUCCESSION

2007Acircumstances, such as when the testator-gives a legacy to "my cousin Pedro," and it turns out that he has two or more cousins named Pedro.• Our Code does not make any distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence is concerned, to aid testamentary interpretation.Under our Code, therefore, extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of the making of the will, for the purpose of explaining or resolving a patent ambiguity.• The extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator; by implication, written declarations made by the testator, outside the will, are admissible. The reason is that the admission of oral declarations of the testator whose lips have been sealed by death and therefore can no longer deny or affirm the truth, of what witnesses may say he declared, would create confusion and give rise to false claims.MAGIC NOTES:Q: If there is ambiguity in the will, how do we resolve it? A: According to Caguioa, there are two kinds of ambiguities, latent and patent.A latent or intrinsic ambiguity is one which cannot be seen from a mere perusal or reading of the will but which appears only upon consideration of the extrinsic circumstances.Example: T gives a legacy to "my cousin Pedro" and it turns out that he has 2 cousins named Pedro. A latent ambiguity may arise either:(1) when the will names a person as the heir, devisee or legatee, and there are 2 or more persons that answer to such name or meets the description;(2) where there is a misdescription of the beneficiary orof the thing given gratuitously.On the other hand, a patent or extrinsic ambiguity is one which appears upon the face of the instrument.According to Caguioa, then, if the ambigujty is latent, all kinds of competent evidence is admissible to show the intention of the testator. Hence, parol or evidence aliunde may be admitted. However, excepted to this are declarations of the testator.But if the ambiguity is patent, intrinsic evidence is enough to discover the ambiguity so that only the will itself is needed to resolve it. Extrinsic evidence is not admissible.According to Tolentino and Paras, even if ambiguity is patent, extrinsic evidence may be admitted except oral declarations. The Code no longer makes a distinction between patent or latent ambiguities except to exclude oral declarations as a means of resolving ambiguity. Hence, all kinds of evidence may be used to resolve ambiguity, except oral declarations.Under the Code then (Art 789), when there, is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as ic his intention; and when an uncertainty arises upon the face of the will as to the application of any of itsPage 14 of 207CDprovisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding oral declarations.c. interpretation of wordsART 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can bs gathered, and that other can be ascertained.Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense._____TOLENTINO:• The supreme law in succession is the intent of the testator. It is only when the intention of the testator is contrary to law. morals or public policy that it cannot be given effect.• Since respect for the will of the testator as expressed in his last testamentary disposition constitutes the principal basis of the rules which the

law prescribes for the correct interpretation of all the clauses of the will, the words and provisions therein written must be plainly construed in order to avoid a violation of his intentions and real purpose• A distinction in interpretation is often made between a will drafted by skilled testamentary draftsmen, such as lawyers, and a will prepared by persons who have no knowledge of the law. Words found in the first are to be construed with some strictness, emphasis being placed upon their accepted technical meaning, while words in the second kind of wills are to be interpreted liberally with reference to their popular meaning, or the meaning which they would commonly have to a person in the situation of the one who used them.d. interpretation as a wholeART 791. The words of a will are to receive an interpretation which will give every expression some effect, rather than one which will render any of the expression some effect, rather than one which will render any of the expression inoperative: and of two modes of interpreting a will, that is to be preferred which will prevent intestacy._________________________TOLENTINO:• Effect should, if possible, b given to all words, clauses, and provisions of the will, if they are not inconsistent with each other, or with the general intent of the whole will taken in its entirety.• Where a will has been executed, the reasonable and natural presumption is that the testator intends to dispose of all his property. The presumption against intestacy is so strong that courts will adopt any reasonable construction of a will in order to avoid it.REVIEWER IN SUCCESSION

2007AMAGIC NOTES:Q: According to Art 791. no part of the will should bediscarded unless it is in conflict with some other part, inwhich case, that part which expresses the intention ofthe testator wM be enforced. Why? A: There is a presumption that every word or clause wasintended by the testator to have some meaning and noword or dause should be rejected if it is at all possibleto give it a reasonable effect.Also Art. 791 provides that here a will has beenexecuted, the testator is presumed to intend thedisposition of all his property.e. severability of invalid provisionsART 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator :vould not have made such other dispositions if the first invalid disposition had not been made. _________MAGIC NOTES:• Art 792. The invalid provision does not affect the validity of ether dispositions, unless such other dispositions were made in consideration of the provision later held to be invalid.f. after-acquired propertyART 793. The property acquired after the making of a will shall only pass thereby as if the testator possessed it at the time of making the wi!l, should it expressly appear by the will that such was his intention.TOLENTINO:• Observations on Article - This article states a principle that is contrary to principles expressed in other provisions of this Code. Under this article, the will of a person transmits only property owned by him at the time of making of such will; property acquired thereafter is transmitted only when it expressly appears in the will that such is his intention. This contravenes the concept of .heir and of inheritance in the Code. -••'-,.The inheritance includes all the property, rights, and obligations of a person not extinguished by his death; it includes not only those existing at the time of death, but the heir gets also the property which may accrue thereto since such death.The drafting of this provision into the Civil Code has thus created a juridical conflict. The most that can be done, to save the law from being inconsistent with itself, is to construe the present article as referring only to devises and legacies, for, after all, these were the testamentary dispositions contemplated by the Code of Civil Procedure, from which this article was taken.Even in this light, the present article conflicts with art. 930, which refers to devises and legacies. This conflict between art. 930 and the present one is irreconcilable.Page 15 of 207ART 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.MAGIC NOTES:Q: If a property is acquired after the making of a wiH, is this property included in the will that should pass to the heirs?A: No. Under Art 793, property acquired after the making of the will shall only pass thereby as if the testator had possessed it at the time of making the will, should it expressly appear that such was his intention. The general rule, therefore, is that after-acquired property will not pass.g. extent of interest covered

ART 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless, it clearly appears from the will that he intended to convey a less interest._______________TOLENTINO:• When the testator does not state the extent of the interest that he gives to the legatee or devisee in the property transmitted, it is understood that his whole interest passes, no more and no less But the testator, under the present article may manifest *TS intention to convey a less interest; and under art 929. he may expressly convey a larger interest.MAGIC NOTES:Q: In case a devise or legacy is given, what is the extent ofinterest that is given? A: Every devise or legacy shall convey all the interest whichthe testator could dense or bequeath in the propertydisposed of unless it clearly appears from the will that heintended to convey a less interest. Art 794Q: May a testator convey a larger interest? A: Yes. Art 929.Q: If a lot is given, does it include th» house built thereon?A: Yes. Under the law on property, the house is deemed included when the lot is given (Art 415). However, if only the house is given, the lot is not included therein because it is not an interest necessarily included in the house.4. law governing forma. as to time of executionART 795. The validity of a will as to its form depends upon the observance of the law at the time it is made.TOLENTINO:• Law on Formal Validity. The law governing the execution and effect of wills may be amended by the legislature subsequent to the death of the testator. This however does not affect the operation of the will. As the property passes on death of the testator, either to his heirs andREVIEWER IN SUCCESSION

2007Anext of kin by intestate succession, or to the devisees and legatees in case of a will, and as vested property rights are not permitted to be taken away without compensation and due process of law, it follows of necessity that if the will of any gift in it was invalid when the testator died, no subsequent statute can cure the defect for that would be taking property without due process law from those in whom it vested on the death of the testator. On the other hand, and for the same reason, if the will was valid, or any gift in it took effect on the death of the testator, the rights of the devisee or legatee cannot be divested by any law passed afterwards, changing the requirements for wills, or for the validity of any gifts by them.• Before the death of the testator, however, no property rights vested either in the testamentary heirs or in the intestate heirs. Hence, an amendment of the law on wills, subsequent to the execution of the will and before the death of the testator, cannot constitute a deprivation of property without due process of law. In this case, some courts hold that the validity of the will depends upon compliance with the law at the time of executing it, while others use the law at the time of the death of the testator. The GENERAL RULE, however, is that given in the present article, that the validity of the execution of a will is controlled by the statute in force at the time of execution; and a statute enacted subsequent to the execution and prior to the death of the testator, changing the rules respecting the form of the instalment, the capacity of the testator, and the like, has no retrospective effect.• Law on Intrinsic Validity. Intestate and testamentary successions, both with respect to the order of succession and to the amount cf the successional rights and to the intrinsic validity of the testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. The place of execution has no effect whatever upon the validity of the provisions of the.will.The intrinsic validity of the will, although executed in the Philippines, is governed by the laws of the state or country of which the testator was a citizen or subject at the time of his death.The law may be changed after the will has already been made. The provisions of the will, may be intrinsically valid under the law when it was executed; but it may be contrary to the law at the time of the death of the testator. In such case, the law at the time of the testator's death will apply. It is the law at the time when the succession opens which must determine the intrinsic validity of the provisions of the will, because it is at this time that the rights are transmitted to the heirs, devisees, or legatees.• The question as to what is the foreign law governing the issue is one of feet and not of law. Foreign laws have to be proven like-any other fact in dispute.MAGIC NOTES:Q: If a will is valid at the time of its execution but is invalidas to form at the time of the testator's death, is the willvoid?Page 16 of 207OA: No, the wiH is stilt valid. The rule is that the validity of a will as to its form depends upon the observance of the law in force at the time * is made. Art 795.

Q: What if a wit which is invalid at the time of its execution becomes valid at the time of the death of the testator due to some amendment in the law. what is the status of the wiH?A: The will is void even if the amendment is made retroactive because it will divest the legal heirs of their vested rights to the exclusion of those included in the will.Q: If a will is valid at the time of its execution, but years before the death of the testator, the law as to form was amended making the will invalid at that point in time and the testator knowing the amendment in the law did not change his wiU accordingly until his death. Is the will valid?A: Yes. There is a vested right on ths part of the testator to the continuing validity of the will. The law requires merely that the will be valid as to form at the time of execution of the will. To make a subsequent law retroact will deprive the testator of his right to substantive due process.TAKE NOTE: The above rules on law governing the form of wills are dependent upon the effectivity of Art 795 which lays dawn the oite that the law at the time ot the execution of the wiH is that which governs the form of the will. If Art. 795 is no longer in force, then such rules may change.b. as to place of executionART 17. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.When the acts referred to are executedbefore the diplomatic or consular officials of the___Republic of the Philippines in a foreign country,REVIEWER IN SUCCESSION

2007Athe solemnities established by Philippine laws shai be observed in their execution.Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public 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 foreign country.ART 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines._____________________ART 816. The will of an alien who is abroad produces effect in the Philippines if made with the fonnalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.____"___________Art 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines._______Note: This is what is known as the "lex loci celebrationis" rule.The forms and solemnities of contracts, wills and other public instruments shad be governed by the laws of the country in which they were executed.TOLENTINO:• This article follows the general rule expressed in art. 17 of the Code, that the law governing the formal validity of wills is the law of the place where it is executed. We believe, however, that the Code did not mean to invalidate the will of a Filipino, executed in a foreign country, when it is made in conformity with our law and not in conformity with the law of the place of execution. Under arts. 816 and 817, an alien who makes a will in a place other than this country is permitted to follow the laws of his own country; art. 816 even allows an alien executing a will in a foreign country other than his own, to follow the formalities prescribed by our law. It cannot be assumed that the Code places the Filipino citizen in a worse position than the alien in relation to our own law.• Art. 819 provides an exception to the rule contained in the present article. Ftlipinos cannot execute a valid joint will, even in a foreign country.TOLENTINO:• The probate of the will in the foreign state or country must proved in the same manner as any other foreign judgment; in the absence of such proof, the will cannot be proved in the Philippines, without actually showing its execution in accordance with any of the laws mentioned in this article.TOLENTINO:• If an alien executes a will in the Philippines, not in conformity with our law, but in conformity with the law of his own state or country, the will can be probated in the Philippines. ,'• The provisions of art. 815 to 817 refer to the formal validity of wills executed by persons outside of their own state or country, with respect to the intrinsic validity of the provisions of the will, art. 16 of the Code provides that the national law of the deceased shall apply. The place of execution does not affect the intrinsic validity of the contents of the will.OArt 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.Art 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.

Art 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.______________Page 17 of 207TOLENTINO:• Although the general rule is that a will rhay be made by a Filipino, who is abroad, in accordance with the formalities prescribed by the law in the country where the will is executed (arts. 17 and 815), the present article creates an exception to that rule. A joint will is against the pubtic policy of the Philippines.MAGIC NOTES:1. In case of filipinosQ: In case of a Filipino citizen who is a resident of the US andwho made a will, in the Philippines observingUS law, is thewill valid?] A: No. Filipinos executing a will in the Philippine soil can onlyuse Philippine law. A supporting article is Art. 17.Q: If a Filipino citizen abroad executes an act in the presence of diplomatic and consular officials of the Philippines, what laws shall govern?A: Philippine laws. Art 17 provides that this case is an exception to the lex loci celebreciones rule because the diplomatic offices are considered part of Philippine territory.Q: If there are no diplomatic officials, can Filipinos choose to execute a will according to the solemnities of Phil law?A: Yes.DLC and Tolentino: If Americans who execute their will abroad can observe Phil law if they choose to, then Filipinos have even more right to use Phil law.REVIEWER IN SUCCESSION

2007AQ: If a Filipino citizen who is a resident of the US went toLondon and executed his wiH in London, what laws willgovern?a. American law? A: No. Take note that there is no provision allowing him toexecute his will in accordance with the laws of hisresidence.b. Philippine law? A: Yes.c. British law?A: Yes, under Art 1 7, the law of the place of execution, and under Art 815, which authorizes a Filipino to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines.However, he cannot make a joint will which is prohibited in the Philippines, nor can he make an oral will which is likewise prohibited in the Philippines.Q: If a Filipino citizen went to Timbuktu and lived there and made a wHI orally because under Timbuktu law, wills are to be made orally, is the will valid here?A: According to Tolentino, yes According to Paras, no.5. law governing content a. as to time2. In case of foreignersQ: If a US citizen executes his will in the Phils, what lawsgovern?a. Phil law? A: Yes. Art 1 7 - law of the place of executionb. US law? A: Yes. Art 8V7 - law of w/c he is a citizenQ: If a US citizen residing in the Phil executes a will inHongkong. what laws govern?a. British law? A: Yes. Art 17 (Actually. Chinese law, since Honkong wasalready ceded by the brrts to China)b. Phillaw?A: Yes. Art 816 - law of the place where alien is a resident or is a citizenc. US law? A: Yes. Art 816Q: If a US citizen residing in Hongkong visits the Philippines monthly, and it is in Canadawhere he executes a will, what laws will govern? a. Canadian law?A: Yes. Art 17 .b. US law? A: Yes. Art 816c. HKlaw? A: Yes. Art 816d. Phillaw?A: Yes. Art 816 only if the will is probated here in the Phils. For procedural convenience.Art 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, 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 permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)____________b. as to successions! rightsArt 16. Real property as well as personal property is subject to the law of the country where it is stipulated.However intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be

the nature of the property and regardless of the country wtterein said property may be found.__________________Jimenez v. Fernandez (1990)Melecia Jimenez sold the property she claimed to have inherited from her late illegitimate father, Cades. Sulpida. Carlos' niece, however claimed to be Carlos' sole heir.Held: Melecia has no right to sell the property because she is not an heir of Cartos. The rights to succession are transmitted from the moment of death of the decedent. At the time of Carlos' death, successional rights were determined by the Old Civil Code which excluded illegitimate children as heirs. Melecia is an illegitimate child, thus she cannot inherit. Sulpicia owns the property by way of intestate succession __Miciano v. Brimo (1924)Brimo, a Turkish national, expressed in his will that his properly be disposed of in accordance with Philippine laws. The probate of the will is opposed because it violates the Civil Code stating that the intrinsic validity of a will's provision shall be regulated by the national law of the persons whose succession is in question. No applicable turkish laws were presented.Held: The law applicable is turkish law. Since there was no evidence of trukish law presented, it is presumed to be the same as Philippine Law. The condition that the will be disposed of in accordance with Philippine laws, being vlolative of the Civil Code, it is considered not written.____Page 18 of 207»/REVIEWER IN SUCCESSION

2007ACavetano v. Leonides (1984)Adoracion Campos, a US citizen, executed a will in the US. The wM was presented for probate by her sister. Hermogenes. Adoraoon's father, filed a motion to dismiss on the ground that if the wiN is probated, he will be divested of his legitime.Held: The law governing Adoracion's will is the law of Philadelphia, which is the national law of Adoracion. Such law does not provide for legitimes. Adoracion can therefore give away all her estate. Hermogenes cannot be illegally divested of his right, which does not exist in the first place.ARI1AOPage 19 of 207REVIEWER IN SUCCESSION

2007AIII. TESTAMENTARY CAPACITY AND INTENT1. Who may make a will a. AgeART 797. Persons of either sex under eighteen years of age cannot make a will_____________TOLENTINO:• According to Spanish authors, the last day of the required year should have passed, before the person can be considered as having the requisite age for making a will. On the other hand, Anglo-American jurisprudence sustains the view that the required age is reached at the commencement of the day preceding the anniversary of the birthdayl that is. it is sufficient that the last day of the 18lh day shall have commenced.• It is submitted that the Anglo-american rule should be allowed in this jurisdiction.b. Not disqualified by lawART 796. All persons who are not expressly prohibited by law may make a will.________TOLENTINO:• The law presumes capacity to make a will; hence, inorder that a person may be disqualified to make one,he must be expressly prohibited by lawMAGIC NOTES:Q: Who may make a will?A: Anyone NOT EXPRESSLY disqualified1. at least 18 years of age2. of sound mindIf below 18, the will is INVALID because the testator had NO TESTAMENTARY CAPACITYQ: When am i legally 18?A: According to TOLENTINO you are 18 on the eve of your 18th birthdayQ: Person was bom 2/7/60. and made his will 2/4/78. Is the will valid?A: Yes the will is valid; one must count years using 365 days/year not calendar years.REMEMBER:when counting years remember -> 365 days / yearNOT calendar yearsonce a day starts it is considered to have elapsedc. Of sound mindART 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution.ART 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly___unbroken, unimpaired, or unshattered bydisease, injury or other cause.It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of. the proper objects of his bounty, and the character of the testamentary act.

Page 20 of 207TOLENTINO:• The law requires that the testator be of sound mind at the time of the execution of the will. By this is meant that "he3 is able to execute his will with an understanding of the nature of the act, such as the recollection of the property he means to dispose of, of the persons who are or might reasonably be the objects of his bounty, and the manner in which it is to be distributed aming them." It is sufficient if he undersantds what it is about, even if he has less mental capacity thatn would be required to make a contact.• The decisive question always is whether the instrument propounded is the spontaneous act of a person understanding its nsture and consequences.• The elements of testamentary caoacity are:(a) the testator must have mental capacity to understand the nature and effect of his act.(b) He must have sufficient recollection of his properties;(c) He must be able to remember the natural objects of his bounty;(d) He must have sufficient mental ability to make a disposition of h's property among the objects of his bounty according to some plan he has formed in his mind.• The term "objects of his bounty" refers to near relations of the testator, those who are natural objects of his bounty.• Effects of Infirmities. - it may be stated that neither sickness, old age, deafness, senile dbility, blindness, nor poor memory, nor the fact that somebody has to guide the testator's hand in order that he might sign, is by itself sufficient to establish a presuimption of lack of testamentary capacity, when there is sufficient evidence of mental sanity of the testator at the time of the execution of the will. On the other iiand, the absence of testamentary capacity is not equivalent to insanity; in other words, actual insanity need not exist in order that a person may be said to lack testamentary capacity. It is enough that the mental condition be such that there is want of understanding of the nature and consequences of the disposition by will.• The unsoundness of mind which the law contemplates as incapacitating a terstator from making a will may be the resuktof many causes, such as mental disease, senile dementia, feversd, injuries, drug intoxicants, or the like. The law, however, does not deal with these causes. It is the effect of these causes with which the law must deal regardless of what the cause may be, and it is the quantity or degree of the effect of which the law must determine to arrive at a decision on the presence or absence of testamentary capacity.• Senile dementia - "Dementia" exists where amind once sound has become weakened or decayed, and when the cause by old age it is called "semnile dementia". To constitute complete senile dementia, there must be such failure of the mind as to deprive the testator of intelligent action. In the first stages of the disease, a person may possess reason and have will power.REVIEWER IN SUCCESSION

2007AWhen the testator has reached this point when he no longer understands the act in which he is engaged, he no longer has capacity to make a wiH. regardless of what his age may be.Insane delusions. - an insanes delusion is a false belief for which there is. no foundation in reason, and which would be incredible to the same person if of sound mind, and of which its victim cannot be dispossessed by either evidence or argument.Such a condition refers to a mental disturbance regarding some particular object or subject, and is often referred to as menomania or partial insanity, or hallucination. To amount to insane delusions, they must be beliefs such as no rational man, placing himself in the position of the testator, either would or could entertain; and this cannot be said of any belief which connects itself with any act. however flimsy the connection may be.Not every insane delusion will render one incapable of making a will. A testator may have delusions regarding matters which do not affect or concern his testamentary act and which have no influence upon the disposition which he makes of his estate. But the testamentary disposition will be void when the delusion touches the subject matter of the will; that is to say, when it pertains to the property, the beneficiaries, or those who would succeed to the property if the will were not made. Deaf. Dumb and Blind. - The modem rule is that neither blindness, nor deafness and dumbness, nor all of them combined, will alone incapacitate a person to perform the testamentary act If a person so afflicted has testamentary capacity and can communicate his desires, no reason exists for rejecting his will; the difficulty, however, lies in the proof. The question to be determined, if mental capacity exists, is whether the person afflicted knew the nature of the act he was performing and expressed his desires so that they were fully understood.Eccentricities and Prejudices. - The existence of strong passions on the part of the testator is not inconsistent with testamentary capacity. But where the prejudice borders upon an insane delusion, or the testator at the time of making the will labors under extraordinary excitement or stress of emotion, he may be rendered devoid of the power to realize the natural objects of his bounty, the extent of his property, and the nature of the business at hand; under such circumstances, he would be incapacitated to make a will.Determination of Soundness of Mind. - The soundness of mind of the testator must be determined as of the time of the execution of the will. If he was not of sound mind at that time, the will is invalid, regardless of his state of mind before or after such execution; and conversely, if he was of sound mind when the will was made, it will be upheld, even if he should later become insane and die in that condition.

ART 800. 7"/7e law presumes that every person is of sound mind, in the absence of proof to the contrary.The burden of proof that the testator was not ofsound mind at the time of making his dispositions____is on the person who opposes the probate of thePage 21 of 207will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.70TOLENTINO:• If the evidence be such as to show the existence of insanity in the testator generally, so that in the absence of further proof the presumption of sanity would be rebutted, it may still be shown, in support of the will, that it was made during a lucid interval. But the effect of it is this, it inverts the order of proof and of presumption; for until proof of a habitual insanity is made, the presumption is that the party agent, like all human creatures, was rational; but where a habitual insanity, in the mind of the person who does the act, is established, then the party who would take advantage of an interval of reason must prove it.MAGIC NOTES:Soundness of mind to make a will is different fromsoundness of mind that would vitiate a party in acontact, exempt a party from crime etc.(US v.Vaquilar)For Soundness of Mind to Execute a Will the Testatorshould know:o Nature of estate to be disposed of (objectsunder ownership) o Proper objects of his bounty (proper peopleas heirs)o Character of the testamentary ac! (essentially gratuitous)Standard Oil v. Arenas - capacity is presumed, the burden of proof lies on the person contesting capacityREMEMBER.a person is presumed to be of sound mind, the burden of proof lies on the person Im* on the person claiming otherwiseif testator is publicly known to be insane 1 montti (30 days) before the will is executed, burden of proof lies on the person claiming will was executed during a lucid intervalo DANNYCON SAYS: there's a problem with this rule. When is a person considered "publicly know to be insane"? - It is NOT INDICATED!d. Case of married womenART 802. A married woman may make a will without the consent of her husband, and without the authority of the court.ART 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property._________________________2. Supervening incapacityART 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapableREVIEWER IN SUCCESSION

2007ALinvalidated by the supervening of capacity.TOLENTINO:• The capacity of the person who leaves a will is to be determined as of the time of the execution of such will.MAGIC NOTES:Q: Who may make a will?A: All persons who are:1. qualified, and2. not expressly prohibited by law may make a will (Art. 796)Q: A:What is meant by 'must be qualified"?1. he must not be less than 18 years of age2. he must be of sound mindQ: What is meant by "expressly prohibited by law"?A: The article says "expressly prohibited." Therefore, aperson cannot be disqualified to make a will by a mereimplication.Q: Who are persons expressly prohibited by law to make awill? A: (Art. 797) - persons of either sex under 18 years of agecannot make a will.Q: Can a child make a will? A: No. Art. 797.Q: When is a person considered 18 years old and hence,capable of making a will? A: There are 2 views:1. Spanish view is that a person is not 18 until after the day marking the last day of his 18m year has lapsed. (Sir says follow this)2. American view is that a person is 18 as soon as the last day preceding his 18th has lapsed and the first day of his 18th year has begun.Q: What is the status of a will executed 5 days before his 1st" birthday but finished after he is already 18 years old?A: Even if the provisions were written before he was 18 years old. the will is valid because it is the signing of the will which make s a will. The reckoning time is the completion of the will upon signing and dating.

Q: What about spendthrifts or prodigals under guardianship? Are they prohibited by law from making a will?A: They make a will because the law does not expressly prohibit them, from making one.Q: What about persons under civil interdiction? A: They may make a will but only for properties disposed by acts inter vivos and not by acts mortis causa.Q: What about a person of unsound mind?A: A person of unsound mind may make a will since there is no express prohibition in the law. However, his will will be invalidated for lack of testamentary capacity.Q: Is the degree of soundness of mind required in making will the same as the degree of soundness of mind required in other acts?A: No. It is merely sufficient that the testator knew.1. the nature of the estate to be disposed of;2. the proper objects of his bounty, and3. the character of the testamentary act (anuimus testandi)Q: Suppose a person of sound mind executed a will and later on, he becomes insane, what is the status of the will?A: The will remains valid. Supervening incapacity does not invalidate an effective will. (Art. 801)Q: Suppose if he is incapacitated to make a will but despite this incapacity, he made a will. Later on, he has recovered and is now capable to make a wiU, what is the status of the wiH?A: The will remains void and is not validate byt eh supervening capacity to make a will (Art. 801).ARHAOPage 22 of 207REVIEWER IN SUCCESSION

2007AIV. SOLEMNITIES OF VWLLthe Clerk of Court.1. kind of wills a. notarialART 804. Every will must be in writing and executed in a language or dialect known to the testator.___b. HolographicART 810. A person may execute a holographic will which must be entirely written, dated, and signed in the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines and need not be witnessed.______2. notarial wills• NOTE: Study this part very well. Eto yung part na ini-skip ni DannyCon nung nag-boycott tayo. Baka dalihin niya tayo rito. We did our best for this part. For the discussion of Art 805, we got commentaries from three authors. And for the cases, we made new ones for most of those cited in Art 805. * >*a. general requierementsART 804. Every will must be in writing and executed in a language or dialect known to the testator.____TOLENTINO:• The requirements provided in this article apply to both the attested and the holographic wills• A holographic will must necessarily be written by the hand of the testator himself. In the case of the ordinary or attested will, however, it is immaterial who performs the mechanical act of writing the will, so long as the testator signs it or has somebody sign his name in his presenceThe ordinary will may be written out or printed, or partly written and partly printed.• The language or dialect used in the will must be known to the testator. When a will is executed in a certain province or locality, in the dialect currently used in such province or locality, there arises a presumption that the testator knew the dialect so used, in the absence of evidence to the contrary.There is no statutory requirement that the will should express that the testator knows the language or dialect used therein. That is a fact which may be established by extrinsic evidence or proof aliunde.The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator. It is not part of the testamentary disposition. The language used in the attestation clause does not even .have to be known to the witnesses; it should, however, be translated to them (Art 805, par 4).ART 806. Every will must be acknowledged before anotary public by the testator and the witnesses.The notary public shall not be required to retain a____copy of the will, or file another with the office ofPage 23 of 207TOLENTINO:• The present article refers only to attested or ordinary wills. It has no application to holographic wills which do not have to be witnessed.• Failure to affix a documentary stamp on a will is not a fatal defect, as the probate court can require the proponent to affix the required documentary stamp to the notarial acknowledgment of the will.• The signing of the will by the testator and the witnesses,and the acknowledgement of said will before a notarypublic, do not have to be a single act under the presentCode. An interval of time may elapse between the actualsigning of the will and the acknowledgement before thenotary public. The only purpose of the acknowledgment isto minimize fraud and the exertion of undue pressure and

?£* influence upon the testator; and this purpose can be^ attained, whether the acknowledgment takes place at theJ same time as the signing of the will or at some timeJ>: thereafter. It is important, however, that the testamentaryCD capacity must exist also at the time of theacknowledgment because this is an essential part of theexecution of the will.• The last sentence of this article safeguards the secrecy of the contents of the will during the lifetime of the testator so that he will not be the object of importunities or pressure to change his will on the part of designing persons or relatives, or it may be that the testator wants to keep the secret of the will during his lifetime.MAGIC NOTES:Q: May the testator waive the requirements of Art. 805 and 806? Or may the testator require that the will be valid even if the Court declares it void?A: No. These requirements are MANDATORY. Non-compliance therewith invalidates the wilt.Q: Why is it called notarial will?A: Because of the requirement of Art. 806.•Abanqan v. Abanqan (1919)The wilt of Ana abangan was probated. The said will consisted of two sheets: (1) contains all the dispositions of Ana; (2) contains attestation clause. The first sheet was duly signed by Martin montalban, under the direction and in the name of Ana. Said will's 1* page was also signed by the 3 witnesses.It appears that neither of the sheets were sined on the left margin by the testatrix and the witnesses, nor numbered by letters. ISSUE: WON the will is defective -» NOHELD: In a will consisting of 2 sheets, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the 3 witnesses and the 2nd contains only the attestation clause and is signed on their margins by the testator and the witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses or be paged The testator;s signature is not necessary in the attestation cluse because thie is pertaining only to the witnesses. Moreso, the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guranty their truth and authenticity. Such as the law should be interpreted to attain these priomordial end.____REVIEWER IN SUCCESSION

2007ASuroza v. Honrado (1981)Opposition to probate of a will was filed on the ground that the testatrix was illiterate as shown by the fact that she affixed her thumb mark to the will and that she did not know English, the language in which the will was written.HELD: The will is void, having failed to comply with the requirements of Art 804, that every will must be executed in a language or dialect known to the testatrix. In the opening paragraph of the will, it was stated that English was a language understood and known to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into the Filipino language. That could only mean that the will was written in a language not known to the illiterate testatrix and therefore, it is void because of the mandatory provision of Art 804 that every will must be executed in a language or dialect known to the testator.b. specific requirementsART 805. Ever/ will, other than a holographic will, must be subscribed at the end thereof by the testator himself, or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by throe or more credible witnesses, in the presence of the testator and of one another.Trie testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page, except the last, on the left margin, and all pages shall be numbered correlatively in letters, piaced on the upper part of each page.The attestation shall state the number of pages used upon which the will was written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.TOLENTINO:• Interpretation of Wills - The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will.• Requisites of Ordinary Wills - Aside form the common requisites mentioned in Art 804, ordinary or attested wills must comply with the following requirements: 1. It must be signed at the end thereof by the testator himself or by the testator's name written by another person in his presence and by his express direction.Page 24 of 207

2. It must attested and subscribed by three or more credible witnesses in the presence of the testator and each other. ,3. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page.4. Each and every page of the will must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses, in the presence of each other, on the left margin.5. It must contain an attestation clause.6. It must be acknowledged before a notary public by the testator and the witnesses.• Date of Will - In an ordinary will, the date is not an essential part. Thus, it is valid even without a date, or even when the date thereon is erroneous. But a holographic will must bear a date.• Place of Execution - Failure to state the place where the will was executed, or an error in such statement, does not. invalidate the will.JURADO:• Special Formalities of Ordinary Wills - From arts 804. 805. 806. the following are the formalities that must be complied with:(a) The will must be in writing;(b) The will must be written in a language of dialect known to the testator;(c) The will must be subscribed at the end thereof by the testator himself or by tne testator's name written by some other person in his presence and toy tiis express direction;(d) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another;(e) The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign each and every page thereof, except the last, on the left margin; See Abangan v Abangan 40 Phil 476(0 All pages of the will shall be numbered correlatively in letters placed on the upper part of peach page;(g) The will must contain an attestation clause; and(h) The will must be acknowledged before a notary public by the testator and the witnesses.ART 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The Notary Public shall not be required to retain a copy of the will, or file another with the clerk of court. ____/. subscribedTOLENTINO:• Signed by the Testator - Any complete mark or design made by the testator upon the material on which the will is written, with the intention that it shall, as a symbol, stand for or represent the testator as the written name would do, is as sufficient a signing as is the writing of the signature in full. A signature by mark will be sufficient, even if at the time of the placing of it the testator knew how to write and was able to do so.REVIEWER IN SUCCESSION

2007A• Place for Signature - The law expressly requires the will to be subscribed "at the end thereof by the testator or by his name written by another person in his presence and by his express direction. The purpose of this requirement is not only that it may appear on the face of the instrument that the testamentary purpose therein expressed has bsen completed, but also to prevent any opportunity for fraud or interpolations between testamentary dispositions and the signature. The position of the signature at the end of the will furnishes in itself intrinsic evidence of the finality or completion of intent.An instalment in the form of a will cannot be probated, if it is not signed at the end. Where the signature is followed by dispositive provisions, even the portion of the instrument preceding the signature cannot be probated, because the instrument must be considered as a whole.• End of Will - There are two theories as to the meaning of "end of the will." One theory is that the end of the will refers to the physical end of the writing. The other theory is that the term refers to the logical end, which is the point where the testamentary dispositions terminate.The signature is considered to be at the end of the will, when it appears below the disposing provisions, even if it is in the testimonium clause, and there are some non-dispositive writings below or following il. However, non-dispositive provisions intervening between the dispositive clauses and the signature do not affect the validity of the instrument. But the will cannot be considered as signed at the end where the dispositive clauses, intended to be a part of the will, follow the signature.• Signature by another — In the absence of evidence that the testator requested the third person to sign the will for the former, the signing by a third person invalidates the will. Mere knowledge by the testator that another is signing, and acquiescing in it, there being no previous express direction, is not enough; and if the previous direction be given by gestures, they must be as unambiguous as words. When the evidence does not show that the signature was made at his express request, the subsequent acknowledgment by the testator of the will as his own will be sufficient signing, and. it will be presumed to have been made at his direction. But if the testator directs another person to sign for him, and intends to affix his mane in completion of the signature, the will is not property signed until such mark is made.The fact that a third person was directed to sign the name of the testator need not appear in the will itself but may be established by extrinsic evidence. Such fact, however, should appear in the attestation clause, in a case, an attorney was requested by the testatrix to write her name on the will, and then she placed her thumbmark thereon. The court, finding that the signing

was by the testatrix herself, said that it was not necessary that the attestation clause should state that the testatrix requested Atty. Almario to sign her name inasmuch as the testatrix signed the will in accordance with the law. But where the testator, in a similar case, put not his thumbmark, but a sign of a cross after his name, the SC held that it was not sufficient signature of the testator, and the failure ofPage 25 of 207the attestation clause to state that the attorney was requested by the testator to sign his name was fatal to the validity of the will.Who May Sign - The law does not specify. Any person may sign for him.Form of Signing - The form in which the signature is to be written when made by a third person is not specified by law. It seems clear from the law, however, that the testator's name must appear as a signature. It may be wise and practical to have the third person to also write his name, but that is not essential to the validity of the will. Place of Signature — The third person should write the testator's name somewhere between the dispositive provisions of the will and the attestation dause. But if it is written just after the dispositive provisions and before the signatures of the witnesses and the attestation clause, it is sufficient, although not written separately as a distinct signature but merely as apart of a recital. Siqninq Before Witnesses — This is essential to the due execution of the will.Tolentino adheres to the adoption of the liberal construction followed by Anglo-American jurisprudence. He states that the signature of the testator to the will has for its purpose to indicate that the testamentary dispositions contained in the instrument are his. This purpose served, whether the witnesses see him actually sign the instrument or he merely produces to them the will, already signed, and acknowledges before them that the signature appearing thereon is his. But Tolentino adds that though this should be sufficient compliance with the requirement that the testator should sign the will in the presence of the witnesses, great caution should be exercised in following this construction as it reduces the safeguard against undue and improper influence upon the testator.Signing of the Wilt - tt has been held, even after the effectivity of the present Civil Code, that the fact that the testator signed the will in the presence of the instrumental witnesses must appear in the attestation clause itself. It is not sufficient that the testator, at the end of the will and before his signature, states that the signs in the presence of the witnesses. In the attestation clause, the witnesses must declare that the testator signed the will in their presence; the omission of this statement by the witnesses in said dause is fatal to the validity of the will. This defect is not cured by proof aliunde or even by a judicial, finding based upon proof that the testator did in fact sign the will in the presence of the witnesses.And if the testator did not personally sign the will, but requested another person to write his name thereon, the attestation clause must state this fact.Tne attestation clause must also state that the witnesses signed the will and every page thereof in the presence of the testator and of each other.The case Quinto v. Morata denied the probate of a will whose attestation did not state that the witnesses signed in the presence of the testator, notwithstanding the fact that oral evidence to prove such fact was presented and admitted without objection on the part of the opponents.In Rey v. Cartagena, the Court found that although the attestation clause did not expressly and specifically state that the witnesses signed all the pages of the will, such intention must be deduced from the entire clauseREVIEWER IN SUCCESSION

2007AThe tendency has gradually been towards a more liberal construction of attestation clauses, such that while oral evidence is not admitted to supply omissions in the expression of the attestation clause, inferences and implications are admissible to discover the intent and meaning of such dause.Art 809 affirms the principle of liberal interpretation.When the will that is sought to be probated, however, is not before the court because it has been lost, and proof thereof is by recollection of the witnesses, the evidence should be strong and convincing that all the requisites of the law have been complied with. Thus, where the attestation clause of the supposed lost will does not recite that the witnesses signed on the left margin of the pages preceding the last one, it was held that the will was not duly executed.• Reading of Will - Except when the testator is blind, deaf, or a deaf-mute, the law does not require that the will be read by him or to him. It is indispensable, however, that he should know its contents at the time of execution.The execution of the wilt raises a presumption that 4 the testator was aware of its contents. But if it appears affirmatively that he did not read the will and that it was read to him. it must be shown that the contents were «n some way made known to him.The fact that the will was read to the testator does not have to be stated in the attestation clause, it is not enough that said fact is proved by extrinsic evidence during the probate of the will.JURADO:• Subscription by the testator - As applied to the testator, the purpose of the statutory requirement of a signature is twofold: it is to identify the testator and authenticate the document.PARAS:• if the testator's first name appears, without the surname, the will is valid.• If the testator's name is misspelled, abbreviated, or by nickname, or by "Father" or "Mother" or in an assumed name, this is all right provided the testator intended the same to be his signature. This is true even in the case of

a will signed by the testatrix after her second marriage in the name she had borne under her former marriage.• The person writing for the testator should not be one of the witnesses. Of course, should there bore more than 3 witnesses, one of them may sign for the testator.But in Barut v. Cabacungan, it was held that if the person who signs the name of the T is one of the subscribing witnesses, this is all right.• "Express direction" means that the delegate must be expressly authorized to do so. Hence, mere acknowledgement on his part that the will is being signed in his behalf or his acquiescence to such an act is not sufficient. However, an express direction may be given by the T even without using the words. Mere clear gestures or motions or conduct is sufficient.MAGIC NOTESPage 26 of 207Q: What is meant by "subscribed"?A: It is the act of signing the instrument to:(1) identify whose will it is (when signed by the testator)(2) and to authenticate the instrument(3) to affix one's signatureQ: What signature will suffice?A: General Rule - Any signature will suffice as long as it isintended as the signature of the person or testator. It is notmaterial whether it is the testator's customary signature.The intent to affix the signature is important. Thumb mark*^L only? Yes but not rubber stamp, wax seal or chap mark. ItZ— must be in the handwriting of the testator. If testator can"""* read or write and he affixed just his thumb mark? Yes.3>- goes back to intent. If he has no hands, he can use a° delegate.End of the willQ: Where must the testator sign?A: At the logical end as this completes or executes the will. Logical end is where the dispositions terminate. Physical end is the farthest writing. The logical end may not be the same as the physical end." Q: If the testator signed at the logical end but there are clausesfollowing the signature, what is the state of the will? A: It depends. I the clauses following the signature of the testator are dispositive clauses, the entire will is considered VOID since the will is taken as one. However, if they are non-dispositive clauses, then there is no effect.Third party signing for the testator, the delegateQ: When can a third party sign in behalf of the testator?A: When the following requisites concur(1) under the testator's express direction; and 2) the delegate signed at the testator's presence.Note: The mere acquiescence of the testator is NOT sufficient: however, the testator's direction may be through body language. Remember that IMPLIED direction is NOT allowed. It must be express. There must be categorical instruction, only given when testator is conscious.Note: "In the testator's presence" does not merely refer to physical presence but also that the testator must be conscious that his name is being written by the delegate.Q: How about if the testator is conscious but his eyes are closed? Must he actually see delegate writing?A: In the case of A/era, the SC ruled that the testator need not actually see; it is enough that the testator COULD HAVE seen if he had chosen to do so. That is the test.Q: What is the status of the will if the delegate wrote and signed his own name on the will instead of the testator's name?A: The will is VOID (Guizon vs. Concepcion). However if the name of the testator is already there, the fact that the delegate's name was also signed therein has no effect. Such signature is merely a surplusage.Q: May the name of the testator be typewritten? A: No (In re: Will of Siason). The name must be (hand)written (Balonan vs. Abellana).REVIEWER IN SUCCESSION

2007AQ: If the delegate merely copied the signature of the testator, is this valid?A: No. This is void because the law requires that the name of the testator be written and not his signature. Writing delegate's name only = unsigned will. Testator's name + delegates signature = signature surplus.Q: What are the requirements fora delegate?A: The law does not lay down any requirements for a delegate. DLC says the delegate must have enough discretion or enough discernment, otherwise, he may not be acting under the "express direction" of the testator. He must:(1) know how to read and write(2) of sufficient discernment to understand instructionsQ: Should the delegate know that it is a will he is filling up? A: No.Q: May one of the subscribing witnesses be a delegate? A: No prohibition against this. According to Tolentino, hemay be a witness or the notary. Caguioa does notthink so (In re: Will of Tantuico).Q: Must the name of the delegate appear in the attestationclause? A: No.2. attested and subscribed• Attest - to witness/observe• Subscribe - to sign.TOLENTINO:

• Attested and Subscribed by the Witnesses -Attestation is the act of the senses, subscription is the act of the hand; the one is mental, the other mechanical. To attest a will is to know that it is published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper as a will is only to write on the paper the names of the witnesses, for the sole purpose of identification. The instrumental witness attests not only to the signature of the testator but also to the proper execution of the will.The attesting witnesses may sign at the left hand margin of the pages of a will instead of at the end of the will.There may be a perfect attestation in fact without subscription. To 'subscribe,1

when used in connection with attesting a will, means that the witnesses shall sign their names to the same paper for the purpose of identification and implies that attestation has been performed.• Purpose of Attestation and Subscription by WitnessesThese are: (1) The identification of the instrument; (2) The protection of the testator from fraud and deception so that he may freely and voluntarily express his testamentary intent; and (3) the ascertainment of the testamentary capacity of the testator.Witnesses need not know the contents of the will. Thus, the will need not be submitted to the witnesses for examination.Page 27 of 207• Number of Witnesses - It is presumed that a witness to awin has the qualifications prescribed by law. unless thecontrary is established. His credibility depends upon theappreciation of the court that he is telling the truth._^ A will signed by a less number of competentC^ witnesses than that required by the statute cannot under— any circumstances be recognized as valid. The fact that—' an additional witness, who was incompetent, also attestedf*- the will, cannot impair its validity. The same witnessesC-J who sign on the left margin of each page of the will,presented by the testator to them as a will, must be thevery same ones who should sign the attestation clause,inasmuch as they alone can certify the facts to be stated insaid clause, for having taken a direct part herein.• Publication of Will - In general, unless the law expressly requires it, publication of the will is not necessary. Publication is the declaration of the testator to his witnesses that the instrument is his will. In this jurisdiction, although there is no provision of law requiring publication, it is necessary that the witnesses should know that they are attesting a will, inasmuch as the attestation clause must siate that the testator signed the will and that the witnesses themselves witnessed and signed the will.• Signing by Witnesses — Although prudence demands that the witnesses chosen be able to write their signatures legibly and that they do so, nevertheless the statute is satisfied by the witness making a mark, writing his initials, or accidentally writing some other name for his own, or even a description of himself.Our law expressly requires, as a qualification to be a witness to a will, that a person must be "able to read and write" But so long as the witness is able to write, he does not have to sign in his full name; he may sign by mark or symbol.• Order of Signing - The general rule has been, that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the attesting witnesses, and that if the signatures of the latter precede the signing by the testator, there is no proper attestation, and the will is void; for, until the testator has signed, there is no will and nothing to attest.Other courts have given a liberal construction to the law. Where the witnesses and the testator all sign in the presence of one another, it is not essential that the testator sign first, if the signing and the attestation be parts of the same transaction; in such case, where the acts are substantially contemporaneous, it cannot be said that there is any substantial priority.The latter view seems to be more reasonable. This view, holding that under such conditions the will is valid even if the witnesses signed before the testator, is upheld by most courts, and the trend of authority is now towards this view.In the absence of proof to the contrary, it will be presumed that the testator signed first.• In the Presence of Each Other - The purpose of requiring witnesses to sign in the presence of the testator is to prevent another paper being substituted for the will, fraudulently; and witnesses are required to sign in the presence of each other, so that each may be a witness of the other and so as to render fabrication of testimony more difficult.The signing of all the witnesses should constitute a single transactionREVIEWER IN SUCCESSION

2007AIn order that the signing can be considered in the presence of the testator, it is not sufficient that he is physically present, but he must know what is being done. On the other hand, it is not necessary that the testator should actually see the witnesses subscribe their names to the instrument; if he is in such a position that he might see them if he chose, it will be presumed that he did see them sign. But the act of signing must take place within the testator's range of vision, so that he may readily see what they are doing, if he is so disposed, and if he is deprived of the use of any of his faculties by mere physical infirmities, the test to determine whether the will was attested in his

presence is to inquire whether he was conscious of the presence of the witnesses and understood what they were doing when they wrote their names on the will.If. however, he be hindered in his own movements by bodily infirmity or otherwise, the presumption is merely disputable, and if it be shown that he could not see the witnesses in the process of writing their names without assistance form another, or pain, or inconvenience, or danger to life, the will shall be void. If the signature is not made in the same room occupied by the testator, the presumption is that the will was not signed in his presence.• When Testator Blind - A blind man may know the presence of another through the sense of touch or hearing. The rule now generally adopted is that, although one may have lost his sense of sight, if his mind is unaffected and he is sensible of what is being done, wfien witnesses subscribe his will in the same room or within reasonable dose proximity and within his hearing, they subscribe in his presence.The witnesses should be within the cognizance of the blind testator's remaining senses, such that he knows what is being done. Although it is not necessary that the will should be read to the blind testator in the presence of the witnesses, proof will always be required that persons suffering from such infirmity had in some way acquired a knowledge of the contents of the paper.JURADO:• Attestation and Subscription by witnesses - An instrumental witness may be defined as one who takes part in the execution of an instrument or writing.Attestation and subscription are different things and are required for different ends. They may be distinguished from each other in the following ways:1. Attestation is an act of the senses while subscription is an act of the hand.2. The first is a mental act, while the second is a mechanical act.3. The purpose of the first is to render available proof during the probate of the will, not only of the authenticity of the will, but also of its due execution, while the only purpose of the second is identification.• Meaning of Presence - The testator's consciousness of the fact that the attesting signatures are being written is held to be an indispensable requirement under a statute requiring attestation in the presence of the testator. The testator must have actually seen, not only the witnesses but the instrument itself, considering both his position and the state of his healthPage 28 of 207at the time, but according to some authorities, if the testator is unable to move by reason of physical infirmities, this will not prevent the act of attestation being considered as performed in his presence.The witnesses must subscribe "in his presence," but in cases where the testator has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribed in the same room or in such dose proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence. In case the testator is blind, the superintending control, which in other cases is exerdsed by sight, must be transferred to other senses; it they are. or may. at his ,' discretion, be made sensible that the witnesses are subscribing the same wili that he signed. It should be deemed sufficient compliance with the statute.The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have seen each other sing, had they chosen to do so, considering their mental and physical condition, and position with relation to each other at the moment of inscription of each signature.PARAS:• While the act of attesting must be done in the presence of all, ihe act of acknowledging before the notary public does not have to be contemporaneous, it does not even have4 to be done in the presence of all of them, since the law does not mention this as a requirement; neither does the law require that execution and acknowledgement of a will be made in the same day.MAGIC NOTES:Q: Hew many must attest and subscribe as witnesses? A: 3 or more persons (3 or more credible witnesses).Q: What if the testator presented the will to the witnessesalready signed by him, is this valid? A: No. The witnesses must see the testator sign. Take notethat in the 3rd par. of Art. 805. there is need to state in theattestation dause that the testator signed in the presenceof witnesses.Q: Stated differently, is the acknowledgment by the testator that the signature was affixed in the will is his, sufficient? Meaning that the witnesses see the will as already signed and the testator merely tells them that the signature already appearing thereon is his.A: No. His acknowledgment that the signature appearing on the contract is his is NOT sufficient. The law requires that the testator must sign in the presence of the witnesses.Q: If a delegate wrote the testator's name, must delegate signin the presence of the witnesses? A: Yes. Par. 3 Art. 805.Q: What must be stated in the attestation clause? A: (1) that the testator signed in all the pages; and(2) that the witnesses signed the will at the presence of each other(3) number of pages usedREVIEWER IN SUCCESSION

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Q: A will was signed on the left margin instead of at the bottom. Is the will valid?A: In Taboada v. Rosal. the will was valid although the signature which should be at the bottom appeared on the left margin.In Cagro v. Cagro, however, the signature of the witnesses on the last page at the left margin of the attestation without signature at the bottom is invalid because the signature does not show that the attestation is their act. Since the attestation clause is invalid, the will itself was invalidated.There was however a strong dissent in Cagro. It argued that there is no requirement of the law that the witnesses must sign at the bottom of the attestation clause.Q: Distinguish between Taboada and Cagro.A: Kayo na .ang bahala Jan. Signatures had different purposes. In Taboada, it was to authenticate. In Cagro to show the attestation clause as their act. Will »vas not the issue but the attestation clause.Q: Must the witnesses sign the will in presence of the testator? How will the attestation clause be written, separately of included in the body of he will?A: The law intends it to be a separate act (by the witnesses), but there is NO express requirement for a separate paper. !n Cuevas the court held that it might be included in the body of the will so that they have to sign at the bottom of the will. (Effect: Taboada is abrogated. However it may be written on a separate paper.)Q: May the witnesses put their thumb mark instead of theirsignature? A: It depends. If the reason for so doing is illiteracy, such isprohibited because a witness must know how to readand write. If the reason is that he is just unable to writeat that moment, it may be allowed.Q: May the witness request a delegate to sign for them? A: No. Unlike the testator, a witness cannot ask a delegate to sign for him.Q: Why?A: The general rule is that those whose signature are required must sign in their own hand. Since no specific exception has been mad with 'regard to witnesses, the general rule applies.Q: Should the witnesses know that it is a will that they are signing?A: Yes, Art. 805. They must know that testator executed a will. DLC says they need not actually see the provisions of the will though by the testator's acknowledgment, they know that it is a will.Q: How many witnesses?A: 3 or more credible witnesses.Q: What is the order of signing? Should the testator signbefore the witnesses or vice versa? A: There are 2 views -Page 29 of 2071. the strict view - the testator must be first; otherwise, the witnesses have nothing to attest there being no wiH existing until the testator signs.^ 2. the liberal view - as long as the act is completed in 170 continuous transaction, it is valid.~. DLC: the liberal view is better.<--. Q: May the witnesses attest then sign the will later? A: No. The law requires the presence of the testator.Q: Can the testator and the witnesses sign on differentoccasions? A: No. Signing by the testator and the witnesses must be donein 1 special continuous transaction. Otherwise thetestamentary capacity of the testator may have alreadyceased.Q: What if the testator and the witnesses are in 1 room. Then there is a brown-out. They all agree to sign the will "next time nalang." It is possible ?A: There is an implied requirement that the will is executed in one continuous transaction (meaning that there is no time gap between the signing and the attestation) Reasons for this implied requirement -1. to prevent substitution and2 so that the testator will remain to have testamentary capacity to execute a will.Q: What if the testator signed in the presence of the witnesses then, just as the witnesses were signing the will, the testator suffered a heart attack and convulsed on the floor?A: "Presence" refers no t only tot physical presence but also to consciousness of the testator. Here, the testator had lost consciousness.Q: What if the witnesses did not sign until the testator regainedconsciousness? A: It depends on the time it takes for the testator to recover. (Itmust be short enough to be considered as still onecontinuous transaction.3. each and every page• must contain the signatures of the testator and the witnesses.TOLENTINO:• Signing on the Margins - The law refers expressly to "page" and not to sheet or leaf or folio. A sheet has two pages, the front and the reverse. If both pages of the sheet or leaf are used, it is therefore necessary that both front and reverse sides should bear the signatures of the testator and of each of the witnesses.The signature of the testator alone on all the pages will not be enough, the law expressly requires also the signatures of the witnesses. The rule, however, should not be applied so strictly as to defeat the will of the testator. The correct interpretation and application of this requirement has been explained by the SC in a case. It held: "Synthesizing our opinion, we hold that in a will consisting of two sheets, the first of which contains all the testamentary

dispositions, and is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the bottomREVIEWER IN SUCCESSION

2007Aby three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses." In such a situation, the object of said requirement, to avoid Vie substitution of any of the sheets of the wM. is not compromised.Following this rule, it has been held that a will consisting of seven pages can be admitted to probate, if the first six pages are duly signed on the left hand margin, and the seventh page, which contains the final dispositions of the will and the attestation clause, is signed by the testator and the witnesses at the bottom, even if not signed by them at the left margin. And if every page has been signed by the testator and the witnesses, it is immaterial on what part of the page the signatures have been placed.JURADO:• Marginal Signatures - There are certain exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and the • witnesses. Such requirement is not necessary (a) in the last page, when the will consists of two or more pages; (b) when the will consists of one page; and (c) when the will consists of two pages, the first of which contains all the testamentary dispositions and the second contains only the attestation clause duly signed at the bottom by the witnesses.• Location of Signatures - The law requires that the signatures of the testator and the instrumental witnesses should be on the left margin of every page of the will except the last. According to the weight of authority, this requirement regarding the location of the marginal signatures is not mandatory in character, provided that such signatures are present in every page of the will, except the last.PARAS:• In the case of Estate of Tampoy v. Alberastine, it was held that "if through the inadvertence or negligence of one of the 3 witnesses, he forgets to sign on the third page of a 5-page will, but was able to sign on ajl the pages of the duplicate, the omission ought not be considered a fatal dfefect. Indeed, the impossibility of substitution of this page is assured not only by the fact that the T and the 2 other witnesses did sign the defective page, but also by bearing the coincident imprint of the seal of the notary public before whom the testament was ratified. The law should not be so strictly and literally interpreted as to penalize the T on account of the inadvertence of a single witness over whose conduct sha has no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses maysabotage the will by muddling ot bungling it at the attestation clause.MAGIC NOTES:Q: Where?A: On the left hand margin.Q: What if the signatures are on the right? Page 30 of 207A: Still valid. The reason behind the law is accomplished. Thus, the word "left" is merely directory, the word "margin" is mandatory.5?" Q: What if testator asked a delegate to sign his name, who willC: sing at the margins?—-* A: The delegate.'3=*--CS Q: How will the delegate sign?A: Art. 805 states "as aforesaid" meaning to say "in the same manner as before", hence, the delegate must sing in the same manner as he had signed i.e., in the name of the testator.Q: If all pages contain marginal signature but -1. only of the testator and not of the witnesses? A: VOID.2. only of the witnesses and not the testator? A: VOID.Q: "Except the last page" - why?A: Because they will already have signed the bottom of the last page, so marginal signatures are mere surplusage.Q: What is the purpose of marginal signatures?A: Marginal signatures authenticate each and every page and serve to identify the pages of the will. Hence, the last page need not contain marginal signatures because the signatures at the bottom thereof suffice to achieve this purpose.Q: If the will is composed oniyof 1 page. Must they sign on themargin? A: No. The signature at the bottom will suffice.Q: If the will is on a sheet of paper, back to back, will they haveto sign both sides? A: Yes, otherwise the will is void. Remember that the lawrequires signatures in each and every page, not leaf orsheet.Q: What if there are no marginal signatures? A: The will is VOID due to failure to comply with formal requirements.Remember: the case of Icasiano does not create an exception to the general rule that at least 4 signatures must appear on each and every page of the will. In Icasiano, ther.e were facts peculiar to it. There was involved a duplicate original with all the signatures present. Also, there was no evidence or

suggestion of fraud. Hence, Icasiano is no a doctrine but only applies to the set of facts involved therein.4. all pages must be numberedTOLENTINO:• Numbering of Pages - This must be done correlatively in letters. The purpose of this requirement is to afford a means for determining whether any sheet or page of the will has been removed. But, when all the dispositive parts of the will have been written on one page or sheet only, the object of the statute disappears, because the removal of the single sheet, althougn unnumbered, cannot be hidden; hence, such sheet need not be numbered. Furthermore, the law does not require that the sheetREVIEWER IN SUCCESSION

2007Acontaining nothing but the attestation clause, wholly on in part, be numbered or paged; consequently, the lack of paging on the attestation sheet does not take anything form the validity of the will, provided that the true number of pages is made clear in the attestation clause.The law requires that the paging be in letters, that is, "one, "two," "there," etc. However, any other form of writing the correlative number of the page is sufficient, provided the numbering used indicates the succession of pages and serves to prevent the loss of any of them.• Number of Pages - The purpose is to safeguard the document from the possibility of the interpolation of additional pages or the omission of some of the pages actually used. This point is also safeguarded by the other two requirements that the pages shall be consecutively lettered and that each page shall be signed on the left margin by the testator and the witnesses. In the light of these requirements, it is really difficult to see any practical necessity for the additional requirement that the attesting clause shall state the' number of sheets or pages used. Nevertheless, it thus affords additional security against tampering of the will. A failure to state in the attestation clause the number of pages or sheets used in the will renders such will null and void.It is not strictly required, however, that the number of pages must appear in the attestation clause only. Thus, where the attestation dause failed to state the number of pages, it was held sufficient for the acknowledgement clause to state the number of pages and the will had actually the number of pages stated.PARAS:• Even if the number of pages is not stated in the attestation clause, if the number of passed is put down somewhere else in the will, as long as no ebidence aliunde or extrinsic evidence is required, there is deemed a substantial compliance with the law.MAGIC NOTES:Q: Why?A: To prevent the suppression of pages.Q: How should they be numbered?A: Correlatively. SC construed this as "uniform relation".DLC: In relation to total, la letters with the numbersspelled out.Q: Where?A: At the upper part.Q: If it were placed at the bottom?A: Substantial compliance validates the will. What is mandatory is that the pages must be numbered.Q: If the pages were not numbered, what's the effect? A: General Rule—The wilLts void for failure to comply with the formal requirement. It is then mandatory for all pages to be numbered.Except:I. if will is only 1 page. Why? Because there can be no substitution nor suppression.Page 31 of 2072. if only attestation dause is on the unnumbered page and the clause contains the number of pages of the will.Q: How will you determine the number of pages of the will?A: This question can be answered only if we ask "Up to what page is the will? Up to the attestation clause or up to the page where the notary acknowledges?"Femandez v. Vergel de Dios states that it is up to the dispositive part only. But in this case the attestation clause was counted in the number of pages in the attestation dause. Hence, if not numbered, indude the page containing the attestation dause in the number of pages indicated in the attestation clause.Q: If a page of the will is missing, what is the effect? A: No probate. The probate is ALL or NOTHING. The missing page cannot be proven by parol evidence.5. attestation clause• This refers to a memorandum of facts certified by the witnesses dause.TOLENTINO:• Attestation Clause — Every ordinary will, or one that is not a holographic will, must have an attestation clause. An attestation dause is a memorandum of facts attending the execution off the will and is that part of the instrument wherein the witnesses certify that the instrument has been executed before them, and the manner of its execution. Since it is a declaration made by the witnesses and not by the testator, it need be signed only by the witnesses and not by the testator. The will is subscribed at the end thereof by the testator alone, while the attesting witnesses sign at the end of the attestation dause.

But even when the recital in the attestation clause appears to have been made by the testator himself in the first person, and not by the witnesses, there would still be a sufficient attestation clause if it contains all the facts required to be stated and is signed by all the witnesses together with the testator.The attestation clause duly signed is the best evidence as to date of signing.• Where Written - Ordinarily, the attestation dause is written immediately after the signature of the testator at the end of the will. However, the law does not require the attestation to be contained in a single dause. Thus, where a will did not contain a separate and independent attestation clause, but the concluding paragraph of the body of the will was written in the tenor of an attestation and the penultimate paragraph of the will stated the number of pages used, it was held that there was a sufficient attestation clause, even if such attestation was in the first person and signed by the testator, if it was likewise signed by the three instrumental witnesses.On the other hand, if there is a separate attestation clause, it need not be written on the very same page where the dispositions of the will end, even if there should be sufficient space to begin said clause.• Contents of Clause - The attestation clause must state the following:1. The number of pages used upon which the will is written;REVIEWER IN SUCCESSION

2007A2. That the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction and in his presence;3. That the signing by the testator, or by the person designated by him, was in the presence of the instrumental witnesses; and4. That the witnesses signed the will and every page thereof, in the presence of the testator and of each other. It is not required that the attestation clause muststate the number of the attending witnesses.JURADO:• Attestation Clause - There are three essential facts which must necessarily appear in the attestation clause in order that it will properly constitute a real certification by the instrumental witnesses that the formalities which are required by law in the execution of an ordinary will have been complied with. These essential facts are: a. The number of pages used upon which the will iswritten;b. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses; and c. The fact that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.• Effect of defects or imperfections - If the defect of the attestation clause goes in the very essence of the clause itself or consists in the omission of one, some, or all of the essential facts, which according to law, must be stated in such clause and such omission cannot be cured by an examination of the will itself, the defect is substantial in character and as a consequence, the will is invalidated.Ho-.vever, if the defects of the attestation clause do not go into the very essence of the clause itself or they consist in defects or imperfections in the form of the attestation or in the language used therein, such defects are merely formal in character, as a consequence of which the validity of the will is not affected, provided that it is provide that such will was in fact executed and attested in. substantial compliance with all the requirements of Art 805. This rule is sometimes known as the doctrine of liberal interpretation as distinguished form the doctrine of strict interpretation as embodied in Art 809 of the Code.• Language of the Attestation - If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. This rule is different from that which is required of the will itself because in the case of the latter the rule is that it must be executed in a language or dialect known to the testator.MAGIC NOTES:Q: What is the purpose of the attestation?A: To render proof of the authenticity and due execution of the will. To preserve in permanent form record of facts in case of failure of memory by witnesses.Page 32 of 207To preserve a record of the facts surrounding the circumstance behind the execution of the will so that later on, if the witnesses are too old or forgetful, they can refresh their memories by merely looking at the AC.Q: Whose act is it?A: It is a certification by the witnesses that the facts in the AC attended the execution of the will.Where a page contains no dispositions but only AC, it does not need marginal signatures because it is not part of the "will" (which ends with the logical end, i.e. the disposition part) but is nonetheless part of the will as a document because the AC is essential to the validity of the whole will.Q: May the witnesses attest then sign the AC at another time? A: The law is silent but the authorities say that it must be signed in 1 continuous transaction.Q: May the attestation clause be executed on a different day?

A: The law does not expressly provide. However, authorities are unanimous that it should be signed on the same day or occasion. Thus, all the requirements of Art. 805 must be complied with in the same occasion.Must witnesses sign? A: Yes.must testator? A: No as per Abangan v. Abangan.Q: How should the AC be written? How will the attestation clause be written, separately or included in the body of the will?A: The law intends it to be a separate act (by the witnesses) but there is NO express requirement for a separate paper. In Cuevas, the court held that it might be included in the body of the will so that they have to sign at the bottom of the will. (Effect: Taboada is abrogated. However, it may be written on a separate paper.)Q: Must the AC be written in a language known to thewitnesses? A: No. Art. 805 allows the attestation clause to be written in alanguage NOT KNOWN to the witnesses. Q: Must the testator know the language of the AC? A: No. the law requires no such thing. The AC is not the act ofthe testator.Q: Must the AC be written in the same language as the will? A: No there is no such requirement by the law.Q: What is the effect if AC is absent?A: The will is VOID under Art. 839 (1). Will is invalid.Q: What must the AC contain? All facts required by law. A: (1) number of pages of the will(2) That the testator signed the will(3) that the testator signed every page of the will(4) that the testator signed in the presence of all the witnesses(5) that the witnesses witnessed and signed the will and all the pages thereof(6) that the witnesses signed in the presence of the testatorREVIEWER IN SUCCESSION

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ri.rtiW.lt- IIIF-F(7) that the witnesses signed in the presence of one anotherQ: What are the additional terms which must be added tothe AC in case the testator requested a delegate? A:(1) that the testator requested a delegate(2) that the delegate wrote it under the express order of the testator(3) that the delegate wrote it in the presence of the testatorQ: Should delegate's name be indicated? A: No, there is no such requirement.Q: Is it required to be stated in the AC that the delegatesigned in the presence of the testator? A: No. While in Art. 805. par. 3 the delegate must sign inthe presence of the testator, it is not required that thisfact be included in the AC.Q: What is the effect if the AC fails to state any of those requirements?A: General Rule - The will is VOID under Art. 839.Exception - When Art. 809 applies (doctrine of liberal interpretation). This is to balance the interest of the law and the testator who has no control over the AC. Not that the substantial compliance applies to defect in form or language of the AC ONLY and NOT of the body of the will.Q: Must testator be present during the signing of the AC? A: Some writers say no, no reason. DLC says yes, for testator to make sure of the validity of the will.Q: A will was executed today but was NOT acknowledged today. After 1 month, the testator became insane. Six montns thereafter, the testator regained his sanity and acknowledged it before a notary public. Is the willA: Tne testator musl nave testamentary capacity at the time of tne acknowledgement.s. ,-ME

o/tntfQ: Before whom must the acknowledgment be done? A: Old rule - any person of known probity and integrity.//New rule - Only lawyers who had been commissioned by the SC. Testator must acknowledge the due execution of the will, the witnesses the attestation clause. To acknowledge is to admit as your own a judicial act. There is no need for the delegate therefore to acknowledge because he had done no : judicial act, just mechanical act.Q: May the testator and the witnesses acknowledge before *different lawyers/notaries? A: Caguioa—yes. There is no prohibition. Testator andwitnesses may acknowledge on different occasions.Q: Must the notary public be present during the singing of the will?A: There is no requirement in the law. Hence, they can sign even not in his presence and just acknowledge before him. The notary public however must be convinced that the document executed is a will. Only the testatorPage 33 of 207i -. WILLCM

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WJMI1and the witnesses must be present during the singing of the will.Q: Must notary read the wiH? A: No requirement.Q: What is the evidence of acknowledgement?A: The certificate of acknowledgment given by the notary.Q: Must the acknowledgment state the name of the testator and the witnesses?A: Normally, the notary public requires it. But in Calangan v. Arreva, the notary public forgot to state the name of the testator and the witnesses but the certification was led sufficient; the absence of the names will not affect the validity of the will.Q: Must the notary public prepare and sign on the same day itwas acknowledged? A: No as per Javellana v. Ledesma where the notary waspresent during the signing by the testator and thewitnesses but he himself singed it afterwards. Act ofnotary may be delayed.Q: Should the notary public sing in the presence of the testator and the witnesses?A: No again as per Javellana. There is no requirement in the law.Q: When is a will considered executed? The day it was signed by the testator or the day it was acknowledged?A: The day it was SIGNED is the day of the execution. However, it becomes perfectly valid on the day of acknowledgment but the date of execution retroacts to the date of the signing.Q: Is the acknowledgement an essential part of the will? A: YesQ: May the notary public be one of the witnesses?A: No as per Cruz v. Villasor since he cannot appear before_ himself and acknowledge his act.Q: May the delegate be the notary public?A: Yes, since there is no requirement in the law as to who will be the delegate. Moreover, the delegate need not acknowledge anything so that the prohibition in Cruz v. Villasor Is inapplicable.Q: What is the effect of the absence of the acknowledgement? A: The will shall be VOID. Art. 839 (1) and Garcia v. Lacuesta.: Will the absence of documentary stamp invalidate the will?: No. *-NIKC teoweS twvwiitfrWM ^M1" H\* w if it fc£ACMI«f ifM-E IN: Can the will in this case be presented for probate despite the absence of documentary stamp ?: No. However, the stamp may be affixed thereto as per Gapucan v. Mania, after which the will becomes admissible in evidence. (Note that the reason is not for want of an essential requirement but that rules on evidence require documentary stamp in order for the will to be admissible.)Q: Must the notary public retain a copy of the will?REVIEWER IN SUCCESSION

2007Afc EVfffW»M ^T i THftTee\AHTA: No. Art 806. The testator may wish to keep secret the contents thereof to provide security. However, if the testator aBowed the notary to keep a copy of the will. this is permissible.Matias v. SaludThe deceased executed a win in the presence of the three witnesses. The document is comprised of 3 pages On the lower half of the 2"" page preceding the attestation clause appears the signature of the testatrix. Alongside it was a smudge in violet ink with blurred ridge lines, claimed by proponents to be the thumb mark of the testatrix. There were signatures on the left margin of each page, as stated in the attestation clause on the 3* page. On the upper part of each page's left margin appeared a violet ink smudge similar n texture to the one previously described, accompanied with the written words "Gabina Raquel" and underneath said name, "by Lourdes Samonte." Proponents submitted evidence that the will was drafted by the lawyer and that the testatrix thumb marked the foot of the will and left margin of each page. It was also signed by the decedent only on the lower half of the 2M page as she dropped the lawyer's pen. complaining of pain. After seeing that the testatrix could no longer proceed, the lawyer instructed Samonte to write "Gabina Raquel by Lourdes Samonte" next to each thumb mark.HELD: The legal requisite that the will shall be signed by the testator is satisfied by a thumb print or other mark affixed by him, and that where such mark is fixed by the decedent, it is unnecessary to state in the attestation clause that another person write the testator's name at his request. While in some cases, the signing by mark was desctibed in the attestation clause, it does not appear that the court ever held that the absence of such description is fatal defect.The failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponents fully satisfies the court that the will was executed and witnesses as required by law.____Garcia v. Lacuesta (1951)A will was written by Mercado in the llocano dialect and it contained the following attestation: "We, the undersigned, by these presents do declare that the foregoing statement of Antero Mercado was signed by himself and also by us below his name and of this attestation clause and that of the left margin of the 3 pages thereof, page 3 being the continuation of this attestation clause; the will is written in the llocano dialect which is spoken and understood by the

testator, and it bears the corresponding number in letters which composes 3 pages, and all of them were signed in the presence of the testator and of each other..."The will appeared to have been signed by Atty. Javier who wrote the name of Mercado followed by "a ruego del testado" (at the request of the testator) and the name of Javier. Mercado allegedly wrote a cross immediately after his name CFI held that the recital of the attestation clause was sufficient. CA reversed. Hence this.HELD: The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Javier to write the testator's name under his express direction as required by the law. The herein petitioner argues that there is no need for such recital because the cross written by the testator after his nqme is sufficient and the signature of Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumb mark, the latter having been held sufficient by this court in Dela Gala v. Gonza/es, among others._________________________Where the cross appearing in a will is not the usual signature of the testator or even one of the may ways by which he signed his name, that cross cannot be considered a valid signature._________________Balonan v. Abellana (1960)The last will and testament that's sought to be probated is written in Sapnish and consisting of 2 pages which are typewritten. The 1* page is signed by uan Bello and under his name appears typewritten "For la testatodora Anacteta Abellana, xxx" and there appears in the left margin the signature of 3 instrumental witnesses. On the second page, there are the signatures of the witnesses too. and on the left margin again appears the handwritten phrase: "For la testadora anacleta Abellana". The will was duly acknowledged before a notary public.HELD: Art. 805 provides that "every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some person in his presence, xxx"As held in Ex Parte Pedro Arcenas: "Where the testator does not know how, or is unable to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, but it is necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. E.g. "John Doe by the testator. Richard Roe", or "By the testator John Doe. Richard Doe.'In the case at bar. the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is therefore a failure to comply with the express requirement in the law that the testator himself sing the will, or that his name be affixed thereto by some other person in his presence and by his express direction.___________Nera v. Rimando (1911)When the will was being executed by the testator and the subscribing witnesses. 1 of the witnesses was outside the room, some 8 or 10 feet away, m a large room connected with the smaller room by a doorway, across which was hung a curtain which made it impossible for 1 in the outside room to see the testator and the other witnesses in the act of attaching {heir signatures.HELD: The will was duly executed. The true test of presence of the testator and the witnesses in the execution of the will is not whether they actually saw each other sign, but whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature.___________Page 34 of 207Taboada v. Rosal (1982)The deceased left a will, written in the Cebuano language, which consisted of 2 pages. The 1s1 page contains the entire testamentary dispositions and is singed at the end or bottom of the page by the testatrix alone and at the left margin by the 3 instrumental witnesses. The 2"° page which contains the attestation clause and the acknowledgment is signed at the end of the attestation clause by the 3 witnesses and the left hand marginREVIEWER IN SUCCESSION

2007Aby the testator. The attestation clause failed to state the number of pages of the will, although the acknowledgment stated that the will consists of 2 pages.HELD: Art. 805 uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the law requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator.In this case, the will was subscribed in a manner which fully satisfies the purpose of identification. The signature of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testator but also the due execution of the will as embodied in the attestation clause. Though the witnesses did not sign the end of the will, their signatures at the left margin of the 1st page were sufficient for them to subscribe the will.Though the defect in the AC is normally fatal, in this case it would not invalidate the will, since it is discernible from the entire will that it really consists of 2 pages duly signed by the testator and the 3 witnesses.

Icasiano v. Icasiano (1964)The original of the will consisted of 3 pages, signed at the end and in every page by the witnesses, except for the 3rd page which does not contain the signature of one of the attesting witnesses. The duplicate copy attached to the petition for probate was signed by the testatrix and her 3 attesting witnesses in each and every page. The witness testified on his failure to sign page 3 of the original admitting that he may have lifted 2 pages instead of 1 when he signed the same, but affirmed that page 3 was signed in his presence.HELD: The inadvertent failure of 1 witness to affix his signature to 1 page of a testament, due to the simultaneous lifting of 2 pages in the course of signing is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only by the fact that the testatrix and 2 other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the document was ratified by the testatrix and the 3 witnesses. The should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the will by muddling or bungling it or the AC.That failure of witness Natividad to sing page 3 was entirely through pure oversight, is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in page 3. The text of the AC and the acknowledgment before the notary public likewise evidence that no one was aware of the defect at the time.Caqro v. Caqro (1953)The attestation clause was not signed by the attesting witnesses, although the page containing the same was signed by the witnesses on the (eft-hand margin.HELD: The will is fatally defective because the AC was not signed by the witnesses. The AC is a memorandum of the facts attending to the execution of the will, required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned AC cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.Baustists Angeto, dissenting:I dissent. In my opinion the will in question has complied with the formalities of the law and therefore, should be admitted to probate. While the 3 instrumental witnesses did not sign immediately after the AC, the fear entertained by the majority that ;t may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of the witnesses to the effect that such AC was already written in the will when the same was signed.Tuason, J, dissenting:I concur with J. Bautista's dissent and may I add that the majority decision erroneously sets down as a fact that the AC was not signed. When the witnesses' signatures appear on the left-hand margin and the real and only reason is whether such signatures are legally sufficient.The only answer is yes. The law on will does not provide that the attesting witness should sing the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are no good._____________________Cruz v. vlllasor (1973)Appellant Agapita Cruz, the surviving widow of deceased Valenle. opposes the probate of the latter's will on the ground that it was executed through fraud, deceit, misrepresentation and undue influence, and that the instrument was executed without the testator having been fully informed of the contents thereof. The issue is WON the requirement of at least 3 witnesses to attest and subscribe to the will, and the requirement that the testator and the witnesses acknowledge the will before a notary, were complied with.HELD: No. It appears that one of the instrumental witnesses to the will is a notary public. The appellant is correct in saying that the last will and testament was 'not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow, to own, to assert, to admit; and "before" means in front of. Consequently, if the 3rd witness happens to be the notary public himself, he would have to avow, assert and admit his having signed the will in front of himself. This cannot be done.Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of his own act.To allow the notary public to act as third witness, or one of the attesting or acknowledging witnesses, would have (he effect of having only 2 witnesses to the will, whichPage 35 of 207REVIEWER IN SUCCESSION

2007Aby the testator. The attestation clause failed to state the number of pages of the will, although the acknowledgment stated that the will consists of 2 pages.HELD: Art. 805 uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the law requires for the execution

of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator.In this case, the will was subscribed in a manner which fully satisfies the purpose of identification. The signature of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testator but also the due execution of the will as embodied in the attestation clause. Though the witnesses did not sign the end of the will, their signatures at the left margin of the 1st page were sufficient for them to subscribe the will.Though the defect in the AC is normally fatal, in this case it would not invalidate the will, since it is discernible from the entire will that it really consists of 2 pages duly signed by the testator and the 3 witnesses.Icasiano v. Icasiano (1964)The original of the will consisted of 3 pages, signed at the end and in every page by the witnesses, except for the 3rd page which does not contain the signature of one of the attesting witnesses. The duplicate copy attached to the petition for probate was signed by the testatrix and her 3 attesting witnesses in each and every page. The witness testified on his failure to sign page 3 of the original admitting that he may have lifted 2 pages instead of 1 when he signed the same, but affirmed that page 3 was signed in his presence.HELD: The inadvertent failure of 1 witness to affix his signature to 1 page of a testament, due to the simultaneous lifting of 2 pages in the course of signing is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only by the fact that the testatrix and 2 other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the document was ratified by the testatrix and the 3 witnesses. The should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the will by muddling or bungling it or the AC.That failure of witness Natividad to sing page 3 was entirely through pure oversight, is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in page 3. The text of the AC and the acknowledgment before the notary public likewise evidence that no one was aware of the defect at the time.Caqro v. Caqro (1953)The attestation clause was not signed by the attesting witnesses, although the page containing the same was signed by the witnesses on the (eft-hand margin.HELD: The will is fatally defective because the AC was not signed by the witnesses. The AC is a memorandum of the facts attending to the execution of the will, required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned AC cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.Baustists Angeto, dissenting:I dissent. In my opinion the will in question has complied with the formalities of the law and therefore, should be admitted to probate. While the 3 instrumental witnesses did not sign immediately after the AC, the fear entertained by the majority that ;t may have been only added on a subsequent occasion and not at the signing of the will, has been obviated by the uncontradicted testimony of the witnesses to the effect that such AC was already written in the will when the same was signed.Tuason, J, dissenting:I concur with J. Bautista's dissent and may I add that the majority decision erroneously sets down as a fact that the AC was not signed. When the witnesses' signatures appear on the left-hand margin and the real and only reason is whether such signatures are legally sufficient.The only answer is yes. The law on will does not provide that the attesting witness should sing the clause at the bottom. In the absence of such provision, there is no reason why signatures on the margin are no good._____________________Cruz v. vlllasor (1973)Appellant Agapita Cruz, the surviving widow of deceased Valenle. opposes the probate of the latter's will on the ground that it was executed through fraud, deceit, misrepresentation and undue influence, and that the instrument was executed without the testator having been fully informed of the contents thereof. The issue is WON the requirement of at least 3 witnesses to attest and subscribe to the will, and the requirement that the testator and the witnesses acknowledge the will before a notary, were complied with.HELD: No. It appears that one of the instrumental witnesses to the will is a notary public. The appellant is correct in saying that the last will and testament was 'not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow, to own, to assert, to admit; and "before" means in front of. Consequently, if the 3rd witness happens to be the notary public himself, he would have to avow, assert and admit his having signed the will in front of himself. This cannot be done.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangements. That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of his own act.To allow the notary public to act as third witness, or one of the attesting or acknowledging witnesses, would have (he effect of having only 2 witnesses to the will, whichPage 35 of 207REVIEWER IN SUCCESSION

2007ATH6CE "* •fffil^*'would be in contravention of the provisions of Art. 805, requiring at least 3 credible witnesses to act as such, and of Art. 806. which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will.________________Gabucan v. Manta (1980)The CFI dismissed a petition for probate on a will, on the ground that the requisite documentary stamp was not affixed to the notarial acknowledgment in the wiH, and thus it was inadmissible in evidence.HELD: What the probate court could have done was to require the proponent to affix the requisite 30 centavo documentary stamp to the notarial acknowledgment of the will. The lack of documentary stamp does not invalidate the will._________________Javellana v. Led-isma (1955)The will was opposed on the ground that the will was not executed by the testatrix in the presence of the witnesses and that the acknowledgement clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses.HELD: The testimony of the witnesses proves that the testatrix executed tiie will in their presence.After the parties signed the will before the notary public, the notary public allegedly brought eh codicil to his office and singed and sealed it there. Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the will. The CC does not require that the signing of the testator, witnesses and notary public should be accomplished in 1 single act. All that is required is that every will must be acknowledged before a notary public by the testator and the witnesses. The subsequent signing and sealing by the notary public of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. In fact, the law does not require the testator and the witnesses to acknowledge the will on the same day or occasion that it was executed._________c. special requirements.ART 807. If the testator be deaf or a deaf-mute, he must personally red the will, if able to do so; otherwise, he shall designate 2 persons to read it and communicate to him. in some practicable manner, the contents thereof.• DLC - the 2 wiH help each other in sign language. Deaf-mute difficult to teach to read and write. The 2 persons mentioned can be witnesses or the notarpy public (if present during the execution).ART 808. If the testator is blind, the will shall be read to him twice: once by one of the subscribing witnesses, and again by the notary public before/ whom the will is acknowledged.___________TOLENTINO:• The reason for the requirement in this article is to make the provisions of the will known to the testator so that he may be able to object if they are not in accordance with his wishes. Failure to comply with this requirement makes the will invalid. .'• From the point of view of understanding or knowing the contents of the will, there is no difference between the illiterate and the blind testator. Therefore, the provisions of the present article should also be applied to an illiterate testator.MAGIC NOTES:Q: The requirements imposed for the validity of the will underArts. 805 and 806 presuppose that the testator is normal.How about when he is handicapped, may he execute awiH? A: yes. He is not prohibited by law. However, since he ishandicapped, he is susceptible of being a victim of fraudso that the law requires additional requirements (to protectliim).Q: The law, in Art. 807 mentions only a deaf-mute, what if he is only mute but not deaf, does Art. 807 apply?A: DLC—it seems not.Note: In Gara'a v. Vasquez, the testator need not be totally blind. In this case, the testator can only see from afar. Hence, under Art. 808, you do not need to lose your eyesight in order to be legally blind. In fact, even an illiterate is covered.Q: Must the testator sing only after 2 readings? A: The law -s silent. DLC—He cannot sign until both readings are over. But there is no requirement.^ IF ii.l-Vt6p.ATE - tVE CmJl RFW - HE K 6UND - JTrtVIE \JG\CGarcia v. Vasquez (1970)The testatrix had cataracts in her eye and was suffering from glaucoma, a disease that leads to blindness, when she executed her will. According to her ophthalmologist, her vision remained mainly for viewing distant objects and nor tor reading print. She was incapable of reading because of her eye condition.

HELD: For all intents and purposes, the testatrix was like a blind testator. The -due execution of the will therefore required observance of Art 808, that the will be read to her twice, once by the subscribing witness and again by the notary public. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself, it to may the provisions thereof known to him, so that he may be able to object if they were not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus, making them truly reflective of his desire, is evidenced by the requirement that the will should be read io the latter, not only once but twice, by two different persons, and that the witnesses have to act within the range of the testator's other senses. __________________Alvarado v. Gaviola (1993)ff lifTHfJHThe lawyer who drafted Alvarado's "Muling Habilin" read the will and the codicil aloud in the presence of the testator, the 3 instrumental witnesses, and the notary public. On both instances. the latter 4 followed the reading with their own furnished copiesREVIEWER IN SUCCESSION

2007AHELD: "Poor/ defective/ blurred" vision come within the concept of "BLIND." With 4 persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents._________________d. substantial complianceART 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and tested in substantial compliance with all the requirements of Art. 805.TOLENTINO:• If the testator, in executing his will, attempts to comply with any requisite although the compliance is not literal it will be sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. This is the rule of substantial compliance in the execution of the will.• The law on the formal requirements of a will should be liberally construed; while perfection in writing is desirable, unsubstantial departures should be ignored, as long as the possibility of fraud and bad faith are obviated.• The present article states the rule of substantial compliance with respect to the AC. The imperfections of the AC may either be in the language or form thereof.• Grammatical errors which may be noted from the general tenor of the AC must be overlooked or corrected by construction so as not to frustrate the recognized intention of those who intervened in the execution thereof. Where it is evident that upon reading the AC, it is apparent at first sight that in its drafting there were omissions incurred which reason and common sense can supply without altering or changing the intention of the testator and of the 3 witnesses, the AC must be considered sufficient.• An attestation dause will be held sufficient, notwithstanding some imperfections in the grammatical constructions, where it is evident that the defect is due to carelessness of the clerk or to lack of mastery of the language is the meaning sought to be conveyed can be determined form the clause itself. An AC may be so inartistically drawn that, standing alone, it may not meet the requirements of the statute, but if, when taken in connection with the last clause of the body of the will, it is fairly clear and sufficiently carries out the legislative intent, it will be held sufficient. In order to determine whether or not an AC has complied with the requirements of the law, the whole language of the clause must be taken together, and the portion thereof drawn in question must be read and construed in connection with the rest of the clause. And where there is a possibility that the testator or the person who prepared the will had relied upon a ruling laid down in a case by the SC, it would be unfair to reject the will, when in its preparation such ailing was followed.• The rule of substantial compliance has been appfeed to the extent that it has been held that the AC need not be an independent portion of the will; it may be contained in the body of the will itself, expressed in the 1* person as a recital of a testator, provided that it is also signed by the 3 instrumental witnesses.• In determining whether the statements made in the AC complies substantially with what the law requires, the correct rule is that omissions which can be supplied by an examination of the will itself without resorting to extrinsic evidence, will not be fatal; but omissions which cannot be supplied except by presenting evidence aliunde will invalidate the AC.' MAGIC NOTES: Q: Example of instances where there is substantialcompliance? A: e.g. right marginal signatures, page numbered in Arabic (notroman) form, page numbers at the bottom (not on top) ofpage.Q: / ell the requirements are substantially complied with, whatis the effect of a defect in the AC? A: It does NOT nullify the will nor make it VOID (Art. 809) aslong as all the parameters are complied with—1. absence of bad faith2. No forgery

3. no fraud4. no undue influence5. the will was in fact executed in substantial compliance with the lawQ: If there is no defect in the AC hut the will does not strictly comply with the requirements of the law (e.g. AC states that the signature is at the left margin but is actuatfy on the right) what is the effect on the will?A: Substantial compliance is sufficient if the AC is defective or imperfect. It saves will from invalidity.Q: What if the AC is perfect, is not substantial compliance enough instead of strict compliance? Stated differently, suppose AC is not defective but the will does not strictly comply with Art. 805 nor 806? Can we apply substantial compliance?A: Yes. Why? If substantial compliance is applicable if the AC is imperfect, what more when the AC is perfect? But not under Art. 809 though.Q: When one of the things required to be stated in the AC is missing, is it a defect in form or language?A: "Form" refers to the way the will was executed. E.g. the AC was not written separately from the body but was embodied in the will."Language", if meaning of the words in the clauses are ambiguous. E.g. Rey v. Cartagena: the testator signed each and every page of the will in the presence of the witnesses and the witnesses also signed in the presence of the testator and of one another. However, the AC failed to show that the witnesses signed each and every page of the will, the court held that there is no defect because the word "also" means that the witnesses signed in the same manner as the testator.Q: How about an absolute omission?Page 37 of 207REVIEWER IN SUCCESSION

2007AA: An omission is neither a defect in form or language. Hence, Art. 809 does not apply and the wilt is void.Q: What is the test in applying Art. 809?A: Jurado - An absolute omission of something needed to be stated in the AC is neither a defect in form nor a defect in language because the defect is substantial. Hence, Art. 809 is inapplicable.JBLReyes - The rule in Art. 809 is broad that no matter how imperfect the AC is, the same could be cured by evidence aliunde. It thus renders the attestation of no value in protecting against fraud or a defective execution. The rule then must be limited to disregarding those defects that can be supplied by an examination of the will itself—whether all the pages thereof are consecutively numbered; whether the signatures appear on each and every page; whether the subscribing witnesses are 3 or the will was not notarized. All these are facts that the will itself can reveal, and defects or even omission concerning them in the AC can safely be disregarded. But the total number of pages and whether all persons required to sign did so in the presence of each other must substantially appear in the AC, being the only check against perjury in the probate proceedings.The point of JBLReyes is - Art. 809 is applicable although the following terms are absent in the AC but can be seen from the will:1. whether all the pages are consecutively numbered2. whether the signatures appear on each and every page3. whether the witnesses are 3 or more4. whether the will has been notarized.But if those things which are required to be stated in the AC cannot be seen from an Examination of the will, the will is invalid and Art. 809 is inapplicable. These things include the following:1. total number of pages2. fact that the testator and the witnesses signed inthe presence of each other.DLC - mukhang maW si JBL Jan! If we allow this, then the AC can be disregarded altogether. Suppose the original will was signed by only 2 witnesses and such was stated in the AC. Subsequently, someone who knew the law wanted to make the witnesses 3 and by himself signed each as the 3rd

witness. Who will know which to rely on - the AC or the 3 signatures'. What if instead of stating that (here were 2 witnesses who singed the will, the AC completely omitted referring to the number of the witnesses, how pronounced will the problem be in such case, anyone can just add this signature as witness on the will.Q: In the AC, the phrase "have been signed by the testator" was missing, what is the status of the will?A: In the case of Gil v. Murciano, the SC in its 1st decision (penned by J. Hugo), invalidated the will. According to the court, an omission is not covered by Art. 809. "Where shall we stop supplying what is lacking in the AC?" he court did not apply the doctrine of substantial compliance. Justice Tuazon registered a dissent.On the MR however, the SC revred itself and adopted the dissent of J. Tuazon. This was made possible by the fact that the composition of the courtPage 38 of 207 , .-, IT-vr

then had changed. J. Tuazon stated just where to stop supplying what is laking in the AC. He quoted the opinion of JBLReyes as abovementioned and concluded that omissions which can be supplied by the will may be forgiven.Defect in the form of language of the AC covers all kinds of defects, including omissions, but despite such defect, it can be saved from nullity if it can be shown that there is substantial compliance with the requirements by merely looking at the will itself.

Evidence aliunde is inadmissible. Evidence must be sought only from the 4 comers of the will.Illustration: Attestation Clause Defect in form — substantial compliance + Art. 809 = valid(parol evidence admissible) Defect in Language — subst'l compliance + Art. 809 =valid(parol evidence admissible)Omissions ——— substantial compliance + Art. 809 = valid (parol evidence NOT admissible)DLC -1 agree with J. Hugo's decision in the case of Gil. 1) The defect must only be in form and language and 2) no omissions must be present. If we follow Justices JBL and Tuazon, then we wouldn't have nay need for the AC. The floodgates to fraud will then be opened.Gil v. Murciano (1951)The original of the will was submitted for probate. But before it came up for probate, it was destroyed by fire. The parties submitted an agreed statement of facts in which the will was reproduced as copied in the record on appeal in another case. The oppositors contend that the will is invalid since the AC did not state that the testator signed the will; it only declared that it was signed by the witnesses.HELD: The failure to state that the testator signed the will is a fatal defect for the precise purpose of the AC is to certify that the testator signed the will, this being the most essential element of the clause, without it, there is no attestation at all.In adopting a liberal construction of the will, evidence aiiunde is not allowed to fill the void or supply missing details. What is permitted is a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the required formalities of the law.Reconsideration: The trend has been towards a liberal interpretation at to the formalities in the execution of wills. It has been held that the object of the solemnities surrounding the execution of will is to close the door against bad faith and fraud, and to avoid substitution of will and to guarantee their truth and authenticity. Therefore the laws should be interpreted in such a way as to attain their primordial ends. But also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assumes such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded.In this case, genuineness of the execution is admitted by the adverse party and there is not the slightestREVIEWER IN SUCCESSION

2007Ainsinuation of undue pressure, mental incapacity of the testator or fraud.There is no practical reason for objecting that he singed the will in the presence of the latter. The will of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose for the intervention of witnesses is to make certain that the testator has definite and complete intention to pass his property and to prevent, as far as possible any chance of substitution on instrument fro another, what better guaranty of genuineness can there be than a certification by the testator himself on the body of the will so long as the testator's signature is duly authenticated?Caneda v. Cam (1993)Attestation clause does not expressly state that witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.HELD: Defect is fatal. Since attestation involves a mental act, there is no means of ascertaining by a physical examination of the will, whether the* witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.Cuevas v. AchacosoThe AC was made by the testator more than by the attesting witnesses. The AC contained the following: 'In witness whereof, I sign this testament xxx in the presence of the 3 witnesses, xxx I hereby manifest that every sheet of the aforesaid testament xxx has been singed by me as also each of the witnesses has also signed in my presence and in the presence of each other." (Sgd.) Testator, Witnesses: (Sgd.) A; (Sgd.) B; (Sgd.) C.HELD: The object of solemnities surrounding the execution of will is to close the door against bad faith and fraud, to avoid substitution of wills and to guarantee their truth and authenticity. Therefore the laws on these subjects should be interpreted in such a way as to attain their primordial ends. But on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when the interpretation already given ensures such ends, any other interpretation that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators will must be disregarded.In the case at bar. the apparent anomaly of the attestation made by the testator himself more that by the instrumental witnesses is not serious nor substantial, it appearing that right under the signature of the testator there appears the signatures of the 3 instrumental witnesses. This shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the AC.6. witnesses to willsa. who are competent

ART 820. Any person of sound mind and of the age of 18 years or mote, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Art. 805 of this Code.Page 39 of 207TOLENTINO:• The witness referred to in this and the succeeding articlesare those of ordinary wills: holographic will need not bewitnessed.ART 821. The ff. are disqualified form being witnesses to a will:(1) Any person not domiciled in the Philippines;(2) Those who have been convicted of falsification of a document, perjury or false _____testimony.________________________TOLENTINO:• The law requires that the witness be domiciled in the Philippines. Mere residence is not enough.• Foreign Wills - Domicile of witnesses in the Philippines is required only for will executed in the Philippines. One who is not domiciled in the Philippines is disqualified to be a witness because it is likely that when the will is presented_, for probate he will not be available as a witness in the Philippines. Another reason is that a witness domiciled in'- the Philippines is more likely to know the testator and to be able to testify on his mental condition when this is put in issue during probate.When the will is executed in a foreign country, however, it seems absurd to require thai the witnesses be domiciled in the Philippines, under the old CC it was expressly provided that domicile of witnesses in the Philippines was not required in will executed in a foreign country. It is reasonable to apply the same rule now.• No particular citi/ensfvp is required for witnesses to wills.• A witness is disqualified when he has been convicted of falsification of a document, perjury or false testimony. It is presumed that such witness cannot be relied upon for truthfulness Conviction for any other crime, however, is not a disqualification.• The notary public before whom the will was acknowledged cannot be considered as the 3rd instrumental witness since he cannot acknowledge before h-mself having signed the willART 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will.______MAGIC NOTES: *X3: Who may be witnesses?A: Those persons who are qualified and not disqualified."who are competent (art. 820, 82 1 , 824) Q: Who are qualified? A: According to Art. 820. any person:1. of sound mind -ICE^'N (KLeiMnw»}2. of the age of 1 8 years old or more and3. not blind and -CAPABLE cr ftEAdriG4. able to read and writemay be witnesses in the execution of a will according in Art. 805.t£Af -Q: Who are disqualified?A: According to Art. 821. the ff. are disqualified from beingwitnesses to a will:1. any person not domiciled in the Phils.REVIEWER IN SUCCESSION

2007Ainsinuation of undue pressure, mental incapacity of the testator or fraud.There is no practical reason for objecting that he singed the will in the presence of the latter. The will of the testator's own making, the intervention of attesting witnesses being designed merely to protect his interest. If the sole purpose for the intervention of witnesses is to make certain that the testator has definite and complete intention to pass his property and to prevent, as far as possible any chance of substitution on instrument fro another, what better guaranty of genuineness can there be than a certification by the testator himself on the body of the will so long as the testator's signature is duly authenticated?Caneda v. Cam (1993)Attestation clause does not expressly state that witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.HELD: Defect is fatal. Since attestation involves a mental act, there is no means of ascertaining by a physical examination of the will, whether the* witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation.Cuevas v. AchacosoThe AC was made by the testator more than by the attesting witnesses. The AC contained the following: 'In witness whereof, I sign this testament xxx in the presence of the 3 witnesses, xxx I hereby manifest that every sheet of the aforesaid testament xxx has been singed by me as also each of the witnesses has also signed in my presence and in the presence of each other." (Sgd.) Testator, Witnesses: (Sgd.) A; (Sgd.) B; (Sgd.) C.HELD: The object of solemnities surrounding the execution of will is to close the door against bad faith and fraud, to avoid substitution of wills and to guarantee their truth and authenticity. Therefore the laws on these subjects should be interpreted in such a way as to attain their primordial ends. But on the other hand, one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when

the interpretation already given ensures such ends, any other interpretation that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testators will must be disregarded.In the case at bar. the apparent anomaly of the attestation made by the testator himself more that by the instrumental witnesses is not serious nor substantial, it appearing that right under the signature of the testator there appears the signatures of the 3 instrumental witnesses. This shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the AC.6. witnesses to willsa. who are competentART 820. Any person of sound mind and of the age of 18 years or mote, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Art. 805 of this Code.Page 39 of 207TOLENTINO:• The witness referred to in this and the succeeding articlesare those of ordinary wills: holographic will need not bewitnessed.ART 821. The ff. are disqualified form being witnesses to a will:(1) Any person not domiciled in the Philippines;(2) Those who have been convicted of falsification of a document, perjury or false _____testimony.________________________TOLENTINO:• The law requires that the witness be domiciled in the Philippines. Mere residence is not enough.• Foreign Wills - Domicile of witnesses in the Philippines is required only for will executed in the Philippines. One who is not domiciled in the Philippines is disqualified to be a witness because it is likely that when the will is presented_, for probate he will not be available as a witness in the Philippines. Another reason is that a witness domiciled in'- the Philippines is more likely to know the testator and to be able to testify on his mental condition when this is put in issue during probate.When the will is executed in a foreign country, however, it seems absurd to require thai the witnesses be domiciled in the Philippines, under the old CC it was expressly provided that domicile of witnesses in the Philippines was not required in will executed in a foreign country. It is reasonable to apply the same rule now.• No particular citi/ensfvp is required for witnesses to wills.• A witness is disqualified when he has been convicted of falsification of a document, perjury or false testimony. It is presumed that such witness cannot be relied upon for truthfulness Conviction for any other crime, however, is not a disqualification.• The notary public before whom the will was acknowledged cannot be considered as the 3rd instrumental witness since he cannot acknowledge before h-mself having signed the willART 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will.______MAGIC NOTES: *X3: Who may be witnesses?A: Those persons who are qualified and not disqualified."who are competent (art. 820, 82 1 , 824) Q: Who are qualified? A: According to Art. 820. any person:1. of sound mind -ICE^'N (KLeiMnw»}2. of the age of 1 8 years old or more and3. not blind and -CAPABLE cr ftEAdriG4. able to read and writemay be witnesses in the execution of a will according in Art. 805.t£Af -Q: Who are disqualified?A: According to Art. 821. the ff. are disqualified from beingwitnesses to a will:1. any person not domiciled in the Phils.REVIEWER IN SUCCESSION

2007A2. ThosE who have been convicted of falsification of a document, perjury or false testimony.QualificationsIs soundness of mind of the witness the same as soundness of mind required of the testator?A: NO. In Art. 799, to be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken and unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of the making of the will to know(1) the nature of the estate to be disposed of(2) the proper objects of his bounty(3) the character of the testamentary act.With regard to the requirement of soundness of mind of the witness, there's no rulein the Code. Perhaps a person is of sound mind and qualified if(1) he has control over his faculties necessary to observe tha execution of the will(2) to comprehend what he observed(3) to testify what he observed and comprehended.

As long as he is competent under the ROC, he maybe said to be of sound mindArt. 820 speaks of the general rule, while Art. 799 is the exception and if it was eradicated the general rule applies.</Q: Why should a witness be of sound mind? A: To be credible.//Q: Why 18 years of age?A: A 10 yr. old boy's testimony may be doubtful as to whether he can remember what he witnessed.//Q: Why can't a blind, a deaf/dumb or illiterate person be awitness?A: If blind, how can he see or observe the execution of the will. If deaf/dumb, while he can see, he cannot testify in court. He cannot recount to the court the events that transpired during the execution of the will. Besides, it's in the ROC that he can't testify. If illiterate, he will not be able to sign and his signature is required on all pages of the will. It will not be unlikely that he will not be able to testify. Re: illiterates, the attitude of society is to treat them as idiots and tience no credibility.Disqualifications i% '21 /. 1. Domiciled<n3: When is he considered domiciled? A: The domicile of natural persons is the place of their habitual residence (Art. 50, CC).vQ: What is meant by habitual residence? A: This is a matter of intention (animus revertendi).VQ: Why are persons not domiciled in the Phils, disqualifiedto be witnesses?A: Factor of availability. Chances that if he's a resident, he'd be available is greater. Those not domiciled may not be available to testify at the probate and service of processes difficult. Besidnes, he may not be familiar with the testator's practices or laws of the testator.Page 40 of 207Seer,E'. -THK turn wifCC , K it? At THE mu. u(ftf \fl\n )W wHftr it wirtjEK a IN -me Prtiw tt rttf TIME Oftf mil. RiAt At THE TIMEMoreover, the court can't compel him by means of subpoena (this part not sure) and since his testimony is essential espetiaty when the will is contested, the reason of the law in requiring witnesses is defeated. DLC disagrees because those domiciled here can still leave the country.fa. If a Filipino executes a notarial will in a foreign country, mayhe observe Phil, law?A: No. because there is no law authorizing him to use Phil, law. BUT, DLC is of the opinion that if we don't allow him to do so, a foreigner will be at a more advantageous position because a foreigner can observe Phil, law in executing his will abroad.Generally there's nothing stopping him from doing so But there's a problem as to how it will be witnesses by people domiciled in the Phils.According to Tolentino, it would be absurd to require that the witnesses be domiciled in the Phils. Under the old CC, it was expressly provided that the domicile of witnesses in the Phils, wasn't required in wills executed in a foreign country. According to him, though there's no provision like that in the new CC, it's reasonable to apply the old CC rule now.According to Caguioa, ha cannot execute a notarial will abroad The fact that the provision of the old CC allowing it was omitted in the new CC shows the intention of the framers to disallow people not domiciled in the Phils, to witness the execution of the notarial will even rf done abroad, (presumption to suppress rather than allow)Q: Can he execute a holographic wU abroad? A: Yes, because there's no need for witnesses.Q: May a foreigner be a witness?A: Yes, as long as he is domiciled in the Phils, and has all ofthe qualifications and none of the disqualifications. Thereis no citizenship requirement in the Code.,s 2. Not Convicted of a Crime ,/jQ: Can a person convicted of rape be a witness? A: YES, since the Code mentions only conviction of falsification^ perjury^ and false testimonies^ as disqualifications. The enumeration is exclusive because of the conjunction "or" since there's no general category, the word "or" doesn't become a disjunctive, but a ^conjuctive. Hence, the enumeration is exclusive.However, according to DLC. NO daw because the enumeration is NOT exclusive. The common element of the 3 crimes is falsehood or untruthfulness. Falsification here is not that described in the RPC, but a general description of offenses. Same in the other crimes. The convicted felon is no longer trustworthy. Since the reason behind the law is the trustworthiness, as long as he's convicted of a crime of moral turpitude, he's automatically disqualified.Q: What if the convict has been pardoned by the President,may he qualify as a witness? A: No, the pardon didn't remove the fact of his conviction. If thefact of conviction is obliterated, as in the case of amnesty.then he may qualify as a witness. Note - Art. 820 merelysays "convicted of and not by final judgment.Q: When must he be qualified and disqualified?c~ •? •

^J HO REfilWEWfNl Tftfll REVIEWER IN SUCCESSION fteP Atopy #• 2C07AIN #23 H-/W-reA: At Bie lime the will was executed. When the conviction is not yet final and executory, it's still not a conviction.Q: May the notary public be a witness?A: It depends. If he's 1 of the 3 witnesses, NO according to Cruz v. ViUasor. Since he cannot acknowledge before himself his having signed the will. He cannot split his personality into 2 so that 1 will appear before the other to acknowledge his participation in the making of the will; this cannot be done because it would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted.However, it's YES if he's one of the required witnesses and the will is acknowledged by a different notary public. The fact that he's incidentally one can't bar him from being a witness.^.supervening incompetencyGonzales •/. CA (1979)The probate of the will was opposed to on the ground that it was not witnessed by the 3 credible witnesses. Petitioner argued that the requirement that witnesses must be credible is an absolute requirement which must be complied with before an alleged will may be admitted to probate. She claimed that to be a credible witness, there must be evidence on record that the witness has a good standing in the community, or that he is honest, and upright, or reputed to be trustworthy and reliable. She contended that unless the qualifications of the witness are first established, the testimony may not be favorably considered.HELD: Under the law, there is no mandatory requirement that the witness testify at any time during the tiial as to his good standing in the community, his reputation for trustworthiness, his credibility, his honesty and uprightness in order that his testimony be believed and accepted by the court. It is enough that the qualifications under Art. 820 are complied with. Such attributes as to good standing, etc. are presumed of the witness unless the contrary is proved other wise by the opposing party.'Credible" should not be given the same meaning it has under the Naturalization Law. Under such law, the witnesses are character witnesses. In case of a will, the witnesses merely attest to the due execution of the will.For a witness to be competent, he must simply qualify under Art. 820 and have none of the disqualifications under Art. 821. For his testimony to be credible, that is worthy of belief and credence, it is not mandatory for his good standing or trustworthiness to be established because such is presumed. In any case, the question of credibility depends on the appreciation of his testimony by the court.____________________ART 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the.'allowance of the will.__________c. competency of interested witnessesART 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.____________________CDTOLENTINO:• This article does not disqualify a devisee or legatee, or the spouse, parent or child of such devisee or legatee, from• becoming a witness to the will. If he is credible, and not disqualified under Art. 821, he is a competent witness but the devise or legacy in his favor, or in favor of his spouse, parent or child, will be void. This article, therefore, does not refer to disqualification to be a witness, but to disqualification to inherit.• But if the witness is not a devisee or legatee, but an heir, is the institution of such heir void? Notwithstanding the terminology of the present article, we believe that even as instituted heir, or his spouse, parent or child, is disqualified. The disqualification is intended to apply to one succeeding by wilt, and it is not material «n what concept he succeeds. This conclusion is strengthened by the rule on relative incapacity to inherit, provided in Art. 1027 (4) which makes no distinction between heirs and devisees or legatees.MAGIC NOTES:Q: In Art. 805, it says "3 or more credible witnesses". In Art.822 it says "competent", what's the implication? A: The requirement as to testator and to witness is different.if- Q: Can an heir, devisee or legatee be a witness? A: Yes. Art. 823 doesn t disqualify them from being a witness. If he's credible and not disqualified under Art. 821, he's a competent witness.But the devise or legacy in his favor, or in favor of his spouse, parent or child will be void.This article doesn't refer to disqualification to be ar™y 9e. his inheritace ' SurP|usa9e. Therefore, heof 207REV.EWERINSUCCESS.ON

2007AA: At the tome the will was executed. When the conviction is not yet final and executory, it's still not a conviction.

Q: May the notary public be a witness?A: It depends. If he's 1 of the 3 witnesses, NO according to Cruz v. VHIasor. Since he cannot acknowledge before himself his having signed the will. He cannot split his personality into 2 so that 1 will appear before the other to acknowledge his participation in the making of the will; this cannot be done because it would place him in an inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted.However, it's YES if he's one of the required witnesses and the will is acknowledged by a different notary public. The fact that he's incidentally one can't bar him from being a witness.b.supervening incompetency

Gonzalesv.CA (19791The probate of the will was opposed to on the ground that it was not witnessed by the 3 credible witnesses. Petitioner argued that the requirement that witnesses must be credible is an absolute requirement which must be complied with before an alleged will may be admitted to probate. She claimed that to be a credible witness, there must be evidence on record that the witness has a good standing in the community, or that he is honest, and upright, or reputed to be trustworthy and reliable. She contended that unless the qualifications of the witness are first established, the testimony may not be favorably considered.HELD: Under the law, there is no mandatory requirement that the witness testify at any time during the tiial as to his good standing in the community, his reputation for trustworthiness, his credibility, his honesty and uprightness in order that his testimony be believed and accepted by the court. It is enough that the qualifications under Art. 820 are complied with. Such attributes as to good standing, etc. are presumed of the witness unless the contrary is proved other wise by the opposing party."Credible" should not be given the same meaning it has under the Naturalization Law. Under such law, the witnesses are character witnesses. In case of a will, the witnesses merely attest to the due execution of the will.For a witness to be competent, he must simply qualify under Art. 820 and have none of the disqualifications under Art. 821. For his testimony to be credible, that is worthy of belief and credence, it is not mandatory for his good standing or trustworthiness to be established because such is presumed. In any case, the question of credibility depends on the appreciation of his testimony by the court.____________________Cruz v. Villasor. supraHELD: The notary cannot also serve as an instrumental witness of the will. The function of the notary public is among others, to guard against any illegal or immoral arrangements. That function would be defected if the notary public were one of the attesting or instrumental witnesses. For then he would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act.______________________ART 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent thejallowance of the will._____________^.competency of interested witnessesART 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.____________________Page 41 of 207TOLENTINO:^,» This article does not disqualify a devisee or legatee, or the~i-i spouse, parent or child of such devisee or legatee, from~ - becoming a witness to the will. If he is credible, and not^_ disqualified under Art. 821, he is a competent witness but-'"'• the devise or legacy in his favor, or in favor of his spouse,parent or child, will be void. This article, therefore, doesnot refer to disqualification to be a witness, but todisqualification to inherit.• But if the witness is not a devisee or legatee, but an heir, is the institution of such heir void? Notwithstanding the terminology of the present article, we believe that even as instituted heir, or his spouse, parent or child, is disqualified. The disqualification is intended to apply to one succeeding by wilt, and it is not materiat m what concept he succeeds. This conclusion is strengthened by the rule on relative incapacity to inherit, provided in Art. 1027 (4) which makes no distinction between heirs and devisees or legatees.MAGIC NOTES:Q: In Art. 805, it says "3 or more credible witnesses". In Art.822 it says "competent", what's the implication? A: The requirement as to testator and to witness is different.if- Q: Can an heir, devisee or legatee be a witness? A: Yes. Art. 823 doesn t disqualify them from being a witness. If he's credible and not disqualified under Art. 821, he's a competent witness.But the devise or legacy in his favor, or in favor of his spouse, parent or child will be void.This article doesn't refer to disqualification to be a witness, but disqualification to inherit. The witness in those cases becomes interested in a will and won't testify against its due execution.

Q: If such person is one of the 5 witnesses, will he still be disqualified to get his inheritance, devise or legacy?A: NO MORE, he becomes a mere surplusage. Therefore, he may get his inheritance.Q: What is the reason behind Art. 823?A: He is interested in the validity of the will since it will make him receive something. Therefore his testimony will not beREVIEWER IN SUCCESSION

2007Acredible. But if there are 3 other witnesses, his testimony need not be presented if the 3 other witnesses can testify to the validity of the will.Note: the disqualification of a witness to inherit extends to the spouse, parent, child or anyone claiming thereunder. This is to prevent the circumvention of the law.The will itself is valid but the legacy or devise is avoided.Q: How about an heir who is not the legatee or devisee,may he be a witness? A: of course, as long as he has all the qualifications andnone of the disqualifications.Q: Is he disqualified to inherit?A: No. While Art. 823 speaks of devisees or legatees, the intention is to disqualify the witness form receiving something.However, if he is a legal heir, he may still receive the portion appertaining to him, since his being a legal heir has no connection with his being a witness, and since he would receive anyway even if the will is invalidated. If the witness is a legal heir receiving only what is due to him. undue influence is ruled out, e.g. a child who is a witness may still receive his legitime.Hence, he'll only be disqualified at to those given by the will, but whatever the law provides for him (legitime). he'll be allowed to inherit his part.Q: What if the legatee is an instituted heir? A: Hindi pa rin pwede.Q: How about the delegate of the testator who was requested by him to write his name on the will, may such person be a witness?A: According to Caguioa. No. because or In ro Tentiongco. But according to OLC. he should be qualified, witness fang pala eh. However, if something is given to him, he cannot receive suc*i.Q: When must the witness possess all of the qualificationsand none of the disqualifications ? A: At the time of the execution of the will. Their becomingsubsequently incompetent shall not prevent theallowance of tne will (Art. 822).Q: When is the will deemed executed? A: At the time all signatures are affixed.Q: What is the effect if one of the witnesses does notpossess all of the qualifications? A: That witness will be disqualified, thereby resulting in areduction of the number of witnesses by one and ifthere are no 3 witnesses left after he's disqualified, thewill becomes void.Q: What is the effect if the witnesses become incapacitatedafter the execution of the will? A: No effect on the validity of the will according to Art. 822.Q: Is a creditor of a testator disqualified to be a witness? A: No. Art. 824 provides that a mere charge on the estate of the testator for the payment of debts due at the timePage 42 of 207of the testator's death does not prevent his creditors from being competent witnesses to his will.DLC notes that Art. 824 is silent on the effect of his charge on the estate of the debtor-testator.Q: But what if the creditor is also a legatee, may he get hislegacy? A: No!Q: But if the legacy is in payment of a dbt to the creditor-witness, may the creditor-witness nevertheless receive the legacy (charge)?A: yes, even if it is worded as a legacy, the creditor will no lose such.Q: May a witness sign with his thumb mark? A: If he's illiterate, the will is void. But if it's his usual signature and he's not illiterate, he can.5. holographic willsa. general requirementsART 804. Every will must be in writing and executed in a language or dialect known to the testator.TOLENTINO:• Please see pageof this Chapter.<+MAGIC NOTES:• See definition in Art. 810.• Differences with notarial wills: ««aH(1 ) must be handwritten by the testator himseW J2) may not be witnessed-f3) — may not be acknowledged before a notary public. ~N<?Q: What am the requisites of a valid holographic will?A: (1) General requisites: O*O ^ ^ ^(a) must be in writing(b) in language Krvowvt to the testator (2) Specific requirements few') - Src^wth $ (a) entirely written by his hand @(b) dated by" himself in his handwriting (^signed by him I'M HK

_ . . .A

General requisites1 . In Writing

Q: What .material must he write his holographic will on? A: Any material,What about a computer? A: Maybe not because the written will is the only evidence of the will which can be compared with the available specimen of the handwriting of the testator.Q: How about a video?A: No. It would not comply with the requisites of a holographic will.2. Language Known to the Testator Q: Is it possible for a person who does not speak English to write a holographic will in English?REVIEWER IN SUCCESSION

2007AA: No. The will is void.Q: What about if he wrote it in Tagalog, let a friend translate it in English and the testator copied the English transliteration, is the holographic will valid?A: No. the language must be known to him.b. specific requirementsART 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines and need not be witnessed._____TOLENTINO:• A holographic will is one executed by the testator himself, writing, dating and signing it by his own hand, without the attestation of ay third person. The testator may either divulge its contents or keep them secret as he may please, and thus, he may execute what other codes call public, notarial, mystic, secret or closed will.• Advantages and Disadvantages - The advantages of a holographic will are: (a) It is simple and easy to make, convenient for those who have no means to employ lawyers or notaries en who are timid and want to read and re-read their wills before signing them, or who have only very little property to dispose of. (b) It induces foreigners in this jurisdiction to set down their last wishes, (c) It guarantees the absolute secrecy of the testamentary dispositions.The disadvantages are the ff: (a) There is no guaranty as to the capacity of the testator, (b) There is no protection against violence, intimidation or undue influence, which may never be known in case of immediate death of the testator, (c) It may not faithfully express the will of the testator due to faulty expressions, (d) It can be easily falsified by expert forgers, because no witness or public official intervenes in its execution. (5) For the same reason, it can be easily concealed.• Bind persons - Tolentino adheres to the view of De Buen that there being no prohibition in the law, a blind person can make such a will if he has the general testamentary capacity. The blind person may have learned to write before he became blind, or in spite of his blindness.• The material on which the will was written is not important.• There is no particular form stated by law for holographic wills. They may be in any form but the intent to dispose mortis causa must appear clearly in the contents. There must be seriousness in the act. The intention to make a will may appear expressly or it may be inferred from the terms of the instrument. It is enough that the intent to make a will or to dispose mortis causa can be clearly deduced from the terms of the instrument.• A person can make a holographic will in the form of a letter in which he states his testamentary dispositions, giving to said letter the real character of a will. There must be, however, be a manifest intent to make a testamentary act and a disposition of all or part of the writer's property effective upon his death.Page 43 of 207The most essential characteristic requisite of a holographic will is that it must be entirely written by the hand of the testator. What would be the effect of the words written by another and inserted among the words written by the testator? The ff. are the RULES:(a) if the insertion was made after the execution of the will, but without the consent of the testator, such insertion is considered as not written, (insertion void but will valid)(b) if the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void.(c) if the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will and the entire will becomes void because of failure to comply with the requirement that is must wholly be written by the testator.(d) if the insertion made by a third person is made contemporaneous to the execution of the will, then the will becomes void because it is not written entirely by testator.Date - The law does not require that the will be completely executed on the single day. at one time, and in the same ink. because unity of the act is not a requisite for this form of wills. But the exact date, month and year on which the will was made must be indicated therein otherwise, the will should be void for want of an essential requisite.The validity of a holographic will is defeated by the fact that part of the date is printed. And where the testator reconstructed a torn will by pasting its fragments on a sheet of paper, but omits one fragment which has the last 2 figures of the year, the will was held to be void for lack of complete data.A simple involuntary mistake as to the correct date, when there are other statements or material elements in the will which fix the date with certainty, does not invalidate the will.

Signature of the testator - the signature required for holographic will is not the simple writing of the name and surname of the testator. It is his name written by him in his usual and habitual manner. Generally, the signature includes a person's name and surname, but it is not necessary that the full first name or the surname. But the signature as habitually written cannot be substituted by a symbol or seal. A mere error in the spelling of the name does not invalidate the signature.Under our law the signature must be at the end of the will. This can be inferred from Art. 812 by the reference to dispositions "written below his signature." This phrase implies that the signature is at the end of the will, and any disposition below it must further be signed and dated. The will can be signed even long after the testamentary disposition has been written. As long as the will is not signed, it is not complete. But there must be a correlation between the signing and the date. The date must indicate the day on which the will was perfected; a date placed on the will long after the signing must be considered as a false date.Signatures of witnesses to holographic wills do not invalidate the will, but will be disregarded as mere surplusage.REVIEWER IN SUCCESSION

2007AART 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions._____________TOLENTINO:• The dispositions written below the testator's signature to the will are considered as independent of the will itself; hence, they must be signed and dated by the testator. If one is not dated, even if signed, that particular disposition will be void, without affecting the validity of the others or of the will itself. And an unsigned and undated postscripts to a holographic will is invalid as a testamentary disposition.ART 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the latest disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions._____________________• Note: Art. 813 provides an exception to Art. 835. Art. 813 validates a will void in form by mere last disposition which has been signed and dated. Now since Art 813 is an exception, it must be strictly construed.MAGIC NOTES:1 . Written entirely by the hand of the testator.Q: If his hand is amputated, may the testator nevertheless write a holographic wil?A: Yes if he uses his mouth or other parts of his body. DLC - The use of the word "hand" by the CC is not intended to limit the writing to those executed literally by the hand. It is merely intended to refer tc that writing executed by the testator without any aid form anybody except the writing instrumentQ: May an illiterate write a holographic will?A: E.g. his friend wrote it and he copied it himself. The law does not require that the testator should know how to read and write in the case of notarial wills. In the case of holographic wills, however, it seems that Art. 810 does not require a testator to be literate.According to Paras, the- holographic will made by an illiterate is valid. DLC -your guess is as good as mine. *Q: May a blind man make a will in Braille?A: The law says "by the hand of the testator". The reason behind this is to find out if the will was indeed written by the testator. Braille can easily be substituted. For this reason, typewritten holographic wills are not allowed too. iwt 4»me*>- <c*ux ^-nte k/iArre*f|«,Q: Suppose the testator. ts blind and deaf-mute, can hemake a holographic will? A: Yes, as long as he can write.Q: In making the holographic will, must he observe Art. 807and 808? A: No. He should know what he personally wrote in theholographic will.Page 44 of 207is with'* (ubr

3)A)Q: Suppose a testator wrote in his holographic wiU and another person inserted something therein, is the will vaM?A: There are 4 scenarios -N1) After the wiU is written made without consent, the will is valid, insertion is void. The validity of the will cannot be defeated by the caprices of 3rd persons (Ajerc v. CA).After the will is written and the insertion 'consent, the will is valid, insertion void. ~ ?

r^r After the will is written and the insertion "was authenticated by testator, the entire will is void. For failure to comply with the requirement that the will be entirely written by the testator. By the testator's authentication, the insertion was made a part of the will itself.The will and the insertion was made at the same time, the will is void for not being entirely written in the hand of the testator.\S> N£t 1*1 VHJ <*lt^l fHWPWtlTlKG WILLTfKf V-ffV(.Q: By what form must the testator write the holographic will? A: There is no requirement as long as there is intent to make his last will and testament.Q: Suppose the testator wrote a holographic will and requestedanother to be a witness, is the will valid? A: Yes. The will is valid and the signature of the witness

thereon is a mere surplusage.Q: If there is a witness in the holographic will, are the requirements of Art. 806 applicable?A: No. The intention of the law is to exemp: the holographic will from the requirements of acknowledgment before a notary public. Moreover, Art. 810 does not require it.Q: Suppose the testator not only required a witness but alsohad the will notarized. Is the will valid? A: Yes. Nothing prohibits him from acknowledging before anotary public.2. Dated by the hand o< the testator. Q: What date must appear thereon? A: The date it was written., Q: Suppose the holographic will is dated mChristmastime '92",is it valid? ' ^-—-~- >. A: "CJjrJstmasJime "92" is Dec. 25,1992. In the case ifRoxas v. (De Jesusjthe court held that the* present Codejnejeiy' provjdes''{nat it be dated. This is unlike the express requirements of the old CC that the month, date and year must appear.Q: What if the date is "February 1961"?A: Under the Roxas ruling, this is sufficient because the exact date is not required (substantial compliance).Q: Suppose the testator decided to write a holographic will in his diary under the August 3 space, is the will valid?A: No. The Code requires that it must be dated by him. In this case, the date was printed on the diary itself so that it does not meet the requirements of the Code.Q: Suppose the testator started writing his holographic will today b:i! finished it a week later, what date must he write on the will?REVIEWER IN SUCCESSION H JM 2007A

6E

BECAUSE Trt£(P ©A: Tolentino - Any date will suffice as long as it is not a false date. The date is material in determining the testamentary capacity of the testator so that if the date is false, the will is void.Also, it is important to determine if the heirs were alive and thus capacitated to inherit at the time it was made.Caguioa says it should be true date, or any date that has a connection with the making of the will, any as long as this date is part of the will.Q: What is a false date?A: When it does not have anything to do with the will. It must be intentionally done and not merely be an involuntary mistake. (Involuntary mistake is valid due to substantial compliance.)Q: Therefore, what date should it reflect? A: De Leon says that the Code does not require a specific date. Thus it is the date of execution.Q: When is it deemed executed? At the tune of the startingto write the will or the time of finishing it? A: De Leon says both are valid.Q: Suppose the testator wrote his will and signed it but £\ forgot to date if. 3 months later, she dated it with any of ~~^ the following dates - 3 Aug. starting date; 10 Aug. date she finished; 3 Nov, date she discovered that it did not have a date. Is the wUI valid?A: According to Tolentino. it is valid since none of those dates are false dates. 3 Nov is not a false date because the testator may be contemplating to change his will.According to Caguioa, 3 Nov is a false date making the will void.DLC - Tolentino is more correct than Caguioa. The testator can write the date when he wrote such date (when he dated the will) and not when he signed (\ the will. Until the will is dated, it is not complete. The testator may complete it at a later time, as long as it is not a false date. ' <Q: What is the effect if the date affixed is the date it waswritten? A: Date of the commencement of the writing is not a falsedate.Q: Suppose the testator decided to write a will today, took out a piece of paper and wrote the date today. However, due to circumstances, he was not able to write his will today. 3 months later, he found the dated paper and started writing his v/ill on it. Is the date false?A: There are 2 views on this matter.According to the first view, simple incorrect dates which can be corrected through the inspection of the will does not affect the/validity of the will. What will make the holographic will invalid is the intentional or voluntary fals date. The proof of falsity can be shown only by extrinsic evidence.According to the second view, the date is a false date.Q: What is the purpose of the requirement of the date? Page 45 of 207A: To test the competency of the testator. Without the date, the will is invalid for not complying with Art. 810. Also, it is important in order to ascertain the heirs living at the time the will was executed.Q: Where must the date be written?A: There is no provision on this matter. Hence, it may be written either at the beginning or at the end of the will.703. Signed by the testator. - "Mew «w ^ ?»t Q: What signature is sufficient? <v>14-A: The customary signature of the testator. DLC - fullsignature is that which is used to sign the will, not longsignature.Q: What about his initials?A: It is sufficient if it is his customary signature. However, Paras is of the opinion that the testator must sign with his 1 full customary signature. He

based his opinion on Art. 814 ! which provides that in case of insertion, cancellation, ' erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. If it is required in the foregoing instances, more so in the case of the whole will.- Q: What about if he merely thumb marked ft, is this sufficient? A: According to Caguioa and De Leon. this is not handwriting, hence, it is not sufficient. Under Art. 811, witnesses must j testify to the authenticity of the handwriting during the probate of the will.DLC - The law does not require the handwriting ot the testator. Art. 81J applies only if the signature is in the handwriting of the testator. If a thumb mark was used. Art. 811 (1) is not applicable. What is applicable is the second paragraph thereof which provides tor resort to expert testimony-in the absence of competent witnesses referred to in the first paragraph.Q: When must U be signed?A: Upon completion of the holographic will.Q: Where must the testator sign? - wwi wet Htr rnvre ewr! -* A: He must sign at the end of the will as is implied from j^rjL 8J2. which provides that in holographic will, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.If the dispositions appear after his signature (without being dated and signed), such are VOID.Q: Is substantial compliance (Art. 809) sufficient in nolographicwills? A: Yes as per Roxas v. De Jesus.ART 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. _____________________TOLENTINO:• If there are insertions, cancellations or alterations which are not authenticated with the testator's signature, they are considered as not made, but the will is not invalidated. This requirement appears in an article separate from that which provides for the necessary conditions for the validity\REVIEWER IN SUCCESSION

2007AWIU-W/of the holographic will; hence it does not affect the validity of the will itself.• However, where the testator himself crossed out the name of the heir named, and substituted the name of another, without authentication, it was held that this did not tesult in making the person whose name was corssed out an heir.MAGIC NOTES:Q: May the testator maxe changes in his will?A: Yes but the changes must comply with the formalrequisites. Under Art. 814, it must be authenticatedwith the testator's full signature. Art. 814 applies toalterations in the body of the will.Art. 812 speaks of alterations NOT in the body ofthe will. There are 3 types of chages - cancellation,insertion and substitution.Q: What are the 2 kinds of changes? (!/ A: I1) changes introduced in the body of the will (Art. 814)2) Changes outside the body of the will (Art. 812 -codicil).Both are made after the will has been executed.Q: If" the dispositions appear on top of the body of the will.but with full signature, is it a valid alteration? A: The alteration is still outside the body of the will and isthus covered by Art. 812.Q: Suppose the testator signed with his initials and not with his full signature in making the holographic will. What will he use in authenticating the changes?A: His initials also. **Q: Suppose the testator has 2 sets of signatures, a full one and customary initials. In writing his holographic will, he used his initials. Is the will valid?A: According to Caguioa, the will is void. He has a full signature which he must use. According to Tolentino, it is sufficient.Q: Assuming that Tolentino is correct, later on the testator changes some parts, what signature will validate the changes, the full or the initials?A: DLC - the full signature refers to the signature which the testator used in executing the will. If he used his initials, then he must also sign with his initials to validate the changes he made.in other woids, if the authentication signature (2nd signature) is different from the executing signature f. (signature used in the writing of the holographic will), r the changes are void.Q: What is the effect if the change is not authenticated? A: The change is void because it did not comply with Art. 814.Q: How about the original will - is it valid? A: Yes, it remains valid.Q: Why?A: Because until and unless the change is notauthenticated, it does not form part of the will, hence, ithas no effect on said will.Page 46 of 207 £Q: Suppose an alteration is inserted "by another and the testator authenticated it, is the alteration valid?A: No.

Q: Why not?A: The entire will becomes void because it is not entirely written by the hands of the testator. The alteration was due to the authentication made by the testator, it became part of the will thus avoiding the same.The testator canceled the name of A who was named as an heir in the will without signing the cancellation. Above the name of A he wrote the name of D. however, he did not authenticate the name ofD. Who will inherit? In Kalaw v. Relova, none inherited. The insertion will not take effect as the same was not authenticated. As regards the first heir named, the fact that his name was canceled will show an intention to revoke the naming of A as heir. Hence, A cannot also inherit.So the first heir named was revoked through cancellation and the second heir named was not authenticated.In the cited case, the SC held that the cancellation revokes the entire will. Art. 830 (3) governs. It provides that revocation or cancellation doss not require authentication.The writing of a new name is an alteration which is governed by Art. 814 (validation by full signature). Hence, no one inherits as there is no heir instituted.pJ_C_^grees_with_Vitug. They are of the view that in holographic wills, even an erasure will amount to a revocation which must be governed by Art. 81"4 (special*/ applicable to holographic wills) and not Art. 830. Since Art. 814 is a specific provision and Art. 830 a general one being applicable to both notarial as well as holographic will Art. 814 should control over 830.Hence, even if cancellation amounted to a revocation, it does not take effect unless it is validated by the fun signature of the testator. This is primarily because of the fact that Ait. 814 did not specify the type or cancellation that is covered by it. As such, it can be made applicable to a cancellation which amounted to a revocation.Hence, if the cancellation is not signed, then the revocation is ineffective.This is the only way by which cancellation made by third persons can be guarded against.DLC says that in Relova, the Court is of the opinion that the cancellation of the first heir amounted to a revocation. So Art. 830 applies NOT Art. 814.Q: How do we then reconcile 814 and 830, for if the court is correct, what kind of cancellation do we need in order that Art. 814 is to apply?A: It would seem that not all cancellations amount to a revocation. If applied to Relova, when we have a) alterations which amount to revocation, apply Art. 830, b) alterations are short of revocation, apply Art. 814.Note: If erasure is upon a mistake, no authentication is needed. E.g. the phrase "any soul heir" was changed to "any sole heir." The rule is to authenticate only material portions.Art. 814 speaks of dispositions written below the testator's signature on the will. These are considered independent of the will itself, hence, they must be signed(4REVIEWER IN SUCCESSION

2007A^~> ,&Wand dated by the testator. If it s not dated but signed, the disposition is void, without affecting the validity of the others or of the will itself. An unsigned and undated postscript to a holographic will is invalid as a testamentary disposition.However. <f there are insertions, cancellations, erasures or alterations in a holographic will, a signature will be sufficient. If there changes aren't signed, they're considered as not made, but the will is not invalidated.Q: What if the change is introduced outside the body of the wiH (e.g. added below the signature)?A: The change must be signed and dated because it is actually a separate will (codicil) shich must comply with all the requisites of a valid holographic will.Q: If the insertion of additional disposition is placed on thetop space, is the addition valid? A: No.Q: Is a full signature sufficient under Art. 814 or does it need to be dated under Art. 812?A: No, it must be dated and signed. Art. 812 is applicable not only to those changes appearing below the signature but also to those outside the body of the will. To summarize 814: If change is outside body of the will, it must be dated and signed; if the change is inside, the signature is sufficient. NOTE: Changes in the will differ from an additional disposition.Q: A space between the last disposition and the signatureis inserted with additional dispositions by the testator.He didn't authenticate the additional dispositions. Arethe additional dispositions valid? A: No. they are alterations in the will and hence need asignature.Q: Is the original will valid notwithstanding the additional dispositions which were invalidated?A: Yes, the alterations not complying with the requirements of law, they don't form part of the will and even if invalidated, the will is not affected thereby.Q: Suppose they are authenticated but not dated, are theadditional dispositions valid? A: Yes. they are alterations within the body of the will whichrequires only the full signature of the testator.Q: On the first day. the testator wrote the 1st disposition but he didn't sign it. On the 2nd day. he continued with the 2nd disposition but he didn't sign it. On

the 3"" day, he made the 3d disposition which he signed. Are all the 3 dispositions valid?A: Yes, Art. 813 covers instances wherein the dispositions are signed but not dated. The case here is different for they were neither signed nor dated.The fact that the testator didn't sign the 2 earlier dispositions shows that he didn't intend to terminate the writing of the holographic will. Since there is no requirement to execute it in one sitting, the 3'a disposition must be deemed to have validated the 2 earlier dispositions. !n other words, the 3rd disposition which was signed and dated completed the writing of the will.Page 47 of 207According to Paras and De Leon, the 2 earlier dispositions aren't valid. They claim that since they're not covered by Art. 813, they must necessarily be void because there are no provisions to cover them.OLC disagrees with these 2 authors. He says that it would be different if the testator signed each disposition. In this case, the intention would then be that he terminated the execution of the holographic will each time he signed it. In other words, he already finished writing his holographic will. Since this is only signed without being dated, it is then void. When he wrote the 2nd disposition and signed it without being dated, it's also void. However, if a 3 disposition was signed and dated by him, then all the dispositions became valid. This is the essence of Art. 313.Q: Suppose the 2 earlier dispositions were dated but not signed, the 3? was signed and dated. Are the dispositions valid?A: Well...there are 2 views on this matter. According to Caguioa, the 2 earlier dispositions are invalid. The act of the testator in writing the dates manifested his intention to terminate the writing of hi$ holographic will. Not being signed, they become invalid. In this case, the testator actually made 3 holographic wills, the 1* 2 were dated but not signed, hence, void and the 3rd one is valid.The 2nd view is that the will is valid as one whole holographic will. There's no difference with the case wherein the dispositions are not dated and signed. The testator must be considered as not havirnj terminated the execution of his holographic will after each disposition.Q: A holographic will was written without being dated. In the space between the last disposition and his signature, he inserted therein the date to complete the will and added additional dispositions therein. Are the additional dispositions which are dated but not signed valid?A: No, because there is no valid holographic will in the 1SI place as there was no date appearing thereon. However, when he puts in additional dispositions and dated it, the holographic will becomes complete. But it would be different if the date was placed before the additional dispositions.Roxas v. de Jesus (1985)A notebook belonging to the deceased was presented as containing the will of the deceased. On pages 21-24. a letter-will was addressed to her children, written and signed in her hand, dated Feb. / 61.HELD: If a will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said will would be admitted to probate.As a general rule, the "date" in a holographic will should include the day, month, and year of its execution. However, when, as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the issue is whether or not the date "FEB/61 appearing on the holographic will is a valid compliance with Art 810, probate of the holographic will should be allowed under the principle of substantial compliance.________________REVIEWER IN SUCCESSION

2007AKalaw v. Relova (1984)Nathndad Kalaw's holographic will, as first written, named Rosa (Natividad's sister) as sole heir. Her name was crossed out and replaced by Gregorio Kalaw's name. Such alteration of the will was not signed by the testatrix.Held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic will have not been noted under his signature, the will is thereby invalidated as a whole, but mostly only as respects to the particular words erased, corrected or interlined.Natividad's holographic will contained only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the testatrix's full signature. Hence, the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. To state the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. Therefore, SC held that the real intention of the testatrix cannot be determined with certitude.c. requirement for probateAierov. CACI994)Clemente Sand opposed the probate of Annie Sand's will naming as devisees Clemente, Leah, Lilia, Edgar, Fe, Lisa (all surr.amed Sand), spouses Ajero, Or. Ajero Sr, and their children, on the grounds that the testament's body nor the signature were in the decedent's handwriting; it contained alterations and corrections which were not duly signed by said decedent; and the will was procured through improper pressure and undue influence.Held: In a petition to admit a holographic will to probate, the only issues to be resolved are: (1) WON instrument is decedent's last will and testament; (2) WON the will was executed in accordance with the formalities prescribed by lav/; (3) WON decedent has necessary testamentary capacity at the time of

the execution of the will; and. (4) WON the execution and signing of the will were the voluntary acts of the decedent.What assures authenticity of the holographic will'is the requirement that it be totally autographic or handwritten by the testator himself. Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. V.':If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.Unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will result only in the disallowance of such changes.As a general rule, courts in probate proceedings are limited to pass only upon-the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will.WILL -ff<*rli) irt dueArt. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the_hanj1writing 5ri3~~signature _o£-#»Ttesfafor-explicitly decl?rejhat the will and signature are in lfie~handwriting of the testator. If the will is contested, at least three, of such witnesses shall be required.In the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. ____CDTOLENTINO• JBL Reyes: (on the requirement of 3 witnesses in case there is a contest in the probate)"... The modern tendency is to leave the weight of evidence to the Courts. After all, one witness can be very convincing, and a probate case is not a prosecution for treason."A lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity,MAGIC NOTESQ: May a tost notarial 'Mil be probated?A: Yes, through parol evidence."Sflto/eQ:A:Q:Q:G>How about a tost notarial wiH? "***"No, the will is the only evidence of its due execution (Ganvs Yap)The authenticity of its execution can be ascertained from the handwriting of the testator. However, an obiter in the Gan case sakJ that if mere is a carbon copy, it may be probated. (DannyCon: difficult to detect forgery in a carbcn copy)In Rodelas vs Aranza. a photocopy was aitowed probate.DannyCon: this is a dangerous rule since forgery cannot be detected from a photocopy If advanced techniques to detect forgery are discovered, then it may be allowed.A testator wrote a wiH, signed and dated U, all in his own handwriting. He asked 3 persons to be witnesses to H and asked them to execute an attestation clause. Thereafter, he had such will notarized. The wiH could not be found after the testator died. May it be probated? Yes, the will which the testator wrote is no longer a holographic will but a notarial will. Hence, it may be proved by the testimonies of the 3 witnesses.When a holographic will is uncontested and only 1 witness testifies, it is sufficient. If there are no witnesses, shall the court disallow probate?No, Art 811. par2 provides that expert testimony may be resorted to in the absence of a witness who knows the handwriting and signature of the testator.Page 48 of 207If the genuineness of the will is contested, at least 3 witnesses must be presented. If there are no such 3 witness, shall the court allow probate? A: Yes. Art 811, par2REVIEWER IN SUCCESSION

2007AQ: If the contest is not on the genuineness or the authenticity of the signature, must 3 witnesses be required to testify on the genuineness or authenticity of the handwriting and signature of the testator?A: No more. Only 1 witness is sufficient as provided in Art 811. parl.•Note: Art811 limits contests to genuineness of testator's handwriting and signatureGan v. Yap (1958)Fausto Gan (decedent's nephew) filed a petition for probate of a holographic will allegedly executed by FelickJad Yap. Her husband lldefonso opposed,

asserting that she had net left any will, nor executed any testament. Will was not presented, but petitioner tried to establish its contents and due execution by the statements of several witnesses.Held: Will may not be probated. The law regards the document itself as material proof (as to holographic wills, the only medium of proof) of authenticity, and as its own safeguard, since it could at any time, de demonstrated to be - or not to be - in the hands of the testator himself. The only guaranty of authenticity is the testator's handwriting. Hence, the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect. The execution and contents of a lost or holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will.Rodelas v. Aranza (1982)MM-1During the probate cf Ricardo Bonilla's holographic wili, petitioner Rodelas failed to produce the original and instead presented an alleged photocopy of said will.Held: According to Art 811, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested. at least one identifying witness is required and, if not witness is available, experts may be resorted to. However, if a holographic will has been lost or destroyed and no other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in the said will. It is necessary that a comparison between sample handwritten statements of the testator and the handwritten will/But, a photo static copy of such holographic will may be allowed because comparison can be made with the standard writings of the testator.witnesses acquainted with the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with ArtSt 1. parl may thus be imposstolity. But the law foresees such a possibility and provides for resort to expert evidence to supply such deficiency if the court deems it necessary. Hence Art811. parl is merely directory and not mandatory._________ARiTAO•H?66^004 M. tw-w&ftc\~Azaola v. Sinqson (1960)Petitioner Azaola filed for probate the alleged holographic will of Fortunata Yance, whereby Milagros was made the sole heir. Azaola testified that the will was handed to him and his wife and that he recognized all the signatures appearing on the will, as well as the handwriting of said testatrix.Held: Since the authenticity of the will was not contested, Azaola was not required to produce more than one witness. But even if the genuineness of the holographic will were contested. Art811 cannot be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator. There may be no availably,Page 49 of 207REVIEWER IN SUCCESSION

2007AV. INCORPORATION OF DOCUMENT BY REFERENCE - ww6e.He\n(, WILL'Art 827. If a will, executes ad required by this Code. incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present:(1) The document or paper referred to in the will must be in existence at the time of the execution of the will;The will must clearly describe and identify the same, stating among other things the number of pages thereof;It must be identified by clear and satisfactory proof as the document or paper referred to therein; and -wet u$ wfH n wiu. ~<> Wfi-iei re v(-e It must be sjgned by the testator and the «t< witnesses on each and every page, except in cases of voluminous books of account or inventories.(2)(3)(4)TOLENTINO• Incorporation by reference is an exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be admitted to probate.• Whether such paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to. if it was in existence at the time of the execution of the will and identified by clear and satisfactory proof as the paper referred to therein, will take effect as part of the will and be admitted to probate as such.• To establish a separate writing as part of a will byincorporation, on the face of the will, these mustappear:a. A distinct reference to such writing, so explicit as to identify it beyond doubt; but much less has often been held sufficient, and parol evidence is of necessity received to identify the writing;b. The reference must indicate that the writing has already been, that is, must speak of it as then existing; .c. It can only be given effect only in case: and to the extent that, such appears from the face of the will to have been the wish of.the testator.• When the writing is offered, it must be shown by extrinsic proof:1. that it is the very writing referred to in the will; and2. that it was in fact made before the will was executed.

• If a writing made afterwards could be receded, the testator might create in himself a power of disposing of his property by will without complying with the statute on wills.1. purposeReport of the Code Commission, p. 108• Incorporation by reference - Neither the present Civil Code nor the Code of Civil Procedure provides for incorporation by reference. There are cases where the testator may wish to incorporate into his will only by reference certain documents or papers, especiallyinventories and books of account. An express provision on this subject is necessary and Art. 849 of the proposed code prescribes the requisites for such incorporatjQjq^_<r_:_r

' ARITnOMAGIC NOTES• Meaning: It is an incorporation of an extrinsic document or paper into a will by reference therein so as to become a part thereof. According to DannyCon, it is making an instrument an integral part of another.• Purpose: to make the will shorter »x .• Unson vs Abella: The will expressly referred to the inventory attached to it. The inventory, however, although signed by the witnesses and the testator, did not contain an attestation clause.Q: (In reference to the Unson case) Valid?A: The SC said yes. The inventory need, not contain an attestation clause. Having been clearly referred to in the will, the attestation clause of the will is sufficient.Q: Is incorporation by reference allowed? A: General rule: it is NOT allowed. Exception: requisites of Art. 827 are met.whenPage 50 of 207tfft £ ofrutQ: What is the purpose ofArt827?A: If a testator is not allowed to incorporate such documents and papers in the body of his will, such a situation will prove to be impractical, especially when what is to be incorporated is voluminous. In other words, its purpose is convenience.Q: Suppose a testator executed a notarial will but faiied to acknowledge it before a notary public. He realized that the will is void. Later, he executed another notarial will incorporating by reference the earlier will. "I hereby command that the provisions of my earlier will be complied with." Is the incorporation by reference valid, assuming requisites in Art827 are complied with?A: NO, because of Art. 635. A will invalid as to form cannot be republished without reproduction of the disposition in the subsequent valid will. (Rapublication)Q: But Art835 is limited to wills not valid as to form. May a will be valid as to form but void for some other reasons, be incorporated by reference?A: Yes. under Art836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by such codicil. (Ex. Incapacity at time of execution)Q: Suppose a testator made a first will when he was 16 yrs old, and A, B, and C witnessed it. Later on, he made a 2nd will when he was 19 yrs old, and incorporated the 1s1 will with D, E, and F as witnesses. Is this situation covered by Art835?A: NO. Art835 only contemplates cases where the will is void as to form, while this case presents a will which is void as to substance and is thus not covered by Art835 on republication.he 1s' will, made without capacity is void as to substance. Art827(4), however, may make the subsequent will valid, only if the same set of witnessesREVIEWER IN SUCCESSION

2007Asign the 2nd will. Here, the witnesses in the 2"° will are not A, B, and C.Note: Accdg to Jurado. Art836 doesn't require witnesses' signatures.Q: Suppose a testator executed, not a notarial will, but a typewritten note which he signed at the bottom. This contains testamentary dispositions. He incorporated it by reference in a valid will. Is the incorporation by reference valid?A: NO. As long as there are dispositions, it is a will. Not having complied with Arts 805 and 806. it is void as to form. And such wills, void as to form, can be made valid only if republished in a subsequent will.In Art827, only those documents which do not contain testamentary dispositions may be incorporated by reference.Q: May a holographic will incorporate by reference adocument? A: DannyCon: If the document referred to is a mereinventory, it may be incorporated by reference in aholographic will even if the document isn't in thehandwriting of the testator.Q: Why?A: Because the document isn't a will.Caguioa: The document cannot be incorporated by reference in a holographic will since it becomes a part of the holographic will; h»nce, it must be handwritten by the testator.Paras: The holographic will cannot incorporate by reference documents because there are no witnesses as required in Art827(4).DannyCon: When Art827(4) requires witnesses, it refers to attesting witnesses required by ArtSOS.

Q: Suppose a testator made in his holographic will an incorporation by reference. He re'erred to a previous holographic wiH which is void as to form (Ex. Not dated). Is the incorporation valid?A: No. Art835Q: Is the 2nd holographic will in the previous problem void? A: No, only the incorporation is void. The same is true in case of a notarial will. The 2nd will remains valid.Q: Must the attestation clause contain a statement about the incorporation by reference?A: No, it's not required.Q: Must the attestation clause include pages incorporated?A: No. It's the will which must state this fact and not the attestation clause.Art827(3) refers to the probate proceedings. It doesn't require the will to provide a clear identification of the document incorporated. If the will doesn't give any identification of the document, it's very difficult to know which document is incorporated by reference. Hence, art827(2) requires this.Q: Art827(4) requires that the document must be signed by the testator and the witnesses. What if it isn't signed? What's the effect?Page 51 of 207A: DannyCon: Substantial compliance rule is inapplicable in the case of an incorporation by reference. The testator and the witnesses aren't required to sign voluminous books of accounts and inventories.Q: What are the documents which can be incorporated byreference? A:1. all documents short of a will (no testamentary dispositions); and2. In incorporating a will valid as to form under the Art836, must Art827 still be complied with? NO. Remember, if it's a will, it must comply only with Art836.SUMMARY• If a will is void as to form, it requires a republication under Art835• If a will is valid as to form, but void for some other reason, it requires a codicil under Art836.Q: When is the document voluminous? A: This is a matter of proof.Q: Who will determine if such document is voluminous? A: The law doesn't say. Courts, malamang.Q: Is Art827(4) (re voluminous records) applicable to aholographic wiH? ARIT £ A: No Mtxl ' "Unson v. Abella (1822)Unson filed an application for probate of the will of Dona Josefa Zalamea with an attached inventory of her properties. Oppositors claim that the will was not page corretativeiy in tetters, nor was there an attestation clause in it, nor was it signed by the testatrix and the witnesses in the presence of each other.Held: The contention that the will should be invalidated because the other party was not able to produce all the witnesses thereof was not accepted by the court. The general rule is that if opposition is presented to the probate of a will, all the attesting witnesses must be produced. Nevertheless, there are exceptions to this rule: when one of the witnesses is dead; cannot be served of process of the court; his reputation for truth is questioned, or; he appears to be hostile to the cause (as in the present case) of the parties seeking the probate of the will. In such cases the will may be admitted to probate, if upon the evidence actually introduced, the court is satisfied of the due execution of the will, inasmuch as even if said witness has been produced and had testified against the application, the result would not have been changed.As to the issue of the inventory, when in a will, reference is made to an inventory of the properties of the testator, which has thus been made a part of the will, if the will has an attestation clause that meets the requirements of the law, no attestation clause is necessary for said inventory anymore.As regards the paging, paging the inventory with Arabic numerals is in compliance with the spirit of the provision of law requiring that the paging of a will be made in letters, and is just as valid as paging with letters, i.e., A. B, C, etc. ________________REVIEWER IN SUCCESSION

2007AVI. CODICILS1. definitionART 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered.___________TOLENTINO• After a testator has already made a will, a subsequent instrument mortis causa may either be a codicil or a new will. If the subsequent instrument explains the original will, or alters or adds to it, then it is a codicil. But if the later instrument makes dispositions independent of those in the original will, without explaining or modifying such original will, then it is a new will, not a codicil. A codicil is always related to some prior will.2. solemnitiesART 826. In order that a codicil may be effective, it shall be executed as in the case of a will.MAGIC NOTESQ: What's the difference between a codicil and a 2nd will?A: Codicil1. forms part of the original will2. supplements the original will, explaining, adding to, or altering any of its dispositions

3. it doesn't, as a rule, revoke entirely the prior will4. a will and a codicil thereto, being regarded as a single instrument (except where a manifest intention requires otherwise), are to be construed2nd will1. new will2. makes dispositions without reference to and independent of the original will3. if it provides for a full disposition of the testator's estate (although inconsistent merely in part with a prior will), it may revoke the whole prior will4. a prior will and a subsequent will, being 2 separate wills, may be construed independently of each otherQ: In a holographic will, the testator may change, alter or add to the provisions by writing the changes, alterations or additions on the will itself, authenticating with his full signature. How about in the case of notarial wills? How can the testator change his notarial will?A: Through the execution of a codicilQ: What is the effect of any alteration made by the testator in a notarial will? .A: There is no provision which allows a testator to make changes in a notarial will. If he made additional dispositions, they are invalid though authenticated by him. Such alteration must be witnessed by witnesses and acknowledged by the notary public.Page 52 of 207AT nte tm/ie. cte\m,Q: What if testator wrote the additional dispositions in his own handwriting, aren't such additional dispositions in the form of a holographic will?A: No because the testator cannot simply change a notarial will by mere additional written dispositions, as these dispositions were not witnessed by the required 3 witnesses of Art805.Q: What am the functions of a codicil?A: (1) It may explain the dispositions in the 1s1 will if they areunclear and ambiguous in order to clarify suchdispositions;(2) It may revoke some of the dispositions in the earlier will;(3) It may add more provisions;(4) It may amend the dispositions made in the earlier willQ: What am the 3 forms of amendment? A: (1) alteration by insertion(2) alteration by deletion/removal(3) alteration by substitutionQ: May a codicil render useless all the dispositions of aprevious will? A: Yes, through a revoking will. In practice, the revoking will isstill called a codicil.Q: What is the difference between a codicil and a will?A: As to solemnities, there are none As to reference, a will does not refer to a prior will but a codicil always refers to a prior will. Without a prior will, there is no codicil.Q: A:Q: A:Q: A:When is the codicil effective? - e^futrsv w <vLu TUP B.»MTS <JF n MAM v After compliance with al! the requirements of a valid will.^ «ia .lf the prior will is a notarial will, may the testator make a holographic codicil?Yes. but the holographic will must comply with the requirements of a valid holographic will (Art 826)or a holographicMay a testator make a hotographt wiU? YesQ: (May he make a notarial codicil for a holographic will? A: Yes'1 Q: In case of conflict between a will and a codicil, which one prevails?A: The codicil, since it is executed at a later point in time, hence, a later expression of the testator's desire.MtWJfti- WILU Wfir THE ens &WVWlftt— Mur>'ARITAOwl A HANDWRITTEN_.i-(7(ML-M ttitVFHiH1 riffle»vtr tttENIF MA/! NEEOff(jif ir?ftREVIEWER IN SUCCESSION

2007AVII. REVOCATION OF WILLS AND TESTAMENTARY DISPPOSITION1. definition of revocation<x ntt win,.fffIt is an act of the mind, terminating the potential capacity of the will to operate at the death of the testator. manifested by some outward and visible act or sign, symbolic thereof.2. when may revocation be effected, cfi\nt

ART 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void._______________________WIVNE ft|C4»r -aTOLENTINO• During the life of the testator, the will is said to be ambulatory; and it may be altered, revoked, or superseded at any time. It is of no possible effect as a will while the maker lives. A will may be revoked at pleasure.• Common purpose of revocation and nullity: deprivation of a will of legal effect• Difference between revocation and nullity:(1) Revocation - act of testator; Nullity - proceeds from the law(2) Revocation - presupposes a valid act; Nullity -inherent in the testament(3) Revocation - takes place during testator's lifetime; Nullity — invoked after testator's death by his intestate or compulsory heirs(4) Revocation - right to do so cannot be renounced by testator; Nullity - may be disregarded by the heirs by voluntary compliance therewithMAGIC NOTES• Revocation may be made at any time before the testator's death on any ground as a testamentary disposition is essentially gratuitous in nature. Any wa«ver or restriction of this right is void. Even after a will has been probated during the lifetime of the testator, he may still alter or revoke the same. It is the essential character of wills that they are ambulatory and flexible.• However, if the reason is proven to be based on a false cause, the revocation won't take effect.Q: Is there an exception to the revocability of wills?A: Yes, in case of contractual wills liks marriage settlements or donation propter nuptias. In case of contractual wills, you cannot enforce the contract if the consideration is illegal, but you may recover based on the principle of unjust enrichment (not contract)Q: May the testator bind himself for a valuable considerationnot to revoke his will? A: No, any waiver or restriction of the right to revoke is void.Under Art1347, a contract-upon future inheritance is void3. law governing revocationART 829. A revocation done outside the Philippines, by aperson 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 is made, or according to the lawPage 53 of 207of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.MAGIC NOTES• When a testator revokes a will, he has to comply with certain formalities because the act of revocation is the same as the act of making a will.Q: What law governs the revocation of wills? (M829) A: Depends on the place where it is made and if one is a resident or not.(1) If revocation done outside the Phils: ' a. If a non-residenti. Law of the place where the will was made* (not revoked)•• ii. Law where the testator was domiciled at the ' time (the will was made?) b. If a residenti. Art'17 — law of the place where therevocation was madeii. Law of the Phils - it being the place of his domicile(2) If revocation done within the Phils:a. WON testator's domicile is in the Phils and regardless of the place where the will was made. Phil law will governQ: llf testator is a resident of the Phil but revokes abroad.what law will govern? A: Art 829 silent on such a situation. Art 17, as the generalrule, applies, hence, the law of the place of executiongoverns'Note: These problems on the application of lawsarise only when the revoked will is presented in the Philsfor probate.4. modes of revocationArt. 830. A/o will shall be revoked except in the ff cases:(1) By implication of law;(2) By some will, codicil, or other writing executed as provided in case of wills; or(3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation. or obliteration are established according to the Rules of Court. _____TOLENTINO• Revocation bv implication of law - when certain acts orevents take place subsequent to the making of the will.which nullify or render inoperative either the will itself orsome testamentary disposition therein.(1) The commission by the heir, devisee or legatee of some act of unworthiness (Art'1032)

REVIEWER IN SUCCESSION

2007A(2) The transformation, alienation or loss of the thing given as a devise or legacy, subsequent to the execution of the wW (Art957)(3) Judicial demand by the testator of a credit which has been given as a legacy (Art936)(4) The preterition of compulsory heirs (Art854)(5) The devise of the property given as devise or legacy,for the payment of the debts of the testator Revocation by subsequent instrument - such subsequent will must be valid and executed with the formalities required for the making of wills. It must also be probated to produce the effect desired. No declaration of a fixed determination to revoke at some future time amounts to a revocation. There must be a present action, as distinguished from intention to act. But the revocation may be made conditional upon a future event. When several wills wholly inconsistent, or containing express revocation clauses, are offered for probate, parol evidence is competent to shoe which is in fact the last executed, whether dated or not. But if of the same date, or not dated, and there is nothing to show which was lost, all fail for uncertaintyRevocation by destruction - the testator must at the time of performing it be in possession of his faculties and capable of making a will. It must be further shown that his destruction was with intent to revoke (animo revocandi). A complete determination or intention to revoke an existing will does not produce the effect of revocation, unless the burning, tearing, canceling, or obliteration is actually carried out. In other words, the mental process or intent to revoke must concur with the physical fact or actual destruction of the will.Although the testator's intention to revoke did not materialize solely because the formal act was defeated by fraudulent devices exercised against the testator, the failure cf intent and destruction to concur defeats revocation. However, when it is the devisee or legatee who prevents the revocation of the will, by the use of threats, fraud, or violence, the will is revoked, as to him by implication of law, on the ground that he has committed an act of unworthiness.There is no revocation by a destructive act if the testator repents before he has done all that he intended to do towards the destruction of the will.As to what stage the act of destruction can be considered completed, or when it is not yet completed, is a question of fact to be determined by the court. If the complete destruction of the will, however, is prevented due to the interference by some other person, and not to a change of intention on the part of the testator, the will is already considered revoked. The legal act of revocation is complete and effective from the time the intention is carried out by the execution of the physical act necessary to otherwise accomplish fully the intention to revoke, whether the paper itself or the writing thereon is totally destroyed or not.The act of destruction is considered complete and the intention to revoke carried out, if the will bears on its face any evidence of the act.If the document itself is not burned, even partially, but only the envelope in which it was placed was burned, there is no revocation.Tearing off the signature indicates in itself an intention to revoke the whole will.• While cancellation originally meant to make latticework or crisscross lines, dearly a will is well canceled by drawing lines over it that do not cross each other. 'Cancelled and is null and void" signed by the testator at the back of the will was considered sufficient. It would be going far beyond the statute to say that a will is not cancelled unless the words are erased or obliterated so that the nature of the will before its cancellation, or its provisions, cannot be discovered.• To obliterate is to blot out. It is generally considered that whatever would be sufficient as a cancellation would satisfy as an obliteration in the absence of any more explicit requirement of the statute.• Unless by statutory provision a different rule is required, a will may be revoked in part by canceling or obliterating a portion thereof, leaving the unobliterated parts in force.• An unauthorized destruction may be ratified.• The proponent is entitled to hearing to prove due execution of the will and its loss or unauthorized destruction, and. the probate court had no authority to dismiss the petition without such hearing.• Carbon copies are generally considered as duplicate originals.• When a will cannot be found by proper and diligent search after the death of the testator, there arises a presumption that he destroyed it for the purpose of revoking it, rather than it has been lost or unlawfully destroyed by another. If the will be shown not to have been in the hands of the testator, the presumption that it was destroyed by him or by his direction does not arise, and the burden of proof is upon the party asserting the revocation.MAGIC NOTES Q: How can a will be revoked?A: Under art 830, a will is revoked, either partially or totally, by:(1) implication of law- will revoked by the happening of certain events, the testator having done nothing.- Reason: the testator is presumed to have revoked the will, but due to his inadvertence, he failed to revoke it through a positive act (Arts 854, 936, 957,1032)(2) an act of the. testatora. execution of a subsequent document with all theformalities of a will; b. burning, tearing, canceling, or obliterating with

intent to revoke (animo revocandi)Q: What are the conditions for revocation to be effective? A:(1) Testator must possess testamentary capacity (why? Revocation is an indirect disposition)(2) Testator must have animo revocandi (it must contain a revocatory clause or must be incompatible with the previous will, thereby showing such intent to revoke)(3) Revocation must comply with the formalities prescribed by law (must be a valid will and must be admitted to probate)(4) Testator must have revoked the will freely and voluntarilyARITAOPage 54 of 207REVIEWER IN SUCCESSION

2007AU-Q: What are the 2 types of revocatory clauses? A:(1) Express - a revocatory clause in a subsequent will, when such revokes in categorical terms(2) Implied - when the provisions of the subsequent will is entirely inconsistent with the prior will (revocation by Implication)Q: What is the extent of revocation?A: Total - when the entire will is revokedPartial - when only specific testamentary dispositions are revokedQ: May revocation be subject to a condition?A: Yes, limited to being subject to a suspensive condition (revocation takes effect upon the happening of a future and uncertain event) but it cannot be subject to a resoluiory condition (revocation ceases upon the happening of future and uncertain event - not possible because once a will is revoked, it becomes a complete nullity and it can only be revived if republished)Q: What must be done to a revoked will to make it validagain? A: Republish itRevocation by implication of lawoccurs when certain acts or events lake place subsequent to the execution of the will from which the law infers or presumes thai he testator intended a change, either partial or total, in the disposition of his propertyK6W</fVt*-M l/ll/Kr P£ EXEO^EP ttfiiC^ to THE (?(• WVtl/\te /V-WItt (Tvll/K I" ftt-fO P7£ MWIiTTEp tfRevocation by subsequent will/codicil/other writing **•* ^"^ Q: Under Art830, what does the phrase "other writing" referto?A: It refers to any instrument that doesn't contain testamentary dispositions because if it is otherwise, it would become either a will or a codicil. Ex. Donation mortis causa (Accdg to Jurado - document incorporated by reference - NO, as such is not executed as a will)What if a letter contains only a revocatory clause, does it fall under "other writing"?DannyCon: The revocatory letter is still a will because it is an indirect disposition of the estate, since the legal heirs become the heirs instead of the legatee or devisee*Note: The Code Commission included the phrase "other writing executed as provided in the case of wills" because the Commission could not agree en whether instruments containing only a revocation clause is a will. But of course, we know better.A:Q:Supposing the will was denied probate for not having complied with the formal requisites, is revocation valid? A: No. For revocations to be valid, the will itself must be valid.Q: Suppose the will complies 'with the formal requisites and is probated but the subsequent heirs were disqualified as they were the witnesses, can the original heirs (heirs of the revoked will) inherit?A: No, the first will remains revoked. Hence, intestacy?j-tfNotrt/NAi. KFlAf'Cftn/N - MiVy MIM f>fcftNK«r PE KE*IMWH -nrmCPage 55 of 207 STW

a rfltt eARITAOIK TWE WILLQ: // there is no revocatory clause but onty inconsistencies between the 2 wOs, can the heirs in the 1* wiH inherit when the heirs of fee f ** were doqualUed?A: The effect of the 2nd wil is to annul the conflicting dispositions. Hence there is only partial revocation Under Art832, a revocation made in a subsequent will shall take effect even if the new will should become inoperative by reason of the incapacity of the heirs, devisees, or legatees designated therein, or by renunciation.U: Is death a condition by which a revocation may be made todepend? A: NO. It is not a period, rather it is a term, THf ffUiH EVIDENCE U tH6 «IU- Ifff UfRevocation by physical destruction - uw w^ ncv K&a/iwie *»iv«i£ wiu-- Whenever the testator physically destroys the will, there '"^ arises a presumption that he destroyed it because he wants to "K«*<M revoke it. **"" nf6 w=A/cc»tv»N MIACT ACHF/MI prj THE we* K THE WILL . rit£Q: A:Q: A:Q :

A:A: Q:A: Q:A:How is s will revoked by physical destruction? Burning, tearing, canceling, obliterating with intent to revoke (Art830). But such list is not exclusiveWhat am the requisites in order for the act of physical destruction to revoke the will?(1) Testamentary capacity(2) Animo revocandi(3) Formalities complied with(4) Done freely and voluntarily(5) Must appear on the face of the willWhy must he have capacity to revoke ?The same degree of mental capacity is required to undo what has been doneSuppose that without his realizing that the wHI was inside the envelope, he destroyed the envelope. Is there revocation? No as there is no intent to revokeQ:A:Suppose the testator got mad at his heirs and announced pubUdy that he was revoking his will but did not do any physical act to revoke it. Is there revocation? No, mere intention to revoke is not enough. All the requisites must concurSuppose the testator threw the will into the fire with intent to revoke it. After throwing H. he left. The heir saved the will from burning. Is there revocation?NO, as the physical destruction must appear on the face of the will. In this case, the will wasn't caught in the fire, so no sign of destruction would appear as such is an absence of the requirement that the destruction must appear on the face of the will.However, the heir who rescued it from the fire is disqualified from inheriting (Art1 032(7))To effect a revocation, must the destruction be total? Ex. Only a comer was burned or there was only a discoloration.No, it is sufficient if the face of the will shows some signs of physical destruction. Hence, a discoloration is sufficient. No evidence aliunde is allowed as the will is the only evidence of destructionREVIEWER IN SUCCESSION

WPJPJ rt£K.E MACE2007AImportant problemsQ: Suppose the testator wanted to revoke the will and started tearing it but after tearing halfway, he changed his mind and desisted. Was the wHI revoked by the sign of destruction on the face of the will?A: No, as a rule, revocation doesn't take place if the testator changed his mind and desisted before the completion of the destruction. Hence, revocation wasn't effected.Q: Suppose the testator tore the will in 2 and threw the pieces in the trash bin. He then returned to his room. After some reflections, he retrieved the torn will from the trash and taped the pieces together. Was the will revoked?A: Yes, he changed mind after the act of destruction had been completed. He cannot revive it by pasting the pieces together. It can be revived only by republication.Q: Suppose the testator got mad at his heirs and began to revoke the will by tearing it twice. The heirs asked for forgiveness when he was about to tear it for the 3"" time. So. the testator desisted from tearing the will for the 3? time and kept the pieces. Was the will revoked?A: No, the will wasn't revoked. He changed his mind before the act of destruction was completed.Conclusion• The issue therefore is how to know whether the act of destruction is completed. If the act had been accomplished before the testator changed his mind, the will was revoked. But if he changed his mind before the act of destruction is completed, the will is not revoked. However, there is no hard and fast rule on this. Each case depends on its own set of facts.• The intention to revoke must subsist until the act of destruction is completed. Once the requisites for revocation by physical act of destruction concur, revocation takes place instantly. This is known as the principle of instante. As the will loses its efficacy, the same may only be restored by republication.Q: Who must perform the act of destruction?A: The testator must accomplish it himself. He may delegate it to a 3rd party as long as such act of destruction was performed in his presence under his express directionQ: Suppose the testator ordered a 3? party to destroy the will. The 3"" party was interested in preserving the will so that he substituted it with another. When the document was destroyed, it was the substitute that was destroyed. Was the will revoked?A: No. the physical destruction did not appear on the face of the will. This is the risk of delegation.1. Burning Q: How is it done? A: It may be effected by any means which causes theoxidation of the document-."

Q: Is it required that the entire will be burned? A: No, it is sufficient if only a small portion is burned. Discoloration by burning is enoughPage 56 of 207 .tt*WIF A WILL u CO uwr , ftVYEft Uf T Cf- M/W Nt't/t t/fiQ: Suppose that with intent to revoke, the testator threw the document into the fire. The envelope got burned but not the will because the fire died down. Was the will revoked?A: No, because there is no sign of physical destruction on the face of the willQ: May there be partial revocation by burning? A: Nothing in the CodeQ: But if the testator burned only a provision of the will, is there a partial revocation?A: Maybe yes, if it can be shown that the burning is without doubt, intended for a particular disposition only. But note that the merest hint of discoloration would be sufficient proof of revocation. The whole document need not be burned.Q: How then do we prove that the testator intended to bumand thus revoke only a specific provision of the will? A: That is a question of fact which the court must decide2. TearingQ: Us it required that the tearing be complete? A: No, it is sufficient if an act of physical destruction, even ifnot total, appears on the face of the instrument.Q: (Suppose the tearing was confined to the margins, is thetearing a sign of destruction? A: It depends on the intent of the testator. If the tearing waswith intent to revoke, there is a revocation.Q: Instead of tearing, what if the testator put holes on(perforates) the will. Is there a revocation? A: YesQ: May there be a partial revocation by tearing?A: Nothing in the Code. However, authorities opine that if theintention is to revoke only a portion of the will, then therecan ba a partial revocation3. Canceling- it is the drawing of marks or lines across the face of the will or writing the word "cancelled" or "void" on the face of the documentQ: Whenever the will is revoked by cancellation, does it require the testator's authorization by his full signature? A: It depends. If the will canceled is a notarial will, then it is not required by Art830.A: If it is a holographic will, such cancellation must be authenticated by his full signature (Art814)DannyCon disagrees with the decision in Kalaw vs Relova. He agrees with Vitug that Art814 applies when what is canceled is a holographic will, then the full signature is needed. Art814 refers to alteration of provisions in the will, and would, therefore, result in a partial revocation. But if the cancellation would revoke the entire will, Art830 applies as in the Kalaw case.Q: // the word "canceled" is written on the back of the will or on a blank portion or the on the margin of the will, is there a revocation?A: 2 views:REVIEWER IN SUCCESSION

2007AWILL

e,e'• fo'WSC v(1) There is no revocation because the back page is not part of the will. Such page is not counted as one of the pages of said will(2) There is a revocation because greater weight should be given on the words written on the will, than the ambiguous line drawn on the same (Tolenlino)Note that if the cancellation was written, signed and dated by the hand of the testator, it becomes a holographic codicil.Q: Should the cancellation make the worts illegible? A: NoQ: Is there partial revocation by cancellation?A: Yes. Accdg to Reyes-Puno, whether there is a partial or total revocation of a will depends on the effect of the disposition cancelled to the other dispositions. If the canceled disposition has no effect on the remaining provisions, partial revocation apples on the canceled part. However, if the partial revocation will increase or decrease the shares of the heirs n the will, there is no revocation of such is not executed in due form.4. Obliteration— to blot out or render words illegible; legally no difference with cancellationQ: Is there partial revocation by obliteration? A: YesDestruction by 3rd persons Q: What is the effect of a 3"* person not doing the act ofrevocation in the presence of the testator and under hisexpress direction? A: The revocation is ineffective. Like in the execution of a will,which has to comply the requirements prescribed, there isthe same degree of requirements in case of revocation.Q: Suppose that the testator, with intent to revoke his will,ordered a sen/ant to destroy it for him. Is the will revoked

if destroyed in his absence?? A: No. because of his absence. The law requires thedestruction to be made in his presence and under hisexpress directionQ: Suppose a testatrix made a wit, naming her boy friend as her sole and universal heir. Later, she had a new boyfriend. This new boyfriend, apparently jealous of the first, tore he will in the absence of the testatrix and threw it away. The testatrix arrived and was informed of the fact. She agreed to the act of her boyfriend. Was the will revoked?A: No, the revocation is not valid since there is no compliance with the requirements of presence and express direction. Authorities, however, do not agree with the strict application of the law in this particular case. They propose that ratification after the" performance of the act is sufficient to revoke the will.DannyCon disagrees. The will may not have been revoked by the boyfriend. In fact, if the destruction is unauthorized, there is no revocation. .However, probate will be refused, not because there is no revocation, but rather because of the lack of the holographic will itself.Page 57 of 207An act of destruction without the testatrix's consent cannot later be ratified by her. However, it is impractical for a testatrix to revoke an already destroyed wiH The reason behind the requirements of presence and express direction is for the testatrix to be sure that the will had indeed been destroyed.•>.PO Q-" May a tost will be probated?~ A: Depends. If the will is holographic, no, unless a copy is presented. If it is notarial, yes, as long as the presumption ±J of revocation is rebutted/ doesn't ariseQ: When does the presumption of revocation arise?A: When the will cannot be found and it is shown that it was last seen in the hands of the testator, or that he had ready access thereto when it was last seen (Gago vs Mamuyac)Lipana v. Lipana (1940)Eliodoro Lipana filed an application for the probate of a will supposedly executed by the deceased Manuela Lipana with a carbon copy attached to the application. Natividad Lipana opposed on the ground that the carbon copy was not signed by the testatrix and the attesting witnesses at the end thereof and at the left margin of each page.Held: What is sought to be admitted to probate was the original of the will. The copy was attached merely to corroborate the allegation as to the existence of its original. If a will is shown to have been torn by some other person without the express direction of the testatrix, it may be admitted to probate, if its contents, due execution and its unauthorized destruction are established by satisfactory evidence. The applicant therefore was entitled to hearing.___________Gaqo v. Mam uvac (1927)Francisco Gago filed a petition for the probate of Miguel Mamuyac's will. The same was opposed by the Mamuyacs on the ff grounds: (1) that the will is a copy of the 2M will executed by Miguel; (2) that the same had been canceled and revoked (luring Miguel's lifetime ; and (3) that said will is not Miguel's will, li was proven during the trial that the will presented was a cartoon copy of a will which was revoked by Miguel in 1920 when he made another one.Held: The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other component evidence, that the same was canceled or destroyed. The same presumption arises when it is shown that the testator had ready access to the will and it cannot be found after his death. Such presumption is never conclusive and may be overcome by proof that the will was not destroyed by the testatrix with intent to revoke the same. The burden of proof therefore is upon the proponent to establish not only its execution but also its contents If the proponent proves the execution, the burden is on the contestant to show that it had been revoked. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all !'i& formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that theREVIEWER IN SUCCESSION

2007Aoriginal has been tost and was not canceled or revoked by the testator.Maloto v. CA (1988)Aldina. Constancio. Panfito and Fefino (all sumamed Maloto) executed an extrajudicial settlement dividing the estate of the decedent Adrians Maloto, believing that she did not execute a will. A will was found, however, 3 years later in a cabinet by the decedent's lawyer. Although all 4 were named heirs, Aldina and Constancio were given bigger and more valuable shares. They then prayed for the annulment of the extrajudicial partition prayed for the allowance of

the will. Panfilo and Felino opposed and presented evidence to the effect that the will had been burned in the kitchen by the household helper of Adriana, thereby revoking said will.Held: There is no doubt as to the testamentary capacity of the testatrix Pursuant to Art830. the burning itself does not per se effect a revocation unless accompanied by animus revocandi. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliteration or canceling by the testator herself or by another in her presence and under her express direction. The helpers who allegedly burned the will testified that they were the only ones in the room. Both are likewise illiterate, therefore, they did not know if what they were burning was indeed the will.__________________5. implied revocationART 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.____ART 833. \A revocation of a will based on a false cause or an illegal cause is null and void.______________Kalaw v. Relova. supraHELD: Where holographic will has only 1 substantial provision, which was altered by substituting the original heir with another, but which alteration did not cany the requisite of full authentication by the full signature of the testator, the ENTIRE will is voided/ revoked.TOLENTINO:• The revocation by one will by another may be express or implied, partial or total. It is express when the latter will declares the former, and all former wills, revoked. It is implied when, and in so far only as, it merely makes dispositions inconsistent with the provisions of the former will or wills; in this case, the later will annuls only such dispositions in the prior wills as are inconsistent with those contained in the subsequent will. But even if 2 will do not completely cover the same subject, if. from the 2nd will, taken as a whole, and the circumstances attending its execution, there appears an intention of the testator to dispose of his property in a manner different from the 1SI will, it is to that extent revoked.• But a will is not revoked by a subsequent instrument which neither revokes it in express terms nor by implication; and in such case, the wills hot inconsistent with each other must be construed together, and all their provisions, so far as possible, be carried into effect. If 2 similar wills are executed on the same date, the 2nd does not revoke the 1sl, for the 2 writings taken together are considered to constitute one and the same will.6. effect of revocationPage 58 of 207TOLENTINO:• Falsity of Cause - When the testator declares in a later will that he revokes a former will because of a certain state of facts, revocation is inoperative if such facts were not as the testator supposed them to be. If the act of revocation is induced by a belief which turns out to be false, there is no revocation. Such fact must however appear upon the face of instrument. Parol evidence is not competent to prove that a revocation unconditional on its face was induced by a false assumption of fact or law.• When revocation validIf it appears that the testator only alleged the belief as a reason for revoking, intending to revoke absolutely,j.,,,. whether such belief were true or false^3o - If the revocation be mad dependent merely upon~ information received by the testator, or upon his . opinion, although the testator may have beenQ misinformed, or may have formed his own opinion under a misapprehensionWhere the facts alleged by the testator were peculiarly within his knowledge, or the testator must have known the tiuth of the facts alleged by him. it does not matter whether they are true or notMAGIC NOTES• There 2 requirements for Art833 to apply:(1) The cause must appear on the face of the instrument. No evidence afiuode may be presented to establish such cause(2) That the testator would not have revoked had he known the falsity of the cause• 'Note: Falsity of cause is not the same as the cause itself. Falsity of cause would naturally not appear on the face of the will itselfQ: Is the doctrine of relevant revocation a species ofArt833?A: no. DRR is a conditional revocation. Only the existence of the condition must be proved and the condition need not be stated in the will. Evidence aliunde is admissible to prove the same.Q: In the example given under the discussion on DRR (art834 - see question with an *), is the 3? will a species ofArt833 or is it conditional?A: If we consider the 3rd will as coming under a false cause, then we follow a liberal view as such view is in favor of the validity of the 1sl will. But if we consider the will as conditional, then we use a strict view as such is against the validity of the 1st willQ: If the testator revoked the will for a reason and it turned outlater that the reason therefore is false, what is the effect ofthe revocation? A: The revocation is null and void under Art833 whichprovides that a revocation of a will based on a false cause

or illegal cause is null and void.Q: How do we establish that the revocation was for a cause? A: It depends on the manner of revocation. If through:REVIEWER IN SUCCESSION

2007A(1) Codicil or Will - false cause must appear on the face of the will itself. Evidence aliunde is not allowed to show the same. If it isn't mentioned in the will, then the revocation is effective.(2) Physical destruction - evidence aliunde is allowed to prove that the revocation was for a false causeQ: The testator executed a revocatory will but did not include the cause for revocation. He then wrote a letter to his friend stating the reason for such revocation. May we introduce the letter to prove that the revocation was for a false cause?A: If the letter qualifies a holographic will, then it may be introduced in evidence.DannyCon: This is allowed but if we follow the rules strictly, we cannot. However, if the letter qualifies as a holographic will explaining the revocation, it may be allowed. We are not violating the rule that the cause must ? be contained within the 4 comers of the will because the -letter which qualifies as a holographic will is actually a ~ codicil. As such, it foims part.of tha will. ~3>ART 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.When the recognition of a natural child is made by will, he can demand his rights even if the will is revoked. The recognition does not lose its legal effect even if the will is revoked, because the recognition is no! a testamentaiy disposition; it takes effect upon the execution of the will and upon the death of the testator. .7. doctrine of dependent relstive revocation.; XART 832. A revocation made in a subsequent will shall v -Take effect, even if the new will shall becomeinoperative by reason of the incapacity of the heirs.devisees or legatees designated therein, or by theirrenunciation.TOLENT.NO ®K^ & ^" J^"• Dependent Relative Revocation - rule that where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition. If, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in force. It is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will.• The question in each case is whether the destruction or revocation was with the absolute intent to revoke at all events, or only in case the new will is well and completely executed and operative;, or conditionally on the effectual execution of the new instrument. This is a question of fact. What the testator said at the time of doing the act of revocation is competent as part of the res gestae, to give color to it and show what his purpose was.• Where a subsequent will revokes a prior one, and the validity of the later will is established, but its provisions cannot be carried out because of the incapacity of or renunciation by the beneficiaries named therein ThePage 59 of 207Nt CFflUt" \f (flflrevocation is effective because of the dear intent of the testator to revoke, contained in a valid will. Such validity prevents the operation of the principle of dependent relative revocation, even if the new dispositions cannot be carried out.MAGIC NOTES:Q: A 2* will expressly revokes the 1st will, stating in the 2nd will that should the 2nd will be denied probate, the revocation is nonetheless effective. If the 2nd will is denied probate, is the 1st will revoked?A: No. While the 2nd will contains the desire of the testator to revoke the 1*1 will, that command has no effect if the 2nd will is not probated. The revocation is void, the 2nd will being void as well (this is not an application of ORR)Q: Testator made a will which he revoked by destroying it. Later he executed a will expressly revoking the 1st. Such 2nd will was denied probate. May the 1st will be allowed?A: No. What revoked the 1s1 will was not the execution of the 2nd will but the act of destruction. This is likewise not an application of ORR because the aci of destruction must depend on the efficacy of the substitute willQ: The testator made a will and revoked it after 1 month byexecuting a 2nd will which contains a revocatory clause.Believing that the 2°" will was valid, ha revoked the 1s1.Thus, he tore the 1s1 will. After his death, the 2nd will wasdenied probate. Was the 1st will revoked? A: No. This is the doctrine of DRRQ: The 1st will was revoked by a 2nd will and by the act of destruction which was after the execution of the 2nd will. The act of destruction was depended on the efficacy of the 2nd will. He destroyed the 1st on (he assumption (hat the 2"" will was valid. Since the 2nd will is not valid in revoking the 1st, does the physical destruction revoke the 1st will?A: No. because he did it on the assumption that the 2nd will was valid (Molo vs Molo)

Q: Testator executed a will. Later, he made a 2nd will which was totally inconsistent with the 1s1 but it had no revocation clause. To be sure, the testator made a 3? Mil, this time, the will contained a revocation clause revoking the 2nd will. 2nd will was denied probate while the 3d was admitted. Is will #1 valid? Does DRR apply?A: No answer. Merely stated that DRR is premised on the intention not to revoke the 1s1 will had the testator known the invalidity of the 2nd willQ: Paras example: The testator made 3 wills. 2nd will was inconsistent with and therefore, impliedly repeals 1s' will. The 3rd will, on the other hand, revokes the 2nd. Is the 1*' will valid?A: No, but Paras did not use DRR. He used the principle of revival under Art837. He states that since the article uses the word "expressly", it follows a sensu contrario that in case of an implied revocation by the 2nd will, an automatic revival of the 1st occurs. Apparently, the reason is the fact that an implied revocation is ambulatory, the inconsistency being truly and actually apparent only mortis cause, when the properties are distributed. (CAVEAT: author not sure if answer is correct)TttftT(5EREVIEWER IN SUCCESSION

2007AIT

f f I 1f I I I I I I I I I I IThere must be an assumption that the 2nc will was valid when he revoked the 1*. If the 2nd will is not valid, he didn't want the 1st wfl revoked. The physical destruction of the will depended on the vaidrty of the 2nd will.DRR applies when there is an act of destruction coupled with making of the will.ARIT.XOMolo v. Molo (1951)The decedent Mariano Molo left 2 wife, one executed in 1918 and the other in 1939. The 1939 win has a revocatory clause expressly revoking the 1918 will. The decedent's wife sought the probate of the 1939 will but the court denied the application on the failure of applicant to prove its due execution in accordance with law. The wife then sought probate of the 1918 will. This was opposed by the nieces and nephews of the decedent on the ground that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and has the effect of nullifying the prior will of 1918Held: A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of sec618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.It is true that the law provides that a will may be revoked "by some will, codicil, or other writing executed as provided in case of wills* but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing...", simply because it was denied probate. And even if it be regarded as "other writing", there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation.There is no direct evidence of voluntary or deliberate destruction of the 1* will by the testator. And this matter cannot be left to inference or conjecture.But granting that the earlier will was voluntarily destroyed by the testator after the execution of the 2nd will, which revoked the 1*1, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? If such is the case, then the earlier will can still be admitted to probate under the principle of DRR.DRR is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to-make a new testamentary disposition as a substitute for the old. and the new disposition is not made or, if made, fails of effect for some reasons. The rule is established that where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force.The theory on which this principle is predicated is that the testator did not intend to die intestate.Page 60 of 207REVIEWER IN SUCCESSION

2007AXII. SUBSTITUTION OF HEIRS1. concept of substitution A"' AUART 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.___________________TOLENTINO:

• The present article is defective as the definition does not embrace the fideicommisary substitution, in which the first heir actually succeeds to the inneritance. A more accurate definition would be: Substitution is the act by which the testator designates the person or persons to take the place of the heirs or the heirs first instituted.DANNY CON SAYS: that this definition of course assumes that fideicommisary substitution is a kind of substitution. Some writers dispute its status as such.• In reality, substitution is but a subsidiary institution of heir or legatee, subjected to the condition that the first heir or legatee should not want to succeed or has not disposed of his property by will. The right granted to the testator to appoint substitutes flows from the freedom to make testamentary dispositions and impose conditions upon them.• Since substitution is merely a second institution, the principles and rules on institutions of heirs are applicable to substitution except in so far as they may be modified by the express provisions on substitution.• Accretion is the right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounces cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. As in substitution, therefore, a vacant portion of the inheritance goes to another heir.• In case of conflicting daims between a substitute and an heir entitled to accretion, the former should be preferred, because his right springs from the express will of the testator while that of the latter is derived only from a will presumed by law,MAGIC NOTES:• Art 857 is a conditional institution of heir. The provisions on institution of heirs are applicable to substitution. For instance, the substitution of heirs cannot be left to the will of a third party following the rule on institution of heirs. Art. 786 may however apply if the requirements therein are present.Q: What is the rationale behind substitution? A:1. To insure that the property will not go to his legal heirs2. To insure that it will go to somebody other than his legal heirs3. To prevent it from going to the StateQ: Example of substitutionA: T instituted X to 1/4 of his estate providing that if X dies before the Testator, Y shall substitute X.Q: "/ hereby institute A. In case A dies 3 years after my dealt;, B shall substitute A." Is this a substitution?Page 81 of 207A.:.,No It is an institution with a suspensive condition and A's institution is subject to a resolutory condition.Note: Substitution may either be successive or simultaneous.2. kinds of substitutionART 858. Substitution of heirs may be:(1) Simple or common(2) Brief or compendious.(3) Reciprocal; or(4) Fideicommisary.__________TOLENTINO:• Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommisary. The others are merely variations of these two.LECTURE NOTES:• OANNYCON SAYS : in reality there are only two kinds [ > simple/vulgar/common• brief and reciprocal are merely modifications > fideicommisary• When substitution takes place > Heir predeceases > Heir repudiates > Heir becomes incapacitated• OANNYCON SAYS: catch all for all instances when heir can no longer inherit• In the absence of a dear provision of wiU as to when substitution will occur in the 3 instance provided by law• The testator can limit the circumstances under which substitution will occur but he must do so CLEARLY and EXPRESSLY• Testator is not allowed to provide for substitution in the alternative, but successive is allowed.• The testator can provided for substitution to take place on instances other than the 3 provided by the law however this is no longer substitution - it is a conditional institution• One substitute for 2 or more heirs, only one heir is unable to inheritA + B are given % the estateC is their substitute A predeceases the Testator- C will not receive anything via substitution- Substitution only takes place when A AND B cannot inheritA is given Vz, B is given %C is their substitute A predeceases the TestatorC gets YiA and B are separately instituted, are not Coheirs so when A predeceases the part left to him goes to the substitute.a. simple or commonART 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. _______A simple substitution, without a statement of

REVIEWER IN SUCCESSION

2007Athe cases to which it refers, shall comprise the three mentioned in the preceding paragraph unless the testator has otherwise provided.____________TOLENTINO:• This kind of substitution rests upon the principle that the testator should be allowed to reward and compensate deserving persons who although they may not be the first in the heart of the testator may be more deserving of his liberality than the intestate heirs who would succeed if substitution is not all owed.• Note that the substitution takes place in three cases. If the testator specifies the particular case when the substitution takes place, it is dear that it cannot take place for any other cause not specified by the testator. When he does not specify, all the three causes are deemed included.• The power to appoint a substitute emanates only from the freedom to dispose by will since the legitime is not subject to the free disposal of the testator; there is nothing to justify his right to order vulgar or simple substitutions as to such part• This kind of substitution is in reality a conditioning institution of the substitute hence, the provisions on conditional Institution are applicable as suppletory law.• In all cases, simple or vulgar substitution is extinguished1. By the nullity of the will2. By the annulment of the institution of heir3. 3y the death if the substitute before the testator4. When the substitute himself is incapacitated to succeed the testator5. When the substitute repudiates or renounces the inheritance• To have capacity, the second heir must be living at the time the condition happens (art. 1025); hence, if he had died prior to the happening of the Condition, or the renunciation, he cannot succeed because of want of capacity. The capacity must be determined, not only at the time of the testator's death but also when the condition happens (art 1034, par. 3). Valverde also sustains this view that death of the substitute before the renunciation extinguishes the substitution.MAGIC NOTES:• NOTE: This enumeration is EXCLUSIVE. If the Testator failed to stipulate the cause for. substitution, substitution will take place upon the happening of any of the three causes. If the Testator limited the cause to one particular cause, there will be substitution only upon the happening of such cause.Q: It substitution is ordered after the death of the testator, is ita simple substitution? A: no, the simple substitution may be a conditional substitutionsubject to the suspensive or resolutory conditions.Q: How many substitutes may the testator appoint for an heir? A: One or more under Art. 859.Q: May the substitution be successive?A: Yes, there is no prohibition. So A may institute B andappoint C as substitute for B and appoint D as substituteforC.Q: How is substitution extinguished? Page 82 of 207A: In all cases, simple or vulgar substitution is extinguished1. By the nullity of the will2. By the annulment of the institution of heir3. By the death if the substitute before the testator4. When the substitute himself is incapacitated to succeed-the testator5. When the substitute repudiates or renounces the inheritanceQ: If there are two or more substitutes, how will they share? A: The rule Jon institution of heirs will apply — i.e., they willshare equally unless the testator has designated theirshares as unequal.b. brief or compendiousART. 860. Two or more persons may be substituted for one and one person for two or more heirs________TOLENTINO:• These two terms mean that form of substitution which includes or may include all kinds of substitution and all heirs, so that in a single testamentary provision more than one kind of substitution is established for several heirs. This is thus a mere form of substitution, and not ready a distinct dass of substitution.• If one person is named as substitute for two or more heirs, will there be instituted heirs if the heir dies before the testator, or is incapacitated, or repudiates the inheritance? There will be no substitution in such case, even with respect only to the share of the heir who cannot or does not succeed. The condition under which the substitution is to operate is that the instituted heirs —— al. of them and not only one or few —— do not succeed; as tong as there is one left to succeed, the condition is not complied with and the substitution cannot take place. The share of the heir who does not succeed may either go to the intesiate or legal heirs, or to the other instituted heirs by right of accretion, depending upon the manner in which the institution was made.But if the substitute is named for any or all of several heirs instituted, then the substitution will take place even if only one instituted heir dies before the testator, or is incapacitated, or renounces the inheritance, but only with respect to the share of such instituted heir.MAGIC NOTES:Q: If one substitute is appointed for 3 heirs, how much will the

substitute get if only one of the three is incapacitated? A: The general rule is that the substitute will get none. He willnot inherit anything.Q: Why?A: Because inasmuch as he was substituted for three heirs, then the three should die ahead, be incapacitated or repudiate in order for him to be a substitute. The property will go to the legal heirs or the co-heirs if accretion is proper. But there is an exception. According to Tolentino. where the T specifies that the substitution may take place for any or all of the several heirs such substitution is effective. According to Caguioa, substitution may also take place if the respective share of the heirs(?) is specified.REVIEWER IN SUCCESSION

2007Ac. reciprocalART 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shai acquire the share of the heir who dies, renounces, or is incapacitated, unless i*. clearly appears that the intention of the testator was otherwise. If there is more than one substitute, they shall have the same share in the substitution as in the institution.______« Note: This sounds redundant but Art. 861 applies only to reciprocal substitution.TOLENTINO:• If two or more persons are reciprocally substitutes for each "other, the one who succeeds gets the share of the heir who dies 'before the testator, or is incapacitated to succeed, or renounces his inheritance.• If there is more than one substitute, they shall have the same shares in the substitution as in the institution. This rule is based on the presumption that the testator, having instituted his heirs to unequal portions, would want them to share in such unequal proportions also in the substitution which has been made reciprocal.MAGIC NOTES:Q: When is there reciprocal substitution?A: When the heirs instituted are made mutual substitutes ofeach other. Both of them are instituted and both of themare substitutes of each otherQ: Suppose T instituted /? to 1/2 of the estate. B to 1/3 of the estate and C to 1/6 of the estate. T provided that A and B are substitutes of each other. If B dies or predeceases to whom will his share go?A: To A.Q: How much ofB's share will A get?A: Everything. If B's share is 1/2 and A's share is 1/3. A will "get all 1/2 and 1/3. Regardless of the sharing of the 2 substitutes therefore, one will get the entire inheritance of the other because they are mutual substitutes of each other. [861]Q: May the. testator provide that the substitute will get a smaller portion? Example: A's share is i/2 and B's share is 'A of A's share if A predeceases. May the substitute inherit a smaller portion of what the original heir will inherit?A: Yes, under art. 861.Q: Suppose A was instituted to 1/2. B to 1/4. C to 1/4. It is provided in the will that all of them are substitutes for each other for any and all of the heirs. Suppose C predeceases. To whom will his share go and how much?A: C's share will go to A and B, the substitutes A and B will share in proportion to their institution. A's share is twice as much as B's share (2;1)r.;A will therefore get 2/12. (2/3 x 1/4) of the entire estate in addition to his original share and B will get 1/3 x 1/4 = 1/12 in addition to his institution.Q: If the institution of the heir is subject to charges and conditions will these charges and conditions apply to the substitute?A: Yes, under art 862.Q: T instituted A to 1/2 of his estate. Ts will provided chat ifXshould die within 1 year after Ts death, the property shallgotoB. Is this a substitution? A: No. This is a conditional institution. Institution of A issubject to a resolutory condition. The institution of B issubject to a suspensive condition.r'd. fideicommissaryART 863. A ftdeicommisary substitution by virtue of which the fiduciary or first heir instituted is entnjsted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of death of the testator.TOLENTINO:• The original purpose of this substitution is feudalistic andis not in accord with the modem concept of ownershipwhich puts the welfare of the society over and above thatof a particular family. As amended, property cannot stay in3**- the same family for the same length of time authorized by•^Z {he oW Civil Code»~< Requisites of Fideicommisarv substitution5»i > a first heir called to the succession° > an obligation clearly imposing upon such first heir thepreservation of the property and its transmission tothe second heir > a second heir to whom the property is transmitted bythe first hair

• The Fiduciary> The first heir is not an administrator o- the property. Neither is he a mere intermediary or agent of the deceased. He is recognized as an instituted heir, and is entitled to the enjoyment of the property.> Although there is no complete' identity between fiduciary and a usufructuary, he is commonly considered as such because, although he has right to enjoy the property, he can alienate it. Thus, although he is not expressly required to in an inventory, such an obligation cannot be doubted.> However, the fiduciary is not required to furnish a bond secure the delivery of the property to the second heir.> Although there is a similarity between the fiduciary and trustee, there is a difference between the two. While the first is a real heir who enters upon the property and enjoys it .as his own (with the obligation, to preserve and transmit it to another) the latter is a mere agent who carries out the. wishes of the testator without himself enjoying the property left under his care.> There is an express limitation on the right of first heir: he cannot alienate, the property, except in favor the second heir, either by act inter vivos or mortis causa is bound to preserve it and transmit it to the second he; Without such obligation, there is no fideicommisary substitution. The obligation of the fiduciary to preserve the property must be clearly imposed, in order that there can fideicommisary substitution.Page 83 of 207REVIEWER IN SUCCESSION

2007A> The time when the transmission is to be made to the second heir is left to the will of the testator. If the testator should not have expressly provided when the transmission is to be made to the second heir is left to the will of the Testator. If the testator should not have expressly provided when the transmission shall take place, it is understood to be at the death of the fiduciary. • Fideicommisary Heir> He must have the capacity to succeed the testator. He is really a second heir instituted by the testator; he does not succeed the fiduciary for he acquires his rights from the moment of the testator's death.> It is required that the second heir:• Must not be beyond one degree from the heir originally instituted• Must be living at the time of the testator's death• Persons conceived but not yet bom at the time of the testator's death are considered living , provided they a subsequently bom with the requisites for civil personality. > What is meant by "one degree" from the first heir?• Scaevola, Maura, and Traviesas construe "degree" as designation, .substitution, or transmission. The SC of Spain has adopted this construction. From this point of view, there can only one transmission or substitution, and the substitute need not be related to the first heir.• Mariresa, Morefl, and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation, by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus dearly indicates that the second heir must be related to and be one generation from the first heir (Note: DLC also adopts this construction)From this, it follows that the fideicommisary can only be either a parent of a child of the first heir. These are the only relatives who are one generation or degree from the fiduciary. And since the limitation of "one degree" refers to one generation and not to one substitution or designation, it is possible to establish fideicommisary substitution successively in favor of an unlimited number of persons, provided that all of them are one generation from the first heir and are living at the time of the death of the testatorDANNYCON SAYS: One degree refers to transfer, not relationship!> Substitution mnay refer only to a part of the property to which the first heir is instituted. Substitution may refer not only to the heir who is given the entire estate, but also to one who receives only part of it.ART 864. A fideicomissary substitution can never burden the legitime._____-•;________________TOLENTINO:• All kinds of substitutions are prohibited in so far as legitimes are concerned. If the testator provides for a subsiitution in relation to a legitime. the substitution is considered as not imposed.ART 865. Every fideicommisary substitution must be expressly made in order that it be made valid.The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions that those which arise from legitimate expenses, credits and improvements, save in case where the testator has proyided otherwise._____TOLENTINO:• As fideicommisary substitutions are net favored, because they entail the locking up of property within a family and suspending its alienability, the law requires that they should be made expressly, they cannot be implied.• "Legitimate expenses" do not refer to those which have been occasioned by the use or enjoyment of the property, but refer to those which have been made for the acquisition, and preservation of the inheritance. Expenses made purely in connection with the management of the property during its onjoyment by the first heir can be deducted only when they constitute improvements. They are considered as "improvements" only when they are necessary for the preservation of the property, or when they constitute useful expenses. Expenses for were luxury and ostentation are excluded. However, the amount allowable is not the expense itself, but only the increase in value,

by analogy to the rights of the usufructuary. By deducting only the increase in value, the fideicommisary neither gains nor loses; the property is actually preserved. On the other hand, the fiduciary is not Sable for deteriorations, unless caused by his fault or neglect.ART 866. The second heir shall acquire a right to succession from the time or the testator's death, even though should die before the fiduciary. The right of the second heir shall pass to his heirs._________TOLENTINO:• Remember that the fideicommisary succeeds the testator, 'not the fiduciary. The fiduciary acquires only the usufruct of the of the inheritance. The naked ownership in vested on the fideicommisary.ART 867. The following shall not take effect:(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir(2) Provisions which contain a perpetual prohibition to alienate and even a temporary one, beyond the limit fixed in Art. 863(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Art. 863, a certain income or pension;(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret _______instructions communicated to him by the testator.TOLENTINO:• The provisions of this article are intended to prevent possible abuses that may be made in the use ofPage 84 of 207REVIEWER IN SUCCESSION

2007Afideicommissary substitutions as we* as of indirect meansof violating the limitations imposed upon it.The rationale for paragraph one is that substitution mustclearly spring from the testator's wM, imposed by him, andnot left to the discretion of the fiduciary-The second paragraph seeks to prevent the entail ofproperty or its withdrawal from circulation. There may ormay not be any fideicommissary substitution, but if theprohibition to alienate is perpetual or even if temporary,beyond the limits set forth in Art. 863, the prohibition isvoid and considered as not written. If the testator prohibitsalienation for a definite period of time, it cannot exceedtwenty years (Art. 870)The third paragraph seeks to -further secure theobservance of the limitations in Art. 863.The fourth paragraph is intended to avoid the possibility ofthe property being applied to purposes prohibited by thelaw, or going to incapacitated persons, by means of secretinstructions to the fiduciary. The will or intention of thatestator, not being evident in his testament, cannot begiven effect, whether there is fideicommissary substitutionor not.Only the secret instructions are void, and the beneficiary under such secret instructions cannot compel the heir to comply therewith. The disposition itself is void only if the sole purpose is that the person who has been named shall receive the property not as heir but as mere agent of the testator for carrying out his secret instructions. This is a prohibition known as TACIT FIDEICOMISO.ART 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written._______TOLENTINO:• This provision fideicommissary substitution applies to all cases of nullity of a fideicommissary substitution.• DANNYCON: Art. 868 applies only when a fideicommissary is intended by the Testator but one of the elements thereof is absent.ART 869. A provision whereby the testator leaves to a peison the whole or part otlhe inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Art. 863 shall apply.TOLENTINO:• When the testator leaves his property in naked ownership to one person and in usufruct to another, upon the expiration of the tetter's right the former acquires such usufruct, thereby consolidating the absolute ownership in himself. But he should be considered as a mere substitute or second heir of the usufructuary. There would be a real substitution, however, when the testator calls a third person to succeed the usufructuary. If more than one person care called successively, all of them must be living at the time of the testator's death and they must not be beyond one degree.Since the heir instituted to the naked ownership, upon consolidating absolute title at the expiration of the right ofPage 85 of 207-70the usufructuary, does not succeed the latter as a substitute, it is clear that he £s a first heir. Being so, the testator may also provide that after the consolidation of ownership in such heir, lie may still be substituted by others within the limits of Art 863.LECTURE NOTES:

• 1s1 heir never gets ownership, 2nd heir has title even if 2nd heir dies. 1st heir never gets ownership• Fideicommisary [863] vs. Legacy of Usufrcut [869]> Difference : NO SUBSTITUTION in 869 but in 863 there is a substitute.• Fideicommisary is VOID when> 2nd heir is already dead at the time of death of the testator [863]> When the Testator intended a fideicommisary substitution but failed to call it such or failed to impose on the 1 * heir the obligation to transmitPCIB v. Escolin (1974)In Mrs. Hodges' will, she gave, bequeathed, and devised her estate to her husband during his lifetime. The inheritance is subject to the condition that upon his death, the remainder of what he inherited shall be given to the brothers and sisters of Mrs. Hodges.ISSUE/HELD: WON this is a case of fideicommisary? - NORATIO: One basic element of fideicommisary substitution is absent i.e. the duty.to preserve the thing inherited. In this case Mr. Hodges obtained total dominion over the inheritance. He became the absolute owner of the property and he could do anything he desired with it. The provision regarding the brothers and sisters is a simple case of conditional simultaneous institution of heiis. The institution f Mr. Hodges is subject to a partial resolutory condition, the operative contingency of which is coincident with that of his brothers and sister-in-law.Since she didn't intend fideicommisary, we don't apply Art 867.868. The property goes to Mrs Hodges' brothers and sisters because conditional institution.Palacios v. Ramirez (1982)Ramires died in Spain, with his widow Marcelle as the only compulsory heir. R left a will, the principal, beneficiaries of w/c were his wife, his 2 grandnephews and his companion Wanda. The will provided for a simple fideicommisary substitution.The will was admitted "for probate and subsequently the administrator submitted a project of partition wherein 1/2 of the estate was given to the widow as her legitime; the free portion to the grandnephews, 1/3 of the free portion was charged with the widow's usufruct with a simple fideicommisary substitution in favor of Wanda; the remaining 2/3 was charged with a usufruct in favor of Wanda, with a simple and fideicommisary substitution for one Jankowski and a certain Horace Ramirez. The grandnephews opposed. ISSUE/HELD: WON disposition of the free portion was proper? - NOHELD: The usufruct in favor of Manda with respect to the 2/3 of the free portion is partly valid and partly not. The substitution in its fideicommisary aspect is void. The reason is, because the substitutes are not related to Wanda, the heir originally instituted. The Code validates a fideicommisary substitution provided such does not go beyond one deciree from the heir originally instituted. "One degree" refers to the relation of the fiduciary and the fideicommisary. It includes only either a child or parent of the first heir ________________________REVIEWER IN SUCCESSION

2007APeros v. Garchitorena (1930)Testatrix instituted Carmen, her niece-in-law as hersote heir. It was further provided that should Carmen die. "I order that the whole estate shall pass unimpaired to the surviving children." Should Carmen die while her children are still minors, the estate shall be administered by persons named in the will.ISSUE/HELD: WON there is a fideicommisary substitution? - YESHELD: The will contemplates the enjoyment of the estate by the heir instituted during ner lifetime, with the only provision that she could not dispose of it. because its transmission is limited to her children, and it is provided that the whole of it shall pass to them unimpaired. AD the requisites of a fideicomrnisary substitution are present institution.________Crisologo v. Sinqson (1962)Singson died in 194S. leaving a will stating that upon the death of Florentine (a grandmece), whether this occurs before or after the death of the testatrix, the property Bequeathed to her shall be delivered or shall belong in equal parts to her brothers or their forced heirs. When Florentine asked for partition w/ another who was given the other half, the jitter refused alleging that Florentine only obtained a usufruct over the property — the substitution being fideicommisary.ISSUE/HELD: WON Florentine is entitled to a partition? - YESHELD: A fideicommisary substitution shall have no perfect unless it is made expressly, either by giving it such name or imposing on the first heir the absolute obligation to deliver the inheritance to a, second heir. The testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommisary kind, nor does it contain a clear statement to the effect that appellee during her lifetime shall enjoy only the usufructuary, rights over the property bequeathed to her. naked ownership being vested in the brothers of the testatrix.DANNYCON SAYS: Court erred in this decision by failing to consider the concept of legacy of a usufruct.__________Vda de Kilavko v. Tenaco (1992)Eustaquia Lizares inherited properties from Maria Lizares. The will of Maria was duly probated and a project of partition was approved by the court Thereafter, the properties were distributed to the respective heirs. When Eustaquia died without issue and intestate Celsa Vda. de Kilayko. et at. sisters of Maria Lizares sought the reopening of the estate of Maria Lizares and sought the properties adjudicated to Eustaquia claiming that they were substitute heirs.

ISSUE/HELD: WON Ps may reopen the proceedings on the estate of Maria Lizares -HELD: Granting that res judicata has not barred the institution of Civil Case 11 639, the contention of Celsa L. Vda de Kilayko. et al.. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares is not meritorious. While the allegation of the joint administrators that pars. 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommisary substitution under art. 863 of the CC is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa et al neither may said paragraphs be considered as providing for a vulgar or simple substitution._________________It should be remembered that when a T merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideiconimissary substitution. The substitution should then be construed as a vulgar or simple substitution under art. 859 of the CC but it shall be effective only if the first heir dies before the T. In this case, the instituted heir, Eustaquia. survived the Tx, Maria Linares Hence, there can be no substitution of heirs for, Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters Maria Lizares could only inherit the estate of Eustaquia operation of the law of intestacy.DANNYCON SAYS: The ruling of the Court in this case is erroneous. The court should have used the reasoning in PCIB v. Escolin. Art- 868 is not applicable because the Testator did not intend a fideicommisary._______________________Page 86 of 207MAGIC NOTES:• Reason: To allow the testator to keep his property within the family by entailing the property to preserve the status of the family and to protect family from prodigality.Q: What are the limitations on fideicommissary substitution:1. T can entail only the free portion2. Inalienability of the property cannot exceed 20 yearsQ: How is the fideicommissary instituted?A: the testator institutes a first heir called the fiduciary who will enjoy the inheritance for the priod specified in the wM and the testator will impose an obligation on the fiduciary to preserve and transmit the property in whole or in part to a second heir called the fideicommissary.Q: What are the requisites for a valid fideicommissarysubstitution? A: (1) the substitution must not go beyond one degree fromthe heir originally instituted(2) the substitution must be made expressly(3) both heirs must be living at the time of the death of the testator(4) the substitution is imposed on the free portion and not on the legitimeQ: How may the substitution be made expressly A: (1) by giving it that name; or(2) by imposing on the first heir an obligation to preserve and transmit the property to a second heirQ: Does a FS prohibit or disallow the transfer of property, if it isfor the purpose of preserving the property? A: NOa. fiduciaryQ: How do you call the first heir?A: The fiduciaryQ: Who may be instituted as a fiduciaryA: Anybody who has the capacity to succeed at the time of thetestator's death may be a fiduciary. He need not be relatedto the testator.Q: What does the fiduciary Inherit?REVIEWER IN SUCCESSION

2007APeros v. Garchitorena (1930)Testatrix instituted Carmen, her niece-in-law as hersote heir. It was further provided that should Carmen die. "I order that the whole estate shall pass unimpaired to the surviving children." Should Carmen die while her children are still minors, the estate shall be administered by persons named in the will.ISSUE/HELD: WON there is a fideicommisary substitution? - YESHELD: The will contemplates the enjoyment of the estate by the heir instituted during ner lifetime, with the only provision that she could not dispose of it. because its transmission is limited to her children, and it is provided that the whole of it shall pass to them unimpaired. AD the requisites of a fideicomrnisary substitution are present institution.________Crisologo v. Sinqson (1962)Singson died in 194S. leaving a will stating that upon the death of Florentine (a grandmece), whether this occurs before or after the death of the testatrix, the property Bequeathed to her shall be delivered or shall belong in equal parts to her brothers or their forced heirs. When Florentine asked for partition w/ another who was given the other half, the jitter refused alleging that Florentine only obtained a usufruct over the property — the substitution being fideicommisary.ISSUE/HELD: WON Florentine is entitled to a partition? - YESHELD: A fideicommisary substitution shall have no perfect unless it is made expressly, either by giving it such name or imposing on the first heir the absolute obligation to deliver the inheritance to a, second heir. The testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommisary kind, nor does it contain a clear statement to the effect that appellee during her lifetime shall enjoy only the usufructuary, rights over the property bequeathed to her. naked ownership being vested in the brothers of the testatrix.

DANNYCON SAYS: Court erred in this decision by failing to consider the concept of legacy of a usufruct.__________Vda de Kilavko v. Tenaco (1992)Eustaquia Lizares inherited properties from Maria Lizares. The will of Maria was duly probated and a project of partition was approved by the court Thereafter, the properties were distributed to the respective heirs. When Eustaquia died without issue and intestate Celsa Vda. de Kilayko. et at. sisters of Maria Lizares sought the reopening of the estate of Maria Lizares and sought the properties adjudicated to Eustaquia claiming that they were substitute heirs.ISSUE/HELD: WON Ps may reopen the proceedings on the estate of Maria Lizares -HELD: Granting that res judicata has not barred the institution of Civil Case 11 639, the contention of Celsa L. Vda de Kilayko. et al.. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares is not meritorious. While the allegation of the joint administrators that pars. 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommisary substitution under art. 863 of the CC is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa et al neither may said paragraphs be considered as providing for a vulgar or simple substitution._________________It should be remembered that when a T merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideiconimissary substitution. The substitution should then be construed as a vulgar or simple substitution under art. 859 of the CC but it shall be effective only if the first heir dies before the T. In this case, the instituted heir, Eustaquia. survived the Tx, Maria Linares Hence, there can be no substitution of heirs for, Maria Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters Maria Lizares could only inherit the estate of Eustaquia operation of the law of intestacy.DANNYCON SAYS: The ruling of the Court in this case is erroneous. The court should have used the reasoning in PCIB v. Escolin. Art- 868 is not applicable because the Testator did not intend a fideicommisary._______________________Page 86 of 207MAGIC NOTES:• Reason: To allow the testator to keep his property within the family by entailing the property to preserve the status of the family and to protect family from prodigality.Q: What are the limitations on fideicommissary substitution:1. T can entail only the free portion2. Inalienability of the property cannot exceed 20 yearsQ: How is the fideicommissary instituted?A: the testator institutes a first heir called the fiduciary who will enjoy the inheritance for the priod specified in the wM and the testator will impose an obligation on the fiduciary to preserve and transmit the property in whole or in part to a second heir called the fideicommissary.Q: What are the requisites for a valid fideicommissarysubstitution? A: (1) the substitution must not go beyond one degree fromthe heir originally instituted(2) the substitution must be made expressly(3) both heirs must be living at the time of the death of the testator(4) the substitution is imposed on the free portion and not on the legitimeQ: How may the substitution be made expressly A: (1) by giving it that name; or(2) by imposing on the first heir an obligation to preserve and transmit the property to a second heirQ: Does a FS prohibit or disallow the transfer of property, if it isfor the purpose of preserving the property? A: NOa. fiduciaryQ: How do you call the first heir?A: The fiduciaryQ: Who may be instituted as a fiduciaryA: Anybody who has the capacity to succeed at the time of thetestator's death may be a fiduciary. He need not be relatedto the testator.Q: What does the fiduciary Inherit?REVIEWER IN SUCCESSION

2007Aafi the properties, the 2"° heir will inherit nothing. It is actually a conditional testamentary institution. The institution of the 2nd heir will be subject to the happening of the condition that something will be left of the property inherited by the 1* heir.Note: Relate this case to Vda de Kilayko. OanCon says the court should have used the ruling in PCIB in the case of Kilayko.Q: When will the 1st heir transmit to the 2nd heir?A: As a rule, it depends on the will of the testator. The testator may provide that the first heir will enjoy the property for a certain period of time and at the end of the period, the property will be transmitted to the 2nd heir.Q: Suppose the testator did not fix the period, when will theproperty be transmitted to the 2nd heir? A: the property to the second heirb. Fideicommi ssary heirQ: Who may be a fideioommissary heir?A: Under Art 863. anybody who is not beyond one degree fromthe fiduciary and who is living at the time of the death ofthe testatorQ: What is the relevance of this one degree?

A: If it is one degree of transfer, the testator cannot provide for successive substitution because the property may be transferred only once from the fiduciary.if it is one degree of relations, successive substitution is possible as long as all the fideicommissaries are within one degree from the fiduciary (1* heir originally instituted). Thus, the 2nd heir. 3'a heir. 4* heir, etc., should all be within one degree of civil relations with the I1' heir.DanCon: the prevailing policy is in favor of non-entailment of property. Art 87C provides that dispositions of the T declaring all or part of the state inalienable for more than 20 years is void. If we interpret one degree as referring to one degree of relationship and successive substitution is possible in FS, does the limitation of inalienability for not more than 20 years apply in FS? The decision in Palacios should be reversed and one degree should be taken to mean as one degree of transfer.However, it could be argued that Art 870 does not apply in case of FS nor in successive legacy of usufruct because in such cases there are no express prohibition to alienate the property. Art 870 should apply only to dispositions which expressly provides for inalienability of the property.Prof Balane is of the opinion that successive transfers should be aloowed but must be limited to 20 years.Q: A fiduciary has the right to enjoy the property during his lifetime. What if he lives more than 20 years after Ts death, is it not entailing the property for more than 20 years, thus violating Art 870?A: Under art 866, the fideiconimissary acquires a right to the succession from the time of Ts death. He could alienate his right even if the property is still with the fiduciary. There is really no prohibition against alienation in this case. The legal heir can alienate his right subject to the existing usufruct.Q: May a corporation be a fiduciary? Page 88 of 207<=> Q: A:Q: A:No. it may not be a fiduciary because it has no relatives and therefore no fideioommissary will ever qualify.In the same line of argument, a corporation may not become a fideioommissary because it cannot be related within one degree from the fiduciary. Therefore, in fideicommissary substitution, only natural persons will be involved. If substitution is simple, a corporation may be a substitute and a representative may be appointed to take the place of the corporation.The 2"* requirement of a fideicommissary is that it must be alive at the time of death of testator. Why is this required ? Because the 2nd heir is inheriting from the testator and not from the fiduciary and therefore the 2nd heir must be qualified at the time of the Ts death. May an unborn child be a 2nd heir? Yes. for as long as the child has already been conceived at the time of the T's death and the child was born in accordance with the code, meaning it is born alive. But if the child had an intrauterine life of less than 7 months, it is considered bom if it was alive for at least 24 hours from its complete separation from the womb of the mother.Q: Suppose the fideicommissary dies before the fiduciary but after the testator, who will get the property form the first heir?A: We apply Art 866. the heirs of the 2nd heir.Q: Why?A: Because the 2nd heir, upon the death of the testator, has acquired a vested right to the property. The testator intended the property to go to the 2nd heir but wants the 1st heir to enjoy the property. However, the ownership will ultimately go to the 2 heir.Q: how about if the fideicommissary dies before the testator, who will get the property? Did it make the substitution null and void?A: According to some authorities, the death of the fideicommissary before the T nullifies the institution because under Art 863. for the fideicommissary to take place, the 2nd heir must be alive at the time of the Ts death. Since that condition can no longer be complied with, the fideicommissary substitution becomes null and void. Having become null and void, Art 868 will operate and the fiduciary will get the property.It will be different had it been a legacy of usufruct because if the T gave the 2nd heir ownership of the property and a mere legacy to the 1S| heir, then the death of the 2nd heir will not entitle the 1st heir to get the property. The legal heir will not get the property. The heirs of the 2nd heir will not get the property since there is no representation in voluntary succession. This is the essential difference between a mere legacy of usufruct and fideicommissary substitution.Problem: The testator provided that the 1* heir shall enjoy the property during his lifetime and that upon his death, it shall pass upon to a 2nd heir without imposing the obligation to preserve the property. Is it a null fideicommissary substitution or is it a mere legacy of a usufruct? If we look at it as a legacy of usufruct, the first heir will never inherit the property but if we look at it as a null and void fideicommissary substitution, the express obligation having been omitted, then the 1S| heir will inherit under art 868. An opinion provides that it will always beREVIEWER IN SUCCESSION

2007Adecided on the basis of the intent of the testator, tf the testator intended it to be a substitution, meaning in case the fideicommissary will not inherit, the 1* heir will inherit, then that intention will be given effect. But the problem is how do we know the intent of the testator. In the absence of indication on the will, how shall we look for it? Is there a presumption in favor of legacy of usufruct or fideicommissary substitution? The law is silent.

DanCon: to determine intention, we go to Art 789. both extrinsic and intrinsic evidence may be used.Q: Suppose the fiduciary predeceases the fideicommissary,who will inherit? A: Apply Art 863. the fideicommissary will inherit. That it theessence of fideicommissary substitution.Q: How about if the fiduciary predeceases the testator and thetestator dies subsequently. Who will get the property? A: The law did not provide to whom the property will go.According to Prof Baviera, the property will go to thefideicommissary and that is the essence of the substitutionwhen the testator provided for a fiduciary.DanCon: FS is simple substitution in the reverse. The1* heir will get the property if the 2nd heir does not qualify.In simple substitution, the 2nd heir will get the property ifthe 1* heir does not qualify.Q: How about Art 863 wliich says that the 1* heir and ?* heir are Ifvingh at the time of the testator's death" which we considered as a condition. Since this is not met. the fideicommissary becomes null and void so that Art 868 will be applied. But this article does not apply because the 1a heir is already dead and there is no right of representation in voluntary succession. Will the fideicommissary inherit? Extinguishment of substitution will not entitle the substitute to inherit. What will then be the basis for the fideicommissary to inherit?A: Some authors believe that the property will go back to the estate of the testator and will be distributed to his legal heirs.Q: Art 868 applies in cases where the FS becomes nuH and void for not complying with the requirements in Art 863 and 867. Does Art 868 apply to cases where the 2* heir repudiates the inheritance or becomes incapacitated?A: According to the authorities. 868 covers also repudiation and incapacity of the 2nd heir, thus, the 1* heir will get the property..Q: If the testator gives a legacy of usufruct, may he give alegacy successively? A: Yes. under Art 869 but the provision of Art 863 shall apply3. time-limitation on inalienabilityART 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years void._________________________NOTES:In all these examples, there are three parties, thetestator (T), the first heir (FH). and the 2nd heir (SH)Situation 1: If the following is the sequence of deathof 3 parties: FH - SH - T. Who will inherit>Answer: the legal heirsSituation 2: T-SH-FHAnswer: SH under Art 866Situation 3: FH - T- SHAnswer: no provision in the law. But SH inheritsbecause the T intended him to inherit.• Note: This provision applies to all substitutions exceptTOLENTINO:• This article is intended to give more impetus to socialization of the ownership of property, and to prevent perpetuation of large holdings which give rise to agrarian troubles.• The testator cannot declare the legitime of compulsory heir as inalienable. But he may impose sue condition to the free portion. But the period of inalienable cannot• exceed 20 years. If it does, the property becomes after 20 J, years.• It is presumed that the testator did not intend violate the~ law. If the period fixed by the testator is lifetime of theI~> heir, then there would be a dual limitation. The heir diesbefore 20 years expire, the property passes to heirsalready free; but if he lives for more than 20 years a thedeath of the testator, the property becomes alienable atwenty years.• The present article must be deemed limited inalienability of the property in the hands of the instituted heir where there is no fideicommisary substitution. If a fideicommisary substitution is imposed, then the control provisions must foe Arts. 833 and 867(2). Thus. where the testator provides for fideicommisary substitution, the fiduciary must preserve the property even if he lives for more than 20 years after the death of the testator the limitation in the present article cannot apply to him. because ii would defeat the fideicommisary substitution. On the other hand, the testator cannot keep the property inalienable for 20 years, if the fiduciary should die before that period; the property becomes free the moment it passes to the fideicommisary heir/heir• Mayorazgos and Fideicomisos> The fideicomiso was invented in order to afford an indirect means of circumventing the law and transmitting' hereditary property to incapacitated persons. It is a charge of confidence. A person is called by the testator to the success-or, mortis causa but he receives the inheritance not directlyfrom the testator but through another who has been expressly designated by the testator for this purpose.> There are there-fore three parties: the testator (fideicomitente), the person charged with the transmission of the property (fiduciario), and the person who receives the property according to the wishes of the testator

(fideicomisario). This last one is the real and only heir, instituted by the deceased.> The fideicomiso was either express or tacit. The latter form was usually employed to indirectly avoid the law and ultimately make the property pass to an incapacitated person. At other times, this was employed because the testator wanted to perform an act of generosity without making known his motives therefore, and relying solely upon the good faith of the fiduciario.Page 89 of 207REVIEWER IN SUCCESSION

2007Adecided on the basis of the intent of the testator, tf the testator intended it to be a substitution, meaning in case the fideicommissary will not inherit, the 1* heir will inherit, then that intention will be given effect. But the problem is how do we know the intent of the testator. In the absence of indication on the will, how shall we look for it? Is there a presumption in favor of legacy of usufruct or fideicommissary substitution? The law is silent.DanCon: to determine intention, we go to Art 789. both extrinsic and intrinsic evidence may be used.Q: Suppose the fiduciary predeceases the fideicommissary,who will inherit? A: Apply Art 863. the fideicommissary will inherit. That it theessence of fideicommissary substitution.Q: How about if the fiduciary predeceases the testator and thetestator dies subsequently. Who will get the property? A: The law did not provide to whom the property will go.According to Prof Baviera, the property will go to thefideicommissary and that is the essence of the substitutionwhen the testator provided for a fiduciary.DanCon: FS is simple substitution in the reverse. The1* heir will get the property if the 2nd heir does not qualify.In simple substitution, the 2nd heir will get the property ifthe 1* heir does not qualify.Q: How about Art 863 wliich says that the 1* heir and ?* heir are Ifvingh at the time of the testator's death" which we considered as a condition. Since this is not met. the fideicommissary becomes null and void so that Art 868 will be applied. But this article does not apply because the 1a heir is already dead and there is no right of representation in voluntary succession. Will the fideicommissary inherit? Extinguishment of substitution will not entitle the substitute to inherit. What will then be the basis for the fideicommissary to inherit?A: Some authors believe that the property will go back to the estate of the testator and will be distributed to his legal heirs.Q: Art 868 applies in cases where the FS becomes nuH and void for not complying with the requirements in Art 863 and 867. Does Art 868 apply to cases where the 2* heir repudiates the inheritance or becomes incapacitated?A: According to the authorities. 868 covers also repudiation and incapacity of the 2nd heir, thus, the 1* heir will get the property..Q: If the testator gives a legacy of usufruct, may he give alegacy successively? A: Yes. under Art 869 but the provision of Art 863 shall apply3. time-limitation on inalienabilityART 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years void._________________________NOTES:In all these examples, there are three parties, thetestator (T), the first heir (FH). and the 2nd heir (SH)Situation 1: If the following is the sequence of deathof 3 parties: FH - SH - T. Who will inherit>Answer: the legal heirsSituation 2: T-SH-FHAnswer: SH under Art 866Situation 3: FH - T- SHAnswer: no provision in the law. But SH inheritsbecause the T intended him to inherit.• Note: This provision applies to all substitutions exceptTOLENTINO:• This article is intended to give more impetus to socialization of the ownership of property, and to prevent perpetuation of large holdings which give rise to agrarian troubles.• The testator cannot declare the legitime of compulsory heir as inalienable. But he may impose sue condition to the free portion. But the period of inalienable cannot• exceed 20 years. If it does, the property becomes after 20 J, years.• It is presumed that the testator did not intend violate the~ law. If the period fixed by the testator is lifetime of theI~> heir, then there would be a dual limitation. The heir diesbefore 20 years expire, the property passes to heirsalready free; but if he lives for more than 20 years a thedeath of the testator, the property becomes alienable atwenty years.• The present article must be deemed limited inalienability of the property in the hands of the instituted heir where there is no fideicommisary substitution. If a fideicommisary substitution is imposed, then the control provisions must foe Arts. 833 and 867(2). Thus. where the testator provides for fideicommisary substitution, the fiduciary must preserve the property even if he lives for more than 20 years after the death of the testator the limitation

in the present article cannot apply to him. because ii would defeat the fideicommisary substitution. On the other hand, the testator cannot keep the property inalienable for 20 years, if the fiduciary should die before that period; the property becomes free the moment it passes to the fideicommisary heir/heir• Mayorazgos and Fideicomisos> The fideicomiso was invented in order to afford an indirect means of circumventing the law and transmitting' hereditary property to incapacitated persons. It is a charge of confidence. A person is called by the testator to the success-or, mortis causa but he receives the inheritance not directlyfrom the testator but through another who has been expressly designated by the testator for this purpose.> There are there-fore three parties: the testator (fideicomitente), the person charged with the transmission of the property (fiduciario), and the person who receives the property according to the wishes of the testator (fideicomisario). This last one is the real and only heir, instituted by the deceased.> The fideicomiso was either express or tacit. The latter form was usually employed to indirectly avoid the law and ultimately make the property pass to an incapacitated person. At other times, this was employed because the testator wanted to perform an act of generosity without making known his motives therefore, and relying solely upon the good faith of the fiduciario.Page 89 of 207REVIEWER IN SUCCESSION

2007AFideiconvso is very different from a substitution fideJcomisaria. In the former, there is only one disposition, that is, in favor of the real heir (Wetcomisario); and there is no possibility of the property passing through several hands before reaching such heir.Art 867(4) is an express, prohibition of the tacit fideicomiso.A species of- the fideicomiso is the mayorazgo. It is the right to succeed to the property left upon the condition that it be preserved perpetually intact in the family and that it be transmitted in order of succession to each next first bom.While he possesses the property, the first-born is a trustee, but he is not a beneficiary. If he enjoys the property, he does not do so either as trustee or as beneficiary, but as usufructuary heir. During his possession of the entail, he is the trustee and the one called to succeed him in the enjoyment and "possession of the entail is the beneficiary or cestui q.ue trust until his tenancy begins; and when it does begin, he ceases to be the cestui que trust and becomes the trustee. It follows that in the mayorazgo, the usufructuaries who are the first-born possessors succeed one another in the usufruct of the properties and transmit them from one to the other. As to the naked ownership of the entailed properties, the beneficiaries or fideicomisarios are the descendants of the founder of the mayorazgo in their indefinite succession.Mayorazgos cannot now exist in this jurisdiction. If up to the present, we have what are known as mayorazgos, it is because they had been founded before the Disentailing Law was extended to the Philippines, and the interested parties have been maintaining them without, proceeding to the appraisal and distribution of the entailed properties as required by the Disentailing Law.«TPage 90 of 207REVIEWER IN SUCCESSION

2007AXIII. KINDS OF INSTITUTIONS 1. simple or pureArt 777. The rights to the succession are transmitted from the moment of death of the decedent._________• (for comments, see Chapter 1, no. 4) 2. conditionalArt 871. The institution of an heir may be made conditionally or for a certain purpose or cause_____TOLENTINO:• Condition may be defined as any future and uncertain fact or event on the happening of which a juridical act is made to depend. Testators may therefore make the validity and efficacy of their testamentary dispositions dependent upon such future or uncertain event. This manner of institution is frequently utilized to compel the fulfillment of or the abstention from certain things under the pain of losing the inheritance, devise or legacy.• If the condition does not appear in the testament itself, or in a document executed with the same formalities as a will, it cannot be enforced: the testamentary disposition will be considered pure.a. KindsMAGIC NOTES:Q: What are the kinds of conditions which the testator mayimpose? A:(1) As to manner of imposition:(a) expressly - when imposed in black and white in the will(b) tacit — merely inferred from the will(2) As to the effectivity of dispositions(a) suspensive - when it prevents the effectivity until the happening of the condition(b) resolutory - when it extinguishes the right upon the happening of the condition(3) As to the fulfillment of condition(a) potestative - depends exclusively on the will of the heir -:(b) casual — when it depends on chance or the will of 3rd parties

(c) mixed - depends on chance or will of 3rd parties or chance and will of the heir(4) As to the nature of the conditions(a) positive - when it consists of doing or giving something(b) negative - when it consists of not doing or giving of something(5) As to the effectiveness of the conditions(a) proper - wheri (hey may take effect(b) improper - when the law does not allow these conditions to take effect (ex. Art 873 cf. Art 1183)Q: Where must the testator impose the conditions ? A: The conditions must appear in the will itself or in the document executed as in the case of wills. It cannot be Page 91 of 207imposed verbafly on any other document or elsewhere but in The wHI. If not imposed in the wtt. the condition is deemed not imposed at all.» In case of doubt as to whether a win is conditional or not. the conditions should be considered as not imposed. Why? Because a testamentary disposition is by its nature an act or liberality. Being an act of liberality, it should not have any onerous effect on the part of the heir.Vda de Kilavko v. Trangco. supra.Held: Granting that res judicata has not barred the institution of the case, the contention of Vda. De Kilayko, et al that they are conditional substitute heirs of Eustaquia in the testamentary estate of Maria LJzares is not meritorious. While the allegation of the joint administrators that paragraphs 10 and 11 of the last will and testament conceives of a fideicommissary substitution is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve in favor of Celsa the properties. Neither may said paragraphs be considered as providing for a vulgar or simple substitution.It should be remembered that when a T merely names an heir and provides that if such heir should die a 2nd heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution, but shall be effective only if the 1* heir dies before the T. in this case the instituted heir, Eustaquia, survived the T, Maria LJzares. Hence, there can be no substitution of heir for upon Maria's death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria could only inherit the estate of Eustaquia by operation of the law of intestacy._________b. inoperative conditionsArt 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitime prescribed in this code. Should he do so, the same shall be considered as not imposed.__________TOLENTINO:• Encumbrances, conditions or substitutions of any kind imposed upon the legitime do not affect the right of the compulsory heir. They are simply disregarded and considered as riot written. The compulsory heir's right to the legitime is free, unencumbered and pure.• The testator is allowed to forbid the partition of the estate for a period not exceeding 20 years and this is the power to prohibit division applies to the legitime (Art 1083)Art 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide._____________TOLENTINO:• In the law of obligations, when the condition is impossible, contrary to law or good morals, the obligation dependent upon it is void. In case of testamentary dispositions, however, such condition is disregarded and the validity of the disposition is maintained.• A condition prohibiting the contest of the will and of its dispositions, under the pain of losing one's inheritance, legacy of devise, should be considered void and notREVIEWER IN SUCCESSION

2007Aimposed. It amounts to depriving an heir, devisee, or legatee of a day in courtAll the rules of interpretation should first be resorted to in order to determine the intention of the testator, but if the condition is sti doubtful, or is contradictory or unintelligible, then it should be classed as among the impossible conditions. It will be deemed that there is no condition.As to what time should be considered in determining whether a condition is impossible or not, authors differ. The better opinion, however, is that the time when the condition is to be fulfilled.Art 874. An absolute condition noi to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the tatter's ascendants or descendants.Nevertheless, the right of usufruct, or an allowance or some personal prestation maybe devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.TOLENTINO:• The exception provided by the article is sought to be justified on grounds of conjugal and family affection, as a means of securing more fidelity, even beyond the tomb, and in order to avoid the consequence that property coming from the deceased spouse should be enjoyed, through a subsequent marriage, by a person who, with more or less offense to the memory of the deceased, has taker his place in the family.

• A distinction should be made between the prohibition on 1* marriage and prohibition on subsequent marriages. A prohibition on 1* marriage is always void, and the condition containing it will bs considered as not written. When the prohibition refers to subsequent marriages, the general rule is that it is void, but it is valid when imposed upon a widow or widower by the deceased spouse, his ascendants or descendants.• The absolute prohibition will be valid only when imposed upon a widow or widower by tlie deceased spouse, his ascendants or descendants. Whether the descendant is exclusively of the deceased spouse or begotten with the widow or widower is immaterial; the reason for upholding the prohibition is the same in either case. It is dear, however, that the ascendants or descendants of the surviving spouse, had by a prior marriage, cannot impose the prohibition, because they are not ascendants or descendants of the deceased spouse.• The condition absolutely prohibiting a subsequent marriage, cannot be imposed upon the legitime of the widow or widower. The legitime is given to the widow or widower by force of law and not by the will of the deceased spouse and not by the will of the deceased. Hence, the latter cannot subject it to any condition.• Relative prohibition is valid. The prohibition is void only when it is absolute; that is, when the heir or legatee is forbidden to remain unmamed or in widowhood. When the prohibition refers only to particular persons or group of persons, or particular period or places, it is not absolute but only relative and, therefore valid/ however, even when by its terms, the prohibition appears to be relative, it will be understood as absolute if the conditions required by thetestator practically render it impossible for the heir or legatee to get married at all.Effect of valid prohibition. When the condition is validly imposed, it is ' resolutory in character. The widow or widower gets the property upon the death of the decedent. but she loses all her rights thereto upon her marriage. The property shall then be distributed among the legal heirs of the deceased as in cases of intestacy, unless otherwise provided in the will itself.Conditions to contract marriage. If the condition is to contract marriage, either generally or with a determinate person, it is obvious that there us also a violation of the freedom to select one's status. Nevertheless, the CC has specifically rendered void only the absolute condition not to marry; a sensu contrario, a condition requiring marriage is valid. The condition to marry a determinate person will be valid as a rule, but if its performance becomes impossible, it is considered as not written, such as, when the person indicated refuse to marry the heir or legatee or does not have the legal capacity to marry. Related to Art 1 188. The creditor may before the fulfillment of the condition bring the appropriate actions for the preservation of his right. The debtor may recover what during the same time he has paid by mistake in case of suspensive condition.MAGIC NOTES:Q: What are impossible conditions?A: Those the nappening of which are contrary to law or nature and therefore will never happen.Q: What conditions are contrary to law?A: The condition is contrary to law when the law referred to is mandatory. It is mandatory when non-compliance is sanctioned, i.e., by the nullity of the act or contract, or by the imposition of penalty. In the absence of sanctions, the law is merely directory. (Art 5, CC)Q: When is a condition to be fulfilled?A: It is to be fulfilled upon the death of the testator.DanCon: If that is so, then if a condition which is illegal at the time of the execution of the will becomes legal at the time of the Ts death then the heir has to comply.Q: when is the prohibition to contract a 1st or subsequent marriage deemed absolute?A: The heir should be prohibited from marrying anyone, at anytime and any place. So if the T prohibits the heir from marrying anyone within a certain period after his death, the condition is valid because it is not an absolute prohibition for the heir not to contract a 1 * or subsequent marriage.Q: What if the T prohibits Thea Daep from marrying before herSCt" year. Is the condition valid? A: it is valid under Art 874 but invalid as contrary to goodcustoms.Q: C, son of the 1s" marriage dies, and he imposes in his will a condition that his father B should not marry again. But at that time, B had already remarried. Does the term "deceased spouse" in 874 limited to the last deceased spouse or to all deceased spouses?Page 92 of 207REVIEWER IN SUCCESSION

2007Awife dies A——2nd wife diesBSon Cson EART 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor cfthe testator or any other person shall be void._____TOLENTINO:

• Disposicion Captatoria - to allow the dispositions prohibited in this article will be to convert the testamentary dispositions into contractual agreements, to impair the heir's freedom to testamentary dispositions, and to allow the testator to dispose not only his property after death but also the heir's property after the tatter's death.• If the heir is allowed to change his will after acquiring the property, there would be a flagrant breach of good faith, and if, on the other hand, he is not allowed to change his will, then the very essence of revocability of testaments would be impaired. Thus disposicion captatoria is incompatible with good faith and with the nature of testaments; it is immoral and contrary to the freedom to make wills.MAGIC NOTES:Q: Give an example of a disposicion captatoria. A: "I institute my driver to % of my estate provided that my driver will institute my nephew as his universal heir."Q: what is the difference between an illegal or impossible condition and a disposicion captatnha?A: When the T imposed an impossible or illegal condition on the heir, the heir will still inherit. The condition shall be merely deemed as not imposed. In the case of disposicion captatoria. the institution of the disposition itself is void. The heir will not inherit. The condition is not the one that is void, it is the disposition.There is a difference between the consideration being immoral and the condition being immoral. In the example above, the condition may not be immoral but it is the consideration which is immoral. According to some authorities, a disposicion captatoria may encourage assassinations.d. complianceART 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he teams of the testator's death.This rule shall not apply when the condition already complied with cannot be fulfilled again.ART 877. If the condition is casual or mixed, it shall besufficient if it happen or be fulfilled at any time beforeor after the death of the testator, unless ne hasotherwise provided.Should it have existed or should it have beenfulfilled at the time the wM was executed and the testator was unaware thereof, it shai be deemed as complied with.If he had Knowledge thereof, the condtton shal be considered fulfilled onfy when it is of such a nature that it can no longer exist or be complied with againA: Condition is deemed not written since B had already remarried.c. dispocicion captatoriaNOTE: do not confuse Art 876 with Art 877. In Art 876 knowledge of the T of the compliance or non-compliance of the condition is immaterial. Such is not the case in 877.TOLENTINO:• Kinds of conditions -(1) Potestative condition - is one which depends exclusively upon the will of the heir, devisee, or i» legatee, and must be performed by him personally. It ~_'-~ does not admit of performance by a 3rd person. —) (2) Casual condition - one that does not depend upon the will of the heir, devisee, or legatee, but upon .> chance.(3) Mixed — when it depends jointly upon the will of the heir, devisee, or legatee and upon chance and/or will of the 3rd person• Fulfillment of conditions — while a potestative condition must be fulfilled after death of the T (except when it has already been fulfilled and is not of such nature that it can be repeated), casual or mixed conditions may be fulfilled either befoie or after such death unless the T has provided otherwise. The difference is based on the fact that potestative conditions is to be performed by the heir, devisee, or legatee in obedience to the wishes of the testator; since the testator may still change his will at any time before the moment of tris death, ttvere fe reafty no testamentary disposition that the heir, devisee or legatee should obey until such death.In case of casual or mixed conditions, where the will of the heir, devisee or legatee has limited or no intervention, it is immaterial to the T when the condition happens unless he knew at the time he made his will that it had already happened. In this last case, it is presumed that he wanis it to be fulfilled if it cannot be repeated or it cannot exist anew.• Constructive compliance - in the case of casual conditions, there must always be fulfillment as a fact or actual compliance. In potestative conditions, it may happen that the heir, devisee or legatee willingly obeys the wishes of the T which, however, is not fulfilled for reasons not imputable to the fault or neglect of such heir, devisee or legatee. In such case, the condition should be considered as fulfilled.In mixed conditions, since the will of a 3rd party intervenes, a distinction should be made. If the heir, devisee or legatee has done everything within his power towards the fulfillment of the condition, but this is not fulfilled because of the failure of the 3rd psrty to comply with what is expected of him, the condition is deemed fulfilled if such party has an interest in the fulfillment or non-fulfillment of the condition, otherwise, the condition cannot be considered fulfilled, and the institution is annullede. effectART 1034, par 3. If the institution, devise, or legacy should be conditional, the time of the compliance withPage 93 of 207

REVIEWER IN SUCCESSION

2007Awife dies A——2nd wife diesBSon Cson EART 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor cfthe testator or any other person shall be void._____TOLENTINO:• Disposicion Captatoria - to allow the dispositions prohibited in this article will be to convert the testamentary dispositions into contractual agreements, to impair the heir's freedom to testamentary dispositions, and to allow the testator to dispose not only his property after death but also the heir's property after the tatter's death.• If the heir is allowed to change his will after acquiring the property, there would be a flagrant breach of good faith, and if, on the other hand, he is not allowed to change his will, then the very essence of revocability of testaments would be impaired. Thus disposicion captatoria is incompatible with good faith and with the nature of testaments; it is immoral and contrary to the freedom to make wills.MAGIC NOTES:Q: Give an example of a disposicion captatoria. A: "I institute my driver to % of my estate provided that my driver will institute my nephew as his universal heir."Q: what is the difference between an illegal or impossible condition and a disposicion captatnha?A: When the T imposed an impossible or illegal condition on the heir, the heir will still inherit. The condition shall be merely deemed as not imposed. In the case of disposicion captatoria. the institution of the disposition itself is void. The heir will not inherit. The condition is not the one that is void, it is the disposition.There is a difference between the consideration being immoral and the condition being immoral. In the example above, the condition may not be immoral but it is the consideration which is immoral. According to some authorities, a disposicion captatoria may encourage assassinations.d. complianceART 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he teams of the testator's death.This rule shall not apply when the condition already complied with cannot be fulfilled again.ART 877. If the condition is casual or mixed, it shall besufficient if it happen or be fulfilled at any time beforeor after the death of the testator, unless ne hasotherwise provided.Should it have existed or should it have beenfulfilled at the time the wM was executed and the testator was unaware thereof, it shai be deemed as complied with.If he had Knowledge thereof, the condtton shal be considered fulfilled onfy when it is of such a nature that it can no longer exist or be complied with againA: Condition is deemed not written since B had already remarried.c. dispocicion captatoriaNOTE: do not confuse Art 876 with Art 877. In Art 876 knowledge of the T of the compliance or non-compliance of the condition is immaterial. Such is not the case in 877.TOLENTINO:• Kinds of conditions -(1) Potestative condition - is one which depends exclusively upon the will of the heir, devisee, or i» legatee, and must be performed by him personally. It ~_'-~ does not admit of performance by a 3rd person. —) (2) Casual condition - one that does not depend upon the will of the heir, devisee, or legatee, but upon .> chance.(3) Mixed — when it depends jointly upon the will of the heir, devisee, or legatee and upon chance and/or will of the 3rd person• Fulfillment of conditions — while a potestative condition must be fulfilled after death of the T (except when it has already been fulfilled and is not of such nature that it can be repeated), casual or mixed conditions may be fulfilled either befoie or after such death unless the T has provided otherwise. The difference is based on the fact that potestative conditions is to be performed by the heir, devisee, or legatee in obedience to the wishes of the testator; since the testator may still change his will at any time before the moment of tris death, ttvere fe reafty no testamentary disposition that the heir, devisee or legatee should obey until such death.In case of casual or mixed conditions, where the will of the heir, devisee or legatee has limited or no intervention, it is immaterial to the T when the condition happens unless he knew at the time he made his will that it had already happened. In this last case, it is presumed that he wanis it to be fulfilled if it cannot be repeated or it cannot exist anew.• Constructive compliance - in the case of casual conditions, there must always be fulfillment as a fact or actual compliance. In potestative conditions, it may happen that the heir, devisee or legatee willingly obeys the wishes of the T which, however, is not fulfilled for reasons not imputable to the fault or neglect of such heir, devisee or legatee. In such case, the condition should be considered as fulfilled.

In mixed conditions, since the will of a 3rd party intervenes, a distinction should be made. If the heir, devisee or legatee has done everything within his power towards the fulfillment of the condition, but this is not fulfilled because of the failure of the 3rd psrty to comply with what is expected of him, the condition is deemed fulfilled if such party has an interest in the fulfillment or non-fulfillment of the condition, otherwise, the condition cannot be considered fulfilled, and the institution is annullede. effectART 1034, par 3. If the institution, devise, or legacy should be conditional, the time of the compliance withPage 93 of 207REVIEWER IN SUCCESSION

2007Athe condition shal also be considered.ART 879. If the potestative condition imposed upon the heir is negative or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which he has been prohibited by the testator and that in case of contravention he will return whatever he may have received, together with its fruits and interests._______heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this section.____________________________TOLENTINO:• Negative Potestative Condition - the person instituted under a negative condition has a perfect right to the hereditary property from the moment the succession opens. Such right continues until the moment when he violates the negative condition.• The bond may be demanded by those who will succeed upon the violation of the condition. These persons may be the substitute. If one has been appointed, if there is no substitute, then the co-heirs may acquire the property, by • right of succession, and if there are no such co-heirs, the legal heirs who would get the property by intestacy.• If the condition is violated, the fruits must be returned together with the thing and with interest.• If the bond or Caution Muciana is not furnished, the property shall be placed under administration until the condition is fulfilled or it becomes certain that it cannot be fulfilled. The heir is placed in the same position as one whose institutions is subject to a suspensive condition.ART 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.The same shall be done if the heir does not give the security required in the preceding article.________TOLENTINO:• Administration under suspensive condition - when the institution is under a suspensive condition, the right of the heir is not definitely transmitted to him until the condition is fulfilled. This is the reason for the administration. Upon the happening of the condition, the property must be delivered to the administrator to the heir. If it becomes certain that the condition cannot be fulfilled, .then the administrator must deliver the property to the person entitled thereto.• When institution is with a term - as to the institution with a term, there is a conflict between this article and Art 855, the present article provides that in such institution, the property shall be placed under administration which, under Art 881 shall be governed by the rules of court; but in Art 885, the property must be given to the legal heir, until the arrival of the term or period. This article, therefore, must be construed as limited to institutions under a suspensive condition. If the institution is with a term, 855 should apply.ART 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of court.ART 884. Conditions imposed by the testator upon the Page 94 of 207MAGIC NOTES:Suspensive ConditionQ: In suspensive conditions, when must the condition befulfilled? A: It depends on the nature of the suspensive conditionimposed.Q: Comment on the rule when the condition is potestative.A: there is a problem with this rule. Is this reasonable if though the learning of the T's death, the will was not yet discovered? How can the heir possibly comply with it? It would seem that he should comply with the condition within a reasonable time from the time he leams of the condition. And if he fails to comply with the condition within a reasonable time upon the learning of the condition, it should be deemed as a renunciation of the inheritance. Why? Because the fulfillment of the condition depends ~> entirely on his will. An exception to this rule is when the condition has already been complied with and it cannot be complied with again.If the condition has been fulfilled before the Ts death but it mat be fulfilled again, then the heir has to comply again with the same.Note: Under the law of contracts, an obligation dependent entirely on the will of the debtor is void. But in succession, it is valid.Q: May a 3* person perform for the heir? A: NO. As a general rule, substitute performance is not allowed.Q: Suppose the heir fails to comply with the conditions despite his best efforts, will he inherit?

A: According to Tolentino and Caguioa. the condition is deemed fulfilled.DanCon: I do not know why we should consider the condition as deemed fulfilled. !f the condition is potestative, I do not know why the condition cannot be complied with. If it cannot be complied with because of some other factors, then it is not purely potestative.Q: In the case of casual or mixed conditions, if the T has knowledge that the condition cannot be complied with or the condition has occurred and despite such knowledge, he still imposed the condition in his will, should the heir comply with it again?A: Yes. There arises the presumption that the T wants the heir to comply with the conditions again.Please take note of the distinction. In purely potestative suspensive condition, the heir cannot comply with the condition before the T's death. But in the case of casual or mixed conditions, the condition may be complied with even before the death of the T unless the T provides in his will otherwise.The reason behind the distinction is this. The happening of the condition in the case of casual or mixed conditions does not depend on the heir's will. He has no control over the condition and therefore the happening of the condition before the dea'h of the T should be deemed as compliance with the conditionREVIEWER IN SUCCESSION

2007ACDNote: there is no right of representation in voluntary Q: succession even if the condition happened. There is no transmission of rights. A:Q: Suppose the T instituted the heir subject to a suspensive condition. The T died followed by the heir before the happening of the suspensive condition. Two days after the death of the heir, the condition happened. Who will inherit?A: The legal heirs of T will inherit. Under Art 759 of the Old CC, an heir who died before the condition is fulfilled, even if he survives the T, transmits no rights whatsoever to his Q: heirs. While he has acquired a vested right in the j.^, inheritance, the vested right is not complete until the 50 A:

condition is fulfilled. Under the New CC, there is no such ~"I provision. But the rule holds because Art 1034(3) which requires that the heir should have capacity not only at the time of the Ps death but also at the time of the fulfillment of the condition. If he has no capacity at the time of the happening of the condition, he cannot inherit. Hence, applying Art 1034, since he died before the happening of the condition, he did not transmit anything to his heirs. The legal heirs of the T will be the one entitled to inherit. Q:Q: Before the happening of the condition, to whom will theproperty go? A:A: Under Art 220. the property should be placed under administration.Why? Because before the happening of the condition, no one is entitled to inherit it as yet. Hence, no one is entitled G: to the property and therefore it should be placed under A: administration. The administrator has the obligation to preserve the property and to collect the fruits and upon the happening of the condition, to turn it over to the conditional Q: heirs together with the fruits. But when the non-happening A: of the condition becomes certain, the administrator should turn over the property and the fruits to the legal heirsQ:Resolutorv ConditionQ: Suppose the heir dies before the happening of the A: resolutory condition but after the death of the T, who will get the property, the heirs of the resolutory heirs or the legal heirs?A: it depends. If the death of the heir will make the non-happening of the resolutory condition certain, then the heirs of the resolutory heir will get the property. Why? Because the resolutory heir is an heir from the start. It is Q: only subject to the resolution of his rights on the happening of the resolutory condition and if this condition A: is potestative and he died, the non-happening of the resolutory condition becomes certain by his death, the Q: heirs of the resolutory heir will get the property. A:Q: Suppose the resolutory condition is not dependent on the will of the resolutory heir or its non-happening was not rendered certain by the death of the heir, to whom will the property go?A: to his heirs because he., is still the owner of the property which will become part of his estate but his heirs will get the property subject to the resolutory condition, the happening of which will cause the reversion of the inheritance to the legal heirs unless the T provided that the happening of the resolutory condition should only be effective during the lifetime of the resolutory heir.Page 95 of 207May a condition be imposed by a T successivety (on the condition heirs then on the heirs of the conditional heirs)? In the case of substitution, there is a provision in the Code that any condition or charge imposed on fte heir may be imposed on the substitute. An institution subject to a resolutory condition may be considered as a species of substitution although not strictly because it is not a case of predecease, incapacity or renunciation. Thus, the property will go to the heirs but are still subject to the resolutory condition.Will the death of the resolutory heir extinguish the condition?If the happening of the resolutory condition depends entirely on the will of the heir, then its non-happening becomes certain and therefore the ownership which the resolutory heirs will get becomes absolute.

But if the condition can stil! happen despite the death of the heir, then the heirs of the resolutory heir will get the property subject to the resolution thereon by the happening of the condition.What is the safeguard against the destruction by the resolutory heirs of the property to defeat its passing to the legal heirs upon the happening of the resolutory condition?The requirement of a bond called caucion muciana. Caucion muciana is imposed only if the condition is potestative under Art 679.Who will demand for the bond?the heirs who wilt succeed upon the happening of the resolutory condition.How much is the bond?the security must be equivalent to the value of the inheritance.Art 879 refers to potestative conditions. Will it apply to mixed resolutory conditions?The code is silent. DanCon: the right of the heirs must be annotated on the back of the title of real property so that prior purchasers will receive constructive notice. But if the property is personal, security must be given. Commentators agree that a bond must be given for all resolutory conditionswhat is the effect if the resolutory heir fails to comply with the bond? The property will be placed under administration. (Art 880).Until when?Caguioa: Until the heir has given a bond. DLC: Within a reasonable time because if the resolutory heir does not pose the bond within a reasonable time, it may amount to a renunciation of the inheritance on his part. Thus, if the condition is purely potestative and resolutory:(1) if the heir gives a bond, he will enter into the inheritance(2) if the heir does not give a bond, it shall be placed under administration.(3) If the heir later gives bond, he inters into theinheritance and the administration will end. But, if the heir does not give a bond, the administration will end when:REVIEWER IN SUCCESSION

2007AII 1I(1) resotutory cantSHon happens, so the property goes to the legal heirs;(2) There is a certainty frat the condition wM not happen, the property will then go to the heirs of the resolutory heirs.The heirs of the resolutory heirs receive the property subject to the condition. But if the condition is potestative and resolutory. the heirs of the resolutory heir will receive it absolutely.3. with a term a. kindsART 885, 1" paragraph. The designation of the day or time when the effects of the institution of an heir shall commence or cease shaH be valid.TOLENTINO:• When the institution is from a day certain the T may designate a person who will enjoy the property until the day comes when the instituted heir shall take it; likewise, when the institution is to a day certain or in diem, he may appoint another to succeed the instituted heir. Art 885 should be construes merely as suppletory, applying when the T has not provided otherwise.b. EffectART 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term.TOLENTINO:• Term distinguished from acondition - While acondition is an uncertain event which may or may not happen, a term is sure to happen or to arrive, even if the exact date of such happening or arrival may be uncertain. In a conditional institution, therefore, the acquisition of the rights of the heir depends upon the happening of the condition such that if the condition does not happen, the heir does not succeed. But in an institution with a term, the right is already transmitted to the heir upon the death of the T; the term merely serves to determine the demandability of such rights already acquired.Like the condition, the term may either be "suspensive" or "resolutory*. It is suspensive when the inheritance can be delivered to the heir only upon the arrival of the term; and it is resolutory when the inheritance is delivered immediately to the instituted heir, who holds it until the arrival of the period. The former is also called ex die; and the latter in diem.• Effects of suspensive term -the present article refers to the effect of a suspensive term. The heir instituted under a suspensive term acquires his right from the moment of the Ts death, therefore, even if such heir should die before the term arrives, his right is no longer affected.• Effects of suspensive:' condition - the effect of a suspensive condition was stated in Art 759 of the old civil code as follows: "An heir or legatee who dies before the condition is fulfilled, even if he survives the testator, transmits no right whatever to his rightsSuccessions! rights, in institutions with a suspensive condition, as distinguished from a suspensive term, are transmitted only upon the happening of the conditionPage 96 of 207although the effect retroact to the moment of the Ts death. It is for this reason that Art 1034 (3rd par) requires that the capacity of the conditional heir, devisee, or legatee must be determined not only at the time of the death of the T but also at the time of the happening of the condition. If the heir,

devisee or legatee dies before the happening of the condition, his personality disappears and his capacity to succeed terminates at the moment that he dies, he has not yet acquired any rights, and therefore he cannot transmit any to his own heirs. Even if the condition happens later, there can be no more acquisition of rights by him, because he would have no more capacity to succeed by that time.ART 885, 2 par. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession until after having given sufficient security with the intervention of the instituted heir.TOLENTINO• Right of 1st heir - In both kinds of institutions, ex die and in diem, the heir who 1* takes the property is bound to preserve the property until the arrival of the day when the instituted heir's or legatee's enjoyment thereof begins (in ex die) or terminates (in in diem). He is merely a usufructuary during the time of his profession and cannot validly alienate it.• The law requires the first heir to furnish the security only when the institution is ex die. If such legal heir fails to furnish the security required, his failure will be equivalent to renunciation and the heir next in the order of the intestate succession will be called, upon filing the security; if the next in order does not file the security, the order of succession will be followed until the State succeeds. The state should not be required to furnish the security.• There are some who sustain the view that if the institution is ex-due, and there are administration proceedings, the administrator continued to hold the property until the day arrives. This is the error which the Code Commission made in Art 880. this solution would be proper in cases of institutions subject to suspensive condition because pending the condition, it is uncertain whether the conditional heir or his substitute, it any. or his co-heirs would ultimately get the property. This solution would not be proper in institutions ex-die, where the identity and the right of the heir are certain and only the commencement of his enjoyment is suspended. The legal heir who is called to the property until the day arrives, is not merely ^n administrator who must account, but also usufructuary who has the right to enjoy it.Cf.ART 880. If the heir be instituted under a suspensive condition or term the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.The same shall be done if the heir does not give the security required in the preceding article.________MAGIC NOTES:Suspensive TermREVIEWER IN SUCCESSION

2007AQ: If the term is suspensive and the suspensive heir dies before the testator, will the heirs of the suspensive heir inherit upon the arrival of the term?A: No. because before the death of the T. he is still a voluntary heir and transmits nothing.Q: Suppose the T dies and before the happening of the term, the heir died. Upon the arrival of the term, will the heirs of the suspensive heir inherit?A: Yes, they can inherit under Art 878. An heir subject to a suspensive term transmits rights to his heirs even if he dies before the srrival of the term.Why? Because the T in providing for a term merely postpone delivery of the property and intended the property to be ultimately go to the heir instituted. He merely postponed the entry into the successive inheritance.Q: But before the arrival of the term, who gets the property?A: Under Art 885. the legal heirs will get the property. Under Art 880, the administrator will get the property.Under the Old Civil Code. Art 885 only rule and therefore the legal heirs get the property. But because of the insertion in Art 880 of the word "term", there is now a conflict. But authorities are unanimous in saying that it is Art 885 that should be applied in case is institution is subject to a suspensive term.DanCon: Art 885 should prevail in case of termQ: What is the nature of the rights of the legal heirs pending the happening of the term?A: they merely get the usufruct of the property. They are not required to turn over the frurts. Otherwise, they will be merely administrators which are not different with the administrators under Art 880. this is unlike an institution subject to a suspensive condition where those legal heirs do not receive the fruits.Q: May the legal heirs alienate the property?A: No, because it is not theirs but they can alienate theusufruct. The third party will get the property subject to thearrival of the suspensive termQ: What if the legal heirs alienate or dispose of the property nevertheless?A: the heirs subject to the term shall go against the security given by the legal heir. The term "commence" under Art 885.1* paragraph, refers to suspensive condition.Dan Con's Analysis of Art 885(2)Q: What is the meaning of "in both cases"?A: First case, suspensive term. When the legal heirs give a bond they will never enter the property. If the legal heirs refuse to give bond. Tolentino says it amounts to a renunciation of that heir, hence, it will go to the next legal heir, and so on, until there is no more legal heir. So it will then pass on to the State which is also a legal heir. If the legal heirs give a bond, they shall enter into the inheritance.

Second case, resolutory term. When there is a resolutory term, the legal heirs are instituted subject to a suspensive term. But it is the legal heir subject to the term who will enter.Q: is (he heir required to give a bond?Page 97 of 207A: No. this is the loophole in Art 885. in the opinion of OanCon, the resolutory heir must also give a bond.In case of resolutory term, .the heir is entrtted to a ._. usufructc4. modalART 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give the security for compliance with the wishes of the testator and for the return of anything he or they may receive together with its fruits and interests, if he or they should disregard this obligation.________TOLENTINO:• Modal institution - A modal institution or "institucion sub modo", is one where the testator states the following:(1) the object of the institution, or(2) the purpose of the application of the property left by the testator; or(3) the charge imposed by the creator upon the heir• Mods and Condition - 'Mode" imposes obligation upon the heir or legatee, but it does not affect the efficacy of his rights to the succession, differing in this respect from condition. In general, mode is obligatory except when ii is imposed for the benefit of the heir or legatee himself. Thus, the "condition suspends but does not obligate; and the mode obligates but does not suspend." The condition is fulfilled in order to acquire a perfect right as heir or legatee, while the mode is complied Kith because of being already an heir or legatee.• In case of doubi, the institution should be considered as modal and not conditional.• It should not be understood, however, that every expression of the wish of the testator, not constituting a condition, should be considered as a mode. In case of doubt, the statement of the testator should not be considered as a mode which imposes an obligation but merely as a suggestion or discussion which the heir or legatee may follow or not.• Enforcement of mode - when the modal institution is for the benefit of determinate persons, or of undetermined persons, such persons may demand the compliance of the obligation. But if the mode is for the benefit of one in particular, as for instance, when the heir is ordered to spend a certain amount for the funeral of the testator or for the construction of a mausoleum for the deceased, there is no one who may have an interest sufficient in law to entitle him to bring an action for specific performance. The security furnished by the heir, however, guaranties the performance of the mode.• When there is no third party beneficiary of the mode, the legal heirs should be entitled to enforce the security. But if the mode is for the benefit of a 3rd person, then the person may enforce.ART 883. When without fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and inREVIEWER IN SUCCESSION

2007AQ: If the term is suspensive and the suspensive heir dies before the testator, will the heirs of the suspensive heir inherit upon the arrival of the term?A: No. because before the death of the T. he is still a voluntary heir and transmits nothing.Q: Suppose the T dies and before the happening of the term, the heir died. Upon the arrival of the term, will the heirs of the suspensive heir inherit?A: Yes, they can inherit under Art 878. An heir subject to a suspensive term transmits rights to his heirs even if he dies before the srrival of the term.Why? Because the T in providing for a term merely postpone delivery of the property and intended the property to be ultimately go to the heir instituted. He merely postponed the entry into the successive inheritance.Q: But before the arrival of the term, who gets the property?A: Under Art 885. the legal heirs will get the property. Under Art 880, the administrator will get the property.Under the Old Civil Code. Art 885 only rule and therefore the legal heirs get the property. But because of the insertion in Art 880 of the word "term", there is now a conflict. But authorities are unanimous in saying that it is Art 885 that should be applied in case is institution is subject to a suspensive term.DanCon: Art 885 should prevail in case of termQ: What is the nature of the rights of the legal heirs pending the happening of the term?A: they merely get the usufruct of the property. They are not required to turn over the frurts. Otherwise, they will be merely administrators which are not different with the administrators under Art 880. this is unlike an institution subject to a suspensive condition where those legal heirs do not receive the fruits.Q: May the legal heirs alienate the property?A: No, because it is not theirs but they can alienate theusufruct. The third party will get the property subject to thearrival of the suspensive termQ: What if the legal heirs alienate or dispose of the property nevertheless?

A: the heirs subject to the term shall go against the security given by the legal heir. The term "commence" under Art 885.1* paragraph, refers to suspensive condition.Dan Con's Analysis of Art 885(2)Q: What is the meaning of "in both cases"?A: First case, suspensive term. When the legal heirs give a bond they will never enter the property. If the legal heirs refuse to give bond. Tolentino says it amounts to a renunciation of that heir, hence, it will go to the next legal heir, and so on, until there is no more legal heir. So it will then pass on to the State which is also a legal heir. If the legal heirs give a bond, they shall enter into the inheritance.Second case, resolutory term. When there is a resolutory term, the legal heirs are instituted subject to a suspensive term. But it is the legal heir subject to the term who will enter.Q: is (he heir required to give a bond?Page 97 of 207A: No. this is the loophole in Art 885. in the opinion of OanCon, the resolutory heir must also give a bond.In case of resolutory term, .the heir is entrtted to a ._. usufructc4. modalART 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give the security for compliance with the wishes of the testator and for the return of anything he or they may receive together with its fruits and interests, if he or they should disregard this obligation.________TOLENTINO:• Modal institution - A modal institution or "institucion sub modo", is one where the testator states the following:(1) the object of the institution, or(2) the purpose of the application of the property left by the testator; or(3) the charge imposed by the creator upon the heir• Mods and Condition - 'Mode" imposes obligation upon the heir or legatee, but it does not affect the efficacy of his rights to the succession, differing in this respect from condition. In general, mode is obligatory except when ii is imposed for the benefit of the heir or legatee himself. Thus, the "condition suspends but does not obligate; and the mode obligates but does not suspend." The condition is fulfilled in order to acquire a perfect right as heir or legatee, while the mode is complied Kith because of being already an heir or legatee.• In case of doubi, the institution should be considered as modal and not conditional.• It should not be understood, however, that every expression of the wish of the testator, not constituting a condition, should be considered as a mode. In case of doubt, the statement of the testator should not be considered as a mode which imposes an obligation but merely as a suggestion or discussion which the heir or legatee may follow or not.• Enforcement of mode - when the modal institution is for the benefit of determinate persons, or of undetermined persons, such persons may demand the compliance of the obligation. But if the mode is for the benefit of one in particular, as for instance, when the heir is ordered to spend a certain amount for the funeral of the testator or for the construction of a mausoleum for the deceased, there is no one who may have an interest sufficient in law to entitle him to bring an action for specific performance. The security furnished by the heir, however, guaranties the performance of the mode.• When there is no third party beneficiary of the mode, the legal heirs should be entitled to enforce the security. But if the mode is for the benefit of a 3rd person, then the person may enforce.ART 883. When without fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and inREVIEWER IN SUCCESSION

2007Aconformity with his wishes.If the person interested in the condition should prevent its fulfilment without the fault of the heir, the condition shatt be deemed to have been complied with.TOLENTINO:• Constructive compliance - in modal institutions, if the person for whose benefit the mode has been imposed should renounce his right there is, of course, no need of compliance with the wishes of the testator, but, if the 3rd

party beneficiary seeks to enforce the obligation, and it cannot be complied with in exact terms of the will, then comoliance must be in terms most analogous to and in conformity with the wishes of the testator. If the fulfillment is prevented by the intestate heirs, however, who would legally take the property with its fruits and interests upon non-compliance with the obligation, then the obligation should be construed as fulfilled by analogy to the rules on the fulfillment of conditions.MAGIC NOTES:• As a rule, a mode shall not be considered a condition unless it appears that such was the intention of the T. the mode must clearly he expressed or inferred from the will.• In case of doubt, the statement shall not be considered as a mode and shall be regarded as a request or suggestion by the T to the heir.Q: How is the obligation imposed enforced? A: By the giving of security.

Q: Who shall demand the giving of security? A: The 3rd party for whose benefit the obligation was imposed or the legal heir of the T.Q- If the mode is not followed, what is the effect?A: Penalty or returning the thing received together with the fruits and interestsCaguioa: If this is so, of the heir, by his failure tc comply with the obligation imposed by the T, must return the thing received, then it is a resolutory condition. It becomes a resolutory condition because he loses his inheritance.NOTE: Effect of non-compliance:(1) security will answer(2) or property will be placed under the administration, and the fruits and interests shall be used to satisfy the obligation or mode imposed.Q: What then is the difference between a resolutory condition and a modal institution?A: Caguioa believes that in that case, the modal institution will just be a species of a conditional institution, the condition being resolutory,Look at Art 880. par 2 which states, "That which has been left in this manner may be claimed at once ..." that is the difference between a condition and a mode, "...provided that the instituted heirs or his heirs give security for the compliance of the wishes of the T ..." So if he does not comply, the security will answer but he will not lose the inheritance because if he loses the inheritance, it becomes a resolutory condition and not merely a mode, however, the law did not stop there. "... and for the returnPage 98 of 207of anything he or they may receive together with its fruits and interests, if he or they should disregard the condition." So if they do not comply with the obligation imposed, they lose the inheritance so that the mode becomes a resolutory condition. What then is the difference between a resolutory condition and a modal institution?Because of this. Justice Caguioa advanced the opinion that a modal institution is nothing but a conditional institution, the condition being resolutory. If he is correct, then we should rewrite the books on succession and remove the section on modal institution.ARJTSOREVIEWER IN SUCCESSION

2007AXIV. LEGITIME/..TOLENTINO:• There are 3 principal systems of distribution of hereditary property:(a) the system of absolute freedom of distribution;(b) the system of total reservation; and(c) the system of partial reservation.• Our Civil code, as in the old CC, has preserved the system of partial reservation. This means that the inheritance is divided into the free part and the legitime. The amount of the legitime may either be variable (depending on the number of children), or it may be a fixed quota. However, changes have been made with respect to the amounts that the compulsory heir should receive; illegitimate children have been made compulsory heirs, but with a small amount of legitime; and the legitime of the surviving spouse have been changed from a mere usufruct to full ownership.1. conceptART 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.____________________TOLENTINO:• Nature and Purpose of leqitime - the system of legitime is a limitation upon the freedom of the T to dispose of his property. Its purpose is to protect those heirs, for whom the testator is presumed to have an obligation to reserve certain portions of his estate, from his unjust ire or weakness or thoughtlessness. Thus, the testator cannot impose any lien, substitution or condition on the legitime.It is to be noted, however, that although the system of legitime limits the Ts right to dispose of property mortis causa, the limitation upon acts inter vivos is confined to dispositions by lucrative or gratuitous title. When the disposition is for valuable consideration, there is no diminution of the estate, but merely substitution of values.The legitime does not consist in determinate or specific property which the testator must reserve for his compulsory heirs. It consists of a part or fraction of the entire mass of the hereditary estate. The standard of measure for its determination is fixed by the law, but the quantity may vary according to the number and relation of the heirs to the testator.2. who are entitledART 887. The following are compulsory heirs:(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;(2) In default of the foregoing, legitimate parents and ascendants with .-respect to their legitimate children and descendants;(3) The widow or widower(4) Acknowledged natural children and natural children by legal fiction;(5) Other illegitimate children referred to in Art 287 (which article states that illegitimate children other than natural in accordance with Ant 269 and

other natural children by legal fiction are entitled to support and such other successional rights as are granted in this code; Art 269 states that children'; bom outside wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, 'are natural) Compulsory heirs mentioned in nos 3, 4 and 5are not excluded by those in nos 1 and 2; neither dothey exclude one another.In all cases of illegitimate children, their filiationmust be duly proved.The father or mother of illegitimate children of thethree classes mentioned shall inherit from them in themanner and to the extent established by this code.Page 99 of 207TOLENTINO:• Concept of Compulsory heir -3 kinds of heirs may be distinguished:(a) the voluntary heirs who become such only by the express will of the testator;(b) the legal or intestate heirs who are called by the law to the succession in the absence of voluntary heirs designated by the testator; and(c) the compulsory heirs, for whom the legitime isreserved by the law, and who succeed whether the Tlikes it or not, for they cannot be deprived by the T oftheir participation in the inheritance except when the Thas so disposed of his property.The difference between the compulsory and intestateheir is that the intestate heir succeeds only when thedeceased has not disposed of his property by will; whitethe compulsory heir succeeds to his legitime even whenthe T has so disposed of his property.The law on legitime is a restriction, not on the freedom of the heir to accept or repudiate the inheritance, but on the freedom of the T to dispose of his property.• Kinds of Compulsory Heirs - the primary compulsory heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants are primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the primary heirs; the legitimate parents and ascendants are the 2ndary compulsory heirs. The concurring compulsory heirs are those who succeed together with the primary and secondary heirs; the illegitimate children and the surviving spouse are concurring compulsory heirs.• Legitimate Children and Descendants - in the category of "children and descendants" as compulsory heirs. The nearest in degree exclude the more remote, except in cases where representation is proper.• Legitimate children - they are compulsory heirs in the same manner as legitimate children• Adopted children - with the change introduced in the Family code, the successional rights of the adopted child, in relation to the adopting parents, are exactly the same as those of the legitimate child in relation to is parents.• Parents and ascendants - the legitimate parents and ascendants are suppletory or secondary compulsory heirs, and are entitled to the legitime only when the deceased does not in turn have legitimate children and descendants. But the concurrence of illegitimate children and their descendants with parents or ascendants of the deceased is not an obstacle to the forced succession of the parentsREVIEWER IN SUCCESSION

2007Aand ascendants because the share of the fflegrtimate children are taken from the free portion and do not affect the legitime of the parents and ascendants.• Illegitimate parents - the parents of the iBegitimate children are compulsory heirs of the latter only in the cases and to the extent provided for by Art 903. they are excluded by legitimate or illegitimate children of their deceased natural or illegitimate children of their deceased natural or illegitimate child. They are compulsory heirs, therefore, only in the absence of legitimate, or illegitimate children of the decedent.• Adopting parents - Tolentino is of the opinion that in spite of Arts 189 and 190 of the Family Code and the implied repeal of Art 342 of the civil code, the adopting parents are not compulsory heirs of the adopted. The fact that Art 190 of the FC enumerates the cases where the adopters inherit by legal or intestate succession to the estate of the deceased adopted person (not making him generally a legal heir), and is silent as to their becoming compulsory heirs, indicates that the latter was not intended. .Adoption is for the benefit of the adopted, and unless the law clearly intends to favor the adopted, all doubts should be resolved against him. Because of the silence of the iaw on legitimes. he cannot be entitled to the legitime of the legitimate parents; and in the law of intestacy, he is not given, in general, the same rights as a legitimate parent but only such as are specifically provided in Art 190 of the Family Code• Illegitimate Children - the Family Code has abolished the distinction among illegitimate children, and now classifies all of them as illegitimate

children with the same rights. Paragraphs 4 and 5 of Art 887 are merged into one as a group of compulsory heirs.The present article requires nothing else other than that the illegitimate children proves their filiation, which does not mean that they must first be recognized by their putative parents.• Enforcement of New right - the successional rights recognized by the present Civil Code in favor of illegitimate children can be claimed only by those whose parents die after the effectivity of the Code. Successional rights are transmitted from the moment of death of the decedent.If the parent had died before the new code took effect, other persons had already succeeded mortis causa. Such heirs under the Old Code have already acquired vested rights to the inheritance from the moment of the succession opened; they cannot be deprived of those rights by the provisions of the present Code creating a new right in favor of illegitimate children.It is the death of the parent, and not the birth of the illegitimate child, which determines the right of such child to succeed.• The Surviving Spouse - the condition of being a surviving spouse requires that there should have been a valid marriage between the deceased and the survivor. If the marriage is null and void ab initio, the survivor in the supposed marriage is not a surviving spouse entitled to a legitime. In cases of a bigamous marriage, however, where the 2 wives contract the marriage in good faith, it has been held in this jurisdiction that both widows are entitled to inherit from the deceased husband. They share equally in the portion which is the legitime of the survivingPage 100 of 207spouse (not sure if statement is valid under the Family Code)If the marriage is not void ab initio, but merely voidable or annullable, then there is an existing marriage which remains valid and produces civil affects until set aside by a competent court.The marriage must by subsisting at the time of the death of one of the parties, in order that the survivor can be called a widow or widower and thus be entitled to a legitime.Effect of Legal Separation - Under Art 892, "In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same." This rule is reproduced in Art 63(4) of the Family Code. The intention of the law is to exclude the guilty spouse from the succession, testate or intestate. Therefore, in case there has been a legal separation, the widow or widower will be— entitled to succeed only when he or she is the innocent ~~J spouse.•?• Effect of Reconciliation - Under Art 108 of the CC andArt 66(2) of the FC, the rule is the same that reconciliation'"• stops the proceedings for legal separation and rescinds. the decree of legal separation already rendered. If. aftersuch reconciliation, one of the spouses should die, thesurvivor gets his or her legitime regardless of whether heor she is the guilty party.• Death before Decree - if death should occur during the pendency of the legal separation proceedings, the action should be allowed to continue, not for the purpose of the suspension of the marriage, which is already dissolved by death, but for the purpose merely of determining whether or not there is ground for iegal separation. Upon determination rests the rights of the surviving defendant spouse to the legitime. The innocent spouse can be substituted in the action by his or her executor or administrator., „ . . If it is the defendant (who would be the guilty spouse) who should die before the final decree, then the action should terminate. The survivor being the plaintiff (who is the innocent spouse), there is no question as to his or her right to the legitime of the deceased party spouse. Hence, there would be no need for allowing the proceeding to• continue.• Separation in fact - Separation of the spouses by virtue of an amicable agreement between thena is not equivalent . to legal separation. Even if the separation^! fact has been due to causes which could have been sufficients-sustain an action for legal separation. Nevertheless,\there being no judicial decree of legal separation, the right to the legitime is preserved.• Amounts of legitmes - Arts 888 to 903 determine the amounts of legitmes of the different compulsory heirs, neither inheriting by themselves or in concurrence of compulsory heirs which may call for the ^application of these provisions may be summarized as follows:1. Leqitimate'children: % of the estate, in equal portions, „ whether they survive alone or with the concurring compulsory heirs (Art 888)2. One legitimate child and the surviving spouse: Legitimate child, % of the estate (Art 888); the surviving spouse, % of the estate (Art 892, par 1)3. Legitimate Children and the surviving spouse: legitimate children, in equal portion^ of Yi of the estate (Art 888); the surviving each legitimate child/REVIEWER IN SUCCESSION

2007AIW4. Legitimate children and illegitimate children: legitimate children, in equal portions of % of the estate (Art 888); each illegitimate childifety V4 of the share if each of the legitimate children (Art 176. FC)5. One Legitimate child, illegitimate children and the surviving spouse: legitimate children, Vi of the estate (Art 888); each illegitimate child. V4 of the share of each of the legitimate child (Art 176. FC). the surviving spouse. % of the estate (Art 892, par 1). All the concurring heirs get from the half free

portion, the share of the surviving spouse having preference over those of the illegitimate children, whose share may suffer reduction, pro-rate because there is no preference among themselves (Art 895. last paragraph)6. Legitimate children, illegitimate children and the surviving spouse: the children receive the same as in no. 5 and the surviving spouse gets a share equal to that of each legitimate children (Art 892(2). 897 and 898)7. Legitimate parents: % of the estate, whether they survive alone or with compulsory heirs (art 889)8. Legitimate parents and illegitimate children: legitimate parents, % of the estate (Art 889)' illegitimate children, in equal shares. % of the estate (Art 896)9. Legitimate parents and the surviving spouse: legitimate parents. Vt of the estate (Art 899); illegitimate children, in equal shares of Vi of the estate (Art 893)10. Legitimate parents, illegitimate children and surviving spouse: parents and children, same as no 8; the surviving spouse. Ve of the estate (Art 899)11. illegitimate children alone: all together get Vz of the estate (Art 901); they divide the portion equally12. Illegitimate children and the surviving spouse: all the children together divide h of the estate equally (Art 894); the surviving spouse, '/3 of the estate (Art 894)13. Surviving spouse alone V» of the estate, or V3 , if marriage is an articuto mortis and deceased dies within 3 months after marriage (Art 900)14. Illegitimate parents alone: % cf the estate (Art 903)15. Illegitimate parents and children of any class': the illegitimate parents, none (Art 903); the children, same as in no 1.6 and 11 as the case may be16. illegitimate parents and the surviving spouse: illegitimate parents. % of the estate; and surviving spouse, % of the estate (Aft 903)General observations:(a) When the compulsory heir or compulsory heirs of the same kind survive alone, without the concurrence of other kinds of compulsory heirs, except that of the surviving spouse (which is 1/3 of the estate) when the deceased spouse dies within 3 months after a marriage in articulo mortis. We may call this portion (Vi) of the estate as the basic legitime.(b) The legitmes of children are graduated according to their status, so that the illegitimate child gets less than the legitimate child.(c) Not only is the legitime of the legitimate children bigger in amount than that of the other kinds of children, but it is also preferred in character; the legitimes of illegitimate children are subject to reduction in certain cases, but that of the legitimate child is never reduced(d) There is no absolutely fixed criterion for the legitime ofthe surviving spouse. When concurring with onelegitimate child, she gets only half of the legitime ofthe child, but with several legitimate children, she isplaces at par with them; and when concurring withillegitimate children or illegitimate parents alone, sheis also placed at par with them. However, when she^ concurs with legitimate parents and illegitimateJl- children, the legitime is less than that of the—I illegitimate children. Thus, in one case she is placed;*»•: on the level of legitimate relatives, than in anotherCD case at par with illegitimates, and in still another case,lower than the illegitimates.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.TOLENTINO:• This article grants the rights of representation to children of an illegitimate child. By its terms, only the rights of illegitimate children "set forth in the preceding articles" are transmitted upon their death to their descendants, whether legitimate or illegitimate. This would mean only the iegitime of the illegitimate child granted and specified in Arts 894, 895, 896, 899 and 901. This article has no application to intestate succession; the right to represent an illegitimate child in intestate succession is to be found in Arts 989 and 990. . ~? Children of Legitimate Chiid -/QBJyJIIegitimate children -V of an illegitimate drikf are given ffie right of representation 1 in this artide^There is no (aw or provision en the present I Code which expressly gives this right to the illegitimate I children of a legitimate child. <•In Conde v. Abaya, the SC affirmed the principle that the heirs of a natural child cannot be in a better position than the heirs of a legitimate chttd. Can we also recognize in the illegitimate descendants of a legitimate child the right of representation which the present article confers upon the illegitimate descendants of an illegitimate child? We cannot, because we are confronted with an express provision of the law which bars it. Art 992 provides that 'an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother.* Hence, the illegitimate child cannot represent his father or mother in the succession of the tatter's legitimate parent or ascendant.In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Code. But in retaining without change the provisions of the old Code in Art 992. it created an absurdity and committed an injustice, because while the illegitimate descendant of an J illegitimate child cannot.Shares in Representation succession by representation is as much by operation of law as is succession in intestacy; hence, the rule as to the manner of dividing the inheritance should be the same. When right arises -

even ja the illegitimate child to be represented had been before the Civil code took effect, if the parent died after the promulgation of the said code, then the rules of the Civil Code governs./Page 101 of 207REVIEWER IN SUCCESSION

2007A4. Legitimate children and illegitimate children: legitimate children, in equal portions of % of the estate (Art 888); each illegitimate childifety V4 of the share if each of the legitimate children (Art 176. FC)5. One Legitimate child, illegitimate children and the surviving spouse: legitimate children, Vi of the estate (Art 888); each illegitimate child. V4 of the share of each of the legitimate child (Art 176. FC). the surviving spouse. % of the estate (Art 892, par 1). All the concurring heirs get from the half free portion, the share of the surviving spouse having preference over those of the illegitimate children, whose share may suffer reduction, pro-rate because there is no preference among themselves (Art 895. last paragraph)6. Legitimate children, illegitimate children and the surviving spouse: the children receive the same as in no. 5 and the surviving spouse gets a share equal to that of each legitimate children (Art 892(2). 897 and 898)7. Legitimate parents: % of the estate, whether they survive alone or with compulsory heirs (art 889)8. Legitimate parents and illegitimate children: legitimate parents, % of the estate (Art 889)' illegitimate children, in equal shares. % of the estate (Art 896)9. Legitimate parents and the surviving spouse: legitimate parents. Vt of the estate (Art 899); illegitimate children, in equal shares of Vi of the estate (Art 893)10. Legitimate parents, illegitimate children and surviving spouse: parents and children, same as no 8; the surviving spouse. Ve of the estate (Art 899)11. illegitimate children alone: all together get Vz of the estate (Art 901); they divide the portion equally12. Illegitimate children and the surviving spouse: all the children together divide h of the estate equally (Art 894); the surviving spouse, '/3 of the estate (Art 894)13. Surviving spouse alone V» of the estate, or V3 , if marriage is an articuto mortis and deceased dies within 3 months after marriage (Art 900)14. Illegitimate parents alone: % cf the estate (Art 903)15. Illegitimate parents and children of any class': the illegitimate parents, none (Art 903); the children, same as in no 1.6 and 11 as the case may be16. illegitimate parents and the surviving spouse: illegitimate parents. % of the estate; and surviving spouse, % of the estate (Aft 903)General observations:(a) When the compulsory heir or compulsory heirs of the same kind survive alone, without the concurrence of other kinds of compulsory heirs, except that of the surviving spouse (which is 1/3 of the estate) when the deceased spouse dies within 3 months after a marriage in articulo mortis. We may call this portion (Vi) of the estate as the basic legitime.(b) The legitmes of children are graduated according to their status, so that the illegitimate child gets less than the legitimate child.(c) Not only is the legitime of the legitimate children bigger in amount than that of the other kinds of children, but it is also preferred in character; the legitimes of illegitimate children are subject to reduction in certain cases, but that of the legitimate child is never reduced(d) There is no absolutely fixed criterion for the legitime ofthe surviving spouse. When concurring with onelegitimate child, she gets only half of the legitime ofthe child, but with several legitimate children, she isplaces at par with them; and when concurring withillegitimate children or illegitimate parents alone, sheis also placed at par with them. However, when she^ concurs with legitimate parents and illegitimateJl- children, the legitime is less than that of the—I illegitimate children. Thus, in one case she is placed;*»•: on the level of legitimate relatives, than in anotherCD case at par with illegitimates, and in still another case,lower than the illegitimates.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.TOLENTINO:• This article grants the rights of representation to children of an illegitimate child. By its terms, only the rights of illegitimate children "set forth in the preceding articles" are transmitted upon their death to their descendants, whether legitimate or illegitimate. This would mean only the iegitime of the illegitimate child granted and specified in Arts 894, 895, 896, 899 and 901. This article has no application to intestate succession; the right to represent an illegitimate child in intestate succession is to be found in Arts 989 and 990. . ~? Children of Legitimate Chiid -/QBJyJIIegitimate children -V of an illegitimate drikf are given ffie right of representation 1 in this artide^There is no (aw or provision en the present I Code which expressly gives this right to the illegitimate I children of a legitimate child. <•In Conde v. Abaya, the SC affirmed the principle that the heirs of a natural child cannot be in a better position than the heirs of a legitimate chttd. Can we also recognize in the illegitimate descendants of a legitimate child the right of representation which the present article confers upon the illegitimate

descendants of an illegitimate child? We cannot, because we are confronted with an express provision of the law which bars it. Art 992 provides that 'an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother.* Hence, the illegitimate child cannot represent his father or mother in the succession of the tatter's legitimate parent or ascendant.In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Code. But in retaining without change the provisions of the old Code in Art 992. it created an absurdity and committed an injustice, because while the illegitimate descendant of an J illegitimate child cannot.Shares in Representation succession by representation is as much by operation of law as is succession in intestacy; hence, the rule as to the manner of dividing the inheritance should be the same. When right arises - even ja the illegitimate child to be represented had been before the Civil code took effect, if the parent died after the promulgation of the said code, then the rules of the Civil Code governs./Page 101 of 207REVIEWER IN SUCCESSION

2007AIf there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.______________ART 893. If the testator leaves no legitimate ascendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate._____________________This fourth shall be taken from the free portion of the estate. ______ __TOLENTINO: /• This article is limited to the concurrence of the surviving spouse with legitimate ascendants of the deceased. If the ascendants are not legitimate. Art 903 applies.TOLENTINO:• the legitime of the surviving spouse has been changed from usufruct to full ownership• Spouse and Legitimate Descendants - this article applies to a case where the widow or widower survives with a legitimate child or children or descendants of the deceased. The law makes no distinction, and so all children or descendants of the deceased, whether in a previous marriage or in the marriage dissolved by his death, are included.• Legitime of Surviving Spouse - the law provides that the surviving spouse is entitle to a portion "equal to the legitime of each of the legitimate children or descendants." This seems to imply that if no children survive, but only descendants, the divisor would be the number of descendants. The law, however, cannot have such absurd meaning. The important thing is the number of children they represent, and not the number of descendants, it to be taken as the divisor.• All the children, however, repudiate, the descendants next in degree will succeed in their own right and share equally or per capita. In this case, it would seem that the legitime of the surviving spouse must be equal to that of each defendant. The legitime of the widow or widower should not be reduced by the unilateral act of the children. The divisor must still be the number of children.But if only some of the children repudiate, the bases of computation should be the number of children who accept the inheritance.• Institution or Legacy for Spouse — if the deceased institutes the surviving spouse to a portion of the estate, or leaves him a devise or legacy, is he entitle to the portion or property given by the will in addition to his legitime?The solution to the problem can be found in the principle which recognizes the supremacy of the will of the testator. The devise or legacy should first be taken from the remaining disposable portion, and if there is any excess of the devise or legacy-over the disposable portion, that excess should be considered as charged against or merged in the legitime of the surviving spouse. This is the same principle underlying the second paragraph of Art 912.If the surviving spouse, however, is instituted to a portion of the state equivalent to his legitime. and the disposable portion is covered by other institutions, devises, or legacies, then such spouse cannot claim more than the portion given to him by the will, which must be considered as merged in his legitime. The testamentary dispositions giving the free portion to other persons must be respected, as long as the legitimes are not impaired. This is in consonance with the principle laid down in Arts. 842 and 906.ART 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.___________TOLENTINO:• The term "illegitimate children" is used in a broad sense, so as to include acknowledged natural children, natural children by legal fiction, and other illegitimate children.ART 895. The legitime of each of the acknowledged natural children and each pf the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants.

The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child be legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child.The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.___________Page 103 of 207TOLENTINO: ~Xr• This article must be considered as modified by Art 176 of the Family Code; which provides: The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child."» Qualifications and Limitations to the rights of Illegitimate Children(1) In order to succeed, their filiation must be duly proven;(2) The share pf all illegitimate children are taken only from the free portion;(3) If there is a surviving spouse concurring with legitimate and illegitimate children, the legitime of the surviving spouse must first be satisfied before the iegitmes of the illegitimate children are given; and(4) In case the total amount of the legitimes of all illegitimate children exceeds what remains of the free portion after deducting the legitime of the surviving spouse, they are subject to reduction.• Amount of Leqitime - the basis for computation of the legitime of illegitimate children is the legitime of the legitimate children. Each illegitimate child is entitled to V4 of the legitime of each illegitimate child.If by reason of the number ot^ illegitimate children, the total of the legitimes would exceed the free portion, then all of this will suffer proportionate reduction. The only preference established by law among concurring compulsory heirs is in favor of the surviving spouse, who gets his or her legitime in full while the illegitimate children must divide proportionally among themselves the remainder of the free portion.REVIEWER IN SUCCESSION

2007AI1 I i: i; i iART 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator.ART 897. when the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of.ART 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article.TOLENTINO:• The Family Code has abolished the distinction between natural and other illegitimate children, all of them being grouped now under one class, illegitimate children.3-II Ii ii i iART 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eight of the hereditary estate of the deceased which must be taken from the illegitimate children shall b disposable portion. The testator may freely dispose of the remaining one-eight of the estate.ART 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator dies within three months from the time of the marriage, the legitime of the surviving spouse as ths sole heir shall be one-third of the hereditary estate, except when they have been leaving 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: _____________TOLENTINO:• Marriage in Articulo Mortis - if the marriage was in articulo mortis and the parlies has not lived together as husband or wife for at least 5 years prior thereto, the legitime of the surviving spouse is reduced to Va of the estate. We believe that this rule will apply only when the deceased is the spouse who was at the point of death at the time of marriage; hence, it will not apply when the spouse who was at the point of death at the time of the marriage is the one who survives, and the other is the one who dies within three months after the marriage.ART 901. When the testator dies leaving illegitimatechildren and no other compulsory heirs, suchillegitimate children shall have a right to one-half ofthe hereditary estate of the deceased.____The other half shall be at the free disposal of thetestator.

ART 903. The legitime of the parents who have an legitimate chid, when such child leaves neither legitimate descendants, nor a surviving spouse, nor legitimate -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.______ __TOLENTINO:• Illegitimate Parents - the illegitimate parents of the deceased are compulsory heirs only when the latter does not have legitimate of illegitimate children or descendants. When the deceased has legitimate children or descendants, even a legitimate parent or ascendants is excluded as compulsory heir, with more reasons should an illegitimate parent of the deceased be thus excluded.The presence of the surviving spouse of the deceased, however, does not exclude the illegitimate parent as a compulsory heir.• Ascendants excluded - Only the parents of illegitimate children are entitle^ to legitime; grandparents and other ascendants are excluded, even when the parents have predeceased them. In illegitimate filiation, the right to succeed in the ascending line terminates with the parent of the deceased illegitimate child. There is, therefore, no reciprocity of succession^ rights between the illegitimate grandparent and the illegitimate grandchild.PD 603, ART 39. Effects oTAdopfem. - The shall:(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter; Provided, that an adopted child cannot acquire Philippine citizenship by virtue of such adoption;(2) Dissolve the authority vested in the natural parent or parents except where the adopted is the spouse of the surviving natural parents;(3) Entitle the adopted person to use the adopter's surname; and(4) Make the adopted person a legal heir of the adopter: Provided: That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate and the latter also one-fourth the rest in any case reverting to the adopter, observing in the case of _____the illegitimate issue the proportion provided forPage 104 of 207REVIEWER IN SUCCESSION

2007A3a i. a i ain Article 895 of the CM! Code.The adopter shaU not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or intestate._____4. restrictions regarding the legitimeART 904. The testator cannot deprive his compulsory heirs of the legitime. except in cases expressly specified by law.Neither can he impose upon the same any buiden. encumbrance, condition, or substitution of any kind whatsoeverTOLENTINO:• Exceptions to the rule - the law provides only one exceptional means by which the compulsory heirs may be deprived of their legitimes by the testator, that is, by disinheritance legally made.There is also one exceptional encumbrance which the testator can impose upon the legitime. He can forbid the partition of the inheritance, including the legitime, for not more than 20 yearsART 872. The testators cannot impose any charge, condition or substitution whatsoever upon the legitime prescribed in this Code. Should he do so. the same shall be considered as n$ imposed.__________TOLENTINO:• Encumbrances, conditions or substitutions of any kind, imposed upon the legitime, cannot affect the right of the compulsory heir, and they are simply disregarded and considered as not written.The prohibiiion imposed by this article upon the T, however, applies only with respect to the testamentary dispositions. It has no application to acts inter vivos even when they are by gratuitous or lucrative title, although they may latter be revoked or reduced as inofficiousART 905, Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is voidf and the latter may claim the same upon the death otthe former, but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. ___TOLENTINO:

• Reason for Nullity- A future legitime is merely expectancy, and the heir does not acquire any right over the same until the death of the T. Hence, juridically, there is nothing to renounce, and nothing on which to compromise. Moreover, Art 1347 provides that "no contract may be entered into"We future inheritance except in cases expressly authorized by law." Thus, any act in violation thereof would be null and void.• Scope of prohibition - Under this article, all renunciations of future legitime are void, whether the renunciation is part of a bilateral act. or whether it is a unilateral act, or whether it is for onerous or gratuitous consideration.Page 105 of 207But adhering strictly to the language of this article, wemay say that not all compromise on future legitime is voidunder it. They will be void only when "made between theperson owing it and his compulsory heirs.* It seems,& therefore, that when the compromise is among the•-compulsory heirs themselves, to the exclusion of the| testator, or between compulsory heirs and third persons,^ or between the testator and third persons, the compromise<—> is not prohibited. But it should be remembered that there isa general prohibition in Art 1347 against contracts "upon afuture inheritance". Since the legitime is part of theinheritance, and a compromise is a contract, it is obviousthat all compromises on future legitime must be held void,not under the provision of this article, but under thegeneral prohibition of Art$«f7.• Who may claim nullity - the nullity of the renunciation or the compromise may be claimed, not only by the compulsory heir who has made it, but also by any co-heir who may be prejudiced by such act. The nullity may be claimed only after the death of the testator.• Permissible contracts - Under Art 1080, a person may validly make a partition inter vivos of his property, and such partition must be respected, insofar as it does not prejudice the legitime of compulsory heirs.The giving of donations advances of the legitime is not prohibited under the terms of the present article nor of Art 1347. When the compulsory heir makes a voluntary declaration that he has received property from the T, so that it should be considered as part of his legitime upon the death of the latter, such declaration does not constitute a renunciation but merely an acknowledgement of whatever he has received.ART 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied._____TOLENTINO:• If there is no testamentary disposition in his favor, the heir cannot ask for completion of his legitime, because there is nothing to complete; instead, there should be a case of preterition or total omission, and in such case, the forced heir in the direct line is entitled to ask. not merely for the completion of his legitime, but for the annulment of the institution of heir• It may happen, however, that the T entirely omits the compulsory heir from the will, but during his lifetime-he has given to such heir some property by way of donation.The evident purpose of Art 906 evidently is to give the heir only that which has been reserved for him by the law if he has not been forgotten by the testator, he is entitled only to that of which the T cannot deprive him. Besides, donations inter vivos to children are not imputable to their legitime; hence, such donations really constitute an advance upon the legitime. and consequently, it is the same as if they had been given to the compulsory heir by hereditary title. If subsequently, such compulsory heir is omitted in the will, the preterition is more apparent than real; the compulsory heir to whom something has already been given cannot reasonably complain of the conduct of the T. He should only be entitled to the completion of his legitime.• Tolentino says that the same solution should be reached, even when the compulsory heir has not been mentioned in the will, it has not been given any advance on his legitime,REVIEWER IN SUCCESSION

2007Aif the testamentary dispositions do not cover the entire estate but something has been left undisposed of, and the compulsory heir is also an intestate heir. The undisposed portion would pass by the rules of intestacy to the compulsory heir; if it is not enough to cover his legitime, then he may ask for the completion of such legitime.ART 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.TOLENTINO:• While the article mentions only reduction of inofficious testamentary dispositions, dispositions impairing the legitime, not in a will, but in form of donation inter vivos, is also subject to reduction• Persons who are not compulsory heirs cannot ask for the reduction of inofficious dispositions. The reduction lies only when the donation or testamentary disposition impairs the legitime.

ART 1347. All things which are not outside the commerce of man, including future things, may be the object of a contract. All rights which are not intransmissible may also be the subject of contracts.No contract may be entered into upon future inheritance except in cases expressly authorized by law.All services which are not contrary to law. morals, good customs, public order or public policy may likewise be the object of a contract. __5. determination or computationART 908. To determine the legitime. the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will.To the net value of the hereditaiy estate shall be added the value of all donations by the testator that are subject to collation, at the time he made themTOLENTINO:• Steps to determine Leaitime -(1) Determination of the value of the property which remains at the time of the testator's death(2) Determination of the obligations, debts, and charges which have to be paid to or deducted from the value of the property thus left;(3) The determination of the difference between the assets and the liabilities, giving rise to the net hereditary estate;(4) The addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and(5) The determination of'the amount of the legitimes by getting from the totalthus found the portion that the law provides as the legitime of each respective compulsory heir• Determination of Net Estate - the debts and charges which form the liabilities of the estate are all such are not created by the testamentary disposition. If the obligation is for the first time created by testamentary disposition, as a change upon the heirs or legatees, or as an obligation toPage 106 of 207be taken from the free part, it is not deductible. But when the testamentary disposition merely recognizes or acknowledges the existence of a pre-existing obfigation and orders its payment then it is deductible.• Collation of donations - the purposes of collation has two distinct .concepts/ in one concept, it is a mere mathematical operation by the addition of the value of donations made by the testator to the value of the hereditary estate; in the other, it is the return to.the hereditary estate of the property disposed of by lucrative title by the testator during his lifetime.Within the first concept. Art 1061 provides for aspecial purpose of collation; namely, so that the property>1 given by the testator by lucrative title may be taken "in the•^ account of the partition." This means, that not only is there—\ a numerical or theoretical addition of the value of the ';P=-. donation to the net hereditary estate, but such value is to O be charged against the share of the compulsory heir donee in the legitime.Thus collation in general takes place whenever there is a compulsory heir, even if he be the one only and he is not the donee because its purpose is to determine the distributable hereditary estate, as a basis for finding out the amount of the legitime of the compulsory heir/s. as a totality apart from the free portion, so that the' donation may be reduced if it is excessive or inofficious, to protect• the legitime as a whole from encroachments by strangers. But if there are 2 or more compulsory heir, to one or some of whom the testator had given a donation, then the special purpose of ART. 1061 must be carried out. to protect the share of each compulsory heir in the legitime from encroachment by other compulsory heirs to whom a donation has been given by the deceased; this purpose is attained by charging such donation against the share of the compulsory heir-donee in the legitime. This special purpose cf collation can be defeated by a declaration of the testator that the donations shall not be subject to collation (ART> 1062), in which case it shall be treated as if given to a stranger.The second concept of collation takes place when, after the operation of collation in its first concept, it is found that the donation exceeds the disposable portion of the estate. The excess must be returned by the donee and actually added to the assets of the estate, because such excess indicates an impairment of the legitime which must be cured by actually and physically returning to the estate the amount of such excess.The first concept of collation is contemplated by Arts. 908 and 1071; while the second concept is presumed in Arts. 912 and 1076.• Donations to Strangers. - If we bear in mind the distinction in the 2 concepts of collation, and consider that Art. 1061 has a special purpose, it will be clear that all donations, whether made to compulsory heirs or to strangers, are subject to collation in its first concept. The amount of the free portion that may result from this theoretical reconstruction of the estate is not only to be used as a measure or yardstick for determining whether the donation to a stranger is greater than it, but it must be considered as the limiting container from which the donation is to be taken. So that if it is not sufficient to cover the amount of the donation, it becomes clear that the excess of the amount of the donation encroaches upon the legitime by creating a shortage in the available assets for the payment of such legitime. It is only whenREVIEWER IN SUCCESSION

2007Asuch shortage results that it becomes necessary to reduce the donation in order to maintain the tegftkne intact

• For Whose Benefit - Cdation should take place only when there are compulsory neks, inasmuch as the purpose of fre coRation is to determine the legitime and the free portion.• Value to be Collated. - The value of the donations subject to collation is to be determined as of the time when the donations were made. This is only just, because the donation is a real alienation which conveys ownership upon its acceptance. Hence, any increase in value or any deterioration or loss, whether by fortuitous event or through negligence, must be for the benefit or account of the donee.A life insurance in which the beneficiary is a 3rd person is considered as a donation to the extent of the premiums paid by the insured. It is not the amount of the insurance which constitutes the donation, because only the premiums leave the patrimony of the insured. Jurisprudence, however, exempts the beneficiary from collation of the premiums when they were paid from the income of the insured and they are not excessive.• Collation and Imputation. - After the amount of the distributable estate has been determined, and the legitime and the free portion ascertained, donations which had been brought to collation should next be imputed to and charged against the corresponding portion of the estate. This step is governed by Arts. 909 and 910.ART 909. Donations given to children shall be charged to their legitime.Donations made to strangers shall be charged to that part of the estate of which the testator could have i. disposed by his last will.Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code.ART 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime.Should they exceed the portion that can be freely disposed of, they shall Be reduced in the manner prescribed in this Code.__________TOLENTINO:• Donations to Compulsory Heirs. - The term "children" in these provisions has been generally construed to refer to all compulsory heirs; thereby simply creating a distinction between donations to compulsory heirs and those made in favor of strangers. The donations to compulsory heirs are chargeable against and imputable to their respective legitimes, while donations to strangers are imputable to the free portion. But both are to be collated upon the donor's death, to his estate.• To Descendants - Is a donation inter vivos has been given to a grandchild who represents his father in the succession of the grandfather, such donation must be imputed to or charged against the legitime of the father which goes to the grandchild by representation. When the grandchild, however, does not succeed to the donor-grandfather, as when the father is alive, the donation cannot be imputed to the legitime because he receivesPage 107 of 207none; it is imputable to or chargeable against the free portion as if made to a stranger.• To Illegitimate. Children. - The second paragraph of Art. 910 means that, if the donation to an illegitimate child exceeds his share in the legitime, such excess should be treated as a donation to a stranger and charged against the free portion, subject to the rules on reduction provided for in the Code.• To Ascendants. - Donations made to parents andascendants are chargeable against their legitime, if they^- succeed as compulsory heirs; otherwise, they arechargeable against the free portion.—•• In Excess of Leqitime. - When the donation to acompulsory heir exceeds his legitime, the excess isr chargeable against the free portion which is at thedisposal of the testator, just as any donation to a stranger,subject to the risk of reduction.• From Free Portion. - When the compulsory heir dies before the testator or is incapacitated or is disinherited or is repudiates the inheritance and he has no children or descendants to represent him. the donation given to him cannot be imputed to his legitime. for he receives none. In such case, the donation will have to be treated as if it had been given to stranger.The same rule applies if the testator has expressly provided that the donation to the compulsory heir shall not be brougnt to collation or charged against his iegitime. However, if the donation exceeds the disposable portion of the estate, the excess will still be charged against the legitime of the compulsory heir-donee, so as not to prejudice the legitimes of other compulsory heirs.• Donation to Strangers. - Donations made to strangers area always chargeable agawsf the free portion. By "strangers" we mean all persons who do root inherit as compulsory heirs form the donor.If the donation to a stranger exceeds the free portion, then it will have to be reduced as inofficious. The purpose of the law is not to prevent the stranger form getting more from the inheritance, but to see to it that the compulsory heirs do not get less than what pertains to them as legitime.ART. 911. After the legitime has been determined inaccordance with the 3 preceding articles, thereduction shall be made as follows:I. Donations shall be respected as long as thelegitime can be covered, reducing or annulling, ifnecessary, the devises or legacies made in thewill.2.The reduction of devises or legacies shall be pro-rata. without any distinction whatever.

It the testator has directed that a certain devise or legacy be paid in preference to others, it shall not transfer any reduction until the latter have been applied in full to the Payment of the legitime.3. If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose._______________________REVIEWER IN SUCCESSION

2007ATOLENTINO:• The article should be construed to indude all kinds of testamentary dispositions, such as bequests, donations. mortis causa, and institutions of voluntary heirs; in other words, all dispositions to take effect upon the death of a person.• Donations Preferred. - As between donations inter vivos and dispositions mortis causa, the law gives preference to the former, so that whenever reduction or annulment is necessary to preserve the legitime, dispositions mortis causa are the first ones to suffer the reduction or annulment.• Reduction of Legacies and Devises. - The formula for the reduction would be: total amount of all the legacies is to the value of the particular legacy, as the total number available for legacies is to the reduced amount of the particular legacy.• Relations to Art. 950. - Besides the present article, there is another. Art. 950, regarding the reduction of legacies and devises. It provides: "If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the ff order (1) remuneratory legacies or devises, (2) legacies or devises declared by the testator to be preferential, (3) legacies for support, (4) legacies for education, (5) legacies or devises of a specific determinate thing which forms part of the estate, (6) all others pro-rata."Since the present Art. 911 provides for pro-rata reduction of legacies and devises, without distinction, (except the preferred), while Art. 950 provides for an order of preference in payment, there seems to be an apparent conflict between them.Art. 911 will apply as to the manner of reducing legacies (a) when such reduction is necessary to preserve the legitime of compulsory heirs from impairment, whether there are donations inter vivos or not; and (b) when, although the legitime has been preserved by the testator himself, by giving the compulsory heirs sufficient to cover such legitime. there are donations inter vivos concurring with the legacies or devises within the free portion. When, however, the question of reduction is exclusively among the legatees themselves, either because there are no compulsory heirs, or because the legitime of compulsory heirs has already been provided for by the testator in his will and there are no donations inter vivos, then Art. 950 applies. V• Usufruct or Life Annuity. - Our inheritance law provides for the determination of the value of the usufruct, thus: "In order to determine the value of the right of usufruct, use or habitation, as well as that of annuity, there shall be taken into account the probable life of the beneficiary in accordance with the American Tropical Experience Table, calculated at eight per centum annual interest."The value of the usufruct will thus be capitalized in the manner indicated, and if it is found to exceed the free portion, the compulsory heirs are given the option of complying with the testamentary provision (give the property specified by the testator in the usufruct or pay the amount of the life annuity) or of delivering the entire free portion to the legatee or devisee. This option pertains exclusively to the compulsory heirs, and cannot be exercised by the legatees or devisees.The delivery of the entire free portion, instead of allowing the usufruct or paying the annuity, is possible only when there is a single legacy or devise. If however,Page 108 of 207there are donations inter vivos or other legacies or devises, the general rule of proportionate reduction should be complied with, and only the value which pertains to the legatee of the usufruct after such reduction can be delivered to him, because such usufruct cannot be made to burden any part of the legitime.Reduction of Donations. - The order to be followed in the reduction of donations is provided in Art. 773. as follows: "If, there being 2 or more donations, the disposable portion is not sufficient to cover all of them, those of the more recent date shall be suppressed or reduced with regard to the excess." The reduction of donations, .therefore, shall be in the inverse order of their dates. If there are several donations on the same date, they are reduced pro rata. Remember that the donations here referred to are donations inter w'vos; because donations mortis causa do not take effect except upon the death of the donor, they are included among legacies and devises for purposes of reduction. Effect of Alienation. - After the property donated has once been alienated by the donee, the alienation cannot be set aside. This view is on the assumption that the donation is inscribed in the registry of property, but the causes of its revocation are not stated; hence, upon its alienation to a 3rd person, the latter acquires it free from any conditions or susceptibility to revocation as

inofficious. Liability of Donee. - If the property donated has been validly alienated by the donee, and the transfer cannot be rescinded, can the inofficious part of the donation be taken form other property belonging to the donee? We believe that in such a case, the donee should be made to respond for the value of the excess or inofficious part of the donation. It was the act of the donee which made it impossible for him to return the inofficious part of the hereditary estate. He is conclusively presumed to know the law that the donation to him stands the risk of reduction if found to be inofficious at the time of the donor's death. Therefore, as between the compulsory heir and the donee, the latter should suffer the effects of his own act of alienating the property donated; he should pay the value of the inofficious part.Insolvency of Donee. - If a donee whose donation is subject to reduction is insolvent and cannot return anything to the estate to complete the amount needed to pay the legitime of compulsory heirs, the most acceptable solution is that the amount to be retumedby the insolvent must be borne and paid by those whose donations are within the free portion.ART 912. If the devise subject to the reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime.ART 913. If the heirs or devise, do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use ofREVIEWER IN SUCCESSION

2007A//, the property shall tie sold at public auction at the instance of any one of the interested parties._______TOLENTINO:• Division here means a material division, which is inconvenient, because the property is not susceptible of sucii division, or because it will lose or diminish its value or utility when so divided. Hence, although the law specifically refers only to a devise of real estate, it should be considered applicable to all other objects whether movable or immovable, of the same nature, such as vessels.• Reduction by One-Half. - The law allows the devisee to retain the thing "if the reduction does not absorb Vi of its value." But if the reduction should be exactly V4 of the value, who shall be entitled to retain the thing?The better opinion is that the thing should be retained by the devisee. The intention of the testator in making a devise of a determinate object is clearly so that the legatee may enjoy that particular property. Out of respect for this intention, and since the wHI of the testator is the governing law in succession, the thing should be given to the devisee in case he is entitled to half its value and the heirs to the other half.• Waiver of Retention. - If the heir or legatee entitled to retain the thing does not desire to do so, then "any heir or devisee who did not have such right may exercise it." If there are several heirs and devisees, the right pertains to each group as much as to each individual in the group. It is a right which is solidary in nature, and the exercise by one of those in the group is sufficient, even if the others do not concur. But the person exercising the right cannot compel his co-devisees or co-heirs to accept the thing or to make reimbursement for the balance of the value.If nobody chooses to exercise the right to retain the thing and reimburse the others in the amounts due them, the properly may be sold at public auction and the proceeds distributed properly.Locsin v. CA 1992)Mariano and Catalina, a childless couple, entered into an agreement that upon their death, their properties shall revert to their respective sides of their family. When Mariano died, he i'nstituted Catalina, his spouse, as his sole and universal heir. Catalina, in accordance with their previous agreement, began transferring by sale, donation or assignment, properties belonging to Mariano to his own relatives while she transferred title to her own properties to her relatives. After Catalina's death, her relatives sought to recover the properties which she has conveyed to Mariano's relativesISSUE: WON dispositions made, by deceased Catalina during her lifetime of Mariano's properties to Mariano's relatives were intended to circumvent the laws of succession.HELD: NO. Catalina's relatives (her nephews and nieces) are not entitled to inherit properties which Catalina had already disposed of more than 10 years before here death. For those properties did not form part of her hereditary estate, i.e. "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession (AT. 781). The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time. Property which Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the righi arising under certain circumstances to demand and compel the reduction or revocation of a decedent's gifts inter vivos does not include Catalina's relatives since neither

they nor the donee are compulsory or forced heirs; said relatives are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All Catalina's relatives had was an expectancy that in no way restricted her freedom to dispose of even her enure estate subject only to the limitation set forth in ART. 870 which, even if breached, they may not invoke as they are not persons qualified to invoke.____________________6. freedom to dispose free portionART 914. The testator may devise and bequeath the free portion as he may deem fit._____ ___________TOLENTINO:• Same principle as in Art. 842.• This article is misleading. What the testator can really devise and bequeath is the portion subject to free disposal, which is the remainder of the free portion when this is partly consumed by the legitimes of concurring compulsory heirs.• Besides, the phrase "as he may deem fit" is wrong, because the testator does not have absolute freedom of disposal, even of the portion subject to his disposition. He can dispose of this only in favor of persons who are qualified to succeed him, and not as he may deem fit.MAGIC NOTES:[Preliminary matter: Legend: SS - surviving spouse; LC and D• legitimate children and descendants; LP - legitimate parents; IP - illegitimate parents; A -ascendants]Page 109 of 207REVIEWER IN SUCCESSION

2007AQ: Who are CHs?A: Compulsory heirs are those enumerated in ART. 887. They are the:1. Legitimate heirs and descendants;2. Legitimate parents and ascendant is in default of abo«e;3. Widow or widower;4. Acknowledged natural children and natural children by legal fiction; and5. Other illegitimate children under ART. 287The existence of legitime depends en the existence of compulsory heir/s. If there are compulsory heirs, then a certain portion is reserved to them as their legitime. They will receive her legitime regardless of whether the testator has left a wiil or not.When a testator makes a will, the law prohibits him from disposing of the legitime of the compulsory heirs. Hindi niya pwedeng galawin iyon. However, the testator may disinherit a compulsory heir when a ground therefore exists. The grounds are enumerated in the law. The effect of disinheritance is that the heir will not receive his legitime.Q: Who are primary heirs?A: Those who inherit at ail times, whenever they exist, (e.g. SS. LC and D, 1C and D)Note: Legitimate children may also be variable or fixed (Ex. fixed - LC and LP and A; variable - SS. 1C. IP)As a rule, all CHs concur with each other in the absence of an express legislative provision.Legitimate children and descendantsQ: WhoareLDs?A: Those bom or conceived under a lawful marriage.The Family Code gives us the rules in determining who are the legitimate children and descendantsB"C GQ: A married B. They had 2 children C and D. Both are legitimate. C married E and had 2 children F and G. D did not many but lived in with H and had by Ha child.I. having been bom out of wedlock, is illegitimate even if D and H vould have married if they have done so. He is a natural child. Suppose the inheritance of A is in question. There is no question that C and D are the legitimate children of AIs I a compulsory heir? Take note that I is an illegitimate grandchild.A: Look at #4 and #5 of ART. 887. These mention only "children* and not descendants. Under ART. 992 the illegitimate child has no right to inherit eb intestato from the legitimate children or relatives of his father or mother and vice versa. So I cannot inherit from the legitimate relatives of his father. That is why ART. 887 has limited the enumeration of compulsory heirs to illegitimate children.Q: Is I a compulsory heir?Page 110 of 207A: YES. because of ART. 902. The rights of illegitimate children as set forth in the articles on legitime are ••-transmitted upon their death to their descendants, whether I legitimate or illegitimate./ Now. descendants will be compulsory heirs only if theL_ children are dead. For as long as the children are alive,then the descendants cannot inherit. They are excluded.Re: Descendants always inherit in representation of their ascendants.Q: A and B had 4 children, C, D. E, and F. C had one child G. D had 2. E had 3. F had 4. C, D. E. F were killed in one freak accident. After A's death, who are his CHs?CD EI A A ...

G H I J K L M N O PA: C. D, E, and F will be represented by their respective • children, v^Q: How much will the grandchildren share?A: G will get the share of his fathei C. D's share will be divided by his 2 children. E's share will be divided by his 3 children equally and F's share will be divided into 4 equal parts by his 4 children. This is the essence of the right of representation, ^Legitimate parents and ascendants with respect to their legitimate children and descendantsQ: A:Who is legitimate A?An ascendant of a legitimate child.direct line.Example: X_An A is always on theAQ:A:D in this is an ID of A and X and Y. C and A and X and Y are las of D.F is a LD of B and E but an ID of Y and Z. Y and Z are las of F, B and E being Las of F.B is an ID of Y and Z.What does the phrase "in default of the foregoing" in ART. 887 (2) mean?It means that without legitimate children and descendants, the legitimate parents and ascendants will inherit as compulsory heirs. But if there are legitimate children and descendants, the ascendants are 4o Compulsory heirs. This is the principle of exclusion. The basis of this principle is that a person loves more his children than hisREVIEWER IN SUCCESSION

2007Aparents. Thus descendants are preferred over ascendants.If there are no legitimate children, then the legitimate parents become compulsory heirs.The widow or widower• NOTE: ART. 900 applies to both widow and widower.• The widow, however, is always a compulsory heir, but take note that the widow must be the legal spouse. A common law spouse is not a compulsory heir.Q: Suppose the marriage is void ab initio because the man was previously married when he contracted the bigamous, who is the surviving spouse who will inherit as a compulsory heir?A: Under the NCC, a void marriage need not be judicially declared null and void. It produces no effects. So the second wife is not the lawful wife.Under the Family Code, even if the marriage is void ab initio, it requires a declaration for purposes of subsequent .marriage. But how about for purposes of succeeding to the estate of the deceased spouse? Walang nakalagay. This gives the implication that judicial declaration of nullity is not required for purposes of succession.Q: How about if a spouse got lost and after 4 years of absence, the present spouse contracted a subsequent marriage believing that the 1st spouse is dead.A: Under the NCC, the 2nd marriage is voidable. It becomes voidable when the absent spouse reappears. The 1S|

marriagemarriage subsists. Take note that it is the 2nd

which is voidable and not the 1Q: Who may bring an action to annul the 2"" marriage? A: Any of the 3 parties involved.Q: Suppose nobody brought an action to annul the marriage and the absence simply allowed the spouses of the 2nd marriage to cohabit. Who then is the legal spouse to inherit.A: We will discuss this later when we discuss then amount of legitimes of compulsory heirs.The framers of the Family Code sought to remedy this situation of a person dying with 2 surviving spouses. As a solution, the framers provided in the family Code that the 2nd marriage is automatically terminated by the filing of an affidavit of reappearance by the absent spouse. The framers of the Family Code did not realize that whether an affidavit of reappearance will be filed or not depends entirely on the discretion of the appearing spouse. Maybe they realized this. So what they did is to allow 3rd party to file the affidavit if the reappearing spouse fails or refuses to do so. Hence the children by the 1st marriage may file the affidavit that their missing parent has reappeared. In that case, the 2nd relationship will be terminated at once so that the 2nd spouse will not considered as a legal spouse. But the problem still looms if no one filed the affidavit of reappearance.This gives rise to another question. May the affidavit of reappearance be filed after the death of the spouse present? The FC is silent on this. In my opinion, in fairness to the 1" spouse and his children, the affidavit should be allowed to be filed even if after the death of any parties.Page 111 of 207Acknowledged natural children and natural children by legal fiction• According to framers of the Family Code, natural children no longer exist as a class of illegitimate children. ART. 902 will apply!Q: Who is a natural child?A: Those born outside of marriage of parents with no legal impediment to marry each other.

Q: Who is a spurious child?:.A: Those whose parents at'conception had an impediment to marry.:. WhoareNCLF?A: Those born of a valid marriage. NCLF has been abolished. _4 NC were not but they may be legitimated by subsequentmarriage.- j There is no mere distinction between these 3 classes for purposes of succession.Computation of the leoitime• SUMMARY: The legitime I fixed at Vi of the estate. Thisis reserved as legitime of the compulsory heirs. This maygrow bigger of there are illegitimate children concurring: with the LC. lyong V4 kasi reserved iyan sa LC underART. 888.Q: Paano kung mdy asawa7

A: The legitime of a surviving spouse is equal to the legitime of one LC. Saan kukunin iyon? Sa free portion. Tandaan nir.yo lagi na % ang legitme of the LC and the other half is Free Portion. The FP may grow smaller depending on the concurrence of other compulsory heirs. Tingnan natin ngayon iyong concurrence niiaQ: Suppose there is no wiU, to whom will that 'A go? A: !t will be distributed as in intestacy which we shall discuss later.Q: Suppose the LC survived with the legitimate parents (LP),what will the latter get? A: Nothing. They are excluded by the LC.Q: Suppose the child is not a natural LC but is merely anadopted child (AC), will he exclude the LP? A: Yes.Q: Suppose the LC concurs with the surviving spouse, how much will each get?A: LC=1/2, SS=1/4 under ART. 892. But if there are 2 or more LCs, the SS will get a share equivalent to that of one LC. But in case of legal separation, the SS may inherit only if it was the deceased who had given cause for the same. The SS share will betaken from the FP. The FP will only have VJ then.Q: Suppose the LC concurs with an illegitimate child(IC)?A: LC will get Vi and 1C will get half of ihe share of one LC.Hence, the 1C will get Vi since there is only 1 LC who willget the entire Yz.REVIEWER IN SUCCESSION

2007AQ: Suppose the LC concurs with SS and 1C, how much doeseach get? A: LC=1/2, SS=1/4, and IC=1/2 of LC =1/4. There will be nofree portion.Q: If there are 4 ICs surviving with one LC, how much will theyshare?A: LC=1/2. Lagi ito maski sino kasama niyan nag-inherit. IC=1/2 of 1 LC. (FC) But since their share is more than thefree portion, they will suffer reduction. Hence the 4 1C will TABLE OF LEGITIMESdivide the remaining !4 of the estate so that each gets 1/8 of the estate. This is half smaller than his supposed inheritance. The legitime of the LC will never be reducedSuppose the survivors are 1 LC, SS and 4 1C, how will they share?LC=1/2, SS=1/4, 4 IC=1/4 or 1/16 each. The SS is preferred over the 1C. The latter's share will always depend on the estate that is not taken up by the LC and the SS.Table 1. Share of legitimate child.CONCURRENCE LEGITIME LEG. CHILD

1. Alone V, E (888)

2. LP Excluded y, E (888)

3. SS a) if 1 LC. % (892) b) if more than 1 LC, share of 1 LC (892)

y, E (888) y, E (888)

4. 1C % of LC's share (895) y, E (888)

5. SS 1C share of 1 LC (897) 1/4 of 1 LC (895)

y, E (888) y, E (888) ^

6. IP Excluded y, E (888)

LEGEND:LC :1LC :SS :1C :VzE :LP :IP :Legitimate Child share of 1 child . surviving spouse Illegitimate Child V2 of the estate Legitimate Parents Illegitimate ParentREMEMBER:

1. If there are many persons in a category, the share is to be divided among themselves equally. If there is only one in a category, he gets the entire share.Hence:Estate: 10,000LC: 4Share of LC: 5.000Share of 1 LC: 5.000/4 = 12502. Legitimate parents are excluded only be legitimate children. However, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate.3. Case #3 in tableSS: 1Estate: 20.000 LC: 3LC: 20.000/2 = 10.000 1LC: 10.000/3 = 3.333 SS: 1LC = 3.3334. Case of #4 in the tableEstate: 24.000 = 12.000 LC: 12,000/4 = 3.000 1 LC: 3,000/2 = 1.500However, if the estate is not enough to cover the share of the illegitimate children, they suffer proportionate reduction and the share of the legitimate children is not affected. Hence.Estate: 24,000 LC: 4 1C: 10LC: 24.000/2 = 12.000 1LC: 12,000/4 = 3,000 1LC: 3.000/2=1.500 Total 1C: 1.500x10=15.000 Total 1C: 12,000TOTAL: 27.000 Excess: 3.000Therefore, the share of the illegitimate children must be reduced to 12.000 to be divided equally between them. Each illegitimate child therefore gets only 1,200 (which we got by dividing 3.000 over 10.) Answer is 300. Therefore, deduct the 1.500 of each 1C by 300 and we get 1,200.Page 112 of 207REVIEWER IN SUCCESSION

2007AQ: Suppose the LC concurs with SS and 1C, how much doeseach get? A: LC=1/2, SS=1/4, and IC=1/2 of LC =1/4. There will be nofree portion.Q: If there are 4 ICs surviving with one LC, how much will theyshare?A: LC=1/2. Lagi ito maski sino kasama niyan nag-inherit. IC=1/2 of 1 LC. (FC) But since their share is more than thefree portion, they will suffer reduction. Hence the 4 1C will TABLE OF LEGITIMESdivide the remaining !4 of the estate so that each gets 1/8 of the estate. This is half smaller than his supposed inheritance. The legitime of the LC will never be reducedSuppose the survivors are 1 LC, SS and 4 1C, how will they share?LC=1/2, SS=1/4, 4 IC=1/4 or 1/16 each. The SS is preferred over the 1C. The latter's share will always depend on the estate that is not taken up by the LC and the SS.Table 1. Share of legitimate child.CONCURRENCE LEGITIME LEG. CHILD

1. Alone V, E (888)

2. LP Excluded y, E (888)

3. SS a) if 1 LC. % (892) b) if more than 1 LC, share of 1 LC (892)

y, E (888) y, E (888)

4. 1C % of LC's share (895) y, E (888)

5. SS 1C share of 1 LC (897) 1/4 of 1 LC (895)

y, E (888) y, E (888) ^

6. IP Excluded y, E (888)

LEGEND:LC :1LC :SS :1C :VzE :LP :IP :Legitimate Child share of 1 child . surviving spouse Illegitimate Child V2 of the estate Legitimate Parents Illegitimate ParentREMEMBER:1. If there are many persons in a category, the share is to be divided among themselves equally. If there is only one in a category, he gets the entire share.Hence:Estate: 10,000LC: 4Share of LC: 5.000Share of 1 LC: 5.000/4 = 1250

2. Legitimate parents are excluded only be legitimate children. However, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate.3. Case #3 in tableSS: 1Estate: 20.000 LC: 3LC: 20.000/2 = 10.000 1LC: 10.000/3 = 3.333 SS: 1LC = 3.3334. Case of #4 in the tableEstate: 24.000 = 12.000 LC: 12,000/4 = 3.000 1 LC: 3,000/2 = 1.500However, if the estate is not enough to cover the share of the illegitimate children, they suffer proportionate reduction and the share of the legitimate children is not affected. Hence.Estate: 24,000 LC: 4 1C: 10LC: 24.000/2 = 12.000 1LC: 12,000/4 = 3,000 1LC: 3.000/2=1.500 Total 1C: 1.500x10=15.000 Total 1C: 12,000TOTAL: 27.000 Excess: 3.000Therefore, the share of the illegitimate children must be reduced to 12.000 to be divided equally between them. Each illegitimate child therefore gets only 1,200 (which we got by dividing 3.000 over 10.) Answer is 300. Therefore, deduct the 1.500 of each 1C by 300 and we get 1,200.Page 112 of 207REVIEWER IN SUCCESSION

2007ATable 2. Share of Illegitimate ChildCONCURRENCE LEGITIME ILLEGITIMATE

CHILDFREE PORTION

1. Alone '/2 E (901) Y2E

2. SS 1/3 E (894) 1/3 E (894) 1/3 E

3. LP yz E (889) % E (896) Y.E

4. IP Excluded '/2E y,E

5. SS LP 1/8 E (899) 1/2

E (899)y« E (899) 1/8 E

Table 3: Share of Surviving SpouseCONCURRENCE LEGITIME SURVIVING

SPOUSEFREE PORTION

1. Alone '/2 E (900) y2E

2. LC (1) LC (1 or more)

% E (888) y2 E (888)

% E (892) shoMLC (892)

XEy, E - ss

3. LP % E (889) % E (893) %E

4. 1C 1/3 E (894)^ 1/3 E (894) 1/3 E

5. IP % E (903L tf E (899) !4E

6. 1C LP X E (899) % E (899)

1/8 E (899) 1/8 E

7. LC 1C %E %1LC (895)

shoflLC (897) Excess, if any

NOTE: In the case of #1 in the table, the share of the wife would be reduced to 1/3 if the marriage is in articulo mortis and the spouse died within 3 months except if they had been living together previously for more than 5 years, in which case, the share of the spouse would be Vt. ART. 900If the estate is not sufficient to cover all the shares of the heirs, the spouse is preferred over illegitimate children. The latter will suffer a reduction in their share.Table 4. Shars of Legitimate Parent and AscendantCONCURRENCE LEGITIME LPand

ASCENDANTFREE PORTION

1. Alone 1/4 E (900) %E

2. LC % E (888) Excluded (903) -do-

3. 1C % E (896) Y, EJ889) KE

4. SS V« E (893) 1.2E(889) XE

5. SS 1C 1/8 E (899) % E (899)

V4 E (899) 1/8 E

MAGIC NOTES:• Like the legitime of legitimate children, the legitime of legitimate parents, when they are not excluded from inheritance, is always fixed at % of the estate.• The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitimes shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line (ART. 890).Page 113 of 207Hence, if only the mother survives, she gets the entire y> of the estate. The parents of the father are excluded by the mother (nearer excludes more remote). However, if both parents are alive, they shall divide the share so that each ends up getting y* of the estate. But if both parents are dead, then the paternal and maternal parents would inherit tiie % share. Each line (paternal and maternal) gets % of the estate to be divided equally between the grandparents. Hence, if only one paternal grandparent survives, he gets the entire % pertaining to his side. If both paternal grandparents are alive, they divide the V« pertaining to their line and each ends up with 1/8 of the estate each. If however, the maternal grandparents are already dead but the great grandparents are alive so that the deceased id survived by his paternal grandparents and maternal grandparents, the maternal great grandparents are excluded by the paternal grandparents. This is the essence uf the last sentence in the 2nd par.Table 5: Share of Illegitimate ParentsCONCURRENCE LEGITIME ILLEGITIMATE

PARENTFREE PORTION

1. Alone 1/2 E (900) y2E

2. 1C 1/2 E (888) Excluded (903) 1/2E

3. 1C y> E (895) Excluded (903) 1/2E

4. SS y, E (903) y. E (903) y2E

NOTE:Illgitimate parents are excluded by all types of children, legitimate or illegitimate.Ascendants of illegitimate parents cannot inherit the share of the illegitimate parents. The law. in ART. 903, mentions only parents of an illegitimate child omitting grandparents therein. Hence, if A has a legitimate child M who in turn, has 1 legitimate child X and illegitimate son \, and M is already dead, if X dies (legitimate child). A can inherit from X being the tetter's ascendant. However, if Y dies (illegitimate child), A cannot inherit from him because ihe law mentioned only his parents, meaning, only M can inherit from him.IExercises on Determination of CHs and Their Respective Shares: (To see whether you understood all those tables and magic notes.)UREVIEWER IN SUCCESSION

2007AQ: If C dies, who are C's CHs? A: A and B.Q: Why not the grandparents?A: Because the nearer excludes the more remote. A and B share equally.Q: Same situation as above but B predeceases C. Who is C'sCH? A: A alone. (890)Q: Suppose both parents (A and B) predecease C. Who areC's CHs? A: X and Y. and U and V.(How much? They share in the Vi equally as individuals.)Q: What if Y is already dead?A: X and Y get'/«(1/2 of 1/2) and U also 1/< (1/2 of !6). X and Y would further divide the Vt between themselves.Q: When C died, he was married to E who predeceased him.They have a child F. Who is C's CH? A: F (887). The ascendants are excluded.(How much is F's legitime? % (988).)Q: Suppose F is an 1C and E, the common law wife, does notpredecease C. Who are the CHs? A: F (1/4), A and B (1/2 to be shared equally). FP is V«. E isnot CH because she is not a legitimate spouse.Q: Why is it that in this case, F concurs with A and B? A: Because the law seeks to discourage illegitimacy.Q: Still the same example, but C, after having an affair with E (with whom he had a son, F), had an affair with G with whom he had a son H. Who are the CHs?A: A and B (1/2) and F and H (1/4. divided, equally).Q: Suppose C married E. No child. Who are C's CHs? A: A and B (1/2) and E (1/4). (893)U: IS it possible to leave 2 lawful spouses? A: Yes. but only under the CC. (c.f.FC 41-42)Q: Suppose E married C in articulo mortis. C diedimmediately. IsEa CH? A: Yes, and E gets %. A and B are also CH and given Yt.Q: Why not 1/3?

A: The reason behind ART. 900 providing for 1/3 share by theSS is N/A. ART. 900 applies only when spouse survivesalone.Q: Suppose C and E had no child. C had an affair with F andthey had a son, H. Who are the CHs of C? A: A and B (1/2). E (1/8), H (1/4). FP is 1/8.Q: Suppose C and F had 21C, H and G? A: Then H and G share equally in the %.NOTE: Illegitimate children cannot inherit unless they are recognized or acknowledged. Acknowledgment is of 2 kinds: 1. Voluntary (e.g. acknowledgment is in a private writing, birth record, court judgment or will).Page 114 of 2072. Compulsory - This is evidence of recognition other than voluntary (e.g. reputation). This is done through a court action to compel paternity.When the putative parent is already dead, compulsory recognition is no longer allowed.Q: C died first. B died second. D died last. Who are the CHs?Z ----- ----- X ————,———— YA: Only the IPs. As they survive alone, they get 16. (903). Note that IPs are excluded by legitimate children/Ds (1/2). They are also excluded by 1C (1/2). Thus, all children/Ds exclude IPs.Q: Z and X are married Z died so X married Y. X died. Who are the CHs?X—(adopted)A: Nos. 1-6. From what marriage they came form is irrelevant. They share equally. No. 7 is also a CH. The same is true if No. 7 were a legitimated child.Q: C died. Then B. Who are the CHs?D(adopted)A: D only.Under ART. 343 of the CC, an adopted child shall not exclude LPs/As. But this has been suppresses by the CYWC and the FC. But the adoption must have court approval.NOTE: FF will vary depending on the number of 1C. So, let us illustrate this with the ff examples.Divide the shares:A=1/4B = y< C = 1/8B C 0 EThen: A= 1/4 B=1/4REVIEWER IN SUCCESSION

2007AThus, FP = 3/8 D=1/8 E = 1/8 Thus. FP = 1/8 onlyQ: Who are X's CHs?77TTA: A (1/10), B (1/10). C (1/10). E (1/10) and Z (1/10)Q: Suppose X marries again when he was 90. the 23 year old Z. His 4 children with Y were then all dead but the 4 had a total of 9 children. X and Z has E for child (pwede pa ba 'yon?). Xdies. CHs?A: Same as bove but each of the child from prior marriage is represented by his cilhdren. The same thing happens if E is also already dead, with 2 children left behind.Q: Suppose A to E are alive and all repudiate, what would Zget? A: Apply 892. Share of SS is sacrificed so that there would bea X FP.Q: For this question, see ART. 83 of the CC and its equivalent in FC.(1st)(disappeared) Y •X —What is the status ofX and Z's marriage? A: Voidable. That is, valid until annulled.Q: What if Y reappears such that X now has 2 wives. X dies without an annulment. Does this mean that X has 2 lawfully wedded wives who are both CHs?A: Yes. The % share for SS is divided equally between Y and Z.But the FC changed the rule. The 2nd marriage would e valid if X. during Y's disappearance, obtained a declaration of presumptive death only through court action but by the recording of an affidavit of reappearance. Any interested party may file the same.Note that under the CC. when one party dies, the marriage cannot be annulled anymore. Therefore, if X dies, the marriage with Z is no longer annullable. But under the FC, no time or period is prescribed within which the affidavit may be filed. If such affidavit may be field even after the death of one spouse, then it is not possible for a person to die with 2 lawful surviving spouses.Reduction of Shares when Leaitime is Impaired: Q: T left a will leaving A-% }B-Vt } voluntary heirs Y-y, }Estate is worth Php 120K. At the time he died, he had 2 children, A and B. So what do A, B, and Ygei?A:Page 115 of 207

Legitime Will Total

A % = 30K % of 60K = 15K 45K

B % = 30K % of 60K = 15K 45K

Y ———— Vi of 60K = 30K 30K

% (60K) 60K 120K

NOTE: The solution applies only if the will includes institution. A different formula is involvedifHegacies are involved.Computation of value of estate Q: How do we compute the estate of the decedent? A: ART. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will.To the net value of the hereditary estate, shall be 2> added the value of all donations by the testator that are yo subject to collation, at the time he made them.So the formula is: Gross Estate(Summation of all assets) (-) Liabilities(Contingent or mature as long as survived T of death)xxxxxxxxxxxxHEREDITARY ESTATE Donations inter vivosNET HEREDITARY ESTATEThe NET HEREDITARY ESTATE is the "estate" which will be used in computing tegitimes and for distribution and to determine WON a DIV is inofficious.Q: What if the liabilities are greater then the gross estate'7

Who will pay? A: Nobody. In this case, heirs are not liable beyond the valueof their inheritance.The law took a shortcut so that individual creditorswouldn't have to go after each heir. So pay first the debtsbefore distribution. But the effect is the same as if theindividual heirs paid.Q: What are the kinds of donations?A: Inter vivos (IV) and mortis causa (MC).Q: What is the test?A: When the ownership is intended to be conveyed as opposed to the delivery of the property.So if Pedro. T. leaves to Juan a house and lot in Alabang to be delivered upon Pedro's (donor's) death, the donation is IV. Only the enjoyment of property is postponed.DMC partakes of the nature of a testamentary disposition. Nothing is left, therefore, nothing should be returned to the estate.Only DIV must be added.Q: What is the purpose of adding the donations to the estate of the testator?REVIEWER IN SUCCESSION

2007AA: To prevent him from giving inofficious donations which might prejudice the legitimes of his heirs.Example, A has 20M. To prevent his son from inheriting much from him, he gave 2M each to his 8 nieces or a total of 16M. At the time of his death, he has only 4M from which the legitime of his son would be taken. Therefore, the legitime of his son was impaired. To prevent this situation, the legitime must be returned to complete the legitime of the son and the rule is that the last donation is the first to be reduced.Q: What if the donations were already given to his children orto strangers, how do we treat them? A: Donations given to children shall be charged to theirlegitime. Donations made to strangers shall be charged tothat part of the estate of which the testator could havedisposed by his last will.Insofar as they maybe inofficious or may exceed thedisposable portion, they shall be reduced according to therules established by the Code. ART. 909.Q: What value of the donation is to be added to the estate, value at the time of the donation or value at the time of the testator's death?A: The value at the time the donation was made. This is clear in ART. 908.Q: What is the reason for this rule?A: This is because for all intents and purposes, the donee was the owner of the property donated so that whatever fruits received would pertain to him. Similarly, decrease in the value of the property would be charged to him. Hence, he returns only the value of the property at the time of the donation.Q: When T died, he only had 10M but a debt of 20M. He made donations of 15M to various persons. How much is the estate of T?A: 15M. Although there is a standing debt amounting to 20M, the creditors could not go after the property already donated, unless the donations were simulated or made in fraud of creditors. The creditors can only exhaust the available asset of the estate and could not touch on the donations which were collated. [10M - 20M = 0 + 15M = 15M]DIV is given only when the legitime is impaired and only to CHs, not to creditors. See ART. 1061.

Q: What if the donation was made to illegitimate children, how do we treat it?A: ART. 910. Donations which an illegitimate child may have received during the lifetime of his mother or father, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of. they shall be reduced in the manner provided for by the Code.Q: What about if the donations were given to the survivingspouse during the lifetime of the deceased, how do wetreat them? A: There is no provision in the Code. But donations betweenspouses during the existence of the marriage is void,except donations pnopter nuptias.Diagram of Possible Scenario when Computing Estate:LegitimeDIVonCHIV Leg & Dev InsfnStrangerexcessRemember that DIV to CH are chargeable against their legitmes but the T may provide otherwise, in which case, it is chargeable against the free portion.Page 116 of 207REVIEWER IN SUCCESSION

2007AXV. PRETERITIONART 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line whether living at the time of the execution of the will or bom after the death of the testator, shall annul the institution of heir, but the devises and legacies shall be valid insofar as they are not inofficious.If the omitted compulsory heirs should die before the testator, the institution shall be effectual without prejudice to the right of representation._________TOLENTINO:• Concept of Preterition. Preterition means the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regafd to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case.• Distinguished form Inheritance. The deprivation of a compulsory heir of his legitime by the testator may be express or tacit. The express method is disinheritance; the tacit, by preterition.a. Disinheritance, being express, is always voluntary; preterition may also be voluntary, but the presumption of the law is that it is involuntary.b. In disinheritance, there is some legal cause; in preterition, the law presumes that there has been merely an oversight or mistake on the part of the testator.c. In case of a valid disinheritance, the compulsory heir is totally excluded from the inheritance; and if the inheritance is not lawfully made, the compulsory heir is merely restored to his legitime. But in case of preterition in the direct line, the omitted heir gets not only his legitime, but also his share in the free portion no! disposed of by way of legacies and devises.• Requisites of Preterition. A.) That there is total omission; G.) that the person omitted is a compulsory ehir in the direct line; and C.) that the compulsory heir omitted survive the testator.• Total Omission. Most writers hold that if the heir has received anything from the testator, even by way of donation inter vivos, there is no preterition, but a case of incomplete legitime under ART. 906. Such donation, under ART. 909, is considered as an advance on the legitime of the compulsory heir; and his only right is to ask for completion of his legitime under ART. 906, if the amount already given is not sufficient to cover such legitime.• Compulsory Heir Omitted. The omission of heirs bom between the execution of the will and the moment of the testator's death will also constitute preterition, if such heirs be living at the latter moment.• Heir in Direct Line. The compulsory heir who is omitted must be in the direct line, whether descending or ascending Heirs in the direct line include the illegitimate parents and all kinds of illegitimate children, whether natural or otherwise.• Omitted Heir Survives. If the compulsory heir who has been preterited dies before the testator, it is the same as if there had been no preterition. The right of representation, however, should not be lost sight of.Page 117 of 207Preterition must always be determined in relation to the persons who are compulsory heirs at the time of the death of the testator, and not in relation to those who never became such.• Effect of Preterition. If the testator disposes of the free portion only, and leaves the legitimes of the compulsory heirs untouched by the will, his act is valid; there is no preterition even if the compulsory heirs are not mentioned in the will, and they will receive their legitimes. But is the testator institutes an heir to the estate, including the legitime of a compulsory heir, at the same time omitting the compulsory heir, thefrthere is preterition; but the effect depends upon the character of the compulsory heir omitted. If the omitted heir is in the direct line, the institution is totally annulled, saving only legacies and j^ devises which are not inofficious; but if the omitted heir is—Q not in the direct line, only his legitime is given to him and—- the institution is annulled only to that extent.• In the Direct Line. The preterition of compulsory heir in—^ the direct line annuls the institution of heirs, but legacies and devises shall stand insofar as they are not inofficious. The annulment, therefore, may

either be partial or total, resulting in partial-or total intestacy, depending upon whether or not there are devises and legacies provided for in the will. If there are, the intestacy is partial; if there are none, there is total intestacy.The effects of preterition are different from those of an ineffective disinheritance. In the latter case, the instrt-jtion of heirs is annulled only to the extent that it prejudice the legitime of the compulsory ehir improperly disinherited; while in the former, the institution is annulled in its entirety, including that affecting the free part, unless this has been disposed of as devises and legacies. The reason for the difference lies, not only in the express words of the law. which adds "insofar as it may prejudice the person disinherited" in illegal disinheritance but omits such clause in preterition, but also in the fact that preterition is presumed to be only an involuntary omission. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the tew is that he wants such heir to receive as little as possible from his estate.The annulment of the institution of heirs, in case of preterition. is thus in toto and creates intestate succession; but legacies and devises are valid insofar as they are not inofficious.• Surviving Spouse. The surviving spouse is not a compulsory heir "in the direct line"; hence the present article does not include him or her. However, the legitime of the surviving spouse is protected by ART. 842, which provides that "one who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs."The preterition of the surviving spouse, therefore, does not entirely annul the institution of heir. The institution is only partially annulled, by reducing the rights of the instituted heir to the extent necessary to cover the legitime of the omitted surviving spouse. This differs from the preterition of compulsory heirs in the direct line, which produces total intestacy, saving devises and legacies.REVIEWER IN SUCCESSION

2007AART 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.ART 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by will, if any; if that is not sufficient, as much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.TOLENTINO:• This article does not necessarily refer to preterition. It refers to a child or descendant "omitted in a will"; and mere omission in a will does not necessarily imply preterition, because the compulsory heir may have received or may still receive part of the inheritance in some other concept than by will. There is preterition only when the heir has been completely omitted from the inheritance, and not only in the will.• This article does not formulate a rule for determining the extent or quantity of the share of the omitted child or descendant but merely provides how that share, after it has been determined, should be paid. The share of the omitted child or descendant is to be determined by other provisions of the law; once that is determined this article provides the manner in which that share shall be satisfied.• This article suffers from very patent and fundamental errors. It is limited to a "child or descendant" omitted in a will, as if implying that its principle has no application to other compulsory heirs omitted in a will. The term "child or descendant" in this article should, therefore, be construed as "compulsory heir". A more serious error is in the last part of the article, which provides that "if that (the undisposed part of the estate) is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. This article could have well been omitted.To harmonize this article with the system of tegitimes, and to erase its absurdity, it should perhaps be rephrased as follows:"The share of the compulsory heir omitted in a will must -be first taken fro the part of the estate not disposed of by will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of other heirs given to them by will."This is the real intention of the law.ART 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.______________TOLENTINO:• Where the disinheritance is ineffective in this case, the compulsory heir must be given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to (awful dispositions made by the testator in favor of others.Page 118 of 207

MAGIC NOTES:Q: Preterition from whom?A: A reading of ART. 854 would imply that it is a preterition or omission from a will. Therefore, the preterition is from a will. This is the first view. Preterition, according to this view, occurs when:1. There is a will

2. There is an institution in the will; and3. The compulsory heir was not mentioned oromitted in the will.Thus, if I instituted. A to Vi. B to 1/4, and son D to H nothing, under the first view, there is preterition since all *! elements therefore are present. This is the view being 3 followed in Spain.On the other hand, under the second view, there is not preterition because preterition is exclusion from the INHERITANCE. Preterition is not only omission from a will, but alfo omission from inheritance. In this case, D can still inherit by way of intestate succession the remaining Y* of the estate. This is the view being followed in the Philippines as held in the case of Aznar v. Duncan and Nuguid v. Nuguid.Q: If G was not given anything but during Ts lifetime, D wasgiven donations inter vivos, is there preterition? A: Under the first view, there is preterition. Under the second view, there is no preterition since D was not excluded from the inheritance. The donation given to him will be charged to his legitime. He will therefore receive something from the inheritance.According to DNC, both views are wrong.The second view is a wrong view. There will never be a case of preterition because a compulsory heir can never be excluded from the inheritance. He always has his legitime. Since he always receives something, preterition wiil never operate.The first view is also incorrect. Institution in a will always refers to the free portion since the legitime cannot be affected. However, we know that the testator has complete freedom to dispose in any way he chooses the free portion. Therefore, no heir, not even compulsory heirs, can compel him to include the heir in his will.The question therefore is, from where is the heir preterited? Sir'said that he can't think of nay situation. Thus, DNC proposes to the Code Commission to erase ART. 854.Q: What is the importance of preterition?A: To illustrate this, let us make a hypothetical case. Suppose A was instituted to Mr. B to 1/i. and D (son) has nothing. There is therefore a preterition of D. The effect is that the institution of heirs will be annulled (ART. 854). ABC will not inherit and D will be the legal heir.If D received donation inter vivos, there will be no preterition so that the institution will not be annulled and ABC will get their inheritance. D will be entitled only to complete his legitime under ART. 906 (Any compulsory heir to whom the testator has left any title less than the legitime belonging to him may demand that the same be fully satisfied.)Q: What is therefore the rule now?A: For preterition to occur, there must occur the following requisites:REVIEWER IN SUCCESSION

2007A1. Will;2. Institution of heirs in the will;3. Heir does not receive anything by will;4. Heir did not receive donation inter wvos; and5. He did not inherit by way of intestacy.Q: What is the effect of preterition? A: It will annul the institution of heirs.Q: What will happen to the estate?A: Intestate succession will operate. (Nuguid v. Nuguid}Q: 7" made a will instituting A to 'A, B to Y*. and C to Y*. The entire estate was disposed of and his son D was given only P10000. Was he preterited?A: NO, since he was given a legacy.Q: / died intestate, can there be preterition? A: NO, because there is no will.Q:A:Q: A:Q:A:A:/ made a will giving his house and lot to A, his house in Alabang to B. and his car to C, without mentioning his son D. AH his estate consist of these properties. Is there preterition?There is no preterition since there is no institution of heirs. Institution of heirs is the giving of an aliquot part of the estate to a person. Devise or legacy is the giving of a specific oroperty to a person. Preterition will be irrelevant.May the surviving spouse be preterited?NO. As !ield in Balanay v. Martinez, the compulsory heirmust be in the direct line. The spouse is not in the directline.May the adopted child be entitled to the benefits of preterition?Under ART. 189 of the FC, the adopted acquires all rights and obligations of the legitimate child of the a^ppter. If the legitimate child is entitled to the benefits or* preterition, then the adopted child must also be entitled to the same benefits.How about the adopter, is he entitled to the benefits of preterition once he is preterited?Siguro. because he acquires also reciprocal rights and obligations under the same article. If legitimate parents can benefit under ART. 854, why not an adopter?In the first place, can the adopted child or the adopter be preterited?The answer to the immediately preceding question is in our magic notes. However, during our own discussion, DNC stated that an adopter is an heir of the adopted child under ART. 190(2) of the FC. However, he/she is not a

compulsory heir because he/she has no legitime. The adopter is only entitled to an intestate share under ART. 190 of the FC. Legal heirs are different from compulsory heirs. It seems therefore that adopters cannot be preterited.Q:If the omitted heir predeceases the testator but such heir left behind legitimate descendants, can the legitimate descendants annul the institution of heirs and claim the legitime of their omitted parent? A: There are 2 views on the matter.Page 119 of 2071 view: If the compulsory heir totally omitted from the inheritance is represented by descendants, then the descendants may claim the inheritance of the father and to annul the institution of heirs. Since their father is allowed to annul the institution, so are they. .2nd view: If the 1s1 view prevails, then there would be no more need for the 2nd paragraph of ART. 854.Q: The testatrix has a mother and a sister. In her will, she instituted her sister as her sole and universal heir. She gave a P10.000 legacy to the maid and to the driver. The mother was not mentioned:, Preterition? A: YES, Nuguid v. Nuguid.DNC's pointers in answering: State the elements of preterition.Thus, the answer would be: There was preterition ' because the mother was omitted from the inheritance. She was not mentioned in the will. She was not given any donation inter vivos, nor was she given any legacy.Q: What is the effect of such preterition?A: The institution of heirs is annulled. The sister will therefore no longer receive anything anymore. The maid and the driver will still receive their P10,000 each because legacies are not affected by such annulment of institution of heirs.Q: But what if the testatrix says in her will: "And to my mother, I will give all the prayers in the world xxx." Is there pretention?A: YES, there is still preterition.Q: iWhen is one omitted from the inheritance? A: When he is omitted in the will, does not receive legacy, and did not receive donation inter vivos.Aznar v. Duncan (1966)The deceased left a will instituting his daughter, Lucy, as his heir and a legacy was given to Helen Garcia in the amount of P3.600. During probate proceedings, court declared Helen Garcia as natural child of the deceased. ISSUE: WON there is preterition annulling institution of an heirHELD: NO. Manresa defined preterition as the omission of the heir in the will, wither by not naming him at all, or, while mentioning him as father, son, etc. by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. To determine WON there is preterition. the succeeding question must be answered.In order that the right of a forced heir may be limited only to completion of his legitime (instead of annulment of institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? NO. Manresa cited 3 decisions of the SC of Spain. In each of those cases, the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that ART. 815 applied and the heir could not ask that institution of heirs be annulled entirely but only that legitime be completed. There is no preterition where something is left in will for forced heir even if it was not recognized that he is an heir.__________________REVIEWER IN SUCCESSION

2007ANuquid v. Nuquid (1966)The testator left a will instituting as her sole and universal heir her sister. She was survived by her legitimate parents and 6 brothers and sisters.ISSUE 1: WON there is preteritionHELD: YES. The deceased left no descendants but she left forced heirs in the direct ascending line — her parents. They received nothing by the testament; they were deprived of their legitime, neither were they expressly disinherited. This is a clear case of preterition.The case of universal institution of the sister to the entire inheritance results in totally abrogating the will because the nullification of such institution of universal heir — without any other testamentary disposition in the will — amounts to a declaration that nothing at all was written.ISSUE 2: WON instituted heir can invoke statement in ART. 854saying that annulment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious."HELD: NO. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in ART. 854 suggests that the mere institution of a universal heir in a will — void because of preterition — would give the heir so instituted a share in the inheritance.As to him, the will is inexistent. There must be in addition to such institution, a testamentary disposition granting him bequests and legacies apart and separate from the nullified institution of her. Sanchez Roman stated that preterition annulled institution of the heir. As Manresa puts it, annulment throws open to intestate succession entire inheritance including free portion._____________________invalidate institutions of spurious heir, Salud. as heir, since there is no prelerition or total omission, if a forced heir._____Reves v. Barreto-Datu (1967)

When Bebiano Barretto died, he was survived by his spouse. Maria and their 2 children, Lucia and Salud. In his will, he instituted his 2 children as heirs. A few years later, in the probate proceedings for the wilt executed by his spouse (who died), the court declared that Salud was net his daughter by then deceased spouse. MariaISSUE 1: WON the subsequent declaration of lack of filiation between testator and one of the instituted heirs after partition nullifies probated wffl and entitles recovery by other compulsory heir (the real daughter) of all properties received from testator by heir or the tatter's successors-in-interest on ground that such properties were acquired by mistake (ART. 1081)HELD: NO. ART. 1081 is not applicable. Salud (spurious heir) admittedly had been instituted heir in the testator's will together with other daughter; hence the partition between them could not be a partition with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (ART. 1081) does not speak of children or descendants, but of heirs (without distinction between forced, voluntary, or intestate heirs), and the fact that Salud happened not to be the daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bebiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (1/2) assigned to spurious heir impugned on legitime of real daughter, the former did not, for that reason, cease to be testamentary heir of the deceased.ISSUE 2: WON there was preteritionHELD: NO. The fact that the real daughter was allotted intestator's will a share smaller than her legitime does notLaiom v. Leuterio (1960)The deceased left all his properties to his 3 legitimate sons. Afterwards, Maximo Viola, upon tne fetter's own petition, was declared by the courts as a natural child of the deceased. Maximo sought to have the properties of the deceased collated so he could get the share due him as compulsory heir.ISSUE 1: WON there was preteritionHELD: YES. The will completely omitted the natural child who was a compulsory heir. Having disposed of all the properties in favor of the 3 legitimate children, it naturally encroached upon the legitime of the material child. Such testamentary dispositions may not impair the legitime. (ART. 1038, Spanish CC) Due to preterition of compulsory heir in the direct line, the institution is annulled in its entirety. (ART. 854, CC)ISSUE 2:WON due to preterition, the institution of heirs made by the deceased became ineffective and Civil Case 8077 is thereby converted into intestate proceedings for the settlement of the estate HELD: No. It might have been possible if the court was dealing with special proceedings for settlement of the testate estate of the deceased, which, in consequences of preterition, would thereby acquire the character of a proceeding for the settlement of an intestate estate, with jurisdiction only over properties specified in pleadings which do not encompass all the properties of the deceased.________________Balanav v. Martinez (1975)The testator omitted her husband in the will and instituted as heir hersix legitimate children.ISSUE: WON there is preterition producing intestacy.HELD: No. Art 854 provides that preterition or omission of one.Escuin v. Escuin (1908)The testator left a will designating as heirs his natural father and his wife, ignoring his recognized natural child who is his general heir.ISSUE 1: WON there is preteritionHELD: There is preterition to 1/3 of the estate, which amount constitutes the legal portion of a natural child (ART. 842); and for the reason that minor was ignored in the wiil the designation of heirs made therein was, as a matter of fact annulled by force of law, insofar as the legal ponion of the said minor was thereby impaired. Legacies and betterments shall be valid, insofar as they are not illegal, for the reason that a testator cannot deprive the heirs of their legal portions, express in the cases expressly indicated by law.ISSUE 2: WON the testator could be considered to have died intestate HELD: NO. The designation of heirs became void insofar as it impugned the right of his general heir and deprived him of his legal portion; the will, however, is valid, with tespect to the 2/3 of the property which the testator could freely dispose of. It is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law. he had the right to dispose of by will, as he has done, provided the legal portion of his general neir was not thereby impaired, the 2 former persons being considered as legatees under the will.____________Page 120 of 207REVIEWER IN SUCCESSION

2007Asome, or all of the compulsory heirs in the direct line; shall annul the institution of an heir; since preterited heir is the surviving spouse who is not a compulsory heir in the direct line, the preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary nights_________________________________Solano v. CAM 983)the testator left a will instituting Sonia. his acknowledged natural child, as his sole ana' universal heir. The was contested by the Gracias who claimed to be the illegitimate children of the testator. The court found that acknowledgment made by testator of Sonia as his natural child was invalid and the testator, at time he made it, was incapacitated to make such acknowledgment. On the other hand, the Gracias were recognized by the testator as his illegitimate

sons. The status then of Sonia and the Gracias is the same, that is, they are all illegitimate children of the testator.ISSUE: WON there was preteritionHELD: Yes. The Gracias were preterited from testators last will and testament and as a result, the institution of Sonia as sole heir is null and void pursuant to Art 854 CC but only insofar as the legitime of the omitted heirs is impaired. The will, therefore, is valid subject to that limitation. It is plain that the intention of the testator to favor Sonia with certain portions of his property, which under the law he had the right to dispose of by will, so that disposition in her favor should be upheld as to the one-half portion of the property that testator could freely dispose of.'Note that DLC thinks that this decision is wrong. Preterition must be annulled if the institution, legacy or devise goes over the legitime. If there are still free portion, then solution is Completion.______________________Acain v. CA (1987)The testator instituted as heirs his brothers and sisters omitting his widow and adopted child.ISSUE #1: WON widow has been pretreated HELD: No. Art 854 does not apply as she does not ascend or descend from the testator, although she is & compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance for she is not in the direct line.ISSUE *2: WON adopted child was preterited. HELD: Yes. Under Art. 39 of P.O. No. 603, adoption gives to the 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. It cannot be denied that she was totally omitted and preterited in the will of the testator. Hence, there is preterition of legally adopted child.ISSUE *3: WON Opening of total intestacy will result. HELD: Yes. The universal institution of the testator's brothers and sisters to the entire inheritance results in totally abrogating the will because the nullification of such institution - without any other disposition in the will — amounts to a declaration that nothing at all was written.____________________Page 121 of 207REVIEWER IN SUCCESSION

2007AXVI. RESERVA TRONCALART 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.TOLENTINO:• The Reserva Troncal or Lineal - The purpose of the article is to reserve certain property in favor of certain relatives. It seeks to prevent persons outside a family from securing, by some accident of life, property that would otherwise have remained therein. Its principal aim is to maintain as absolutely as possible, with respect to the property to which it refers a separation between the paternal and maternal lines, so that property of one line may not pass to the other, or through them to strangers.• Nature of Reserva Troncal The greater weight of opinion among commentators is that the reserva creates a double resolutory condition to which the right of ownership of the person obliged to reserve is subjected. The resolutory condition are, first, the death of the ascendant obliged to reserve., and, second, the survival at the moment of relatives within the third degree belonging to the line from which the property came. In reserva troncal:(a) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister(b) the same property is inherited by another ascendant, and(c) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came.• Limited to Legitimate Relations In reserva troncal or lineal, there are four parties to consider(a) the ascendant or brother or sister from whom the property originally came(b) the descendant who acquired the property by lucrative title from the foregoing(c) the reservists or ascendant who received the property by operation of law from the descendant(d) the reservatarios or reservees, or the relatives within the third degree belonging to the line from which the • property cameAll these persons, in order that the reserva will exist, should be legitimate relations. No reserva will exist in favor of illegitimate relatives; nor are natural and illegitimate ascendants bound to reserve.• Person Obliged to Reserve The reservists, or the person obliged to reserve, is the ascendant who inherits from his descendant by operation of law certain property which the latter has acquired by gratuitous title from another ascendant. Hence, not all ascendants are bound to reserve, but only those who acquired property from a descendant by operation of law and not by the will of the latter. The property however must have been acquired byPage 122 of 207

the descendant from another ascendant or from a brother or sister, by lucrative title. The reservoir or reservista is a usufructuary of the reservable property. It is maintained that even if the reservista and the other ascendant from whom the property came belong to the same line, there is still an obligation to reserve. This view is strengthened by the fact that reserva is imposed even when the property comes from a brother or sister, who cannot be said to be from a different lineThere is, however, one case, when the ascendantwho has received property under the circumstancesmentioned by the law should not be obliged to reserve in^» favor of relatives within the third degree. This is the casePO when the only relatives are the common descendant of the^ predeceased ascendant and the ascendant who wculdY.^. have been obliged to reserve.• Person Obliged to Reserve The immediate source of the property should be a descendant of the reservista but the mediate source should be another ascendant or a brother or sister of such descendant. It is immaterial whether the property came from some other person before it became property of the other ascendant or the brother or sister.In the term brother or sister is included not only those•• of the full blood, but also those of the half-blood. The guest ion of half-blood or full blood is not important in this special reservation, because precisely the reservation is in tavor of a line, whether maternal or paternal.• Persons Benefited by the Reserva The law mentions as reservees or reservatarios the relatives who are within the third degree and who belong to the line from which such property came. Commentators are almost unanimous in holding that the third degree is to be counted from the descendant whose succession is in guest ion, because it is upon his death that the reserva begins to life. These relatives within the third degree must be related by consanguinity to the descendant.These relatives must likewise belong to, the line from which the property came. The term line is not here used in the juridicogeometrical sense of direct, ascending or descending, and collateral. Rather, it is used in the juridicofamiliar sense of the paternal as opposed to the maternal line, and vice versa.An important guest tan, however, is whether the paternal and maternal lines contemplated by law are those of the descendant only, or whether they include the branching of each of these main lines. For example: A child acquires by gratuitous title some property from his paternal grandfather. Upon the death of the child without issue, his mother succeeds to the property by intestate- succession. Upon the death of the mother, the paternal grandmother survives. It is evident that the paternal grandmother is only two degrees from the child or descendant and is within the paternal line. However, she is not a relative by consanguinity of the grandfather from whom the property came; in other words, with respect to the grandfather, she is in a different line, and the grandfather is in another. Guest ion therefore is: To be a reservatario, is it enough that one belongs to the paternal line of the descendant only, or it is also required that he be in the particular branch from which the property came?We are more incline to the view that the relative within the third degree be within the paternal or maternal line.REVIEWER IN SUCCESSION

2007AXXI. ORDER OF INTESTATE SUCCESSIONA. Descending Direct Line1. estate of a legitimate decedent a. illegitimate childrenART 983. If illegitimate children survive the legitimate children, the shares of the former shall be in the proportions prescribed by article 895._______TOLENTINO:• This article applies where there is a concurrence of legitimate and illegitimate children. Bear in mind that his article includes all kinds of illegitimate children. Although 895 allotted the shares of the iiiegitimate children according to the category they belonged to. said article has already been repealed by the Family Code article 176, which eradicated the distinctions. So ihe rule now is that all illegitimate children are entitled to their legitime, which is % of the legitime of each legitimate child.• Determination of shares: article is not clear as to what will be the basis of the computation or determination of the shares of illegitimate children who concur with legitimate children. Is the disposable portion only or the whole estate passing by intestacy?3 Theories are advanced:(1) FIRST theory:1* Determine the legitimes of the illegitimate children2nd Give it to them3"* Rest of the estate will go to the legitimate childrenApplication:Estate: 70,0001 Legit 1 IllegitVi estate % of Legit's legitime ( % of estate)1" Legitime of Illegit is % of the estate = 17,5002nd Ibigay sa kanya3rd 52.500 will go to the legitimate childCriticism: The above solution was under the old code which followed the principle of exhaustion. It cannot apply to present code which adopts principle of concurrence rather than exclusion. Hence, as intestate heirs, the

illegitimate children are entitled to receive, not their legitimes, but the portions determined by the present article, which may exceed their legitimes. (Bwisit. hindi pala maga-apply tapos sinulat pa)(2) SECOND THEORYThe determination of the portions of the legitimate and illegitimate children who concur in intestacy should be based upon the WHOLE ESTATEApplication: ESTATE 2 Legit VS Estate 28,000 each70.000 1 IllegitYi of 1 Legit's share 14.000Criticism: Although the above seems to be in conformity with the present article and the family code provision, there are situations in which the above1st stepPage 165 of 207theory is not legal by virtue of the fact that said computation can impair the legitime of legit heirs. Take for example if you have several illegit children but only 1 legit child.ESTATE 70,0001 Legit 3 IllegitLegitime Yi of Legit's legitime28,000 14,000 eachThe problem here is that the legitimate child's legitime is impaired since what he receives from the above solution is less than Vi of the estate (which is his lawfully mandated share in the entire estate), which is 35.000. Always remember that intestate dispositions can never impair the legitime.(3) THIRD Theory:1st step. Legitimes of the children, legit or illegit mustbe determined2nd step. Disposable portion, if there is any left, isdistributed among them in the proportions establishedin 895 ( Vx to legitimate and Yi of legitimate legitime toillegitimate) -3rd step. Add them all together to determine totalshares in the intestate succession.Application:ESTATE 70,000 1 Legit 1 Illegit 35,000 17,500 2"° step* 11,667 5,853 (* since the disposable portion is 17,500, we thendivide according to 895 as well) 3ld step Add them together to get total share in the intestate dispositionTolentino prefers the second and third theories provided that when one applies either, it should not impair the legitimes. Law on intestacy is merely presumed will and should be subordinate to principle on legitimes.Partial Intestacy. If the deceased bequeaths any amount or portion of his property, the testamentary provision should be carried into effect in so far as it does not impair the legitimes of compulsory heirs. Art 960 (2) provides that legal succession shall only take place with respect to the property which testator has not yet disposed of by will. This means, in light of the present article, that after deducting the amounts or portions disposed of by will, the remainder of the estate is the property which shall be distributed in the proportions prescribed in 895. In no case, should the legitime be impaired.Application:ESTATE 70,000 1 Legit 1 Illegit X friend - legacy of 16,000 35.000 17,500 disposable part is 17.500No impairment of legitimes since disposable part is 17,500 and legacy is only 16,000.REVIEWER IN SUCCESSION

2007AI I I I I IThe entire line should be considered, with one terminal being the descendant, and the other terminal being the ascendant or brother or sister from whom the property came. In other words, relation by affinity will not be sufficient to establish ones right as reservatario; there must be a double relation of consanguinity, that is, the reservee should be related by blood not only to the descendant but also to the other ascendant, brother or sister, from whom the property came. Only then can he be considered as belonging to the line from which the property came.When the property proceeds from a brother or sister of the full blood, there is no way of determining the line from which the property came. Since the descendant and the brother from whom the property came are both children or" common parents, their relatives in the paternal side as well as in the maternal side will be in the same line emanating from the deceased. But when the brother or sister from whom, the property comes is of the half blood, the guest ion of line arises, attention being given to the common parent. If the common parent is the father, then the line from which the property came is the paternal line. If the common parent is the mother, it is the maternal line. Note that when some of the reservees are of the half blood and others are of the full blood, the rule of unequal participation in the inheritance does net apply because the basis of succession is not tlte extent of the blood tie, but it is the condition of being related to the special line to which the reserva belongs.i• Who are the relatives within the third degree?1. First degree: The father or the mother only, because in order that an ascendant can be a compulsory heir, either there are no descendants or such descendants are incapacitated to succeed or were disinherited or have

repudiated the inheritance; and in all these cases they should not be entitled to the reservable property.2. Second decree: The grandparents of the line from which the property came, and the brothers of the full blood, or those of the half blood on the side -from which the property came.3. Third degree: The great-grandparents; the uncles by consanguinity (full or half brothers or sisters of the father or mother), and the nephews and nieces (children of full or half brothers of the deceased descendant).• Expectancy by All In determining the right of the relatives within the third degree, there are two moments to consider:• the death of the descendant, when the reservation begins• the death of the ascendant, when the right of the relatives in the third degree to succeed becomes definite.At the first moment indicated, all relatives within the third degree, whatever the line or proximity of the relationship, acquire an expectancy, an inchoate or contingent right, and may individually or as a group compel the reservista to perform all the obligation necessary to secure the reservation. But none of them, so long as the reservista lives, acquires any definite right to the property subject to reservation. The reservation exists, during the life of the reservista. in favor of a classPage 123 of 207(relatives within the third degree), and every person who falls within such class acquires an expectancy which, however, does not become a perfect right except when, upon death of the reservista, he is called upon as if to the succession of the descendant.•\• Preference Among Reservees There are those whomaintain that since the reserva exists in favor of relativeswithin in the third degree, the law making no distinction oflines and degrees, all of them succeed in their own right,per capita. This is the theory of reserva integral. Anopposing view, sustained by the greater number ofcommentators, is to the effect that the rules of legal or?B> intestate succession apply, and that there is among the22 relatives within the third degree a preference, first between«4 lines, (the ascending being preferred.to the collateral), andjg^_ within each line, the nearest in degree excludes the more£) remote: While all relatives within the third degree, as agrouj) is called to succeed as reservees as among-themselves the rules of intestacy will apply, particularlyArts. 1101.1004.1005. and 1009 in this case.• Representation-~As held in Florentino v. Florentine, the right of representation cannot be alleged when the one claiming the same as a reservatario of the reservable property is not among the relatives within the third degree• belonging to the line from which the property came; inasmuch as the right granted by the CC in art. 891 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came.• Property Subject to Reserva The property which has been acquired by the descendant gratuitously, should pass to the ascendant reservista by operation of law. in order to be reservable. The term operation of law applies to the transmission of the tegitime in case of testamentary succession, and to the entire inheritance in case of intestate succession, because in one or the other the property passes, not by the will of the deceased, but by mandate of the law.• No Substitution The very same property which the descendant acquired gratuitously from another ascendant, or from a brother or sister, must pass by operation of law to the ascendant supposed to reserve. The reservation applies only to Properties having these circumstances which distinguish and individualize them; it is not possible to substitute them with others of the same kind or with equivalent quantities or values. If the property subject to reservation is money, and there is no cash in the estate of the reservista at the time of his death, the solution should be similar to that followed in the enforcement of Judgment credit. It should be noted, however, that before the death of the descendant there is no reservation yet, and hence no obligation to preserve the property. The descendant may thus sell the property acquired gratuitously from an ascendant or from, brother or sister, or may exchange such property with others, the purchase price or the substitute acquired does not thereby become subject to reservation, because they are not the very property gratuitously acquired from the ascendant or brother or sister.REVIEWER IN SUCCESSION

2007AInstitution of Ascendant If, upon the death of the descendant, he leaves property acquired gratuitously from some other ascendant or a brother or sister and others which do not have this character, and in his will he institutes as his ascendant, it is clear that 1/2 of the estate passes to the latter by operation of law as legitime and the other half by will of the descendant. But within what limits should the reservation obtain? There are two views on this question. The first one known as the reserva maxima, holds that the reserva should apply to the property that has been gratuitously acquired from some other ascendant, brother or sister that can be included within the legitime of the reservista or Vi of the estate. The second view, known as the reserva minima, holds that all property passing to the reservista must be considered as passing partly by operation of law and partly by will of the descendant, and therefore, one-half of the properties acquired gratuitously by the descendant

from another ascendant, brother, or sister should be reservable. and the other half should be free. The reserva minima is based on general principles of law and is more equitable, and is also more in line with the philosophy of the present Code of socialization of property.Institution of Strangers The ascendant may have been instituted to 1/2 of the estate, and another person to the other half, without express designations of properties. The ascendant is an owner in common of every property in the inheritance, with a 1/2 interest, and therefore, 1/2 of the property acquired by the descendant gratuitously from another ascendant, or from a brother or sister, should be reserved and the other half should be free. This is to be understood as applying only cases where there has been no partition of the inheritance between the ascendant and the ttwi person. Hence, during the state of pro indivisio, 1/2 of the properties acquired gratuitously from some other ascendant is reservable and the other half is free.Legacies to Strangers If the descendant disposes of 1/2 of his estate in legacies in favor of strangers, then the remaining half undisposed goes to the ascendant as his legitime. If there are among these remaining, any property acquired gratuitously by the descendant from another ascendant or from a brother or sister, all of them are reservable because all of them go to the ascendant by operation of law. If however there should be among the remainder no property of this character, then the ascendant has no obligation to reserve. If the total value of the properties given by the descendant in legacies does not cover the entire free portion, the balance of the estate goes to the ascendant by intestate succession. Hence, the reservation will attach to each and every property in that balance which may have been acquired by the descendant gratuitously from another ascendant or brother or sister. But, if the descendant does not allow such remainder to go to the ascendant by intestate succession, but instead provides in his will that such remainder shall pass to the ascendant, the latter gets part of, H as legitime and part by will of the testator. In such case, the reservation attaches to the property acquired by the descendant gratuitously, only in proportion to the extent of the legitime within the remainder given to the ascendant.Page 124 of 207Will may Prevent Reserva The descendant is absolutely free to dispose of the property acquired by him gratuitously from some ascendant or brother or sister, in such a manner as to give them all to strangers and thus prevent the creation of the reservation. The descendant thus becomes the arbiter of the fate of the reserva.Partition for Reserva When the reservation has once been created, because of the death of the descendant, who has not made any partition of his properties, but has instituted voluntary heirs the partition of the estate thus left, whether judicial or extra judicial, cannot be effected in such a way as to prejudice the relatives within the third degree, on one hand, or the ascendant on the other. The equitable solution is to slart of the assumption to the reserva minima, and adjudicate to the ascendant Vz of such properties as part payment of this legitime, and the other half to the voluntary heirs or legatees.Not Part of Estate of Reservista Upon the death of the reservista. should there be debts, can the property subject to reservation be sold for the satisfaction of those debts? We believe that the reservable property is not part of the estate of the deceased that may be liable for his debts. If the reservable property is not a part of the estate of the reservista and not subject to administration, it cannot be sold for the payment of his debts.Rights of Reservista In principle, the reservista has the right of revocable and conditional ownership, inciuding full enjoyment and usufruct of the property, with the power of free disposition for the purpose of alienating and encumbering the same, subject to the nature of his revocable and conditional ownership. The two resolutory conditions affecting the reservist's right are his death and the existence of reservatarios the time of such death.Effect of Alienation Alienations of reservable personal property are valid and pass irrevocable title to the transferee but the reservista has the obligation to indemnify the reservatarios. The alienation of the reservable immovable property, however transmits only the revocable and conditional ownership of the reservista so that the right of the transferee is revoked and resolved by the survival of the reservatarios at the time of the Reservista's death.If however, the property is registered land but the reservable character has not been annotated in the registry of property, the transferee who acquires the same in good faith without notice of its reservable character holds it free from the resolutory condition. But if the reservable character of the property is registered in the registry of property, or, even if not registered, is known to the transferee, he holds the property subject to the resolutory condition, and the alienation may rescinded upon the reservista being survived by relatives within the third degree belonging to the line from which the property came.Obligations of Reservista1. To annotate in the Registry of Property the reservable character of the immovable,2. To make an inventory of all the reservable property andREVIEWER IN SUCCESSION

2007A3. To constitute a mortgage or give a security to guaranty, upon his death, the delivery to the reservatarios of the personal property, the value of property, movable or immovable, that has been alienated, and the reimbursement of deteriorations occasioned by his fault or negligence.• Registration of Reserva The reservista has a period of 90 days, from the time the reserva arises, in which to register the reservable character of the immovable property; if he does not voluntarily cause the registration within

that period, then the reservatarios may judicially demand that he be compelled to make it.• Making Inventory An inventory of all the reservable property is necessary in order that there may be a means of determining what property should be delivered to the reservees upon the death of the reservista. The actual condition of the property should be described, and their value should be stated, inasmuch as ihis will be the basis of reimbursement for deterioration? which may subsequently be caused by the reservista.• Mortgage or Security - The reservista is required to secure by mortgage(a) the restitution of personal property in the condition in which it may be found at the time of his death(b) the return of the price received for personal property alienated, or the delivery of its value at the time of alienation if this has been made by gratuitous title(c) the payment of the damages caused by his fault or negligence, and(d) the value of immovable property validly alienated.• Rights of Reservees Aside from the rights which are correlative to the obligations of the reservista, the resen/atarios do not have any other rights over the property during the existence of the reservation. Among the rights of the reserves during the existence of the reserva are to ask for the registration of the reservable character of the immovable property if the reservista has failed to register the same within the period of 90 "days from the creation of the reserva and to demand the constitution of the security or mortgage after the same period. If the reservista does not have immovable property on which to create the first mortgage, then he must constitute the mortgage on the first real property he acquires.• Alienation of Right - The Reservatarios may dispose of their right in its uncertain and conditional form. Although they cannot alienate any perfect or definite tight over the reservable property they can alienate their right in its contingent form. If they die before their reservista they transfer nothing because they do not definitely acquire anything and the transfer becomes void. But if they survive him. then the transmission is effective, because they have disposed of that which definitely becomes theirs. The disposition made by the reservatarios may not only by act inter vivo but also by last will or act mortis causa.• Upon Death of Reservista - Upon the death of the reservista the surviving reservatarios who, according to the rules of legal succession to the descendant, would be entitled to the reservable property, succeed to the same.Page 125 of 207The reservatarios are entitled, however, only to the original property or amount which the ascendant inherited by operation of law from the descendant, and not to the profits or increments which the use of the property may have occasioned. With respect to improvements made by the reservista, his or her heirs are not entitled to any indemnification, they may remove the improvements if that can be done without injury to the reservable Property, or they may compensate the liability for deteriorations with the value of such improvements. If the improvement is caused by nature or time, it belongs to reservatarios.Alienated Immovables If the reservable character of the property has been annotated in the registry of property, the transferees after the obligation to reserve has arisen acquire only a conditional title; hence, upon the survival of the reservatarios at the death of the reservista, such transfers are resolved and the right of the transferees is, extinguished. The reservees are thus entitled to recover possession of the immovables.If the reservable character of the immovable was not registered, but the transferee had knowledge thereof, he . also acquires the, property subject to the resolutory condition; his actual knowledge of the condition is equivalent to registration. But if he is not informed of the reservable character, and there is no registration thereof in the registry of property, he acquires a better title than the reservatarios, if he has registered the transfer in his favor.If, however, the transferee has not registered the transfer made in his favor, and the property does not appear to be reservable in the registry of property, the transferee cannot have a better right than the reservatarios. Both the right of the transferee and the right of the reservatarios are on an equal footing, so tar as the Mortgage law is concerned because neither is registered.We submit however, that under such circumstances were the transferee, whether immediate or subsequent, has no notice of the reservable character which has not been annotated in the Registry of Property he must be held to have acquired the property with an absolute title, free from the resolutory effects of the reservation, if he acquired it after the lapse of the 90 days within which time the reservable character should be annotated, the reservatarios should, in such case, look into the hereditary property of the reservista for the satisfaction of the value of the property thus alienated. If the reservistas estate should be insolvent, then the reservatarios should suffer the loss.Extinguishment of Reserva• First: Death of the ascendant. Since he is the person obliged to reserve, that is, the passive subject of the obligation, his death terminates the reservation.• Second: Death of all relatives within the third degree belonging to the line from which the property came.• Third: Loss of the things which are reservable. by causes not imputable to the fault or negligence of the reservista.• Fourth: Renunciation by the reservatarios. If the renunciation is made after the death of the reservista, renunciation releases the property. If, on the

other hand, the renunciation is made before the death of the reservista, such renunciation is not effective as against other relatives within the third degree who may be subsequently born and who survive at theREVIEWER IN SUCCESSION

2007Atime of the ascendants death. Renunciation of the father is not binding upon his descendants, because these descendants succeed to the reservable property, not in their general capacity as heirs of the father, but under the special rule established for reserva troncal. In order that the renunciation may extinguish the reserve, it is necessary that it be made by all the children and descendants who definitely become entitled to the reservable property.• Fifth: Prescription, when the reservista holds the property adversely against the reservatarios, as free from reservation.• Sixth: Registration under the Torrens system as free. This last cause of extinguishment of the reserva is peculiar under the Land Registration Act (Act No. 496). When the reservable property is brought under the operation of the Land Registration Act, for the purpose of obtaining a certificate of Torrens title, the omission to register the reservable character will extinguish the reservation. When ;he land is already covered by a certificate of title under Act No. 496, and the reservees fail to have the reservable character of the property annotated on the certificate, an innocent purchaser for value who subsequently acquires the property from the reservista, free from liens or encumbrances, has a better right than the reservees.MAGIC NOTESQ: What is reserva troncalA: Under Aft. 891 the ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which the property came. As worded, this is complicated. Let us reword it. The ascendant who inherits by operation of law from his descendants any property which the latter may have acquired gratuitously from another ascendant, brother or sister, is obliged to reserve the property for the benefit of the relatives of the descendant who are within the third degree and who belong to the line from which the property came.Q: What is the purpose ofRT?A: To prevent certain properties from passing from, one family to another through the accident of lack of heir.Ganito iyan:X and Y had a son A. A is married to B and had a son F. B is the daughter of M and N. P is given a property by his grandpa X. After the donation, A died. Later, F died leaving behind the donated, property as his only property. The property will be inherited by R. X and Y cannot inherit because they are excluded by H who is nearer in degree. B gets the property by intestate succession. After B's death, where will the property go? To X and Y? No because they are no longer legal heirs of B as they had no relation with her. The property will therefore go to the legal heirs of B. But had P had a son. the property will remain in X's family. It will not go astray to the family of P's mother. But because of this accident, his having died without a legal heir, the property which used to belong to X will go astray. This is the purpose of the reserva. It will prevent the property from being inherited by the relatives of B. ThePage 126 of 207property then under RT, will be reserved for the relatives within the third degree of the prepositus coming from the line from which the property originated.Q: When does reserva arise?A: These conditions must be present:.1. The descendant acquires by gratuitous title property from an ascendant or a brother or a sister.Q: Whatis the mode of acquisition? A: gratuitous acquisition.Q: How many gratuitous acquisitions do we know? A: Two: donation (inter vivos or mortis causa) and succession.^O Q: From whom will the descendants acquire theH^ property?-^ A: From an ascendant or from a brother or sister.c:2. The very same property is in turn inherited by operation of law from the descendant by another ascendant.Underline-the word inherits in art 891. SG a donation inter vivos. though it may be gratuitous, is not the mode of transfer referred to. The very same property which the prepositous may have acquired gratuitously from an ascendant, will be inherited by ». ' operation of law by another ascendant.Q: To whom will that pioperty go? A: To ANOTHER ascendant.Q: By what mode?A: By inheritance by operation of law. Succession by will or by donation inter vivos are theiefore not included. It is only inheritance by operation of law.Q: For whose benefit is the property received?A: For the benefit of the relatives within the third degree from the descendant and who are within the same line from which the property came.Q: How many parties therefore are there in RT A: There are four parties:1. Origin of the property or the mediate source;2. Descendant or the prepositus who acquired the property gratuitously3. Ascendant from another line or the reservista who inherits the property by operation of law; and

4. Relatives within the third degree of the prepositous or the reservatarios.Q: Suppose A is married to B and had C and D as children. Dmarried E and had S. C (aunt of S) donated property to S.When S died, the property was inherited intestate by E. Inthe hands E, is the property reserved? A: No. C is not an ascendant of S. She is only a collateralrelative. S did not issue from her.Different View: The ascendant in the article shouldinclude the ascendant in the collateral line because art.891 did not say that the ascendant must be in the directline.REVIEWER IN SUCCESSION

2007ADLC: Art 964 defines direct line as that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by series of degrees among persons who are not ascendant and descendants but who come from a common ancestor. Under this article, it seems that whenever someone is in the collateral line, he is not an ascendant or descendant. In the absence of a particular provision, the law, when speaks of ascendants and descendant, refers only to ascendants, and descendants in the direct line.So, in the problem above, whether C is an ascendant for purposes of RT is still debatable. But in my opinion, C is not an ascendant.Q: Suppose A and B had C who had a common law wife D which bore E. an acknowledged child. A donated property to E. When £ died. D inherited the property by operation of law. In the hands ofD, is the property reserved?A: No. Under the case of Nieva v. Alcala, art. 891 applies only to legitimate relatives of the prepositous. If prepositous is illegitimate, he cannot have legitimate relatives. Since he cannot have legitimate relatives, there cannot be any reservatarios.Q: Suppose C above married F who is an illegitimate daughter of. D and E. C and F had a legitimate child S. A donated property to S which was later inherited by F by operation of law after S:s death. Is the property reserved?A: Take note that Nieva v. Alcala says that RT applies only to legitimate relations. There is a reserva here. The legitimate relation is reckoned from the prepositous and not from any other party.Q: Suppose it is the reverse. E (illegitimate grandma) donated, to S which was inherited by C upon S's death. Is the property reserved?A: Vn the hands of C, the property is reserved to relatives within the third degree from the preposrtous. But S is not legitimately related to E, the mediate source. Since the origin of the property is an illegitimate and the reservatarios must be in the same line from where the property came then the reservatarios will somehow be related to the origin. Sa kanyang line kasi manggaling ang mga reservatarios. Those reservatarios will necessarily be illegitimate relatives of S. But his relatives with respect to F are all legitimates. Since legitimate relatives are reckoned from the prepositous it is not material. Do you follow? So Nieva v. Alcala should be viewed only with respect to the prepositous.Q: Must the four parties be related to each other?A: No. The origin must not necessarily be related to thereservista. But the parties must all be related to theprepositous.Q: Suppose S (prepositous) is an adopted child, will there be a RT?A: Under the Civil Code, it was impossible for an adopted child to be a prepositous because an adopter was not a legal heir. Under the PC the adopter is now a legal heir. The question is will RT arise? The answer is NO. Adoption creates a personal relationship only between the adopted and the adopter. Hence, the relatives of the adopter are not relatives of the origin and they do not come from thePage 127 of 207line from which the property came. There can be no relatives by adoption. So reserva will never ariseQ: Suppose the adopted is the pamangkin of the adopter?A: Siguro magaarise ang reserva. I'm not sure about it. For example: A is'married to B and had 2 children C and D. C had E who was adopted by D who was married to G. A donated to E which was inherited after E's death by G in the hands of G, the property may be reserved. I'm not sure. Puwedeng itanong sa eksam iyan!Example: -.'-_._B dies first, then C dies. A donates the land to G, who later dies in an accident. 0 inherits from her son by-operation of law. If G has a child then D is barred from inheriting. However, if G has no child then D inherits. What happens when D dies? The property then goes back to A and not to the parents of D. as the property is reserved. D is a reservista, G the prepositus.Q: What if G is adopted?A: When D inherits, then the property does not become reserved. Adoption is a personal relationship between parent and adoptee. There is no legal relation between A andG.ORIGINFor Reserva to arise source and prepositus is legitimatelyconnectedo Ascendant, brother or sistero Uncles are not sources as they are NOT ascendants but are collateral relativesQ: What if A is married to B who has C. A dies and his beneficiary is C. who dies without heirs. Is the property reserved in the hands ofB?

A: No. Since the money comes from the insurer and not the father. At most, only the premiums are donated by the father, but DLC thinks that no reservation occurs as such arises out of an aleatory contract.The origin must be an ascendant, brother or sister. (DLC says that RT does not apply if full blood brothers or sisters. Property does not leave the family - JBL)Q: Will reserva arise when the brother or sister is illegitimate? A: No. Nieva V. Alcala.Q: If the brother is a half blood relative, will RT ariseREVIEWER IN SUCCESSION

2007AExample: A married to B had a child C. C was married to D and had E. Later D died and C married F. They had G. Therefore, G and E are legitimate halt brothers. E donated property to G a property. After G's death, F inherited the property as C is already dead then. Is the prooerty reserved in the hands of F?A: Yes, for the benefit of the relatives from the line where the property came.Q: Where is this line?A: Line of E as he was the origin.Q: From which specific line, on C or o n D who are both E's Parents? ^A: Authorities are of the opinion that it is the line of the common parent. It will go astray to the relatives of F if there is no reserva. Hence, it is the line of C.Q: How about if G and E are full brothers, will there be a RT? In the above problem, C and D had 2 children E and F. E donated a certain property to F. his brother. After P's death the property was inherited by D as C is already dead. Is the property reserved in his hand? A: Tolentino: Yes. RT will arise.JBL Reyes and Puno: If there is a RT who are the reservatarios? These are relatives within third degree from where the pioperty came. But where is that line? On C or on D7 These are both his lines. It is impossible then to have a RT because there ear be no line to where the property will go astray. All the relatives of E is also a relative o< E. It will remain on the same line therefore and will never go astray. Hence, there is no need for a RT.DLC: I think Reyes and Puno, are more accurate than Tolentino. Of course, Reyes and Puno cited Spanish author Maura. Hence. RT will arise in the case of half blood brothers and not in the ease of full blood brothers.Balane: Even if the relationships are full blood, it can stiU leave the family, for if the reservista marries again then such becomes the property within the marriage (depending on the property regime)DLC: NO! Such does not matter since at the deatn of the prepositus, the property automatically becomes reserved. Reserva is based on the time of death of the prepositus!Q: A and B. married, had a child C who married D. C and D had a child S. S married K and had a child P. D donated to C a property which was later donated by the latter to P. K inherits it. Is the property reserved?A: Of course.Q: 3ut what if K donated it to C and C donated it back to P. Whan P died, K inherited it. Is there RT? Take note that if there is a reserva, then K or his relatives will not get the property.A: There is a RT in the hands of K. In the hands of the mediate source, it is not material where the property came from. Ke nakuha niya iyon sa reservista is not material.PREPOSITOUSQ: How is the prepositous related to the origin? A: He must always be a descendant, or brother or sister of the mediate source. Hindi puwedeng ascendant.Page 128 of 207Q: How is the property transferred to the prepositous from theorigin A: Must be transferred gratuitously. There are only 2 gratuitoustransfers, to wit: succession (testate or intestate) anddonation (inter vivos or mortis causa).Q: May the prepositous who acquired by gratuitous title a property dispose the property during his lifetime?A: Yes, puede niyang ibenta. (in the hand of prepositus, property is not yet reserved. Hence he is considered as an : arbiter of reserva)Q: If sold by him, will reserva arise?A: No more, naibenta na niya. Wala nang mamanahin angreservista. The very same property must be inherited bythe vista from the prepositus. Example: If the propertydonated was a land in Alabang and the prepositousj..,. exchanged it with a Cavite land, the property is no longer^y subject to reserva in the hands of donee's mother because~ the reserva attached only to the very property received by~; the donee from the ascendant, brother or sister. That is^ why the prepositous is the arbiter of the reserva. WhetherRT will arise or not; depends on the prepositous: He cawdefeat it by selling itor exchanging it with another. In thehands of the prepositous. RT will not arise.Q: F married to B had son C married to D. They had son G who married to and K had P a son. A donated to S. When S died, the property was inherited by A, (C and D was predeceased). In the hands of A. Is the property reserved?A: No. Under the law. it must be inherited by another ascendant. If it was inherited by the same ascendant from which the property came, there is no reserve.Q: How should the ascendant inherit to make a reserva? A: By operation of law, meaning compulsory or intestacyQ: What happens when prepositus wills it to ascendant? A: No reserva arises thenQ: What if A donates to C who is his grandson. C dies, and by

operation of law, property goes to B the father. Is there areserva? A: Tolentino: YES. JBL & Puno however think that property didnot leave the line, thus it cannot be said to be a reserva.DLC agrees with the latter view.Q: Suppose it was inherited by C, is there a reserva A: There are 2 views:• First view: No reserva troncal because the property has not gone astray. It has remained on the same line.• Second view: Tole: The property is received because all the requirements of Art. 891 are present.• DLC: reservista must be ascendant from another line.RESERVISTA• They have the duty to preserve the property as such will ultimately go to the reservatarios. However they can will the properties but such will be subject to a resolutory condition her death. If there are no reservatarios then her title to it becomes absolute.Q: Can an innocent purchaser defeat the rights of the reservatarios?REVIEWER IN SUCCESSION

2007AA: Yes! Law requires that it should be annotated in the title of the properties. All an innocent purchaser has to rely on is the title. Absent the annotation, then the purchaser must be protectedRESERVATARIOSQ: Who are reservatarios?A: The heirs for whose benefit the property is reserved.TO FIGURE OUT WHO THE RESERVATARIO IS, APPLYTHE DOUBLE CONSANGUINITY TEST: Should be a blood relative of both the source and theprepositusQ: Third degree relative from whom?A: From the prepositous. They are relatives by blood andnever by affinity. They all must come from the line wherethe property came.Q: Are all relatives within the third degree reservatarious?A: No. Among them, rules of intestacy will apply. Hence, thenearer excluded the remote and the descending excludesthe ascending.Q: How do we know whether reservatarious belong to thesame line? A: Tolentino: Reservatarious should be related by blood notonly to the prepositous but also to the origin.Q: A is married to B and had C. C was married to D and had S as a son. After S's death, the property donated to him by A is inherited by D. D therefore has to reserve the property for the benefit of S's relatives. When D died, B is the only surviving heir. Is B a reservatario ofS?A: No because she is not a relative of A by consanguinity but only by affinity. NOTE: To be reservatanos, we must apply the double relation test: related by blood to both the prepositous and the origin. As far as the prepositous is concerned, the relation must be within third degree.Q:Who are these relatives within the third degree by consanguinity?Let us illustrate this M is married to N and they child A. A married B who is the daughter to O and P. A and B had 2 children G and E. On the other hand, C is married to D and had 2 children, F and H. Now, £ married F and they had children, I and J. J is married to K and had child L. I is the prepositous. Who are his relatives within the third degree?

A A ]

Page 129 of 207A: E (father) is one degree; G (paternal aunt) is 3 degrees; A and B (grandparents) are 2 degrees related to him; MNOP (paternal great grandparents) are 3 degrees away; J (brother) is 2 degrees; L (nephew) is 3 degrees down; C and D (maternal grandparents) are 3 degrees up; and H (maternal auntie) is 3 degrees away. K wife of J is excluded as she is related to him by affinity.Q: If the property came from the line of E (father), who are hisreservatarios? A: MNOP (great grandparents), AB (grand parents). J(brother), L (nephew), ami G the (auntie).Q: How will these reservatarios share?A: The rules of intestate succession will apply.First rule; the nearer excludes the father. Brother J (2 degrees) excludes auntie G (3 degrees). Papa excludes grandpa.Second rule: descending excludes the ascending. (Camacho v. Papa) Brother J excludes grandpa A although both are 2 degrees away. Nephew L excludes M 5>-. great grandpa M (both are 3 degrees away).3LJQ: Will reservatarios inherit in equal shares?Tolentino: Yes. When some are half brads and others are - full, the rules on intestacy does not apply so that they will receive equal shares. SC in Padua v. Baldomero: The ruies on intestacy apply so that half brothers get half of the share of the full blood brothers.Q: Must reservatarios be living at the time of the death of thePrepositous? A: Not necessarily because RT exists in favor of a class ofheirs who are alive at the time of the death of thereservista

Q: If a. relative dies before the death of the reservista, can his heirs inherit?A: It depends. In the case of Florentino v. Florentine, the court held that this depended on whether the heirs of the predeceased are also related within the third degree to the prepositous. If they are. then they can exercise the right of representation in favor of their deceased reservatario. If they are beyond the third degree relation, then they cannot represent their predeceased reservatario parent. Example: A is married to B and had three children with her named P C and 0. 0 is married to E and had children G and F. G had son H. A donated a property to P and upon his death, P inherited it. Is the property reserved in P? Yes.Q: Who are the reservatarious ofP?A: C equals 2 degrees. D equals 2 degrees, F equals 3Degrees, and G equals 3 degrees. P is not a reservatariosince he is 4 degrees away from P.Q: Suppose D died, are his rights transmitted to his heirs GandF? A: Yes, G and F may represent D.Q: Can H represent BifG also died?A: No more because he is beyond the requisite 3 degrees ofrelation.Note: reservatarios who predeceased the reservistamay be represented for as long as the representatives arewithin the third degree relation required.REVIEWER IN SUCCESSION

2007AEXAMPLE: Presume G is deadTAIJ

1. Apply double consanguinity test: Blood relatives of both source and prepositus DEF HIJ KLM P2. 3rd degree from PrepositusQ: What happens when n dies?A: Reservatarios (3rd degree relatives of the same bloodline from where the property came from) o Relatives not in the 3"1 degree - P, Q, V o Not the same bloodline - D, E, F, H, I. J. K. L, MQ: How do we know if they come from the same bloodline? A: Double consanguinity test - must be related to both Source and PrepositusQ: Then what?A: Apply the rules of intestacy.1 . Direct Line excludes the collateral 2. Nearer relative excludes the more remote o By Line of Succession: o C o A&B o R&So In case of R's death, S & U inherits by virtue of Florentine vs. Florentine with regard to representationQ: Can reservatarios sell property?A: Yes! It's not a future inheritance but is already a thing that has a potential existence. However, the buyer only gets what the reservatario gets (and for him to get something, reservista must die first)Q: Can reservatarios be half blood?A: Yes! As long as they are legitimate relatives! Refer to the Padura casePage 130 of 207Q: What if the reservatario is bom after death of the Prepositus but when the Reservista is still alive. Is it valid?A: Yes! Such is held for a class of heirs which is reserved at the time of the death of the prepositus.PROPERTY SUBJECT TO RESERVA• The same property which came from the mediate source must be reserved in the hands of the reservista. In the hands of the prepositous, the property is free and is not subject to reserva. He may dispose it if he chooses so But when it is inherited by the reservista by operation of law. it is subject to RT. When reservista dies the reservee gets the property.Q: What is the nature of the interest of the reservista on theproperty? A: Ownership subject to resolutory condition that reservatariosexist at the time of his death. If there are no reservatariosthe property becomes part of his estate.Q: May reservista sell it during his lifetime?A: Yes since he exercises the right of ownership thereon. However, the transferee acquires the property subject to resolutory condition which must be annotated at the back of title. Otherwise, innocent purchasers may get a better title thereon.Q: May reservatarios acquire interest over the property whilethe reservista is alive A: Yes, they have an inchoate right over the property.Q: Can they sell it while the reservista is alive?A: Yes as held in Edroso v. Sablan and Nono v. Nequi, since these fellows have ownership subject to the 2 suspensive conditions that they are alive at the time of the death of the reservista and that they are qualified to inherit at that time.Q: When must the right of the reservatarios vest?REVIEWER IN SUCCESSION

2007AA: At the time of the death of the reservista. It is necessary that the reservatarios be alive at the time of the, death of the descendant or the prepositous because reservation attached in favor of a class (the class of heirs who are within the third degree relative of the prepositous and belonging to the line»where the property came). So those persons related to him within the third degree and within the appropriate line may be born after the death of the testator and may still be reservatarios.

Q: Saan maghahanap ng reservatarios? A: Doon sa relatives of the prepositous who qualified as reservatarios at the time of the death of the reservista.Q: A and B are married and had one child C married to D. The latter couple had 2 children P and G. A donated a property to P. Then later on C died followed by P (prepositous) D (widow of C inherited the property donated to P and become a reservista. She married E and had child F. G (brother) is obviously a reservatario if he is alive at the time of the death of the reservista (D). Suppose he sold the property in question when the reservista is alive, can he do that?A: Yes but the sale is subject to the condition that he is alive and qualified at the time of the death of the reservista. If he becomes disqualified (predeceased D), then the sale will not take effect.Q: A is married to B and had child C who married D. C and D had three children namely, P E and F. E had child G. G had child H. A donated to P a lot. When P died. U inherited the lot became a reservista. E father of G6 is already dead. Suppose G sold to K the 1/2 share of his father E. what is the right of K.A: It is a mere expectancy. He will own the property when the suspensive condition (G is alive and qualified to be reservatario at the time of the death of D).Q: In the previous problem suppose G predeceased D leavingson H, can K get the property object of sale A: No because the suspensive condition did not happen.Q: Cannot H represent his father G so that the sale would beeffected notwithstanding the death of G A: No, H cannot represent G as he is 4th degree related to theprepositousQ: Suppose E, before his death, sold his share to K and later'he died leaving G. Can K get the property A: I will not give a categorical answer to this because G inrepresenting E does not inherit from E but rather from D.Since E is not qualified as reservatario, the sale is void.Q: Is this a sale of future inheritanceA: No because the reservatarios are not inheriting from the reservista but rather from the prepositous. It is an inheritance reserved by law to them so that it is not actually a future inheritance. If they are inheriting from the reservista. then obviously the sale is void. Please refer to the case of Edroso v. SablanQ: What is the essence of representation if the representativesare actually inheriting from the prepositous? A: With representation in the case above. G takes the place ofE who is predeceased. G then is on equal standing with F,Page 131 of 207the brother of E. Hence, G will be of the same degree as F without representation, G would not be of the same degree as with F. Take note however that if G is dead, his son H can no longer represent C to represent E because H is beyond the 3 degree relations required.Note: Reserves arise if the very property is inherited by another ascendant by operation of lawQ: In what instances is inheritance by operation of law? A: Intestacy and legitime.Q: A is married to B and had child C who is married to D. The Istter couple had son E. A-donated a land to E. E died leaving a will the devise of land to his driver. Is there reserva?A: No because the driver inherited by will.Q: Suppose E gave the land by will to D, is there a reserva A: No because D got the land by will and not by operation of lawQ: Suppose E left a will instituting his mother D as his sole and universal heir, is the land reserved? Take note that the will applies only to the free portion.A: In this case. D acquired hflf of the estate of the prepositous by will and the other half as legitime. Now, E cannot leave to her will the designation of which property he received by way of legitime and which by way of testate succession because she can defeat the RT by assigning the land donated to E and inherited by her, to her inheritance by will so that RT does not attach.Q: What if the prepositus only has one land, and also wills his mother to be his universal heir'-'A: Mother will get it in 2 parts, one by will and the other by legitime. The legitime will be reserved. But if there is no will. Yi of property is from legitime and the other half by intestacy, then the entire property shall be reservedQ: What if Prepositus receives 2 lots, one from grandfather and another by his uncle. He designates the mother as the sole heir. If Prepositus dies, then mother gets everything. Can the mother designate which of the tots are to be inherited from will or legitime?A: NO! then mother'will be able to defeat the purpose of the reserva by saying that the one by the grandfather (the reservable property) is the one by will so that the reserva will not arise. Therefore the views of Reserva Maxima and Minima arises.There are 2 views:• Reserva maxima: This is in favor of the reservatarios. This provides that the reservable property should be imputed to legitime or the reservista and the excess, if*\ any. would go to the free portion. As the inheritance is 22 by way of legitime and not by way of a will, then it is—A an inheritance by operation of law so the heir is 3>- obliged to reserve. Hence, the property becomes O reservable.

• Reserva minima: Half of the property is legitime and another half of each property is inherited by will. In effect this reduces the amount of property that will be reserved by the reservista since only half was inherited by operation of law.REVIEWER IN SUCCESSION

2007AIIIIIIIIIII I I I I I"effect would be different if its inherited by legacy or devise since here, for so long as it is within the free portion then it will not be reservedQ: What if the mother is instituted to 1/3 so that she inherits by way of a will, by operation of law as regards her legitime and by intestacy, as to the free portion. Is the property reservedA: No answer given. Exam Question daw nila to sabi ni DLCBasically, the problem that the two concepts of reserva maxima and minima, seeks to answer is this: Suppose the reservable property, is half of the, estate and this is given by will, then the reservista, to defeat the reservation, may choose to impute the reserved property to the free portion so that it will not be subject to reserva since it is an inheritance not by operation of law. Hindi puwede iyon. To prevent this situation, the reserva maxima and minima was conceptualized. Reserva maxima is in favor of reservation. The property subject of reservation should be imputed to that portion received by operation of law. If all the reservable property fit in there, then the entire property is then reserved.OLC's criticism: This is unfair because you, as a -compulsory heir (CH), will always receive the property by, operation of law when you receive your legitime. Yet the legitime is reserved for the relatives under this concept. This is absurd, isn't it? For Art. 891 to remain there, it should exclude the legitime. It should cover only those property received by way at intestate succession.Edroso v. Sablan (1913)The parents of Victoriano Sablan gave to him by inheritance 2 parcels of land. Victoriano & Marcelina Eo'rosc had a son, Pedro, who inherited the parcels of land from his father when the latter died. A short time thereafter, Pedro, who was single, also died leaving the lands to his mother, who sought to register the land in her name. Two uncles o Pedro opposed her and claimed that their right of reserva troncal be recorder in the registration of each parcel. CLR denied her application on ttie ground that such property should be reserved in favor of the uncles who wete held to be owners of the land.HELD: As the lands in issue were first inherited by Pedro's father from his own parents and such passed unto Pedro and then to P. having acquired them without any consideration, she's obligated to reserve them for the undes of Pedro who are relatives within the third degree and belonging to the line where the lands proceeded. The SC however ruled that P, being the legal heir can do any act of ownership since she possesses legal title to the properties while she lives. The reservees don't own the properties with her, but only have a mere expectation of inheriting it if P dies before they do.____Seines v. Esparcia (1961)Saturnino Yaeso had a first wife, Teresa Ruates, with whom he had 4 children, namely Agaton, Fernando, Paulina and Cipriana. He then had a second wife, Andrea Gutang, with whom he had a child. Francisco. The properties left by Saturnino upon his death were left to his children. Because Francisco was a minor at that time, his mother administered the property for him, declared it in her name for taxation purposes and paid the taxes due thereon. When Francisco died at the age of 20, single without any descendant, his mother, as sole heir, executed an EXTRA JUDICIAL SETTLEMENT & SALE whereby, she sold the property to Sienes & Silay. When the said vendees asked for the property from Paulina, the surviving half-sister of Francisco, she and her husband refused to surrender it, which gave lise to a cadastralcase which was denied.Cipriana and Paulina, the surviving half sisters of Francisco, sold theland to spouses Fidel Esparcia and Paulina Sienes.TC held that the sale to Sienes and Silay is void, sale of land toEsparcia and Sienes also void, and that the reservable property is partof and must be reverted back to the estate of Cipriana, the lonesurviving relative and heir of Francisco at the death of Andrea GutangHELD: Andrea Gutang was under obligation to reserve the property for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived heir. The reserva instituted by law constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. The lone reservee surviving her being Cipriana, the latter became the absolute owner upon Andrea's death. The reserva creates two resolutory conditions: (a) the death of the ascendant obliged to reserve and (b) the survival at the time of the formers death of relatives within the third degree belonging to the line from which the property came. The reservista has the legal title and dominion to the reservable property but subject to a resolutory

condition that he's-like a usufructuary of the reservable property; that he may alienate the same but subject to a reservation, said alienation transmitting only the revocable and conditional ownership of the reservista the rights acquired by the transferee being revoked or resolved by the survival cf reservatarios at the time of the death of the reservista. The sale made by Gutang was subject to the condition that the vendee would acquire ownership, by virtue of alienation, ONLY IF THE VENDOR DIED W/O BEING SURVIVED BY ANY PERSON ENTITLED TO THE RESERVABLE PROPERTY.IFlorentine v. Florentine (1919)Apolonio Isabelo Florertino and first wife Antonia Paz de Leon begot S children. Apolonio and his second wife, Severina Paz de Leon begot 2 children, Mercedes and Apolonio III. Apolonio II died and was survived by his second wife, and his 10 children, Apolonio III being a posthumous child Apolonio !l instituted as his heirs his children and widow leaving to Apolonio III certain lands and other personalty. When the latter subsequently dies, he was succeeded by his mother to the property left to him by his father. Severina later died leaving a will instituting Mercedes as her sole and universal heir. Mercedes then took possession of the.properties. The children and grandchildren of the first marriage asked the TC for the said properties to be declared a reservable property. CFI dismissed case.HELD: REVERSED. Apolonio III acquired property by lucrative title or by inheritance from his father. Although said property was inherited by his mother, nevertheless, she was duty bound, according to 891 to reserve the property thus acquired for the benefit of the relatives within the third degree of the line from which said property came. When there are relatives of the L- decedent within the third degree, the right of the nearest C ^relative, called reservatarios, over the property within the reservista (person holding it subject to reservation) should return to him. and excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatarios of the reservable property is not among the relatives within the third degree belonging to the line from which said property came inasmuch as the right granted by 891 CC is in the highest degree personal and for the^ exclusive benefit of the designated person who are relatives within the third degree, of the person from whom the reservable property came. Hence, relatives of the fourth andPage 132 of 207REVIEWER IN SUCCESSION

2007Asucceeding degree (the grandchildren of Apolonio Ill's sisters and brothers) can never be considered as reservatarios; since the law doesn't recognize them as such. Nevertheless, there is the right of representation on the part of the reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased (children of Apolonio's sister & brothers) person from whom the reservable property came. They have the right to represent their ascendants (fathers and mothers) who are brothers of the said deceased person and relatives within the third degree.__________________Padura v. Baldovino (1958)Agustin Padura contracted 2 marriages. With his first wife, Gervrsia Landig, he had one child, Manuel; and with his second, Benita Caring, he had 2, Fortunate and Candeleria. Agustin died, leaving a will which was duly probated, wherein he gave his properties to Manuel. Candelaria, Fortunate, and Benita Caring. Under the probate proceedings. Fortunate was given the 4 parcels of land. Fortunate died without issue and without a will, and so the properties \*ere inherited by his mother Benita Caring. She was issued a Torrens Title, but subject to the condition that the properties were reservable in favor of relatives within the third degree belonging to the Hne from which said property came. Candelaria died, leaving 4 legit children (the Baldovino's). Later, Manuel died who left 7 legit children (the Padura's). Upon Benita's (reservista) death, both groups of heirs took properties. CFI gave it to both. The Padura's want to have properties partitioned, on the basis that they inherit by right of representation from their respective parents, the orig. reservees. CFI declared them co owners, w/o distinction.HELD: REVERSED. The nephews of the full blood (Baldovino's) must take a share twice as those of the naff blood (the Padura's), in conformity with the laws on intestate succession (1006, 1008 CC). In the relations between one reservaiario and another, of the same degree, there's no call for applying 891, hence each respective share of each in the reversionary property should be governed by ordinary rules of intestate succession.Upon the death of the ascendant reservista. the reservable property should pass, not to all the reservatarios as a class, but only to those nearest in degree to descendant (preposrtus). excluding those reservatario of more remote degree (1) Proximity of degree and (2) Right of representation are basic principles of ordinary intestate succession; so is the rule that (3) Whole blood brothers and nephews are entitled to a share double that of brothers and nephews of hatf blood. If in determining the rights of the reservatarios inter se, the first 2 rules are applied, the third rule should likewise be operative.Chuav. CFAM977)Jose Frias Chua and first wife Patricia Militar had 3 children: Ignacio, Lorenzo and Manuel (who died without leaving any issue). Jose and second wife Consolacion de la Torre had 1 son, Juanrto. Jose died intestate. TC gave Consolacion 1/2 of a lot and money, to Juanito the other half of the lot, to Lorenzo some money. Juanito died intestate without any issue, and Consolacion adjudicated in her favor Juanrtos other half. Consolacion later died leaving no direct heir except her brothers and sisters. In the intestate

proceedings, Ignacio and Lorenzo's legitimate children asked that the % portion of the lot of Juanito be declared as reservable property. TC dismissed.HELD: In order that a property may be impressed with areservable character the ff. must exist:(a) That the property was acquired by a descendant froman ascendant or from a brother or sister by gratuitous____title;____________________________Gonzales v. CFA(1981)Benito Legarda y Tuazon (later as Benito T.) had 3 children: Consuelo. Rita and Benito Legarda y Dela Paz (or Benito D.). Benito D. died, and was survived by his widow Filomena Roces and his 7 children: Beatriz Rosario, Teresa, Filomena Benito, Atejandro and Jose. When Benito T. died, his properties were partitioned in 3 equal parts to Consuelo, Rita and heirs of Benito D. Filomena Lagarda y Roces (child of Benito D.) died, and her sole heiress was her mother Filomena Roces vda. de Legarda The latter adjudicated extrajudicially to herself the properties she inherited. She later disposed the property to her sons (Benito III. Alejandro and Jose) children (16 grandchildren). Filomena died. During testate proceedings, Beatriz Legarda; Gonzales (child of Benito D.) moved to exclude from the inventory of her mothers estate property inherited by deceased from daughter Filomena (her sister), as they were reservable & should be inherited by the 6 other children of Benito D. TC dismissed.HELD: The properties were indubitably reservable properties in the hands of Mrs. Legarda (Filomena. wife of Benito, D.). The reservation became a certainty when at the time of her death, the reservees or relatives within the third degree of Filomena (child of Benito D.) were living. The reservable property is no part of the estate of the reservista who may not dispose of them by will, so long as there are existing -reservations. The reservista cannot make a disposition mortis causa of the reservable properties. She could not select the reservees to whom the reservable property should be given deprive the other reservees of their share therein._______De Papa v. Camacho (1986)Baldovino had 4 children, one of whom was Toribia. The tatter is married to Eustacio and they had 2 children Faustino and Trinidad. Tnr.idad begot a child - defendant Dplisay. Baldovino's sister, Romana donated land to Toribia. When Toribia died, the property was divided between the 2 children Faustino and Trinidad When Faustino died, his father Eustacio inherited his land. When Eustacio died, he disposed all his property to Oalisay. The grandaunts of Oalisay (sisters of her Grandma Toribia), opposed application for registration of registration of lands inherited by her father (Eustacio). from his son (Faustino). on the ground that it was reservable property for the relatives within the third degree of the prepositus (Faustino), and from whence the property came (origin: Toribia)HELD: Dalisay shall have absolute ownership over all the property because niece-nephews exclude grandaunts under the rules of intestate succession. Grandaunts must be held without any right to reservable property, as aunts-uncles of prepositus are excluded from succession by niece although all of them are related to prepositus within the same degree. Reversion of reservable property is governed by intestate succession. The sole purpose of reserva is accomplished once property has revolved on specified relatives in line of origin. From this time on. there is no further application of reserva troncal. In relations between reservatarios and another of the same degree, there is no call for applying 891 and thus; the respective share of each in the reversionary property should by ordinary rules of succession. Proximity of degree, right of representation, the rule of double share for immediate collaterals of whole blood are applicable in the determination ofPage 133 of 207REVIEWER IN SUCCESSION

2007Arights of reservatarios interse.Sumava v. IAC (1991)Upon the death of the prepositus, Raul Balanktakbo, the reservists. Consuelo vda. de Balanktakbo caused the registration of an affidavit of self adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr.. and from his maternal grandmother, Luisa Bautista. This was registered with the Register of Deeds. It was also admitted that the certificates of title covering the subject properties in question show that they were free from any liens and encumbrances at the time of the sale to petitioners. However after the death of the reservista, relatives of Raul Balanktakoo (brothers, nieces and nephews) filed an action to recover these properties which they claim were subject to reserva troncal in their favor.HELD: Petitioners are not innocent purchasers for value despite the fact that there was no notation in the certificates of title. The affidavit executed by the reservista was in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. The affidavit which was registered with the Registry of Deeds serves as sufficient notice to the whole world. The properties are therefore subject to reserva troncal. (To appreciate better the lecture, illustrate all relationships involved). A reserve is designed to entail the property. This is to prevent the property from one family to another. There were different types of reserves under the Old Code, to wit: reserva troncal (RT). reserva viudal and some other reservaciones. Under PD 603 we have reserva adaptiva. This was repealed by the FC. Under Art. 891 of the NCC, we have RT. The original draft of the Code Commission did not contain art. 891 but some scheming solon inserted this article in the draft.

ARH AOPage 134 of 207REVIEWER IN SUCCESSION

2007AXVII. RESERVA ADOPTIVAFAMILY CODEART 39. Effects of Adoption. - The adoption shall:(1) Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption:(2) Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent:(3) Entitle the adopted person to use the adopter's surname: and(4) Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants end by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further. That any properly received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive one-fourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code.The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate.ART 190. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order.MAGIC NOTES:Q: Why was there reserve adoptiva (RA) under PD 603 A: Because under PO 603, the adopter was not considered a legal heir of the adopted although the adopted is always the legal heir of the adopter. The natural parents (NP) of the adopted is his legal heirs. The adopters will inherit only if the NP are both dead. This is unjust when the adopted's properties consist merely of properties donated to him by the adopter. Example: the adopter has a legitimate child and the adopted whose parents have an illegitimate child.Page 135 of 207Jhe adopter and the NP are both dead. When the adopted die, Re was therefore survived by the legitimate son of his adopter and the illegitimate son of his natural parents. His estatv consists, nothing but the properties he received not a legal heir of the adopted because the relationship of adopted and .adopter is personal and extends only to the adopter and the adopted. The 1C will therefore inherit the property of the adopted. The 1C will therefore inherit the property of the adopted which came from the adopter. Hence, there is RA under the Child and Youth welfare Code. However, this RA was repealed by Art 25 of the FC.Q: Why was the reserva adoptiva abolished?A: Because under the FC, the adopter is now a legal heir ofthe adopted Hence, there is no more need for RADLC: Siguro hindi rin dahil kalahati lang angmamanahin ng adopters. The other half would beinherited by the NP. This portion should therefore bereserved.Banawa v. Mirano (1980)In 1911, 0. Banawa and Juliana Mendoza adopted (not legally) Juliana's niece, Maria Mirano. Later the spouses opened a general merchandise store from w/c they derived income and, enabled them to buy lands. The couple gave Maria money to buy 2lots, which was put ifi her name. In 1949, Maria died white still living with the couple. At that time, Maria left as her only relatives the plaintiffs, Primitiva (surviving sister), and Gregoria, Juana & Marciano (children of the deceasea brother).HELD: The P's (adopting parents) who know the facts surrounding the sale of the land, where they gave money to the adopted child to buy the lots, are estopped by denying the validity of the transfer io Maria. The submission of P's is that they are entitled to the land by virtue of Rule 100 of the old ROC. And also that extrajudicial adoption is within the contemplation and spirit of their rule of RESERVA ADOPTIIA. However, the rule involved specifically provides for the case of the JUDICIALLY ADOPTED child.Teotico v. Del Val (1965)Maria Nortera y Salsalobre vda. de Aguirre left a will instituting her niece Josefina, as her sole and universal heir to all the remainder of her property not otherwise disposed of in the will. She named Rene Teotico, husband of Josefina, as among the many legatees and devises. She left the naked ownership of the Calvo Building to the spouse's children and made the spouses the usufructuaries. Ana del Val Chan, the adopted daughter of the deceased's sister, Francisca and the acknowledged natural child of the deceased's brother Jose, opposed probate of will. CFI admitted the will to probate but

declared disposition for Rene Teotico void, with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by way of intestate succession.HELD: An illegitimate child is prohibited by law from succeeding to the legitimate relatives of her natural father. She also cannot derive comfort from the fact that she's an adopted child of Francisca, because under our law, the relationship established by adoption is limited solely to the adopter and the adopted, and doesn't extend to the relatives of the adopting parent or of the adopted child except only if expressly provided by law. Hence no relationship is created between the adopted the collaterals of the adopting parents._____________REVIEWER IN SUCCESSION

2007AXVIII. DISINHERITANCEART 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes ___expressly stated by law.__________________TOLENTINO:• Concept of Disinheritance. - Disinheritance may be defined as the act by which the testator, for a just cause, deprives a compulsory heir of his right to the legitime. It is a testamentary disposition by which a person is deprived of, or excluded from, the inheritance to which he has a right• Exclusion of Heir. - A disinheritance totally excludes the disinherited heir from the inheritance. He is deprived, not only of the legitime, but also of such part of the free portion that would have passed to him by a previous will (which is revoked by, as inconsistent with, the subsequent disinheritance) or by operation of the laws of intestacy.ART 916. Disinheritance can be affected only through a will wherein the legal cause therefor shall be specified.ART 917. The burden of proving the truth of the cause for inheritance shall rest upon the heirs of the testator, if the disinherited heir shouid deny it.___________TOLENTINO:• Requisites for Disinheritance.1. That the heir disinherited must be designated by name or in such manner as to leave no room for doubt as to who is intended2. that the disinheritance be for a cause designated by the law3. thai rt be made in a will4. that it be made expressly, stating the cause in the will itself5. that the cause must be certain and true, and must be proved by the interested heirs if the person disinherited should deny it6. that it must be unconditional7. that it must be total.• Designation of Heir. - The heir disinherited must be designated in such a manner that there can be no doubt as to his identity. For this purpose, the rules for the designation of instituted heirs apply equally to the designation of disinherited heirs.• Cause Provided By Law. - The law itself enumerates the legal cause: indusio unius est exclusio afterius.• Made in a Will. - The will in which the disinheritance is made must have all the formal requisites for its validity. If the disinheritance is for legal cause, but the will itself in which it is made is void, there is no valid disinheritance. The same conclusion is reached when, the disinheritance being made in a valid will, the latter is subsequently revoked.• Statement of Cause. - The disinheritance must always be express; the law does not admit tacit disinheritance. It is not essential, however, that the statement of the disinheritance and the cause therefor be made in a single will. The last will of a person may be expressed in a different statements. All of them combined being considered as one last expression of his will mortis causa.Page 136 of 207There will be a valid disinheritance if the causa for it has been expressed in one testament and the disinheritance is made in another. Provided that the necessary connection between the cause and the disinheritance is clearly established.Must be Conditional. - The disinheritance cannot be made subject to a suspensive condition which consists in the performance un the future of some offense or fault by the heir. The law contemplates that a cause has already been realized is known to the testator; the penalty of disinheritance cannot be provided for an act that has not yet occurred.But when the disinheritance is made in the form of a conditional pardon, it i generally considered as valid. In such a case, there is an existing legal cause for disinheritance, but the pardon for such cause is made dependent upon some condition. The condition however, should be related to the cause of disinheritance, and not be a mere caprice or whim of testator. For example, the testator may say: I hereby disinherit my daughter A for having used gravely insulting language against me; but if she shall remain in my house and serve me during the rest of my days, this disinheritance shall null void and of no effect. It is the conditional pardon and not the conditional disinheritance, properly speaking, that is allowable. Must be Total. -There is either total disinheritance or total pardon. There is no middle ground.ART 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other

testamentary dispositions shall be valid to such extent as will not impair the legitime.______________TOLENTINO:• Where disinheritance is inetfective, the compulsory heir must be given all that he is entitled to receive as if the disinheritance has not been made, without prejudice to lawful dispositions made by the testator in favor of others.ART 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;(2) When a cMd or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator,(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;(6) Maltreatment of the testator by word or deed, by the child or descendant;REVIEWER IN SUCCESSION

2007AARi(7) When a child or descendant leads a dishonorable or disgraceful life:(8) Conviction of a crime which carries with it the ___penalty of civil interdiction.______________TOLENTINO:• Attempt Against Life. Attempt against the life in this article includes all the different degrees of commission of the crime, such as attempted, frustrated, and consummated [bakit kasama ang consummated, i.e. sino pa ang mag didisinherit kung patay na ang kabayo, este, testator pala? Note that the attempt is not only against the life of the testator, kasama spouse, descendants and ascendants - DLC] The principal factor to be considered is the intention of the heir, even if the final conviction be only for the crime of physical injuries, especially when qualified as grave, unless it is clear that the intention against the life of the offended party is lacking. The heir may be disinherited, even if he be only an accomplice, provided he shares the intention to kill. But an accessory-after-the-fact cannot be disinherited on this ground, because his intervention is already subsequent to the Criminal act.• Conviction Necessary. It is essential that the guilty heir be convicted. Prescription of the penalty, and pardon and amnesty, imply the final conviction; hence, disinheritance can still be based on this ground.• False Accusation. False accusation as a ground for disinheritance has three elements: a. the act of accusing the testator b. the judicial dedaiatton that the accusation is false c. that the offense charged is punishable byimprisonment of 6 years or more.To accuse indudes not only the institution and prosecution of a criminal action, but every intervention in the criminal prosecution which clearly shows thai the testator is accused by the heir disinherited.• Adultery or Concubinage. The heir convicted of adultery or concubinage with the spouse of the testator can be disinherited cniy by the latter (testator); but the terms of (he law do not allow his disinheritance by the person with whom he committed adultery or concubinage. The rule of strictly construing the grounds for disinheritance must be applied. However, he cannot succeed under the will of his paramour; he is disqualified by art. 1028 in relation to art. 739.• Fraud or Coercion. Where the compulsory heir use fraud, violence, intimidation, or undue influence to cause the testator to make a will or to change one already made, such testator may again make a different will in which he disinherits such heir. The will or codicil which was obtained through any these means may be annulled or disallowed• Refusal to Support. To justify disinheritance of a child or descendant for refusal to give support, it is not necessary that the parent or ascendant should have judicially demanded the support. The question of whether there has been a refusal to give such support without justifiable cause is open to proof if the disinherited child or descendant denies it.• Maltreatment of Testator. Maltreatment by deed covers a'! acts of violence against the person of the testator, short of an attempt to take his life, whether physical injuries are produced or not. And maltreatment by word amounts to slander addressed directly and personally against thePage 137 of 207testator himself. It is not necessary that there should first be a judgment finding the child or descendant guilty of these acts. It is necessary, however, that the acts be done intentionally or voluntarily.Disgraceful Life. A single or isolated act which may be reprehensible or unconventional will not be sufficient. The words used by the law are "leads a dishonorable or disgraceful life"; these words imply continuity or duration of conduct which brings dishonor or disgrace. Civil Interdiction. The conviction for a crime which carries with it the penalty of civil interdiction must be by final judgment. .':ART 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate:

1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;2. When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse; descendants, or ascendants;3. When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has besn found to be false;4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator;5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;6. The loss of parental authority for causes specified in this Code;7. The refusal to support the children or descendants without justifiable cause;8. An attempt by one of the parents against the life of the other, unless there has been areconciliation between them.TOLENTINO:• Abandonment of Children. The meaning of abandonment should be understood in a general-sense, so as to include failure to give due care, attention, and support (and not merely as exposing the child in such a way that its life may be endangered)• Inducing Immorality. Although the law mentions only daughters, we believe that this should be construed to mean all female descendants. But according to DLC. this should be construed as meaning children.• Attempt against Virtue. For the disinheritance of a parent who has attempted against the virtue of his daughter, it is not necessary that there has been a final conviction. It is enough that he has committed acts which would have amounted to rape, seduction, or acts of lasciviousness, against such daughter; and it is immaterial whether the acts would legally constituted an attempted, frustrated, or consummated offense.• Loss of Parental Authority. The causes for loss of Parental authority are provided in the Family Code, arts. 229 to 232; There are many causes specified by theREVIEWER IN SUCCESSION

2007Apresent Code for the loss of parental authority which would not constitute such an offense by the parent as to justify his being disinherited. For instance; when the parent consents to the adoption of his child by another, or when a widowed mother remarries, or when the mother of an illegitimate child marries a man other than it father. We see no reason why these should give rise to disinheritance but the law clearly provides that loss of parental authority for these causes would be a ground for disinheritance. Recovery of Authority. Some of the grounds for the loss of parental authority are temporary in nature, and, upon their cessation, patria potestas may be recovered. We are inclined to view that if the patria potestas is recovered before the death of the disinheriting child, the cause for disinheritance ceases, and the disinheritance already made is rendered void, inasmuch as the will takes effect only upon the death of the testator, at which time the parent has already regained parental authority and the cause for disinheritance no longor exists. This conclusion holds, whether or not at the time of recovering parental authority the child has already been emancipated. This view is better because it constates the law more strictly against the authority to disinherit.Attempt by Parent against Other. This does not require conviction of the offending parent; nor does it include attempts against the life of any other person, such as descendant or brothers of the other parent. Other Causes. The other causes are similar to those provided in art. 919 for disinheriting a child or descendant. They have, therefore, the same scope and interpretation.ART 922. A subsequent reconciliation between the offender and,the offended person deprives the latter of the right disinherit, and renders ineffectual any disinheritance that may have been made.__________ART 921. The following shall be sufficient causes for disinheriting a spouse:(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants;(2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;(3) When the spouse by fraud, violence, intimidation.or undue influence cause the testator to make awill or to change one already made; (A) When the spouse has given cause for legalseparation;(5) When the spouse has given grounds for the loss of parental authority;(6) Unjustifiable refusal to support the children or the _____other spouse.___________________TOLENTINO:• Causes for Legal Separation. The law does not make legal separation as the ground for disinheriting the guilty spouse. It is the fact of having given cause of legal separation which is the ground; in other words, it is not necessary that legal separation be actually obtained. The causes for legal separation are now provided in Art. 55 of the Family Code. If any of the grounds for legal separation exits, the offended spouse may disinherit the guilty spouse even if he does not sue for legal separation. In case there is a decree of legal separation, the guilty spouse is disqualified to inherit from the innocent spouse by intestate succession, and the provisions in favor

of the guilty spouse in the will of the innocent one are revoked by operation of law.Page 138 of 207TOLENTINO:• Meaning of Reconciliation. The terms "offender" and; "offended" in this article refer respectively to disinherited heir and testator. Frequently, upon the approach of death, a person makes a general pardon of all wrongs done to him by all persons; but'Jhis general pardon is not the reconciliation meant by the law as rendering ineffective a disinheritance already made. There must be a real reconciliation between the parties. No particular form is required. It may be express or tacit.-~7 • Effect of Unworthiness. There are some grounds for '.-. disinheritance which are also causes for incapacity by—\ reason of unworthiness. Under art. 1032, the ff. among "5*. others are incapable of succeeding because of CD unworthiness:a. parents who have abandoned their children orinduced their -daughters to lead corrupt or immoralfife, or attempted against their virtue b. Any person who has been convicted of an attemptagainst the life of the testator, his or her spouse,descendants, or ascendant c. Any person who ha accused the testator of a crimefor which the law prescribes imprisonment for 6 yearsor more, if the accusation was found groundless d. Any person convicted of adultery or concubinage withthe spouse of the testator e. Any person who by fraud, violence, intimidation, orundue influence would cause the testator to make awill or to change one already made.The foregoing causes of unworthiness deprive the compulsory heir of his legitime. But under Art. 1033, these causes of unworthiness shall be without effect if these causes of unworthiness shall be without effect if the testator had knowledge thereof at the time he made his will, instituting the unworthy heir, or if having known of them subsequently, he should condone them in writing. These causes, however, may be used by the testator to disinherit the guilty or offending heir. Reconciliation deprives the testator the right to disinherit, and revokes a disinheritance already made.What then would be the effect of a subsequent reconciliation between the parties, if the disinheritance has already been made on any of the grounds which are also causes of unworthiness? We are inclined to the view that the moment the testator uses one of these causes of unworthiness as a ground for disinheritance, he thereby submits it to the rules on disinheritance, among which is that reconciliation renders the disinheritance ineffective.If the reconciliation renders ineffective the disinheritance already made, it seems illogical to assume that the heir will still be disqualified by operation of law on the ground of unworthiness. Incapacity by reason of unworthiness is merely an expression of the implied will of a person who has not expressed his intention in a will. If the express intention, manifested by the testator in a disinheriting clause in a will, is rendered ineffective by a subsequent reconciliation, how can the implied intention be logically held to exist.REVIEWER IN SUCCESSION

2007AIf there has been no express disinheritance, however, either because the testator did not know the existence of the cause or because the ground of unworthiness takes place after the will has been executed, then the rule would, be different. The ground of unworthiness. in such case, has not been used as a cause of disinheritance; hence, it cannot be submitted to the rules thereof. The heir will continue to be incapacitated to succeed, even to his legitime, unless he is pardoned in writing or the testator makes a new will reinstituting him or reiterating the provisions of the former will wherein the heir is instituted. The testator was not able to disinherit the heir at the time the will was made; hence, the law effects the disinheritance for him.Rights After Reconciliation. If a disinheritance has been made, and then reconciliation takes place, it will be the saw as if there had been no disinheritance. The heir will receive everything that he would have received had there been no disinheritance, whether it be under the provisions of a will or by operation of law.Other Causes for Revocation. Aside from reconciliation, the disinheritance may be revoked or rendered ineffectual by: a. the subsequent institution of the disinherited heir,inasmuch a this will impliedly revoke thedisinheritance clause in the earlier will b. the nullity of the will containing the disinheritance,such a when it is denied probateNew Disinheritance. Once a disinheritance has been revoked or rendered ineffectual, it cannot be renewed except for causes subsequent to the revocation. Thus after a reconciliation, a new disinheritance can be based only on new grounds.ART 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the right of compulsory heirs with respect to the tegMme; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime._________________TOLENTINO:• Representation in Disinheritance. The causes of disinheritance are personal to the disinherited heir; he alone is at fault, and nobody else should suffer the effects of such culpability. His children and descendants, therefore,

should not be penalized with want, for the guilty or fault is not imputable to them.This article allows the children and descendants of the person disinherited to take his place and retain the rights of compulsory heirs in respect to the legitime. It provides for representation. Under art. 1035, in connection with unworthiness, the right of representation is conceded to children and descendants of the incapacitated person, if the latter is a child or descendant of the deceased; and in art. 972, representation is allowed only in the direct descending line, and never in the ascending line. Considering these provisions, the disinherited person can be represented only if he is a child or descendant; a disinherited ascendant or spouse cannot be represented.• To What Extent. The representation should extend to everything that would have passed to the disinherited heirPage 139 of 207by operation of law; this includes the amount that pertains to him as intestate heir and not only that as compulsory heir. As art. 970 provides, the representatives acquire the rights which the person represented would have if he were living or if he could have inherited.MAGIC NOTES:• The grounds for disinheritance are exclusive. It is an exception to the general rule and must be strictly construed. The Testator cannot add to the grounds provided for in the law, even by analogy. The CH is entitled io his legitime,- and the testator may not deprive him of such and any disposition in a will cannot apply to "* the legitime but only to the free portion.• Q: How may the Testator disinherit his CH? A: In a will only. It must be expressly stated in a will, either holographic or notarial or codicil or main will.Q: Can he do it be verbally declaring it in public?A: No. This is not a valid disinheritance. Disinheritance can be effected only through a will wherein the legal cause therefore shall be specified (Art. 916). If Testator didn't state in his will that he is disinheriting his CH but merely omitted the name ot the CH, it may be a case of Preterition.Q: Suppose CH has offended the testator so much as when the CH has attempted on the life of the Testator, may the Testator deprive CH of his legitime?A: Yes. Disinheritance is an exception to the system of legitime. The CH is deprived of his legitime to which he has a right. NOTE: Disinheritance must always be total.Q: Can third party (strangers) be disinherited?A: No need for this. Just omit him in the will or revoke theprovision in the will which institutes him as an heir.Disinheritance applies only to CH.Q: Under art. 915, CH is deprived of his legitime through a valid disinheritance. Suppose Testator has 3 children, A. B, and C. We executed a will disinheriting C and instituting A and B to 1/3 each of the estate. This institution applies only to the free portion, right.A: No. Now, since the legitime of the children should supposedly be divided in to 3 equal parts, C will not get his 1/3 share as he was disinherited. This portion' of the legitime will go to other CS through accretion which we shall discuss later.Q: As regards the institution of 1/3 each, there is a remaining 1/3 that was not taken up, isn't not? Now, may C participate in the distribution of this intestate portion?A: No. he cannot inherit by intestacy. If he is not worthy to receive his legitime, the more reason that he loses his intestate inheritance.Note: Art. 915 is inaccurate because it covers only the legitime. This must also cover all types of inheritance including intestate succession.Q: May Testator disinherit fora whimsical reason? A: No. Only those reasons provided for in the be grounds for disinheritance.Q: When must the ground for disinheritance exist?law canREVIEWER IN SUCCESSION

2007AA: At the time of the execution of the will, not death of the testator. Why? kasi, patay na ang Testator, paano pa magdidisinherit?Q: What are the grounds for disinheritance?A: If a child or descendant, whether legitimate or illegitimate is to disinherit the grounds are provided for in art. 919. These grounds are EXCLUSIVE. If the heir to be disinherited is an ascendant or parent, the grounds are listed in Art. 920. To disinherit a parent or ascendant the Testator must point a specific provision in Act 920. If the ground is not there, the disinheritance is ineffective. In other words, art. 920 is also EXCLUSIVE. If the heir to be disinherited is the surviving spouse, the grounds are in art. 921. This also EXCLUSIVE. The spouse referred to in this article must be the lawfully wedded wife. A common law wife is not included as she is not & compulsory heirQ: If there is no cause stated, is the disinheritance valid? A: No, it is ineffective.Q: If the ground is not in the enumeration of the law? A: It is also ineffective.Q: If the testator says that he disinherits him for a csuse which is included in the enumeration but it turned cut later the cause is not true, what is the effect of this?A: The disinheritance is ineffective. Whether the cause exists or not must be proved.Q: Who has the burden of proof then?A: The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (Art. 917)

Q: Suppose the disinheritance is ineffective (e.g. I disinherit my son without stcting the ground therefor) what is the effect? A: The son is restored as an intestate heir.Q: What if there is a will (I disinherit my son C because he attempted my life therefore I give everything to my sons A and B). It turned out that C did not attempt on the life of the testator so that the disinheritance is ineffective. What will C get?A: C is entitled to a completion of his legitime under art. 917(7). Everyone will contribute to complete his legitime.GROUNDS FOR DISINHERITANCE Disinheritance of Children or Descendant:1. when the child or descendant has been found guilty of an attempt again of the life of the testator: his or her spouse, descendants or ascendant Q: Is criminal conviction required before the testator candisinherit? Number 1. take note, merely says found guiltyand did not use the word conviction as in numbers 3 and8. A: Tolentino: there must be a conviction before the child canbe disinherited.DanCon: there must be a final judgment because of thepresumption of innocence.Take note that this provision says found guilty of anattempt presupposing willful or intentional acts, if the actsare through recklessness or negligence, then this is not included. Example: parricide through reckless imprudence. "Attempt" here covers all stages attempted, frustrated or consummatedQ: Against whose'lifeA: The attempt need not be against the life of the Testator himself. It may be made against the life of the Testator's spouse, descendants or ascendants.Q: Are the lives of nieces, children, or descendants ofthe testator included? :. A: Yes, disinheritance is possible. Descendant of the testatorincludes uncles and aunties and nieces when the Testatoris the grandpa.Q: What about an attempt on the life of the mistress or common law wife of your father?A: If spouse is to be construed as lawfully wedded wife, mistress or common law wife is not covered. If spouse is to construed as including not lawfully wedded wife, then the common law wife would be considered spouse. If we construe it this way. how about art. 921? How do we construe it? The spouse under this art. must necessarily be a lawfully wedded spouse because if otherwise, he/she is not a CH.Q: What about an attempt on the life of the spouse of thedescendant? A: This is not included.Q: What is the effect of pardon and amnesty?A: When there is pardon, the Testator may still disinherit the heir because pardon does not obliterate the crime. On the other hand, amnesty obliterates the crime so when there is amnesty granted, there is no longer any ground to disinherit the heir. But note that Tolentino said that amnesty and pardon do not obliterate the crime.2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment of 6 years or more, if the accusation has been found groundless: if the accusation is proven to be true, this is not a ground for disinheritance. Q: Must the heir be the complainant against the testator? A: No. This ground covers all instances where the heir participates in the accusation, he may be a complainant or a mere witness. The accusation need not be made in a criminal proceeding. It may be made in a civil proceeding. Take note that the accusation must be proven to be groundless to be a ground for disinheritance.Q: The heir was acquitted. Does this mean that there is no longer a ground for disinheritanceA: Not necessarily. Note: According to Tolentino the court must pronounce a finding that the accusation was ground less. However, according to our DLC, this may prove impractical. The usual practice of courts is to acquit the accused/defendant. In most cases, the court merely declares that there was insufficient evidence to establish the guilt of the accused. Only in very rare situations do Courts make a pronouncement that the facts on which the charge based, did not exist.Page 140 of 207REVIEWER IN SUCCESSION

2007A3. When a child or descendant has adultery or concubinage withbeen convicted the spouse of thetestator, there most be a criminal proceeding.Q: Must the conviction be final? If the case was appealed, can the CH be disinherited?A: Take note that when an accused die in a criminal case, the action is abated so that if the CH dies before his conviction, there will be no ground for his disinheritance since no conviction is possible. Hence, his children (legal heirs of the CH)can represent him. Take note that the spouse in this paragraph should refer Ito the spouse of the testator.Q: Does spouse here include common law wife? A: No because there can be no adultery as the common law wife in not married to the Testator.Q: Suppose the testator had a legitimate child A and take in a common law wife S after the death of A's mother. A is married to B. A and S however, had been found guilty of concubinage since A is married to B. May Testator disinherit A?

A: No answer given. But maybe you can apply same answer as the next preceding question.Q: If however, the descendant is convicted of adultery with the spouse of his grandfather, may the father of the child disinherit him?A: Yes but not on the ground of adultery but on other grounds like leading a dishonorable life.4. When a child or descendant bv fraud, violence intimidation or undue influence causes the testator to make a will or to change one already made. This is self-explanatory.5. A refusal without justifiable cause to support the parent 0? ascendant who disinherits such child or descendant-• It is not necessary to have a judicial demand for support.Q: Grandfather GF had son F who is the father of S. Si F naghirap pero S refused to support him. GF supports him instead. GF disinherits S for this reason. Is the disinheritance effective?A: No because it is the testator who must be denied support. Here, F was the one denied support and not GF. Siguro sasabihin nya eh sir, if testator disinherits his child, then he will have money. Why does he need support then? Siguro nakaraos din sya at yumaman.6. Maltreatment of the testator bv word or deed, bv the child or descendant.• Maltreatment may constitute a crime. But conviction is not necessary.7. When a child or descendant leads a dishonorable or disgraceful life.• The law uses the word life." A single or isolatedact of an heir is not sufficient. Q: Whose point of view should be taken in determiningwhetherornot the heir's life was dishonorable? A: Point of view of the community8. Conviction of a crime which carries with it the penalty of civil interdiction. • There:is a need for final judgment.Disinheritance of Parents or Ascendants« Abandonment Q: If the parent refuses to give support to children, may thechildren disinherit? A: Yes. Article 920(7).Q: What is the difference between Article 920(1) and 920(7)? A:? Q: The law only uses the word "daughters." Paano kung callboy? A: daughters should be construed as children.• Loss of Parental Authorityo According to Toientino, this is harsh!Disinheritance of Spouse• The spouse must be the lawfully wedded spouse.• As regards the ground that the spouse had given cause for legal separation, it is not necessary that there has been a decree of legal separation.• As to Article 921(6), unjustifiable refusal to support the children or the other spouse - the children referred to here are the common children of both spouses.Sir:In case of reconciliation between disinherited heir and testator, disinheritance. If already done, becomes ineffective or it will prevent testator from disinheriting the heir.There is reconciliation if the testator has the intention of restoring the disinherited heir to his original rights as if no disinheritance had happened.Page 141 of 207REVIEWER IN SUCCESSION

2007AXIX. LEGACIES AND DEVISESTOLENTINO:Mr xoIConcept of Legacies and Devises. - Legacies and devices are gifts of personal and real property, respectively, given by will. It is some specific property or portion of the estate which the testator separates from the universality of the inheritance to be given to some particular person or for some particular purpose. It is a means by which the testator is able to comply with certain duties, rewarding the affection of friends and relative, or compensating services rendered to him, or giving alms and facilities to institutions for social welfare.ART 924. All things and rights which are within the commerce of man may be bequeathed or devised.Within the commerce of man. - in order to be within the commerce of man. the thing should be: (a) susceptible of appropriation or of being subjected to property rights of natural or juridical persons, and (b) transmissible from one person to another, such that they may be disposed of as forming part of one's patrimony, by way of sale, barter, donation, etc.ART 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees.The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them.ART 926. When the testator charges on of the heirs with s legacy or devise, he alone shall be bound.Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit._______________________• Burden of Legacies or Devises. - Legacies and devises are. as a rule, a charge or a burden upon the estate itself and are to be paid by the executor

or administrator, unless the testator expressly burdens a particular heir, legatee, or devisee with their payment.• Specific heir or legatee. - An heir, devisee or legatee is said to be charged with a legacy or devise, when upon the property or portion given to him by the testator the latter has imposed a charge or burden in favor of another person, or when he is personally charged with certain duties or obligations by reason of the legacy or device given to him, even if it involves the delivery to others of things belonging to him. When such a charge is expressly imposed upon a particular heir, devisee or legatee, he alone bears the burden of the legacy or devise.Art. 925, however, provides that the legatees or devisees 'shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. This provision should be understood as applicable also to voluntary heirs who have been expressly charged with legacies by the testator.• Sub-legacies or Sub-devises. - The devise or legacy to a third person of a thing belonging to a particular heir,Page 142 of 207devisee or legatee would be valid only: (a) if the testator makes the charge expressly upon the heir, legatee, or devisee, or (b) if the testator orders that the thing be acquired by his estate and delivered to the third party beneficiary. But if the testator did not know that the thing belonged to his heir, devisee or legatee, then the disposition of such thing in favor of a third person would be void under Art. 930.ART 927. If two or more heirs take possession of the estate, they shall be solidarity liable for the loss or destruction of a thing devised or bequeathed, even though only one of thern;should have been negligent.ART 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind._____When warranty exists. — The heir, devisee or legatee is made a warrantor, if the legacy or devise imposed upon him is generic; there is no such warranty if the legacy or devise refers to a specific thing.Other warrants. -^.-Although the law is silent on the point, it is generally admitted that in legacies or devises of generic objects, there are also warranties against hidden encumbrances or defects, just as against eviction.ART 929 If the testator, heir, or legatee owns only a part of. or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety.______________Things owned by owners. - The presumption of the law is that a testator desires to bequeath only that which belongs to him Hence, if the property is partly owned by a third person, the legacy or devise shall be understood as limited only to the part belonging to the testator. The same rule is laid down with respect to the part that may belong to an heir, devisee, or legatee; the sub-legacy will be valid with respect to such part but not with respect to that owned by a stranger. This general rule applies, whether or not the testator knew that the thing was partly owned by a stranger.Exception to the rule. - To the above general rule however, the law makes an exception: when the testator expressly declares that he bequeaths the thing as a whole. It is not enough that the testator say that he bequeaths the whole thing; it must expressly appear that such is his intention; that is, with knowledge of his limited right or the limited right of the heir, devisee, or legatee, he expressly wills that the whole property should pass to the person favored. That knowledge must either appear in the will itself or be proved by competent evidence, the burden being upon the devisee or legatee favored with such property.Unlike Art. 931. however, the present article does not require that the testator order the acquisition of the part which does not belong to him.Effect of partition. - A division or partition of the property owned in common does not affect the application of the rules stated above. When, however, the property is not divisible or is inconvenient of division, and it is adjudicated to one of the part owners upon reimbursement of theREVIEWER IN SUCCESSION

20C7Ashares of the others, distinction should be made. If the entire property is adjudicated to the testator or to the heir, devisee or legatee charged, the subsequent acquisition does not affect the legacy or devise. It will be effective only as to the part formerly belonging to the testator or the heir, devisee or legatee charged, if the testator has not expressly declared his desire to bequeath the entire property; in the latter case, the whole property passes to the devisee or legatee favored.But if the property which is indivisible is adjudicated to the third person, the solution depends upon whether or not the testator has expressly bequeathed the entire property. If he has not bequeathed the entire property, the transfer to the third person of the part corresponding to him in the property revokes the legacy or devise under Art. 957. On the other hand, if he expressly declared that he bequeathed the entire property, the transfer of his interest in such property to the third person annuls the legacy or devise only as to the part which formerly belonged to him and which has passed to the third person, but leaves effectively the legacy or devise with respect to the part belonging to the third person and which continues to so belong to such third person.Naked ownership bequeathed. — When the legacy or devise consists of the naked ownership of property, the full dominion vests in the legatee or devisee upon the expiration of the usufruct, inasmuch as the naked ownership carries

with it he right to be reincorporated with the usufruct when this is extinguished.ART 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that ihe thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.Things belonging to another. - This article refers to a legacy or devise of a determinate and specific thing totally belonging to a stranger at the time the will was made. The ignorance of the testator is presumed by law. Subsequent change of ownership. - If the testator did not know, at the time of making the will, that the thing belonged to another, but subsequently is acquired either by himself or by an heir, devisee or legatee, the devise or legacy becomes valid. But if the subsequent change of ownership transferred the thing to the very person to whom it was being given as a devise or legacy, and by lucrative title, or to another third person, the legacy is void.ART 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.• Testator orders acquisition. - Unlike Art. 930, which contemplates a case where the testator did not know that the thing belonged to another at the time he made his will, the present article presupposes that the testator knew that the things was not his. But it is important or essential that the testator must have ordered in his will that such thingPage 143 of 207be acquired in order that it may be given to the legatee or devisee.• Who will acquire- The obligation to acquire the property or pay its just value is placed by the law upon "the heir" or "the estate." If the testator has selected a particular heir, devisee or legatee to comply with the obligation, only such heir, devisee or legatee will bear the charge, always subject to the rule that it should never impair the legitime (if a compulsory heir) or exceed the value of the obligor's legacy or devise.• Subsequent change of title. - If it is the testator himself who acquires the property; and it remains in his estate at the time of his death, then the legacy or devise will be carried out. If the thing is transferred to another person,. the provisions of the present article apply. But if the thing is acquired by the very person to whom it is being given as: a devise or legacy, the second paragraph of art. 933 applies.,' • No order to acquire. - Where the testator knew, at the time of making the will, that the thing he was bequeathing was not his, but he did not expressly order that it be acquired for the legatee or devisee, what would be the status of such devise or legacy?The solution must depend upon a forced construction. Under Art. 930. if the testator did not know that the thing belonged to a stranger, the legacy or devise is void; conversely, if he knew that fact, the legacy or devise 1 cannot be void. The present article, based on the supposition that the testator knew that the thing belonged to a stranger, considers the bequest as valid and requires that the thing be acquired for the legatee or devisee if the testator so ordered. The law does not clearly require that such order must be express. If the testator knew that what he was bequeathing did not belong to him, it must be presumed that he wanted the heir, devisee or legatee charged with such legacy or devise to acquire the property and convey it to the legatee or devisee of such thing The order to acquire may, therefore, be implied from the very act of disposing the property belonging to a stranger with knowledge of such fact.This solution may not fall within the letter of the present article, but certainly, it is the closest to the will or intention of the testator making such a disposition.ART 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein.If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent.ART 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him.If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. ____The first paragraph of each article states the same rule, and the 2 articles could have been conveniently consolidated into one.REVIEWER IN SUCCESSION

2007A• Ownership at date of will. — The moment to be considered in determining the validity of the legacy or devise is the date of the execution of the will. If at such time the thing already belonged to the legatee or devisee, the legacy or devise is void, regardless of whether the legacy or devise is pure, conditional, or with a term.Even if subsequent to the execution of the will the thing is alienated by the legatee or devisee, the legacy or devise remains void. The only exception to this rule is the case when the thing is alienated by the legatee or devisee to the testator himself and it continues in the latter's possession at the time of his death. This solution is sustained, either by virtue of the provisions of the

second part of art. 930, or because the subsequent acquisition of the thing by the testator indicates his intention thai the legacy or devise be complied with.• Existence of encumbrance. - If the thing which already belonged to the legatee or devisee at the time of the execution of the will is burdened by a charge or encumbrance in -favor of a third person, legacy or devise is void. But if the testator expressly states that the charge or encumbrance shall be extinguished, then the legacy or devise to such extent shall be valid.• Part ownership of thing. — The legacy or devise wil' always be void with respect to the undivided part belonging to the legatee or devisee himself. The validity of the legacy or devise with respect to the part belongii ig to the third person depends upon whether or not the testator knew of such part ownership by another, under the provisions of arts. 930 and 931. If the part owner should be the testator or an heir or another legatee or devisee, the legacy or devise is valid with respect to the part betanging to those persons, under the provisions of art. 929.• Acquisition by beneficiarv. - If at the time the will was made, the thing did not belong to the legatee or devisee who is favored under the will, but it is subsequently acquired by him before the death of the testator, the right of the legatee or devisee depends upon the circumstance. If the thing ordinarily belonged to a third person at the time the will was made, and the testator did not know of such fact, the legacy or devise is void, and it continues to be void, even if the legatee or devisee subsequently acquires it by any title whatsoever. If the testator knew that it belonged to a third person, the legacy is valid, and the subsequent acquisition of such thing by the legatee or devisee brings art. 933 par 2 into operation. This distinction is in consonance with the rules in arts. 930 and 931.• Amount reimbursed. - In those cases where the legatee is entitled to reimbursement, the measure of the recovery is the price of the sale, or the value of the thing given in barter, or the amount of the credit, interest and costs in case of adjudication en pago. The expenses are also, generally reimbursed.it to the legatee or devisee.ART 934. // the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.The same rule applies when the thing is pledged or mortgaged after the execution of the will.Any other charge, perpetual or temporary, with _____which the thing bequeathed is burdened, passes with Page 144 of 207Payment of credit - The general rule is that when the thing bequeathed has been given as security for a recoverable debt, the legatee or devisee should receive it free from the encumbrance.The general rule may be varied by the express will of the testator. He may provide in his will that the credit secured by the mortgage or encumbrance shall be paid by the legatee or devisee of the encumbered property, or by any particular heir or other legatee or devisee. It is to be understood, however, that in such case the secured credit should not exceed the value of the inheritance, devise or legacy of the person charged with its payment. What encumbrances respected - The law refers only to pledge or mortgage, but this should be understood to include all kinds of security for the payment of debts, such as antichresis or other kinds cf liens. These must be extinguished by the estate.All other burdens or encumbrances, which do not have for their purpose to secure the payment of demandable debts, fall under the classification of "any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee." They must be respected by the legatee or devisee until they are legally extinguished.ART 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards thct part of the credit or deb! existing at the time of the death cf the testator.In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death.ART 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death.The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge.ART 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones.______Legacy of credit - The legacy of credit takes place when the testator bequeaths to another a credit against a third person. In effect, it is a novation of the credit by the subrogation of the legatee in the place of the original creditor (the testator).The executor or administrator has the option either of collecting the credit and delivering the proceeds to the legatee or assigning to the legatee all the actions he may have in connection with such credit so that the legatee himself may do the collecting. If the executor or administrator chooses the latter method, he is not aREVIEWER IN SUCCESSION

2007A

warrantor for the existence and legality of the credit; it is the same as if the legacy is of a specific thing, for which no warranty exists.Extent of Legacy - The legacy is valid only to the extent of the amount of the credit existing at the time of the testator's death. The credit carries with it all the guaranties, whether real or personal, for the payment of such credit, such as bonds, pledges, or mortgages. Legacy of waiver of Credit — The legacy of waiver has its real equivalent in the remission of the debt. It should not be confused with an acknowledgment by the testator in his will that a particular debt has been paid. The legacy constitutes a real waiver or remission of a debt existing at the time the will was made and in the amount outstanding at the time of the death of the testator. An acknowledgement of payment prevents the credit from being computed as part of the assets of the estate because it no Songer exists; but the legacy of waiver of an existing credit does not prevent its inclusion in the assets of the estate, and is furthermore subjected to the rules of inofficious dispositions as a real remission. Kinds of Waiver. - When the waiver is specific, only the debt specifically mentioned is remitted, and not any other. When it is generic, the law provides that only those existing at the time the will was made is remitted, but not those which may subsequently be contracted. The generic waiver includes all debts, whether pure, conditional or with a term.Effect of Payment - Like the legacy of a credit against a third person, the legacy of waiver of a debt or debts of the legatee is effective only as to the amount of such debt or debts still unpaid at the time of the testator's death, including interests.Effect of Judicial Action - Whether the legacy is of a credit against the third person or is of a waiver of a debt or debts of the legatee, it shall be revoked rf the testator, after the will has been made, brings a judicial action for the recovery of the credit or debt.The testator, however, may validly provide that a subsequent judicial demand by him shal! not extinguish the legacy; his will must be respected, to the extent of the amount that may still be unpaid at the time to his death. Legacy of Security - The second paragraph of Art. 936 provides that only the right of pledge is waived by the legacy made to the debtor of the thing pledged. Although the law refers to pledge only, this should be understood to include also mortgage and antichresis. The legacy of the thing given as security is a remission of the guaranty only, but not on the principal obligation, which remains subsisting.ART 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares.In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.____________________Creditor as Devisee or Legatee - The mere fact that a 'creditor is given a legacy or devise by the testator does not change the relation between creditor and debtor; it merely adds a new relation of legatee or devisee and testator. The credit subsists as an obligation which mustCDbe paid and the legacy or devise subsists independently thereof as an act of liberality of the deceased. Bequest applied to Credit - When the testator expressly declares that he bequeaths the very same thing that he owes his creditor, the legacy or devise must be applied to the payment of the debt. If the debt of the testator is secured by pledge or mortgage, and he expressly bequeaths the thing pledged or mortgaged as payment of his debt, the acceptance by the creditor of such legacy or devise will constitute, payment by dacion en pago, and will extinguish the testator's debt.When the testator does/not expressly state that he leaves a legacy to the creditor, but merely directs his executor to pay a debt which he recognizes as existing in favor of a person named in the will, there is no 'egacy in favor &f the creditor, who is not thereby relieved of the duty of presenting his claim to the probate court for allowance. If it clearly appears that a legacy is made in the will in favor of a creditor of the amount owing him, there would be no'necessity of presenting the creditor's daim to the probate court. But he will have to wait until all the debts and expenses of administration have been paid, before he can claim the payment of the legacy. On the other hand, the mere fact that the creditor is named as a legatee does not deprive him of the right to have his credit paid before the estate is distributed among the heirs and other legatees. The option would pertain to him to daim as creditor or as legatee, or as both in case the value of the legacy exceeds the credit.ART 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.The foregoing provisions are without prejudice to the fulfillment of natural obligations.__________Natural obligations - A mistake of fact, in ordering the payment of what is not owing, vitiates the testamentary disposition. But if the obligation is a natural one, and it is paid according to ths order of the testator in his will, that which has been paid can no longer be recovered.ART 940. In alternative legacies or clevises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged.If the heir, legatee or devisee, who may have been given the choice, dies before making it. this right shall pass to the respective heirs.Once made, the choice is irrevocable.In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be

observed, save such modifications as may appear from the intention expressed by the testator. __ _______Alternative legacies or devises - The legacy or devise is alternative when the testator bequeaths one of two or more things that he designatesPage 145 of 207REVIEWER IN SUCCESSION

2007AThe selection of the thing to be delivered shall, as a rule, be upon the debtor; that is, upon the executor or administrator, with the approval of the court, or upon the heir, legatee or devisee whom the testator may have expressly charged with the alternative legacy or devise.Although the things are specified by the testator, there is really in effect a legacy or devise of generic objects before the selection is made, inasmuch as up to that moment it is not the rules regarding the extent of the right to select in generic legacies or devises should be applied to alternative ones.ART 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate.The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality.ART 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer.ART 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him. his right shall pass to his heirs, but a choice once made shall be irrevocable.• Generic legacy or devise - In order to be considered a generic legacy, the genus or species of the object should be determined, and the quantity should be specified.The time considered in determining whether the property exists in the estate of the testator is the moment of his death; the existence of the property of the kind bequeathed before such time is immaterial, if none actually exists at the moment of death.When, in a generic legacy or devise, only one of the species mentioned is found in the hereditary estate, the legacy or devise is in effect converted into a specific legacy or devise, and that one found in the estate should be delivered.• Right of Selection - Unless the testator has expressly given the right of selection either to the executor or administrator or heir or legatee or devisee charged, on one hand, or to the legatee or devisee favored, on the other, the former shall have the choice. Such right to choose, however, is not absolute, inasmuch as he musi give "a thing which is neither of inferior nor of superior quality."When the option to choose is expressly granted by the testator to any of the said parties, however, the person designated may choose whichever he may desire. In alternative legacy or devise, the choice is limited to the things given alternatively. In generic devises of immovables, it is limited to those that are in the hereditary estate; if none exists in the estate, the devise is inoperative, and the right to choose cannot be exercised. If the generic legacy is of movables, and there are none of the kind in the estate, the selection may be among anyPage 146 of 207outside the estate; but if there are any of the kind in the estate, the right of selection is limited to them.If the party to whom the right of selection has been expressly granted by the testator should die before having exercised his option, "his right shall pass to his heirs." The heirs referred to here are those of the person entitled to choose.Irrevocability of Choice. - Once the selection has been made, it shall be irrevocable. The election may be made in any form which shows clearly the conscious and deliberate exercise of the right granted by the testator to the person allowed choose. The form in which the election is manifested cannot affect the irrevocability of such election.ART 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.If the testator has not fixed the amount of such legacies, it shalfbe fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate.If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate.Legacy for Education and Support - These legacies are strictly personal, and cannot be transmitted to the heirs unless the testator expressly so provides. In such case, the testator should clearly designate the person or persons to whom the legacy shall pass. Amount of Legacy - The amount of either legacy may be fixed by the testator in his will. The amount fixed by the testator should not exceed the free portion of his hereditary estate.If the testator has not fixed the amount of the legacy, it shall be fixed in accordance with the social standing and circumstances of the legatee, which should be understood to mean his necessities, and with the value of the estate. Literally construed, the value of the estate is the entire residue of the

estate after paying all debts and expenses. But if there are compulsory heirs, and since only the free portion is available for legacies, it seems that "estate" should mean the free portion. On the other hand, if the obligation to give the support or education has been imposed as a charge upon some particular heir or legatee, the estate should be the amount of the share of such heir or legatee who is charged, excluding his legitime as compulsory heir.Extinguishment - The provisions of art. 303 of the Code, on the causes for the extinguishment of the obligation to give support, are applicable to legacies. These are (a) the death of the recipient or legatee; (b) when the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own needs and those of his family (c) when the recipient or legatee may engage in a trade profession or industry, or has obtained work, or has improved his fortune in such a way that he no longer needs the allowance for his subsistence;REVIEWER IN SUCCESSION

2007A(d) when the recipient or legatee has committed some act which gives rise to disinheritance; and (e) when the recipient or legatee is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or by lack of application to worK, so long as this cause subsists.ART 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced.Demand for Payment of Pension - The legatee cannot demand the delivery to him of the legacy or any part thereof until after the debts and expenses of administration have been paid, unless he gives a bond with sureties approved by the court to secure the payment of such debts and expenses or any part thereof as may remain unpaid. The legatee of a pension may demand the payment for the first period only after the court has issued the order of distribution, or from such time as the distribution of legacies should have been made, if no such order is issued.This principle applies, even if the pension is constituted as a charge imposed upon some particular heir, devisee, or legatee.ART 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. ___________This article is related to the- last paragraph of Art 934. which it should logically follow.ART 947. The legatee or devisee acquires a right to the pum and simple legacies or devises from the death of the testator, and transmits it to his heirs.______'• When right vests - This article refers to the definite right to the legacy or devise, not merely to an eventual right; hence, ot specifically mentions only pure and simple legacies and devises, inasmuch as in conditional legacies and devises, the right acquired from the moment of the testator's death is merely eventual and does not become definite except from the compliance with the condition, if it is suspensive. It should be noted also, that the article refers to the right to the legacy or devise and not to the thing itself given as legacy or devise.That is so because the right to the thing itself depends upon the nature of the legacy or devise, whether it is of a specific or of a generic thing. If the thing is specific and owned by the testator, the right to such thing is acquired as of the moment of death cf the testator, but if the thing is not determined, or, although determined, it does not belong to the testator, the right to the same does not vest until after the thing has become determined, in case of generic legacy or devise, or until the selection has been exercised in case of alternative legacies or devises, or until the thing has been acquired from the third person or its value ascertained, in case the legacy or devise is of a thing belonging to a stranger.Page 147 of 207This article is also applicable to those with a term or with a condition, if the suspensive condition happens or the resolutory condition does not happen. Liability for debts - Under the code of civil procedure, "the estate, real or personal, given by will to the devisees or legatees, shall be liable for the payment of (he debts, expenses of administration, and family expenses, in proportion to the amount of the several legacies or devises, except that specific devises and legacies may be exempted if it appears to the court necessary to carry into effect the intention of the testator and if there is sufficient other estate." '."•-It is submitted that the rule still applies.The testator, however, may by will expressiy designate the property that shall respond for the payment of debts and expenses.There are at least two restrictions imposed by law upon the power of the testator to dispose of his property, and which pro tanto restrict the maxim that the will of the testator is law: (a) his estate is liable for all legal Obligations incurred by him; and (b) he cannot dispose of or encumber the legal portion due his heirs by force of law.ART 948. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latte^s deathFrom the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or

deterioration, ana shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator.• Ownership of Specific Thing - This article presupposes that the legacy or devise is pure or until a day certain. If it is subject to a suspensive condition or is one from a day certain, it is obvious that the ownership does not pass to the legatee or devisee except from the happening of the condition or the arrival of the day fixed. But if the condition is resolutory. the provisions of the present article are applicable, without prejudice to the resolution if it should subsequently take place.• Right to Fruits - If the legacy or devise is not impaired by the debts and expenses of administration, the legatee or devisee acquires its ownership as of the moment of the testator's death. He becomes entitled to its fruits, meaning industrial, natural and civil fruits, from such moment, provided they are still ungathered or uncollected. because they pass to the legatee as accessories of the legacy or devise.• Improvements and Deteriorations - The general rute that the thing perishes for its owner; hence, the legatee or devisee shall suffer the losses and deteriorations of the thing as well as benefit from its earnings and improvements, after the testator's death. However, if the losses or deteriorations should be due to the fault or negligence of the person obliged to deliver the legacy or devise, the latter must be liable in damages to the legatee or devisee for such losses and deteriorations.REVIEWER IN SUCCESSION

2C07AI I I I I I I I I I I I I 1 I I IL1ART 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered.____________Fruit of the generic thing - In the legacy or devise of a generic thing, the person bound to pay the legacy or devise does not have an obligation to deliver the same except from the time of such selection when the thing to be delivered becomes specific. It is from this moment that the fruits and interests belong to the legatee or devisee. However, by express provision in the will, the testator may provide that the legatee or devisee shall be entitled to the fruits and interest from the moment of his death, and not from the time the election is made.These rules should be without prejudice to the provisions of the rules of court on the payment of debts of deceased persons.Legacy of money - If the legacy should be of a sum of money, the interest that may be recovered for delay in delivery of the same to the legatee is the legal rate, or 6 per centum per annnum. This interest should be paid from the time of default, which occurs when the legatee demands the delivery of the legacy, judicially or extrajudicially. When there are administration proceedings, the legatee is entitled to demand delivery of the legacy only after the payment of the debts and expenses of administration and the issuance of an order of distribution by the court. Orrfy a demand after such order can constitute the executor or administrator, or the heir, devisee or legatee charged, in default and make them liable for interest.ART 950. // the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order(1) Remuneratory legacies or devises;(2) Legacies or devises declared by the testator to be preferential;(3) Legacies for support;(4) Legacies for education;(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;(6) Ail others pro rata.___________• Application of article - When the question of reduction is exclusively among legatees and devisees themselves, article 950 governs. But when there is a conflict between compulsory heirs and devisees and legatees, art. 911 applies.• Insufficiency of assets - The present article contemplates an order of preference in the payment of legacies and devises when the estate destined for legacies and devises should not be sufficient to cover all of them. Those first in order of payment must be paid in full, and if nothing remains for those following, then these are rendered inoperative for lack of sufficient property.Shortage may arise (a) when the total of the estate left at the time of the testator's death should not be enough to cover the total of the legacies and devises, even when there are no debts against the estate, or (b) when the gross estate left by the testator would have been sufficient to cover the legacies and devises, but the payment of debts and expenses of administration hasPage 148 of 207reduced the net remainder such that it can no longer cover the original amount of the legacies and devises as given in the will.Under the first situation, the application of art. 950 is clear. The legatees and devisees must receive their legacies and devises in the order given.The second situation may arise from either one of twocircumstances: (a) The testator may have provided for thepayment of debts and expenses or designated theproperty for such payment, and after such payment hasbeen made, the estate left is found insufficient to cover the5=" total amount of the legacies. In such case, the order of

"^2. payment of legacies given in this article can also be.—\ applied without difficulty, (b) The testator may not have5>; made provisions for the payment of debts and expensesO Under such circumstances, sec. 729 of the Code of CivilProcedure provides that "the estate...given by will to thedevisees or legatees, shall be liable for the payment ofdebts, expenses of administration, and family expenses, inproportion to the amount of the several legacies ordevises, except that specific devises and legacies may beexempted if it appears to the court necessary to carry intoeffect the intention of the testator, and if there is sufficientother estate." This principle is still applicable.This principle, referring to the payment of debts, must have a preferential application over the present article, which refers to the payment of legacies and devises, inasmuch as legacies and devises are paid only after the debts and expenses have been covered. Thus, the amount of the legacies and devises are first reduced to cover the debts.• Remuneratorv Legacies or Devises - By remuneratory legacies or devises are meant those which are given in recompense for services rendered to the testator or his family, provided such services do not constitute recoverable debts. The fact of being remuneratory may be expressly stated in the will itself, or it may be proved by the legatee or devisee if such fact is questioned.• Specific Things in Estate - The reason for the preference given to legacies and devises cf specific things found in the estate of the deceased is that, by the express designation of the thing itself, the testator shows his intention to have the legatee or devisee alone benefit from such things specified.ART 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator.___ART 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value.Legacies of money must be paid in cash, even though the heir or the estate may not have any. _____The expenses necessary for the delivery of the"Accessories" is used in this article in a broad sense. It is enough that it is made dependent upon another, from which it should not be separated and with which it should go, even if it can be separated, inasmuch as it is the intention of the testator that the properties so related should pass jointly to the devisee or legatee. Accessories include also those things which are necessary for the use of the thing bequeathed.REVIEWER IN SUCCESSION

2007Athing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime.___This article merely lays down general rules. It does not preclude agreement of the parties interested to effect payment of the legacy or devise in some other way. Expenses of delivery - The expense for the payment of the legacy or devise must be borne by the estate itself, and not by the particular devisee or legatee who may have been charged with is payment. The expenses must be necessary expenses, which refer to voluntary delivery of the property. If there should be a litigation to compel delivery of the legacy, the court should determine who shall bear the costs and expenses of the suit.ART 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it.ART 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous.Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise.Partly burdened bequests - It is presumed by the law that the testator would not have given the legacy or devise of the gratuitous portion without the onerous part; hence, the provisions forbidding the acceptance of that which is gratuitous and the repudiation of that which is onerous.ff the legatee or devisee should die before having accepted the legacy or devise, partial acceptance is allowed to his heirs, each of whom may accept or repudiate that part corresponding to him.ART 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both.Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both.ART 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion.________• Ineffective bequest - This article covers all cases in which a legacy or devise validly made foils to have effect, such as by the prior death of the legatee or devisee, incapacity or repudiation, transformation of the thingPage 149 of 207

bequeathed, and any other cause which may render ineffective a legacy or devise of a thing in the possession of the testator at the time his death.Charges and conditions - The property remains burdened with the charges and conditions which the testator may have imposed upon it, unless the conditions are purely personal to the legatee or devisee who does not succeed, in which latter case the conditions are extinguished.ART 957. The legacy or devise shall be without effect:(1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not theifiafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;(3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance _____with the provisions of Article 928._________Transformation — In order to constitute transformation such as is sufficient to revoke the legacy or devise, it must be both in form and in denomination. The form is the external appearance o the object; while the denomination is the name by which it is known by all, according to its nature and class This cause of revocation, therefore, does not apply to things which have no definite form or name, such as a mass of material, like gold, silver, etc.There are objects which cannot be transformed, like large cattle and fungibles. Therefore, legacies or devises of such things cannot be considered revoked by this first cause. However, such legacies or devises may be revoked under the third cause or by the loss of the thing, if the legacy or devise is specific.Alienation - When the testator, after having made a will bequeathing some particular property, subsequently alienates that property, there arises a presumption that he has changed his intention, and the legacy or devise has been revoked.The alienation, in order to constitute a revocation, however, must be voluntary on the part of the testator.If the alienation is subject to a suspensive condition, the mere fact of alienation does not revoke the legacy or devise. The effectiveness of the legacy or devise depends upon the happening of the condition. However, if the condition is resolutory, the legacy or devise is automatically revoked, because there is a valid and effective alienation. The happening of the resolutory condition and the return of the property to the testator will not revive the legacy or devise.REVIEWER IN SUCCESSION

2007AIf the alienation is only partial, the legacy or devise subsists with respect to that part which remains or which was not alienated.Loss - The thing is considered lost when it perished, or disappears or goes out of the commerce of man. The loss referred to as sufficient to revoke a legacy of a specific thing, however, is not only material loss; it includes juridical or legal loss, in the sense that the thing is no longer in the estate of the testator at the time of his death or subsequent thereto without the fault of the heir, executor or administrator.If the loss takes place after the testator's death, by any cause imputable to the heir, executor, or administrator obliged to deliver the thing, then the latter shall pay its just value to the legatee or devisee.Other causes of revocation - The causes of revocation enumerated in this article are not the only causes rendering legacies and devises ineffectual. There are others, such as the nullity of the will, noncompliance with suspensive conditions affecting the bequest, sale of the thing to pay the debts of the deceased during the settlement of his estate, etc.because the will of the testator is the supreme law in succession.ART 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise.ART 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree.____________• Scope of the article - This article is broad enough to cover all testamentary dispositions, including the institution of heirs, and should have been placed immediately after art 847 as it is a rule of interpretation of testamentary dispositions.• Not identical to intestacy - The legal reason for this provision is the same underlying intestate succession; namely, that the affections of tne testator are stronger for those nearest to Nm in degree of relationship. But it should not be understood that the institution contemplated in this article is governed by the rules of intestacy.Not being governed by such rules, the right of representation does not exist in this institution. The institution governed by this article favors, not the relatives with the better right, but those nearer in degree; hence, those in the first exclude those in the second, and so on.It necessarily follows that preference between lines should also be disregarded in this institution. Thus, all relatives within the first degree, whether in the descending or ascending line, exclude all others in the next

degree. And since the law speaks of relatives in general, no distinction is to be made among them based on the nature of the relationship.• Relatives of testator - The relatives referred to ton the present article are only those within the degree recognized by the law of intestate succession, or those within the fifth degree from the testator.• Contrary intent of testator - The provisions of this article will not apply in cases where it clearly appears that the intention of the testator is otherwise, for if that contrary intent is sufficiently manifest, it must be complied with.Page 150 of 207PCIB v. Escolin, supraHELD: The provision is a simple case of conditional simultaneous institution of heirs, whereby the institution of Mr. Hodges is subject to a partial resolutory condition, the operative contingency of which is coincidental with that of the suspensive condition of the institution of his siblings-in-law, which manner of institution is not prohibited by law._______Fernandez v. Dimaqiba (1967)A will was executed by Benedicts on Oct. 22, 1930, designating Ismaela as the sole heir. Ismaela Oimagiba submitted to the CFI a petition for the probate of the purported will of Benedicts de los Reyes. Fernandez et.al. claiming to be intestate heirs, opposed ihe probate on the ground that the will has been revoked by an antecedent act of Benedicta (testatrix) when she executed 2 deeds of conveyance of the major portion of the estate in favor of Ismaela. The conveyances were later on set aside by the SC.Held: The issue of revocation is predicated on Art. 957 (2), CC in that "the legacy or devise shall be without effect if...one testator by any title or for any cause alienates the thing bequeathed or any part..." In upholding the validity of the will. SC noted that unlike the French or Italian codes, the basis of the provision, is a PRESUMED CHANGE IN THE INTENTION ON THE PART OF THE TESTATOR. Art. 957 is not applicable here.Here, the intention of the testatrix seems not to have changed in spite ot the conveyances she executed. This was gleaned from the fact that the conveyances were executed in favor of the legatee herself (i.e. Isabel a Dimagiba), and that no consideration whatever was paid by the latter. It would seem that the testatrix merely intended to comply in advance with what she ordained in her testament, rather than an alteration or departure therefrom.Even if article 957 was applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies. The annulment was supposedly due to undue influence which would imply that the testatrix wasn't expressing her own free will and intent in making the conveyances. It cannot be concluded that such conveyances established a decision on her part to abandon the original legacy._______Belen v. Bank of PI (1960)Benigno Oiaz made a codicil naming Filomena Diaz as one of the legatees. Benigno died and his will was admitted for probate, and the estate was put under administration of BPI as trustee. Filomena died, leaving behind 2 legitimate children. Milagros (with 7 children) and Onesima. Onesima fited petition asserting amount.due to Filomena from Benigno's will should now be divided between her and Milgaros equally, to the exclusion of the 7 legitimate children of Milagros. CFI held that children should be included. Onesima invokes Art. 959 where "a distribution made in general terms in favor of the testator shall be understood as made in favor of those nearest in degree."Held: SC said that 959 is specifically limited to the case wherethe beneficiaries are relatives of the testator, not those of thelegatee. The ratio legis. that among the testator'srelatives the closest are the dearest, doesn't apply where thebeneficiaries are relatives of another person (the legatee) & notof the testator.The word "descendant" (as used in will) must be interpreted, inREVIEWER IN SUCCESSION

2007Athat, in the absence of other indications of contrary intent, the proper rule to apply is that the testator, by designating a class or group of legatees, intended all members to succeed per capita. Hence, original legacy should be equally divided among her surviving children and grandchildren.______________MAGIC NOTES:(CH - compulsory heir. FP - free portion)• There is a difference between a legacy and a devise. But for purposes of discussion when I refer to legacy, it includes devise.• Under Art.924, all things and rights which are within the commerce of man may be bequeathed or devised. Now, remember our discussion on a person donating parts of his body in a will. As a general rule, any legacy of a part of human body may be invalid as a legacy because parts of a human body are outside the commerce of man. Take note, however, of the exception in the law. This is with regards to a special law allowing a donation with parts of human body. However, this should comply with the requirements laid down by that Jaw. If it does not comply therewith, the donation is invafid.• The legacies and devises made by the testator shall be chargeable against the free portion because the testator has no control ever the legitime. But if the testator has no compulsory heir, then he is at liberty to give all his estate by way of legacies and devises under art. 714. This article says that the testator may devise and bequeath the free portion as he may deem fit (This is not actually in point). In art. 842 "One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed." "One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with

regard to the tegitime of said heirs." When he has no compulsory heirs, then his entire estate is free. It is at his disposal. But when he has a CH, he is only free to dispose the FP. This is provided for in art. 91<*.• Under art 925, a testator may charge with legacies and devises not only his CH but also his legatees and devises. What does this mean? For example I gave my coconut plantation to A with a condition that for the first year of harvest that the property is with A, A will deliver P 10,000 to B. So a legacy was given to B but this did not come from the FP of the estate. It comes from the fruits of the property given to A. In reality, this is an institution with a mode. Perhaps, this is the devise referred in the first par. of art. 925. Technically speaking, however, this is not a devise or legacy because the property is no longer owned by the testator but by A so that the devise to B is not actually a devise.Q: How about if the legacy is as follows: 'I hereby give to A my coconut plantation except the harvest for the first year from my death which shall pertain to B." Is this a devise or legacy?A: Insofar as the land is concerned, there is no question that it is a devise.Q: How about the fruits given to B? Is that a legacy? A: No answer given.Page 151 of 207Q: Is it necessary that the property bequeathed be owned by the testator?A: Look at art. 930, "The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." So the general rule is that when the testator bequeaths something he does not own, believing it to be his, the legacy is void.Q: Suppose the testator was aware that the thing was not his and despite his knowledge, he nonetheless gave it as a legacy, what is the status of that legacy?A: According to the authorities, when the testator knew the thing not to be his, and despite that knowledge he gave that thing to a legatee, there is an implied order for the estate to acquire the thing. This is in consonance with art. 931 which says that "if the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee..."Q: How about if the testator did not know that the thing was not his He thought it was his What is the status?A: VOID if the testator erroneously believed that the thing pertains to him (art. 930).Q: Suppose he later on acquirao' the property before dying, what happens?A: The disposition shall take effect. (Akala niya kanya pero hind naman pala kanya) So acting on an erroneous belief that the thing was his. he gave the property as his legacy, the legacy is void. But if after the execution of the will the testator acquired the same property, the disposition will take effectQ: Why?A: Because th<> tact that he acquired the property is an acknowledgement o1 his eTor that what he gave he thought was his. We can infer that the subsequent acquisition of the property was intended by the testator to validate that legacy which is otherwise void.Q: Suppose the testator knew all along that the property was his and despite this, he gave it to another, what is the status of the property? Art 931 says that he will order that the thing be acquired and be given to his legatee: This is valid under art. 931. Suppose he did not order the acquisition of the thing?A: According to authorities, the fact that he gave something he knew wasn't his to another implies that he ordered the acquisition of the thing. This is valid. It will only become void if he erroneously believes it was his (930). You follow?Q: How about if the testator alienated the property after making a will and before dying, what happens to the legacy?A: Look at art. 957 nos. 1 and 2. Under no. 1, the legacy or devise shall be without effect "If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had." For example a gold ring transformed to a gold necklace, a car transformed into a jeepney. The legacy will be deemed toREVIEWER IN SUCCESSION

2007Abe without effect. Or if for example he sells them. He gave it to A in a will but after executing the will, he sold the property, the legacy is without effect. Thus under no. 2, the legacy is without effect. If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated..."Q: Suppose the testator reacquires the property after selling it, what happens to the legacy?A: The 2nd sentence of number 2 state that if after the alienation the thing should again belong to the testator, even if by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase.Q: A has a house and lot. The house and lot was donated to B. Later on A forgot that the property was donated. In her will, she devised the property to B without remembering that the property was donated earlier to B (B was already the owner of the property at the time the devise was made). After the devise, B sold the land to a 3rd party. Upon A's death. B is no longer the owner. Is the legacy effective?

A: No. Under art. 933 "If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have been subsequently alienated by him."Q: A has a lot. She made a will giving it to B. Before A's death however, she sold the land to B. When A died, they discovered that the land sold to him was given to him in the will. Is the legacy effective? If the legacy is still effective, then B may get the value of the property from the estate.A: Now look at the second paragraph of art. 933. The first paragraph refers to the situation that the property was already belonging to the legatee at the time of the making of the will.The second paragraph refers to the situation when the legatee is not the owner of the property at the time of making of the will but before the death of the testator. Solution: "If the legatee or devisee acquires it gratuitously after such time (after the making of the will), he can claim nothing by virtue of the property. However, if the property has been acquired by onerous title he can demand reimbursement from the heir or estate.Q: What amount can the legatee ask for reimbursement? A: The amount he paid for the property and not the value of property at the time of succession.Q: Art. 932 is a modification of art. 933. Art 932 provides that "The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have interest therein. *Example: the property belonged to the legatee and then the testator bequeathed it, this is ineffective. But if the legatee has mortgaged the property in the meantime, the second paragraph of art 932 tells us that if the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to thatPage 152 of 207oextent. Take note: the testator must expressly order it in the will. If there is no express order then the legacy is without effect.Q: How about the fruits?A: There are 2 kinds of fruits. One type refers to fruits from the execution of will to the death of the testator which we shall designate as Fl. Another refers to the fruits after the death of the testator until the property is delivered to the legatee F2. To whom will these fruits belong? There is no question that F2 should belong to the legatee because his ownership over the thing has become vested.Under art. 948, "if the legacy or devise is of a specific and determinate thing pertaining to the testator, the » legatee or devisee acquires the ownership thereof upon 3 the death of the testator, as well as any growing fruits, or 7 unborn offspring of animals, or uncollected income; but not ^ the income which was due and unpaid before the latter's death."So income before the death of the testator but after the making of the will shall not pertain to the legatee if the devise is a specific and determinate thing. There is an accompanying provision in art 793 "Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of the making of the will, should it expressly appear by the will that such was his intention." Hence, for Fl to belong to the legatee, it must expressly appear in the will that this is the intention of the testator.Q: How about if the property is generic, to whom will the fnjits go? (If specific and determinate, F2 wilt go to the legatee under art. 948 and art. 781. F1 will go the estate under art. 948.A: If generic property, as a general rule, it will go to the estate. Art. 949 provides that "if the bequest should not be of specific and determinate thing, but is geneiic or of quantity, its fruits and interest from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered."F2 will only go to the legatee if expressly provided for in the will under art. 949, unlike in the case of specific and determinate thing wherein the F2 will pertain to the legatee even in the absence of a provision in the will to that effect. Can you follow? If the property is generic, then F2 will not go the legatee as a matter of general rule. It will only go to the legatee if the testator had made a provision to that effect.Q: What about Fl where will it go?A: There is no provision in the Code but applying by analogy,this will go the estate and not to the legatee. If specific,obviously it will go the estate.Q: Take note that legacies and devises are chargeable to the FP. If the testator has no CH, then all of the estate is free. If he has CH, legitime will come in so that only a portion of the estate is free. From this portion, the legacies and devises will be charged. Suppose the FP (estate 100.000. LC-50,000) is 50.000 and he gave 10,000 each to 7 persons, how will the estate be divided? Who will suffer reduction if there are preferred legatees in the will?REVIEWER IN SUCCESSION

2007AA: Under art. 950, "If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order:1. Renumeratory legacies or devises:2. Legacies or devises declared by the testator to be preferential:3. Legacies for support;4. Legacies for education;5. Legacies or devises of a specific, determinate thing which forms a part of the estate;6. All others pro rata.

However, under art. 911 (2), it provides that "the reduction of the devises or legacies shall be pro rata without any distinction whatever."Authorities harmonized these 2 provisions by applying art. 911 if there are legitimes for CH. This is designed so that the legitimes of the CH will not be impaired. Here, all the legatees will suffer a reduction pro rata. Art. 950, on the other hand, is applicable if there are no CH so that no legitimes will be impaired. Here, there will be preferences so tiiat not all will suffer reduction. If after giving the remuneratory legacies and nothing is left, the other legatees of different categories will not receive anything. If after giving the remuneratory legacies and there remains of the estate, this will be given to the next preferred legatee in Art. 950.The difference between the 2 articles is that in art. 950, there are no compulsory heirs so that the entire estate is free. However, the legacies and devises exceeded the estate. There will be reduction by preference under art. 950. But if there are CH and the legacies and devises merely impair the legitimes, reduction will be pro rata among all kinds of legatees under art. 911.Q: Suppose all the legatees where there are no CHs areremuneratory legatees, who will suffer reduction? A: It will be pro rata reduction of all of them.Q: As an institution, "the legatee or devisee cannot accept part of a legacy or devise and repudiate the other, if the latter be onerous" (art. 954). "Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise.'fpar. 2 same) When he accepts, all must be accepted, whether ft is onerous and unencumbered or unconditional. But if both legacies are onerous can he repudiate one and accept the other?A: DLC: Art. 955. Here, there are 2 legacies, one is onerous and the other is not. In art. 954, there is one legacy of 2 parts. Tandaan ninyo iyan.Under art. 955, the legatee or devisee of two legacies or devises, one of which is onerous cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. (This rule will apply if there are 2 legacies). But if the testator intended the 2 legacies or devises should be inseparable from each other, the legatee or devise must either accept or renounce or both."Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both." (Kung CH. pwede langkumuha ng legitime intestate devise).inheritance and legacy orQ: Suppose the repudiation is not qualified, which part did herepudiate, the legacy or the inheritance? A: The presumption is that he repudiated both.Q: What happens if the legatees renounce the legacy? To whom will the property subject of legacy go?A: That is provided for in Art 956. Hence, "If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy orr devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion." So as general rule, the property will become vacant.Q: To whom will that property go? A: We apply the rule: I S R A I • I - if there is an institution, apply it. But here, we cannotapply it since the instituted heir repudiated it. We willlook for a substitute. S - if there is a substitute, the property will go to thesubstitute. If there is none, we will go to the next one. R - representation. This is not applicable in the case atbar because there is no representation in voluntarysuccession. Pupunta ka ngayon sa accretion. A - if there is an accretion by the co-heir, the property willgo to the co-heir. Accretion is applicable. If accretionis not applicable, then the property will go to theintestate heirs. I - the property will go by way of intestacy to the legalheirs.NOTE: Dannycon advised students to get hold of Jurado's Civil law Reviewer and try to look at the problems therein.Page 153 of 207REVIEWER IN SUCCESSION

2007AINTESTATE SUCCESSION XX. GENERAL PROVISION'S""ARHAOA.1. When does it take placeART 960. Legal or intestate succession takes place:(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to th3 property of which the testator has not disposed;(3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.TOLENTINO:

• The phrase 'without a will" exdudes the case when a person dies with a will that lacks the legal requisites or a will the wheieabouts of which are not known.• A void will has no legal existence. A will can be said to be void if there exists any cause for disallowing it.• A void will and a will that later lost its validity are essentially the same. The only difference is that the first refers to a will that has never been valid; the latter to a valid will which iater lost its validity.Validity should be interpreted as efficacy.Loss of validity does not refer to a will revoked by a subsequent will for in that case, there would be no intestate succession because of the existence of a second valid will and because the first will is not invalidated by the second heir but only made ineffective.• Absence of institution of heirs includes cases where the institution of heirs is void. In view of the rule in this jurisdiction that there is no legal difference between heir and devisee, or legatee, the term "heir" should be understood to include all persons benefited under the will.• Legal succession will take place only as to that part of which the testator has not disposed. This cause includes cases where the dispositions of certain property or portions do not become effective because they are void according to law.• The condition referred to is suspensive. The nonfulfillment of resolutory condition does not give way to intestacy. On the contrary, the rights of the instituted heir or legatee are maintained so long as the resolutory condition does not happen. When the event upon which a conditional legacy does not happen, the legacy passes to the persons named by the law to succeed the testator: that is to say, legal or intestate succession takes place as to that legacy.There will be no intestacy, however, although the suspensive condition does not arise if a substitute has been appointed or the right of accretion exists between the conditional heir or legatee or devisee and another. In these cases, the property or portion of the conditional heirPage 154 of 207or legatee or devisee who does not succeed passes to the substitute or co-heir.. -!fli?stacy wil) no' follow from the prior death of the heir or his renunciation of the inheritance if the testator has provided for substitution or when there is a co-heir in whose favor the right of accretion exists Incapacity of the heir instituted will lead to intestacy unless the right of accretion or substitution obtains. There are other causes of intestacy not mentioned in Art 960. Examples are the happening of a resolutory condition, expiration of the term or period of the institution under Art. 885, and by the noncompliance or the impossibility of complying with the will of the testator.2. who are the intestate heirsART 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State.Unlike the disinheritance of compulsory heirs, this exclusion does not require any legal cause but depends solely upon the will of the testator. It may be tacit or express and purely negative. This is admissible only when the intent of the testator to exclude is indisputable.There are two notable features of this express exclusion in German law: (1) the State as intestate heir cannot be excluded by this method, but only by naming a voluntary heir, because a person cannot be totally without a successor mortis causa; (2) the exclusion of a person does not extend to his descendants and successors unless the will provides for such extension.The effect of the exclusion of an intestate heir is to make his share accrue to the other heirs of the same degree. If he is the only one nearest in degree, then those next in degree will succeed.Resales v. Resales (1987)HELD: The surviving spouse is considered a 3rd person as regards the estate of the parent-in-law, because there is no filiation by blood._________________________3. order of and share in intestate successionART 962. In every inheritance, the relative nearest in degree exdudes the more distant ones, saving the right of representation when it properly takes place.Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987. paragraph 2, concerning division between the paternal and maternal lines_______The relatives nearest in degree exclude the more remote.This, should there be relatives of the first degree, therelatives of the second degree cannot inherit. This rule ofproximity in relationship is also found in testamentarysuccessions.To the rule of proximity, the present article excepts thecases in which the right of representation obtains. InREVIEWER IN SUCCESSION

2007Areality however, representation does not contradict the general rule of proximity. Its grammatical meaning suggests that the person having this right inherits in the place of the person under the same conditions as (he latter. In legal contemplation, the one who inherits is the same person represented.

There are other exceptions to the rule of proximity. The law calls first the descendants, then the ascendants and finally, the collaterals. The general rule will apply, therefore, to relatives within the same degree except in the case when the relatives are found in different lines, in which case the order of preference between lines must first be observed and within each line, the rule of proximity applies.There is also the rule of equal division, that is, relatives who are in the same degree shall inherit in equal shares. The rule of equal division must be applied only in the same manner as the rule of proximity: that is the order of preference between lines should first be observed, and within each line, all relatives in the same degree, which must be the nearest, share equally. To the rule of equal division, there are three exceptions: (1) the division between whole and half-blood relatives, (2) the division in representation, and (3) the division in the ascending line.De los Santos v. De la Cruz (1971)Plaintiff Gertrudes de los Santos and several co-heirs including the defendant Maximo dela Cruz executed an extra-judicial agreement which was for the purpose of distribution of lands for the heirs of Pelagic dela Cruz. In the agreement, they agreed to adjudicate 3 lots to the defendant in addition to his corresponding share, on condition that he would undertake the development and subdivision of the estate. He refused to perform his obligation. Thus, plaintiff brought this action for specific performance. Defendant admits execution of sa«J agreement but alleged that agreement is void as to plaintiff because she is not an heir of Pelagic dela Cruz. Defendant is the nephew of the deceased white plaintiff is the grandniece of said Pelagio. Marciana dela Cruz, mother of plaintiff and niece of Pelagic, predeceased Pelagio. Lower court held that D ic estopped fron raising the issues and was ordered to perform his obligation. Hence this appeal.Held: Plaintiff Gertrudes is not an heir of the decedent. Being a mere grandniece of Pelagio, she cannot inherit from the latter by right of representation (under Art 972). much less could she inherit in her own right (Art 962).Relatives nearest in degree exclude the more distant ones. Here, the nephew and nieces excluded the grandniece. The fact that she was included in the extrajudicial agreement did not confer upon her the right to institute this action. Its express purpose was to divide the estate among the heirs of Pelagio, which she is not. Thus, she not being an heir, the partition is void with respect to her._______________MAGIC NOTES:• Properties of decedent that aren't disposed of by will shall be disposed of in accordance with the rules on intestacy.• Art 960 - instances when legal succession takes place; no definition of intestate succession, o Why is there no definition? Because framers couldn'tagree on a definition, o Proposed definition in Code Commission: Mode ofsuccession that wHI govern when decedent dieswithout a valid will.Page 155 of 207A:Q:Not accurate because the testator can leave a will but properties will be disposed by way of intestacy (example: If the testator leaves a will with only one provision disinheriting the heir, his properties will be disposed by intestacy.) Spanish Civil Code rules of succession1. the direct line excludes the collateral line2. the descending direct line excludes the ascending- why? Because the love of persons is like the flow of the river (the normal behavior of persons is to love more .his descendants than ascendants)3. (he nearer excludes the more remote In the new civil code, illegitimate children are given rights even in intestacy. This tempered the rule on exclusion and concurrence among legal heirs. However, in the old Civil code, exclusion is favored, rather than concurrence. Before, the spouse is excluded by the children (because the spouse is only a relative by affinity) and the illegitimate relatives are excluded (even if recognized by illegitimate parents). Legal heirso Legitimate ascendants o Illegitimate parents o Legitimate children o Illegitimate children o Surviving spouseo Brothers, sisters, nephews and nieces (BSNN) o Other collateral relatives c StateIf one of the legitimate ascendants, illegitimate parents, legitimate children or illegitimate children survives, the brothero. sisters, nephews and nieces and the state are excluded.If one of the legitimate ascendants, illegitimate parents, legitimate children, illegitimate children or surviving spouse survives, the other collateral relatives and the state are excluded. If they concur in legitimes. they concur in intestacy.Legitimate ascendants, surviving spouses and brothers,sisters, nephews and nieces concur. Who are the legalheirs?Only legitimate ascendants and surviving spouse. BSNNare excluded by legitimate ascendants.Surviving spouse and illegitimate children concur. One half by legitime and one half by intestacy (only for free portion).Ex. Xestate = 120Heirs Intestate Legitime Free Portion

X 60 30 30

Y 60 30 30

o In intestacy, apply interest given by law to estate, important to know free portion because he who gets the free portion will be the one to suffer.REVIEWER IN SUCCESSION

2007AQ: Legitimate ascendants and legitimate children concur. Who are the legal heirs?A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion)Q: Legitimate ascendant (1/2) and illegitimate child (1/2)concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 byintestacy; the illegitimate child will get 1/4 by legitime and1/4 by intestacy.Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion?A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8.• Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class.Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNNQ: surviving spouse and children of nephews and niecesconcur. Who will inherit? A: only the surviving spouse will inheritQ: legitimate children and surviving spouse concur. How willthey share? A: All are intestate heirs. The surviving spouse will get ashare equal to the intestate share of a legitimate child.Ex.estate = 2407\BHeirs Intestate Legitime I Free Portion

A 80 60 20

B 80 60 20

Y 80 60 20

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion.Q:only 1 legitimate child and surviving spouse concur, will they share?Ex.HHowA: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy.ExEstate = 240

Supreme Court Jurado Caguioa

Heirs Intestate Intestate Intestate

Y 120 80(60 legitime. 20 free portion)

90(60 Legitime, 30 free portion)

Z 120 160(120 legitime, 40 free portion)

150(120 legitime. 30 free portion)

o oCDIf you literally apply the provision on intestacy, Y(the surviving spouse) will get the entirety of thefree portion.,,Tolentino: so be it, apply the provisionPadilla: the spouse is excluded. Since theconcurrence provision is only for children and notjust 1 child, everything goes to the childJurado's solution is equitable but has no legalbasis.The Supreme Court, citing Tolentino in the caseof Santillan v. Miranda, held that the provisionshould be literally applied. That is, in theexample above, both Y and 2 will receive 120each.Q:

If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion• Collateral relatives will inherit if there is nobody in the direct line.• BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse.• The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009)• The nearer excludes the more remote.• Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood.• If O dies, B and C will inherit; E. F. G excludedPage 156 of 207REVIEWER IN SUCCESSION

2007AQ: Legitimate ascendants and legitimate children concur. Who are the legal heirs?A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion)Q: Legitimate ascendant (1/2) and illegitimate child (1/2)concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 byintestacy; the illegitimate child will get 1/4 by legitime and1/4 by intestacy.Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion?A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8.• Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class.Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNNQ: surviving spouse and children of nephews and niecesconcur. Who will inherit? A: only the surviving spouse will inheritQ: legitimate children and surviving spouse concur. How willthey share? A: All are intestate heirs. The surviving spouse will get ashare equal to the intestate share of a legitimate child.Ex.estate = 2407\BHeirs Intestate Legitime I Free Portion

A 80 60 20

B 80 60 20

Y 80 60 20

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion.Q:only 1 legitimate child and surviving spouse concur, will they share?Ex.HHowA: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy.ExEstate = 240

Supreme Court Jurado Caguioa

Heirs Intestate Intestate Intestate

Y 120 80(60 legitime. 20 free portion)

90(60 Legitime, 30 free portion)

Z 120 160(120 legitime, 40 free portion)

150(120 legitime. 30 free portion)

o oCDIf you literally apply the provision on intestacy, Y(the surviving spouse) will get the entirety of thefree portion.,,Tolentino: so be it, apply the provisionPadilla: the spouse is excluded. Since theconcurrence provision is only for children and notjust 1 child, everything goes to the childJurado's solution is equitable but has no legalbasis.

The Supreme Court, citing Tolentino in the caseof Santillan v. Miranda, held that the provisionshould be literally applied. That is, in theexample above, both Y and 2 will receive 120each.Q:If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion• Collateral relatives will inherit if there is nobody in the direct line.• BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse.• The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009)• The nearer excludes the more remote.• Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood.• If O dies, B and C will inherit; E. F. G excludedPage 156 of 207REVIEWER IN SUCCESSION

2007AQ: Legitimate ascendants and legitimate children concur. Who are the legal heirs?A: Legitimate ascendants are excluded by intestacy. Legitimate children share equally in the estate. (V4 legitime, V4 distribution by intestacy of free portion)Q: Legitimate ascendant (1/2) and illegitimate child (1/2)concur. Who will get the free portion? A: The legitimate ascendant will get 1/2 by legitime and 1/2 byintestacy; the illegitimate child will get 1/4 by legitime and1/4 by intestacy.Q: legitimate ascendant (1/2), illegitimate child (1/4) and surviving spouse (1/4) concur. All are intestate heirs. Who will get the free portion?A: The surviving spouse. The shares will be as follows -legitimate ascendant will get 1/2 of the estate, the illegitimate child will get 1/4 and the surviving spouse 1/8.• Brothers, sisters, nephews and nieces (BSNrJ) are collateral relatives but they belong to a special class.Q: surviving spouse and BSNN concur. How will they share? A: 1/2 to surviving spouse and 1/2 to BSNNQ: surviving spouse and children of nephews and niecesconcur. Who will inherit? A: only the surviving spouse will inheritQ: legitimate children and surviving spouse concur. How willthey share? A: All are intestate heirs. The surviving spouse will get ashare equal to the intestate share of a legitimate child.Ex.estate = 2407\BHeirs Intestate Legitime I Free Portion

A 80 60 20

B 80 60 20

Y 80 60 20

If there is a donation mortis causa, they will all share in the burden to the extent of their free portion.Q:only 1 legitimate child and surviving spouse concur, will they share?Ex.HHowA: The legitime of the surviving spouse will be reduced to 1/4. His/her legitime cannot be equivalent to that of the legitimate child because nothing will be left in the free portion. There is no special rule in intestacy.ExEstate = 240

Supreme Court Jurado Caguioa

Heirs Intestate Intestate Intestate

Y 120 80(60 legitime. 20 free portion)

90(60 Legitime, 30 free portion)

Z 120 160(120 legitime, 40 free portion)

150(120 legitime. 30 free portion)

o oCDIf you literally apply the provision on intestacy, Y(the surviving spouse) will get the entirety of thefree portion.,,

Tolentino: so be it, apply the provisionPadilla: the spouse is excluded. Since theconcurrence provision is only for children and notjust 1 child, everything goes to the childJurado's solution is equitable but has no legalbasis.The Supreme Court, citing Tolentino in the caseof Santillan v. Miranda, held that the provisionshould be literally applied. That is, in theexample above, both Y and 2 will receive 120each.Q:If one of the heirs (children) was disinherited, how do we divide the estate? A: portion that he should have - accretion• Collateral relatives will inherit if there is nobody in the direct line.• BSNN are preferred over other collateral relatives; BSNN concur with the surviving spouse.• The descending, collateral relatives exclude the ascending collateral relatives (Art. 1009)• The nearer excludes the more remote.• Half blood collaterals are entitled to receive something but their share is 1/2 that of the full blood.• If O dies, B and C will inherit; E. F. G excludedPage 156 of 207REVIEWER IN SUCCESSION

2007AQ: can H inherit from D (as half brother)?A: NO (barred by Art 992). An illegitimate child is disqualified to inherit from legitimate relatives of parents and vice versa.Q: Is D a legitimate relative of the parent?A: Yes. H cannot inherit from D and D cannot inherit from H.• Illegitimate children are not relatives.• If H dies, B cannot inherit, but I can inherit from H because it is not covered by Art. 992 (applies only to intestacy)• People v. Mendoza1st marriage2nd marriage while 1st subsisting2nd marriage -biagamousy1 marriage valid3rd marriageyitug: not all void marriages should be brought to court. Only those ostensibly valid marriages. Quisumbing: no bigamy in 3rd marriage because the RPC has not yet been amended. There must be a prior subsisting marriage before one can be charged with bigamy. The court does not dissolve a marriage null and void ab initio. It only declares the nullity of such marriage. This is still the controlling doctrine (en bane decision will control over a division decision). People v. Aragon: A voidable marriage can be dissolved by the court. It is still bigamy. A voidable marriage is valid until annulled.. 6. RelationshipsARHM)ART 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree.ART 964. A series of degrees forms a line, which may be either direct or collateral.A direct line is that constituted by the series of degrees among ascendants and descendants.A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor.ART 965. The direct line is either descending or ascending.The former unites the head of the family with those who descend from him.The latter binds a person with those from whom he descends.ART 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three'from the great-grandparent.In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.ART 967. Full blood relationship is that existing between persons who have the same father and the same mother.Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father.ART 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue toPage 157 of 207REVIEWER IN SUCCESSION

2007Athe others of the same degree, save the right of representation when it should take place________This article presupposes the case where there are several relatives of the same degree and one or more of them repudiate their share or are

incapacitated to inherit. In such case the shares that would pertain to those who repudiated or are incapacitated pass to relatives of the next degree, but are retained by the other relatives of the same degree through the right of accretion, with the exception of the cases where the right of representation obtains. The right of representing a living person obtains only in cases of disinheritance and incapacity. When the fact which prevents a living person from succeeding is his repudiation, he cannot be represented. The right of accretion takes place with respect to his share; and if there are no other co-heirs, Art. 969 will apply.ART 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance._____• The present article presupposes a case where only the nearest relative or relatives repudiate the inheritance, leaving none of the same degree to succeed. In such case, it is dearly provided that those of the next degree shall inherit in their own nght. Art 977 provides that heirs who repudiate may not be represented. Accretion is not possibte.• Incapacity of the nearest relative - The present article does not provide for the case where only an heir or all the heirs called by law are incapacitated; it deals only with repudiation. The right of representation may or may not obtain. Should the incapacitated heir be a child or descendant of the deceased, and he in turn has children or descendants, the latter may represent the incapacitated heir. The same ride obtains when children of an incapacitated brother or sister survive with uncles and aunts with whom they concur in succession. In all other cases, no representation can obtain; the heirs next in degree shall succeed in their own rightC. Representations \ L., I 4/.ART 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited._______Concept of representation - The idea of the right of representation is equivalent to the idea of subrogation. Thus, legal heirs fan into two groups: those who inherit by their own right, and those who inherit by the right of representation. By fiction of law, the latter are placed in the same degree as the former.Effect of representation - In the first place, a relative of a more remote degree of relationship is placed in the degree which entitles him to the right to inherit.Page 158 of 207In the second place, the sole representative or all the representatives merely take the place of the person represented.The person representing does not succeed the person represented, but some other person. This in turn has its consequences. In the first place, the son who repudiates the inheritance from his father does not lose the right to represent the latter in the inheritance from the grandfather. In the second place, a great-grandson may be called to the inheritance of his great-grandfather even if the grandfather should die before the great-grandson has been conceived. In the-.third place, a son who cannot inherit from his father on •f/ie ground of unworthiness can still inherit from his grandfather by representing the latter, provided he himself is not unworthy with regard to the said grandfather. In the fourth place, since the person representing virtually succeeds to an inheritance, he must be possessed of all the qualities necessary for the right to inherit: he must not therefore, be incapacitated or disinherited by the person to whom he succeeds. Lastly, he succeeds not only to the rights but also to the obligations which are transmissible.One characteristic of the right of representation is that subrogation or trie, representation obtains degree by degree, the inferior one representing the relative immediately higher in degree. No jump is made.Finally, the right of representation is one conceded by law for certain purposes and for certain limited application. The provision therefore, conceding this right must be strictly interpreted and applied.Limited to transmission by law - There is representation only with respect to inheritance conferred by law. Thus, only in legal or intestate succession, and in testamentary succession only with respect to the legitime.The title in testamentary succession is voluntary and personal in character, the institution is individualized, and is thus destroyed by the prior death or incapacity of the heir. Hence, there can be no representation. Maura and Castan believe that representation may take place in testamentary succession by the will of the testator himself, but this seems to be essentially a case of substitution and not representation.The law, however, does not preclude the succession of an illegitimate child to an illegitimate relative of his father or mother. There are provisions of the Code recognizing the right of representation by an illegitimate child, provided that the parent he represented is himself of illegitimate filiation.While a legitimate child can always represent, whether succeeding to a legitimate or an illegitimate ascendant or its parent the illegitimate child can represent only when the parent to be represented is himself an illegitimate child of the decedent. In other words, representation is permissible when the line is completely illegitimate, that is, the representative, the person to be represented, and the decedent are all related to each other by illegitimate filiation.Representation in adoption - If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from

the parents of ascendants of the adopter. The filiation created by fiction of law is exclusively between the adopter and the adopted.But can the adopted child be represented by his legitimate children in the succession to the estate of the adopting parent?REVIEWER IN SUCCESSION

2007AUnder our law, it seems that the children and descendants of the adopted child cannot represent him. Art 971 provides that "the representative does not succeed the person represented but the one whom the person represented would have succeeded" and under Art 973, " in order that the representation may take place, it is necessary that the representative himself be capable of succeeding the decedent." These provisions preclude representation of an adopted child, because there is no legal relation between the adopter and the children of the adopted; the legal tie of adoption is personal, an exclusively between the adopter and the adopted.ART 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded.__________Liability for debts - The inheritance received by the right of representation is inherited directly by the representative from the person from whom the one represented would have received ft. Hence, it is not liable for the payment of the debts of the person represented. Not affected by will - Because the property inherited by representation does not come from the person represented, it is not affected by his will or testament.ART 972. The right of representatiori takes place in the direct descending line, but never in the ascending.In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.The law uses the emphatic *r»ever in the ascending." In the descending line, the right of representation is unlimited with regard to the descendants who may succeed. It obtains till the infinite. Hence, in the same succession, various persons may be represented by one person who is raised through all the intervening vacant degrees which separate him from the deceased.Collateral line - Only the children of brothers or sisters have the right of representation. Art 975 authorizes this right only in case such children of brothers and sisters concur with uncles and aunts.Representation of illegitimate - Can an illegitimate child be represented? Under the old Civil Code, illegitimate cannot be represented in the collateral line.Under the present Code, however, the rule seems to have changed. The second paragraph of Art 994 of the Code provides that if the surviving spouse of an illegitimate child should survive with brothers and sisters, nephews and nieces, he or she shall inherit one half of the estate and the latter the other half. The "nephews and nieces" are this, expressly mentioned in the present Code. From this, it follows that an illegitimate brother or sister of the deceased can be represented by his children, without prejudice to the provisions of Art 992.ART 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent._______________Page 159 of 207Incapacity or disinheritance - The capacity of the representative and his right to succeed must be determined in relation to the decedent and not the person represented. Hence, even if he is incapacitated to succeed, or has been disinherited by the person represented by him. he can still represent so long as he has the capacity to succeed the decedent.ART 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes. in such manner that the representative or representatives shall not inherit more than what the' person they represent would inherit, if he were living or could inherit._________Division per stirpes - When the right of representation obtains, the division of the estate is made per stirpes alone, or per stirpes and per capita combined. In the division per capita, the estate is divided in to as many equal parts as there are persons to succeed. If there are three children, for instance, each will receive, per capita, one-third of the estate. Division per capita is the general rule. On the other hand, division per stirpes is made when one sole descendant or a group of descendants represent a person in the intestate succession. The sole representative or group of representatives are counted as one head. "Estirpes" is the series of relatives who represent one person in the succession.The reason for the division per stirpes in case the inheritance is taken by the right of representation is that, in the first place, the person representing a relative in the succession steps into the place of the person represented. They should, therefore, get only what the person represented would have received. In the second place, it would be unjust to the persons who succeed in their own right should division per capita be adopted because the number of representatives will directly affect the proportion that the heirs will receive in their own right.ART 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.ART 976. A person may represent him whose inheritance he has renounced. '___Representation after repudiation - The present article presupposes a case where the person who is to inherit in his own right has predeceased the

decedent whose succession is in question, and his children or descendants or some of them have renounced their share in the inheritance from him. In this case, the children or descendants who repudiated their inheritance from the person who has predeceased the decedent can still represent him un the succession to the tatter's estate. The present article is but a logical consequence flowing from the very nature of the right of representation. The person representing does not succeed the person represented, but simply takes his place and succeeds in the inheritance of other relatives.Failure to succeed included - This article expressly mentions only the case of repudiation. The cases ofREVIEWER IN SUCCESSION

2007AUnder our law, it seems that the children and descendants of the adopted child cannot represent him. Art 971 provides that "the representative does not succeed the person represented but the one whom the person represented would have succeeded" and under Art 973, " in order that the representation may take place, it is necessary that the representative himself be capable of succeeding the decedent." These provisions preclude representation of an adopted child, because there is no legal relation between the adopter and the children of the adopted; the legal tie of adoption is personal, an exclusively between the adopter and the adopted.ART 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded.__________Liability for debts - The inheritance received by the right of representation is inherited directly by the representative from the person from whom the one represented would have received ft. Hence, it is not liable for the payment of the debts of the person represented. Not affected by will - Because the property inherited by representation does not come from the person represented, it is not affected by his will or testament.ART 972. The right of representatiori takes place in the direct descending line, but never in the ascending.In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.The law uses the emphatic *r»ever in the ascending." In the descending line, the right of representation is unlimited with regard to the descendants who may succeed. It obtains till the infinite. Hence, in the same succession, various persons may be represented by one person who is raised through all the intervening vacant degrees which separate him from the deceased.Collateral line - Only the children of brothers or sisters have the right of representation. Art 975 authorizes this right only in case such children of brothers and sisters concur with uncles and aunts.Representation of illegitimate - Can an illegitimate child be represented? Under the old Civil Code, illegitimate cannot be represented in the collateral line.Under the present Code, however, the rule seems to have changed. The second paragraph of Art 994 of the Code provides that if the surviving spouse of an illegitimate child should survive with brothers and sisters, nephews and nieces, he or she shall inherit one half of the estate and the latter the other half. The "nephews and nieces" are this, expressly mentioned in the present Code. From this, it follows that an illegitimate brother or sister of the deceased can be represented by his children, without prejudice to the provisions of Art 992.ART 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent._______________Page 159 of 207Incapacity or disinheritance - The capacity of the representative and his right to succeed must be determined in relation to the decedent and not the person represented. Hence, even if he is incapacitated to succeed, or has been disinherited by the person represented by him. he can still represent so long as he has the capacity to succeed the decedent.ART 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes. in such manner that the representative or representatives shall not inherit more than what the' person they represent would inherit, if he were living or could inherit._________Division per stirpes - When the right of representation obtains, the division of the estate is made per stirpes alone, or per stirpes and per capita combined. In the division per capita, the estate is divided in to as many equal parts as there are persons to succeed. If there are three children, for instance, each will receive, per capita, one-third of the estate. Division per capita is the general rule. On the other hand, division per stirpes is made when one sole descendant or a group of descendants represent a person in the intestate succession. The sole representative or group of representatives are counted as one head. "Estirpes" is the series of relatives who represent one person in the succession.The reason for the division per stirpes in case the inheritance is taken by the right of representation is that, in the first place, the person representing a relative in the succession steps into the place of the person represented. They should, therefore, get only what the person represented would have received. In the second place, it would be unjust to the persons who succeed in their own right should division per capita be adopted because the number of representatives will directly affect the proportion that the heirs will receive in their own right.ART 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive

with their uncles or aunts. But if they alone survive, they shall inherit in equal portions.ART 976. A person may represent him whose inheritance he has renounced. '___Representation after repudiation - The present article presupposes a case where the person who is to inherit in his own right has predeceased the decedent whose succession is in question, and his children or descendants or some of them have renounced their share in the inheritance from him. In this case, the children or descendants who repudiated their inheritance from the person who has predeceased the decedent can still represent him un the succession to the tatter's estate. The present article is but a logical consequence flowing from the very nature of the right of representation. The person representing does not succeed the person represented, but simply takes his place and succeeds in the inheritance of other relatives.Failure to succeed included - This article expressly mentions only the case of repudiation. The cases ofREVIEWER IN SUCCESSION

2007Aunworthiness, incapacity and disinheritance should, however, be deemed included. The person representing may be unworthy, incapacitated or disinherited, with regard to the person to be represented, but so long as he is not so with regard to the decedent to whom he succeeds, he retains the right of representation and succeeds to the inheritance of the latter.ART 977. Heirs who repudiate their share may not be represented.________________________Justification of representation - The principal justification for the right of representation is death of a son or of a brother or sister. In these cases, the surviving father or brother naturally looks to the welfare of the unfortunate orphans. The general rule, therefore, is that representation can take place only in case of death.Our law, however, to lessen the rigor of this rule, has provided certain exceptions: disinheritance and incapacity. Incapacity here is equivalent to unworthiness and is applicable both to the son and to the brother. Disinheritance can refer only to the descendants. Repudiation bars representation - A person who has repudiated an inheritance from a decedent cannot be represented by his children. In case some heirs repudiate the inheritance, their share shall accrue to the others, and if all of them repudiate, those of the next degree shali succeed in their own right.ART 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions._________________Art 982 contemplates a case where the survivors are all grandchildren and other descendants of the deceased. The right of representation obtains, the division of the estate will be per estirpes.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.(for Tolentino's comments, please see Chapter XIV on Legitime, No. 2)ART 992. An illegitimate child has no right to inherit sb intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.__________________• Legitimate and Illegitimate families - The illegitimate child is not a relative of the legitimate children and relatives of his father or mother. They may have a natural tie of blood, but this tie is not recognized by law.Because of the rule in this article, the illegitimate child of one who is a legitimate child cannot represent the latter in the succession to the estate of eh grandfather (legitimate father of the illegitimate parent).• Extent of disqualification - This deprivation of right extends to the legitimate descendants of the illegitimate child, and is reciprocal, that is, the persons whom thePage 160 of 207illegitimate child cannot succeed are also disqualified to succeed him. Hence, relatives on the legitimate line have no right to inherit ab intestate from an illegitimate relativeART 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.ART 1006. Should brother_and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.ART 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.ART 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes. in accordance wifh'the rules laid down for the brothers and sisters of the full blood.Full and half-blood relation - Brothers of the wnole blood are those proceeding from the same father and mother, they inherit in equal shares.Second and subsequent marriages result in the formation of half-blood relationship of brothers and sisters In case of the concurrence of half brothers or sisters alone, Art 1007 applies. They inherit in equal shares, without distinction of property.When full and half blood brothers or sisters survive, the former shall take a portion in the inheritance double that of the latter.

When brothers and sisters concur with nephews and nieces. Art 1005 provides that the brothers and sisters shall inherit per capita and the nephews and nieces per stirpes. In other words, correlating Art 1005 with 975. the brothers or sisters inherit in their own right, while the nephews or nieces, children of brothers or sisters, inherit by tight of representation.under Art 1008, the same rule applies in case children of brothers or sisters of the half blood concur in the succession. That is, the brothers whether of whole or half blood will inherit in their own right the whole blood taking a double portion, while the nieces and nephews whether or whole or half blood naturally taking the portion of their father which is double that pertaining to the father of the half-blood nephews and niecesTeotico v. Del Val. supraHeld: Chan, though claiming to be an acknowledged natural daughter of the decedent's brother, cannot inherit. As per Art. 992, an illegitimate child is prohibited by law from succeeding to the legitimate relatives of her natural father. As the adopted child of the decedent's sister, she also cannot inherit. The relationship established by adoption is limited solely to the adopter and the adopted. Hence, ric relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.________ _REVIEWER IN SUCCESSION

2007ADiazv. IAC(1990)Simona Pamuti vda de Santero died intestate and wwas survived by her niece and the illegitimate (natural) children of her son. The issue is whether the illegitimate grandchildren can represent their father in the inheritance from Simona.Held: NO. Arts. 902, 989 and 990 are clear on the matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent.While the new civil code has granted successional rights to illegitimate children, those articles, however, in conjunction with Art. 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed by Art. 992.De los Santos v. De la Cruz, supraHeld: In an intestate succession, a grandniece of the deceased cannot participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line, the right of representation does not obtain beyond sons and daughters of Ihe brothers and sisters. __ __Abellana-Bacavo v. Ferraris-Borromeo (1965)Melodia Ferraris died and was survived only by collateral relatives - an aunt (half-sister of her father) and her nieces and nephews (children of her full blood deceased brother). The issue is whether or not the aunt is excluded from the inheritance.Held: Under our laws of succession, a decedent's uncles and aunts may not inherit ab intestate so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. Although the aunt is of the same or equal degree of relationship as the nephews and nieces, our law states that in case of intestacy, nephews and nieces exclude all other collaterals (aunts, uncles, first cousins etc.). Under Art. 1009, the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, aunts, cousins, etc.) being called to succession.Corpuz v. Corpuz (1978)Spouses Bemarda Mantite and Francisco Corpuz owned a parcel of land. Upon the death of Bemarda, Francisco sold the said lot to Spouses Domingo Cruz and Eugenia Riga!. Domingo died. This dispute is between the heirs of the vendors (represented by Evaristo Corpuz. son of Francisco) and the heirs of the vendees (Susana Santiago, daughter-in-law of Domingo). Evaristo claims that Francisco had no authority to sell the land because the said land was conjugal property and since Bemarda died intestate before the sate, he and his siblings had by operation of law become the owners of 1/2 of the land in question through inheritance from their deceased mother.Held: The sale made by Francisco corpus of the land shouldbe held to have conveyed title only to his share in said land, with the result that the legal heirs (Evaristo et al) of Bernarda Mantile cannot be deemed to have been divested of their title to her share of the property. The title to the property should be recorded in the joint names of both set of heirs as co-owners.Sayson v. CA (1992)Spouses Eleno and Rafaela Sayson had 5 children, one of which was Teodoro. Eleno and Rafaela died. Teodoro married Isabel. They died and were survived by two adopted children. Delia and Edmundo. and one legitimate child, Doribel. The dispute is regarding the matter of who can inherit from Teodoro and Isabel, and whether their surviving children can represent Teodoro in the inheritance from his parents Eleno and RafaelaHeld: With regard to the right of representation, Doribel, as the legitimate daughter of Teodoro and thus the grandchild of Eleno and Rafaela, has a right to represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, she is entitled to the share her father

would have directly inherited had he survived, which shall be equal to the shares .of her grandparents' other children. However, Delia and Edmundo, cannot represent Teodoro. While it-is -true that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party. Since Delia and Edmundo are considered strangers to Eleno and Rafaela, they cannot be allowed to represent Teodoro.Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and Edmundo. as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the following Article 979 of the Civil Code which states that "Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child."_________________________MAGIC NOTES:Right of RepresentationA right created by fiction of law by virtue of which the representative is raised to the place and degree of the' person represented and acquires the rights which the latter would have if he were living or if he would have inherited.Q: When is representation allowed?A: Only with respect to inheritance conferred by law (legitimeand intestacy) in cases of: incapacity, disinheritance,predecease.• A voluntary heir who dies before the testator transmits nothing to his heir (Art 856)Rules: 1.Page 161 of 207Representation takes place in the DIRECT DESCENDING LINE but never in the ascending. In the COLLATERAL LINE, it takes place only in favor of the children of brothers or sisters, whether of the full or half blood (Art 972).REVIEWER IN SUCCESSION

2007A3. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter BY REPRESENTATION, if they survive with their uncles or aunts. But if they survive alone, they shall inherit IN EQUAL PORTIONS (per capita) (Art 975).4. An heir who has repudiated his inheritance may not be represented (Art 977).Limitations on Right of Representation in Collateral Line:1. Right of representation can be exercised only by the nephews and nieces of the decedent. (Art 972) Right of representation can be exercise by nephews and nieces of the decedent only if they concur with at least one brother or sister of said decedent (Art 975); otherwise, if they alone survive, they shall inherit IN THEIR OWN RIGHT and not by representation. Right of representation in collateral line is possible only in INTESTATE SUCCESSION. It cannot take place in testamentary succession (art 856).Q:A:o o o o2.3.In representation, the representative is entitled to receivewhat the represented will get. The representative will getthe tegitime and the intestate share (Art. 989, 990 and998)There is no representation in voluntary succession (by will)There is no representation in favor of the ascending line;only in descending line.The representative must be the legal heir of the person heis representing, but he must also be the legal heir of thedecedent - DOUBLE HEIRSHIP TESTare illegitimate children a/towed to represent illegitimateparents?It depends. Illegitimate children can represent illegitimateparents in inheritance from illegitimate grandparents.Ex.I HG can represent C in inheritance of AF can represent C in inheritance of AD can represent B in inheritance of AE cannot represent B in inheritance of A. He is barred byArt. 992 because A is a legitimate relative of theillegitimate parent.o H can represent G in the inheritance of Ao I cannot represent F in the inheritance of A. He is barred by Art. 992. He cannot represent in inheritance of C, so he also cannot represent in inheritance of A.• There is no representation in repudiationo If E repudiates the inheritance of C, E can still represent C in inheritance of A.o BUT. if E repudiate the inheritance of C, F cannot represent E in inheritance of C because the line has already been broken.

May an adopting child represent the adopting parent in the adopting parent's ascendant?Ex.B predeceased A and A dies. C cannot represent B in tne inheritance of A. C is the legal heir of B BUT C is not the heir of A (double heirship test). C is a stranger to AEx.QMay C represent B in theA:6 predeceased A,inheritance of A?NO. C is not the legal heir of A (case of Teotico del Val).Adoption creates a personal relationship between theadopting parent and the adopting child. Q: Is there representation in the collateral line? A: YES. Art. 875. but it is limited in favor of nephews andnieces.Page 162 of 207REVIEWER IN SUCCESSION

2007Aex.IJKo B and C are legal heirs of D, they will receive the free portion.o E and F can represent B in the inheritance of D. *•o BUT H and I cannot represent E in inheritance of D because representation is limited.o But if B, C and D are dead, E, F and G will inherit in their own right (1/3 each) because they are the only survivingrelatives of D. They (EFG) wil! only inherit by representation if they survive with one aunt/uncle, o L cannot represent C.o If D is an illegitimate child of A. C cannot inherit from D. so L cannot represent C. o If C and B repudiate, E, F and G will inherit in their own right as the nearest, surviving collateral relatives. They willnot inherit by representation.• "survive" means concurrence in the inheritance and NOT physical survival.o If A is dead, D and E may represent A.o If A and B are dead, D, E and F will inherito if A is dead and B repudiates, only O and E will inherit F is barred (no representation in repudiation)Manahan is only until the 5th civil degree of consanguinity.MPage 163 of 207REVIEWER IN SUCCESSION

2907Awo If C dies, W, A and B are his heirs (share: W=1/2, A=1/4, B=1/4)o W (surviving spouse) concurs with BSNN. If A and B are dead, D, E and F inherit in their own right. G, H and I cannot inherit anymore because W will exclude them.« Remember Art. 1009 and the case of Papa v. Camacho. Among collateral relatives, the descending line excludes the ascending. Ex.B(3)o E will inherit.o If E is dead, G and H will inherit because they exciude b and C. B and C will only inherit if there are no nephews and nieces.Page 164 of 207REVIEWER IN SUCCESSION

2007ANOW, deduct from the Estate the legacy. The difference. 54,000 is now what should be distributed according to 805 (kuha niyo - hirap noh?) So out of 54,000, the shares should be such that the illegit gets Vi of legit's share. In this case, it's going to be: Legit = 36,000; Illegit =18,000. I have devised a formula in applying 895. For some people, they just divide the remaining disposable portion by 3 and apply the quotient to the principle of 895. But a more scientific formula is at hand. Let X represent the share of the legitimate and X/2 represent the illegitimate. The equation is X -=-X/2 = remainder of the estate-after subtracting the legacies.ART 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.ART 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.ART 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shot inherit by right of reprehension from theirTOLENTINOThe old civil code said that only legitimate descendants can represent the illegitimate child. This interpretation can no longer control under the NCC. Illegitimate children can now represent their parents, if the latter are also of illegitimate filiation. In easy words (sa madaling salita), an illegitmate grandchild can represent his illegitimate father in his illegitimate grandfather's estate.

ART 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children._______ESTATE Page 166 of 20790.000TOLENTINO• The above article talks of the illegitimate inheriting the ENTIRE estate. It should be noted that this article presupposes that there is no concurring intestate heir, for once there are other intestate heirs who concur a different rule is had, i.e. illegit children concurs with surviving spouse, hati sila according to 988.• Also remember that the distinction made by the Civil Code as to the different illegitimate children has been abrogated by the Family Code. Pare-pareho na silang lahat.TOLENTINO• Situation: illegitimate children concurring with legitimate parents or grandparents. The sharing will be one half each.• Partial Intestacy. How are we to compute the shares when the deceased has disposed of a part of his estate by will and there is a remainder. For instance:Legacy to a friend 10,000Survived by Legitimate parent and Illegitimate ChildrenThere are three possible solutions (this is getting to be confusing):(1) FIRST Theory:1s' Deduct the legacy of 10,000 from the estate, leaving 70,000 for the intestate heirs. 2nd Divide the leftover by two (since the article said that one-half each). So parents and illegitimate children will have, 35,000 as their intestate inheritance, to be divided equally among them.Criticism. Though the solution is in accordance with the literal terms of the present article, in relation to article 960(2), which provides that where the testator has disposed of some part of his property, legal succession shall take place only with respect to the property which he has not yet disposed of. BUT this solution impairs the legitime of the legitimate parents. Remember that they inherit one-half of the estate, which in this case is 40.000. This solution is therefore invalid since intestate succession cannot impair the legitime.''?. (2) SECOND Theory:•"* 1s* Give out the LEGITIMES. Parents = V4 of estate =40.000. Illegit children = Y> = 20,0002nd Subtract the legacy from the leftover or disposableportion 20,000 -10,000 = 10,000 .3rd The balance above shall be divided into two, onepart going to the legit parent and the other to the illegitChildren.Criticism: Unduly favors the parents, violating the intent of the present article.(3) THIRD Theory1S| Determine how much of disposable portion goesby intestacy to the concurring heirs2nd Deduct the legacy from such portion, to be borneproportionately by the concurring heirs.In this case, the parents get by intestacy no morethan their legitime of one-half of the estate. Hence,the entire disposable portion goes by intestacy to theillegitimate children. They are the only ones whoshould suffer the burden of the legacy.Parents = 40,000 Legacy = 10,000 Illegitimate Children = 30,000ART 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.______________TOLENTINO• Article prohibits absolutely intestate succession between the illegit child and the legit children and relatives of the father or mother. The illegit child is not a relative of the legitimate children and relatives of his father or mother. They may have a natural blood tie, such is not recognizedREVIEWER IN SUCCESSION

2007Aby the law. The law presumes that there is an intervening antagonism and incompatibility between the two. On the basis of the above article, an illegit child of one who is a legitimate child cannot represent the latter in the succession to the estate of the grandfather (okay talaga mang-lito si Tole). Miro will attempt to illustrate: A is grandfather. B is his legitimate son, X is B's illegitimate child. The law prohibits X from representing B in the estate of grandfather A. But bear in mind that if B was also an illegitimate child of A, X will have right of representation by virtue of Art. 989 and 990.Extent of Disqualification. First, it extends to legitimate descendants of the illegitimate child, and Second, it is reciprocal, wherein persons whom the illegit cannot inherit from are also disqualified to inherit from him. When however, there is property whose ownership has already passed to the illegitimate parent before his death, illegitimate child may lay claim on said property, not an illegitimate relative, but as heir of his illegi :imate parent and thus entitled to whatever the illegitimate parent may have left at the time of his death.At most, petitioner Would be an illegitimate child who has no right to inhterit ab intestate from the legitimate children and relative of his father, the deceased Francisca Reyes.______Corpus v. Corpus (1978)

Teoc'oro Yangco died leaving no forced heirs. His nearest relatives were his naif brother Luis. his half sister Paz. the children of his half brother Psblo, ?n_ Juantta. 'he daughter of his half-brother Jose. Teodoro. Luis. and Paz were the acknowledged natural children (hence, illegitimate) of Luis Yangco. Pablo and Jose were the legitimate children of Teodoro's mom Ranona and her first husband Tomas. The wilt of Teodoro was submitted for probate but this was contested and he was declared to have died intestate. The legal heirs filed a compromise agreement which was agreed to by the court. Later on, Tomas — the sole hew oi Juanrta -filed a case to recover his mother's share m tt»e estate of Teodoro.ISSUE: WON Tomas. the legitimate grandson, can inherit from his illegitimate granduncleHELD: NO. The illegitimacy of Teodoro was shown in the authenticated will of his father Luis. On the other hand, the legitimacy of his half brothers Jose (the lolo of Tomas) and Pedro was presumed. Since Teodoro was an acknowledged natural child and since Juanrta was the legitimate child of Jose, himseff a legitimate child. Tomas has no cause of action for the recovery of the supposed share of his mother as a legal heir. Juanita is not a legal heir of Teodoro because there is no reciprocal succession between legitimate and illegitimate relatives under Art. 992.Leonardo v. CA (1983)Francisca Reyes died intestate in 1952 and was survived by two daughters and a grandson. In 1964, petitioner Crescendo Leonardo, dawning to be a son of the late Sotero Leonardo (Francisca's grandson) filed a complaint for ownership of properties and sums of money and accounting of all income derived from the properties. Maria Cailless on the other hand asserted full and exdusive ownership over the contested properties and alleged that the petitioner is an Htergitimate son who cannot succeed by right of representation. ISSUE: WON petitioner, an illegitimate child, may inherit by right of representation.HELD: NO. Even if it is true that petitioner is the child of Sotero Leonardo, still he cannot by right of representation, claim a share of the estate left by the outside wedlock as shown by the fact that when he was bom in 1938, his alleged putative father and mother were not yet married and that his alleged father's first marriage was still subsisting at such tine. Page 167 of 207Pascual v. Pascual-Bautista (1992)Petitioner Olivia and Hermes, both Pascual. are the acknowledged natural children of the late Eligio Pascual. who in turn was the full blood brother of the decedent Don Andres Pascual. Don Andres died intestate without any issue, survived by the following: surviving spouse Adela. children of his full blood brother Wenceslao, children of his brother of half blood Pedro, .and the two, acknowledged naturai children of Eligio(petitioners in-this case). Petitioners claim that they have hereditary rights in the intestate estate of Don Andres. The oppositors claim that they are not among the known heirs of the deceased.ISSUE: Won Art 992 excludes recognized natural (illegitimate) children from the inheritance of the deceased.HELD: YES. Applying the doctrine laid down in Diaz vs. IAC, petitioners cannot represent their father in the succession of. the latter to the intestate of the decedent Don Andres, the full blood brother of their father. An illegitimate child has no right to inherit ab intestate from the legitimate children and relative of his father or mother, nor shall such children, or relatives inherit in the same manner from the illegitimate children. Illegitimate means both natural and spurious children. Summary: Illegitimate nephews/nieces cannot inherit from legitimate uncle.________________________________________2. estate of an illegitimate decedenta. legitimate children and descendantsART 903. The leg/time of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one fourth of the estate_______________TOLENTINO and MIRO• This article refers to the legitime which the illegitimate parent may receive in case of the death of the illegitimate child, and the different permutations of said legitime when there is a concurrence with other legal heirs. So take note, ang parent ang nagmamamana from the illegitimate child, sa provision na ito.• Not all ascendants may inherit from the illegitimate child Only parents may do so. Grandparents are excluded, even when the parents have predeceased them. REMEMBER, in illegitimate filiation, the right to succeed in the ascending line terminates with the parent of the deceased illegitimate child. There is no reciprocity of successional rights between the illegitimate grandparent and the illegitimate grandchild. Let me illustrate: Lola Thea has two children: legitimate Paul and illegitimate Ryan. Tatay Paul in turn has two legitimate children Sahlee and Vissia. But Erpat Ryan has an illegitimate child. Choi. Tatay Paul and Erpat Ryan die ahead of Lola Thea (masamang damo. matagal ma-matay) and is survived by all

their children. Lola Thea then dies later (nabaril sa Disco). Sahlee andREVIEWER IN SUCCESSION

2007AVissia succeed Lola Thea bv representing their father Tatav Paul, and illegitimate Choi also succeeds Loia Thea representing Erpat Rvan under An 902. But if the descendants die ahead of Lola Thea (talaFanc masamang cogon grass na ito ah), she mav succeed apo Sahlee and apo Vissia but she cannot succeed apo Choi because in the ascending line only the parents of the illegitimate child are entitled to legitime. Respective Shares when the Illegitimate Child Dies(1) Illegit parent only - compulsory heir to V4(2) Illegit parent & Surviving Spouse - % each(3) Illegit parent &. Any Child or Descendant - the illegit parent is excluded with child getting 7i (Immaterial whether the illegitimate deceased child or descendant is legitimate or not)(4) The rest is obvious: free portion or disposable property.ART 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895.ART 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption shall be his legal heirs.________________________TOLENTINO• Above is merely a reiteration of rule in Art 342 that the adopter shall not be a legal heir of the person, whose natural parents shall inherit from him. Art 342 has however been omitted, hence implied repealed by the Family Code. The above article is not affected by the repeal of 342, and remains in force except in so far as modified by Article 190 of Family CodeFamily CodeART 190 Legal or intestate succession to the estate of the adopted shall be governed by the following rules:(1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession:(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire state, one-half to be inherited by the parents or ascendants and the other half, by the adopters;(3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the parents or ascendants and the other half, by the adopters;(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire state in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adapter.(5) When only the adopters survive, they shall inherit the entire estate; and(6) When only collateral blood relatives of the adopted survive, then the ordinary rule of legal or ______intestate succession shall apply._______________• So now with the Family Code, the adopter is no longer totally excluded from the hereditary estate of the adopted The adopter now concurs with the parents and ascendants, the illegitimate children, and the surviving spouse of the adopted, and divide the estate with (hem in proportions established by Art 190 of the FC. Bj( Tolentino hastens to add that, the adopter should be present at the time of the adopted's death, otherwise the present article, 984 , will apply, meaning that the adopted's natural parents and relatives by consanguinity shall be his legal heirs. Also.-it would seem that there is no provision for the case of concurrence of the adopter with the collateral relatives of the adopted. There is no rule when both of them survive the adopted. Tolen'.ino suggests that the same sharing be done as in Art 190 FC, where they shall divide equally. Another situation not covered is when the parents and ascendants surviving alone without the adopter. Tole suggests tha: in said ca the parents and ascendants will get the entire estate, assuming the adopted leaves no children or descendants» No reversion to Adopter- the old Rules of Court although providing that the legal heirs of the adopted shall be his relatives by nature, also furnished an exception. It said that any property donated inter yivos by the adopter tc tiie adopted shall become property of the adoptor and his relatives, who shall participate in the order establish by the Civil Code. In short, if property was donated inter vivos, such property reverts back to the donor-adoptor at the death of the adopted. This exception has been omitted by the new Rules of Court. Hence, even if the property left by the deceased adopted person came from the adopter, the parents and relatives by consanguinity of the adopted will inherit such property by intestate succession.ART 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relativesTOLENTINO• Direct Ascending Line - there being no more relatives in the descending line, the law always takes into consideration the law of affection has chosen the relatives in the ascending line to succeed. The ascendants called by the law are the legitimate ones. The succession of NATURAL illegitimate parents is covered by Art. 993 & 994.ART. 986. The father and mother, if living, shall inherit in equal shares.

Should one only of them survive, he or she shall succeed to the entire estate of the child. _Page 168 of 207TOLENTINO• Father and Mother being the nearest relatives in the ascending line, are the first to be called in the absence of legitimate children and descendants. Being in the same degree and being equally entitled to the gratitude of their children, they inherit in equal shares. Should only one of the parents survive, succeeds to the entire estate of the child. This is so because right of representation does not obtain in ascending line. Si lolo walang karapatan na i-represent and anak niya sa estate ng kanyng apo kapag* REVIEWER IN SUCCESSION

2007Abuhay pa isang magulang nito, kasi lahat ng estate will go to the surviving parent.ART 987. In default of the father and mother, the ascendants nearest in degree shall inheritShould there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita: should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.________ART. 992. An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives cf his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.____________________b. illegitimate children and descendantsART 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent._________________ART 992. An illegitimate chid has no right to inherit ab intestate from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.____________________6. Surviving SpouseART 995. In the absence of legitimate descendants and ascendants, and illegitimate children and theirPage 169 of 207descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the right of brothers and sisters, nephews and nieces, should there be any, under article 1001.TOLENTINO• When the decedent dies without children and descendants and parents predecease him, grandparents succeed, not by representation, but in their own right as intestate successors.• Rules:1. Fi.'st. follow the rule that the nearest excludes the more remote.2. If after #1, there are several who are of equal degree,then we must divide the inheritancea. If they all belong to one side of the marriage line -divide the inheritance per capitab. If some of them of equal degree are located on both sides of the marriage line, then the estate be divided equally, one part to the paternal and the other to the maternal line. And afterwards, they shall be divided per capita among the members of the lire.TOLENTINO• The principle in Art 990 is not carried into effect in so faras intestate succession is concerned. Hence when aperson is married to another in articulo mortis, and saidailing spouse dies witiiout a will within three months from_B». the celebration of the marriage, the surviving spouseTO inherits the entire estate,:.- Tolentino however disagrees"H} with this distinction. He feels like there none in the first__,.; place.«=* • A surviving spouse is not an intestate heir of his or her parent-in-law.TOLENTINO• Just note that an illegitimate child may exercise his right of representation in the estate of his illegitimate grandfather, if his father, which is the person be is representing, is also an illegitimate offspring of the grandfather. Naturally, a legitimate child of an illegitimate father may also represent the father in the estate of the grandfather, even if the father is an illegitimate child of the grandfather.ART 996. If the widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children..TOLENTINO: ;^• The basis of the spouses share is always that of the child, even if only grandchildren and other descendants are the only ones left• If only one legitimate child survives along with ihe spouse, they share equally: one-half of estate to each of them. Although the law refers to "children or descendants", the lule in statutory construction that the plural can be understood to include the singular is applicable in this case. Under 892, where there is also a concurrence of one surviving child and spouse, the legitime of the child is % of the estate, and that of the surviving spouse is only

V.. In intestate succession, however, the child is limited to his legitime but the surviving spouse gets double his legitime. It may be unfair, but it is the law. (Dura lex sed lex).• In case of Partial Intestacy, in the above situation (1 child -spouse), the testamentary dispositions must be taken from the share of the surviving spouse, without impairing his legitime.ART 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants of the other half.TOLENTINO• Partial Intestacy- the testamentary dispositions mustlikewise be taken from the intestate share of the survivingspouse, without prejudice to his legitime.ART 998. If a widow/er survives with illegitimate children, such widow/er shall be entitled to One-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. ___TOLENTINO• Partial Intestacy- in 894, in the situation contemplated by the present article, the legitime of the surviving spouse is 1/3 of the estate, and that of the illegitimate children, also 1/3. It case of partial intestacy, therefor, the legacies, devises, and other testamentary dispositions must beREVIEWER IN SUCCESSION

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taken equally from the intestate shares provided by this article, without impairing legitimes.share of the surviving spouse, without impairing the latter's legitime.ART 999. When the widow/er survives with legitimate children or their descendants, and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child.________TOLENTINO• This article is applicable where there is a concurrence of several legitimate children with illegitimate children and the widow/er.• It would however he impossible to apply the terms of this article when there is only one legitimate child, concurring with illegitimate children and the spouse.• EXAMPLE:Estate 70,000Application1 legit child (A)2 illegitimateChildren (X & Y) widower (S) Total35,000 17.500/each(2)35,000105.000Obviously if we apply the terms of this article, it will not be possible to satisfy the shares of all the intestate heirs, because the total of such would be far in excess of the estate, as seen above. There must therefore be a reduction of the intestate shares. As for any reduction, we should first go after those who receive more than their legitimes. Spouse share be reduced first to the amount of her legitime (17,500), since the share of A and X&Y are equal to their legitimes. Further reductions shall be made since the amount will still exceed the estates total. Following the rule on the law of legitimes, namely, that the tegrtime of the legitimate and that of the surviving spouse shall be preferred, and the reduction must be suffered by the children. Thus:Estate 70,000Application1 legit child2 illegitimate childrenwidowerTotal35,000 8,750/each 17,500 70,000ART 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow/er shall have one-fourth of the estate, and the illegitimate children the other fourth.__________TOLENTINO• Partial intestacy. Under 899, the legitimes of the above concurring heirs are Legit C = V4. Illegitimate = %. Spouse = 1/8. In intestate succession, surviving spouse gets a bigger share, double his/her legitime. Hence, in case there are legacies and devises and other testamentary dispositions, their amounts must be charged against thePage 170 of 207ART 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers ____and sisters or their children to the other half.TOLENTINO• Partial Intestacy. In the case contemplated by article. ONLY the surviving spouse is a compulsory heir. His legitime is V4 of the estate. Hence, if there are devises, legacies, and other dispositions, they must be taken from the intestate share of the brothers and sisters or their children, even to the extent of exhausting such share.

ART1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall net have any of the rights granted in the preceding articles.Eraso v. HansenJulia Galang and Henry (Hansen were married on June of 1914. Ana Hansen was the legitimated daughter of the spouses They separated in 1915. On Jan of 1920, Julia married Cripin Fontanilla. During their marriage, they acquired a house and lot. Crispin died in 1944 without any children with Julia. In 1947, Julia again married (ibang klase talaga!) this time to Eusebio Eraza. They never had children. After Julia's death. Ana claiming to be the only cnild and legal heir of the deceased, adjudicated to herself the house and lot procured by Crispin and Julia. Eusebio, Julia's brother and Sister and their children filed a complaint against Ana which prayed to declare them the sole owners of the house and lot.HELD: Eusebio Erazo is declared owner of the Yi interest of the house and lot while Ana gets the other half. Art 999 applies, which provides: if a widow or widower and legitimate children or descendants are left, the surviving spouse has the same share as that ofeach of the children. According to the court, under the rule of statutory construction, the plural can be understood to include the singular despite the apparent unfairness to the child who does not get any increase over his legitime while the spouse receives double his legitime which moreover has been converted from usufruct to full ownership.Santillon v. Miranda (1965)In 1953, Pedro Santillon died intestate, leaving one son, Claro, his wife Perfecta Miranda and several parcels of land. Notwithstanding Clara's contention under Art 892 that he was entitled to '/< of Santillon's V4 share in the conjugal properties, the lower court ruled that each of them, Claro and Perfecta, shall inherit V4 each of Santillon's total estate after deducting the share of the widow as co-owner of the conjugal properties. ISSUE: WON Clara's share is indeed '/« as he claims.HELD: NO Clara's share is Vi. Art. 892 states that when if only the legitimate child/descendant survives, the widow/er is entitled to V> of the estate. Art. 996 states that when the legitimate children survive with the widow, the widow gets same share as one of the children. The court applied 996 since it refers to intestate succession, whereas 892 applies to fixing the legitime of the children and spouse. It is a maxim in statutory construction that words in the plural include the singular. So the reference to children in Art. 996 should be read as including a child. To hold otherwise would also runREVIEWER IN SUCCESSION

2007Acounter to the very basis of Claro in insisting for V. for all references to the word children would mean as not including children. JBL Reyes and Tolentino are of the opinion that in intestate succession, and the widow survives with one legitimate child, then they get equal shares.____________MAGIC NOTESQ: If the SS survives alone, how much of the estate will sheget? A: The entire estate. If there are legacies and devises, shealone is responsible to pay.Q: To what extent will she pay the legacies and devises?A: The extent of Vi or 2/3 depending on whether she married the decedent in articulo mortis or not. Since she survives alone, her legitime would be 1/2 or 1/3. The balance will be free to answer for legacies and devises.Q: Suppose the SS concurs with LP, what are their intestateshares? A: Under art 997. when the widow or widower survives withlegitimate parents or ascendants, the SS shall be entitledto 1/2 and the LP or LA to the other half.We apply these intestate shares directly into theestate.Q: In this case, is there an impairment of legitime?A: No way becajse the legitime of the L P is 1/2 and since theywill get this, then their legitime is not impaired.As regards the SS, the legitime is %. Since she willreceive 1/2, then she receives more than what she isentitled to receive by way of legitime.Q: Who gets the FP?A; The entire FP goes to the SS and therefore only the SS isobliged to pay the legacies of devises that could havebeen left by the testatorG: To what extent is the SS liabte for legacies and devises?A: In the extent of 1/4 of the estate because this is the only portion which is free which she receives in addition to her legitime of 1/4.If the SS concurs with LC. then we have already discussed the intestate shares. The SS will get the share equal to the share. If 1 LC there will be no impairment of legitime in this case because the SS is limited to 1. Hence, we divide the entire estate to the number of LC plus the SS.Q: Who gets the FP?A: This is distributed to all of them equally and therefore all of them are liable to pay, the legacies and devises.Q:7b what extent?A: To the extent of their legitime.Q:And how much are their legitimes?A: To the extent of 1/2 of the estate (LC) plus the legitime ofSS = 1/2 - SS.This FT will be divided among than equally and thiswill be liable to pay for the legacies to the extent of the FPonly.

Q-.Suppose the SS concurs with 1C? A:SS = % 1C = '/jPage 171 of 207Q: Is there an impairment of legitimes?A: No because legitime of SS = 1/2 and the 1c = 1/3 but they will get 1/2 in this case.Q: Who receives the FP of 1/3?A: Both of them equally. So both of them will be liable to pay the legacies and devises equally.Q: Suppose the SS concurs with IP, what will be their shares?A: The law does not provide for their shares. However some authorities have proposed some solutions. According to Padilla and Cagaoa, the'SS will get her legitime of 1/4. The IP will get their legitime of 1/4. The balance of 1/2 will go to the IP. According to them the IP excludes the SS in the inheritance, the SS being not related by blood to the decedent.Tolentino, Jurado, Paras, Reyes and __: The solution above is erroneous- Why? Because whenever the SS concurs with IP, the IP are given 1/2 and the other held to the SS. We cannot say that the SS is a lot better when she concurs with LP and worse when she concurs with IP. We are giving precious to the IP who are given more than 1/2 which the LP arc entitled to get. Whenever the LP concurs with SS. they are only entitled to receive their legiiimes. They cannot share with the FP. Now if the IP can receive the FP, the same should the LP receive the FP also. This is absurd.The solution presented is that since they have the same legitime, we divide the estate equally. They will get FP in equal shares so that both of them are liable for legacies and devises.C. Ascending Direct Line1. legitimate parents and ascendantsART 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.TOLENTINO• Direct Ascending Line - there being no more relatives in the descending line, the law always taking into consideration the law of affection, has chosen the relatives in the ascending line to succeed. The ascendants- called by the law are the legitimate ones. The succession of NATURAL of illegitimate parents are covered by Art. 993 &994.ART 986. The father and mother, if living, shall inherit in equal shares.Should one only of them survive, he or she shall succeed to the entire estate of the child.ART 987. In default of the father and mother, the ascendants nearest in degree shall inherit.Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita._______REVIEWER IN SUCCESSION

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2. illegitimate parentsART 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate: and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from his share and share alike.ART 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse, who shall be entitled to the entire estate.If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half.TOLENTINO• The two an articles cover the case o: intestate succession to a decedent who is an illegitimate child. However, they do not completely determine the order of succession or (he shares of the different heirs when they concur. It is necessary to resort to inference and to other provisions to supplement the above articles. In said light, the order of succession MAY determined as follows:(1) Legitimate Descendants. The legitimaie children and descendants of a person who is an illegitimate child are preferred over other intestate heirs, without prejudice to the right of concurrence of illegitimate children and the surviving spouse. There is no difference in this respect between legitimate child and those of one who is an illegitimate child.(2) Illegitimate Descendants. Ordinarily, the legitimate ascendants succeed to the inheritance where there are no legitimate children of descendants. This is the case where the decedent is a person of legitimate origin. When the decedent is an ILLEGITIMATE child, he has no legitimate parent. The ascendants in case the decedent is an illegitimate child must give way to the illegitimate issues of the illegitimate child. Hence, second to be called are the illegitimate children and their descendants, whether legitimate or illegitimate. In the absence of legitimate children and descendants, they succeed to the entire estate, without prejudice to the concurrent right of the surviving spouse.(3) Illegitimate Parents. In the absence of children and descendants, legit or illegit, third in the order of succession to the estate of a child who is illegitimate is his parent or parents. The paternity or maternity of such person must first be clearly established. If both are alive, they share equally. If only one is alive, he or she gets the entire estate. HOWEVER, if both are dead, their ascendants cannot inherit because in law, an illegitimate does not have ascendants except for his natural parents or parents that have recognized him. If the surviving spouse of the decedent concurs with such illegitimate parent/s, spouse should get YJ of the estate (Tolentinos opinion), and the parents, the other half, after all such is the share when the surviving spouse concurs with the LEGITIMATE parents. It would be absurd to think that a surviving spouse will get a lesser share in the estate when she concurs with the illegitimate parents than when she concurs with the legitimate parents.Page 172 of 207(4) Surviving Spouse. In default of the foregoing heirs, the surviving spouse shall inherit the entire estate. Big if he concurs with brother and sisters, and nephews and nieces, of the deceased, he will get 1/2 of the estate, and the latter the other half.(5) Brothers, Sisters. Nephews. Nieces. The lawprovides that the only time that they inherit is whenthey concur with the surviving spouse of theillegitimate child. Although there is no mention in thelaw as to a situation wherein only these bros, sister,etc, survive without anyone else, Tolentino believesthat if they alone survive, then they inherit the entireestate. Who are the -brothers and sisters who cansucceed an illegitimate child? Art. 992 alreadyprohibits an illegitimate child and a legitimate one,5* born by the same person from inheriting from each2£ other. However the law is silent as to two illegitimate-^ offsprings. Tolentino believes that illegitimate children3>> maV inherit from each other. If the illegitimate childrenO afe full blood brothers or sisters, (they have the samemother and father but are illegitimate for some legalcause), they receive double the portion of half-bloodbrothers and sisters, and if all are either of the fullblood or of the half blood, they shall share equally.(6) The State. In default of the persons called upon to order of succession of an illegitimate child. State steps in and inherits the estate. There is an escheat proceeding. Rule 91 of the Rules of Court must be complied with.D. Collateral LineART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articlesART. 10C4. Should the only survivors be brothers and sisters of the ft/',' blood, they shall inherit in equal sharesART. 1005. Should brothers and sisters survive together With nephews and nieces, who are the children of the decedent's brother or sister of the full blood, • the former shall inherit per capita, and the latter per stirpes.

ART 1006. Should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.ART 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shatt inherit in equal shares without distinction as to the origin of the property.ART1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.REVIEWER IN SUCCESSION

2007ATOLENTINO• Full blood relation - are those proceeding from the same father and mother, inherit equally.• Half blood relation - subsequent marriages result into thisConcurrence of half brothers or sisters, ALONE, 1007 applies. They inherit in equal shares irrespective of time when such property, was acquiredConcurrence of full and half brothers or sister: Full take double the share of the half blood.• Nephews and Nieces - when they survive alone, they inherit, equally, in their own right and not by right of representation, The law allows right of representation for nephews and nieces only when uncles and aunts concur with them. Tolentino also adds that, in his opinion, if some of the nephews and nieces are of the whole blood and others half blood, the former gets double the share of the latter.• Concurrence of brother or sister with nephew and nieces - 1105 provides that the brothers or sisters shall inherit per capita 2nd the nephews and nieces per stirpes. Here the brother or sister inherit in his or her own right, while the nephew or niece (children of deceased brother or sister) inherit by right of representation.ART. 1009. Should theie de neither brothers or sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood,.ART 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral tine.TOLENTINO• The last among relatives to succeed in intestate succession are the collaterals other than brothers and sisters or their children, but such is limited to relatives within fifth degree.• Although the limit is fifth degree, it does not mean that such relative will inherit. As to said relatives, we again use the general rule that the nearest relative excludes the more remote..• No right of representation exists between them. They succeed without distinction of lives or preference among them on account of the whole blood relationship.Bicomonq v. Almanza (1977)Simeon Bagsic was married to Sisenanda Barcenas. They had 3 children: Perpetua, Igmedia, and Ignacio. After Sisenanda's death. Simeon remarried. To this second marriage, two children were born, Felipe and Maura. The subject matter of the complaint concerns the % undivided share of Maura in 5 parcels of land which she inherited from her deceased mother. The trial court held that the plaintiffs Igmedia, Perpetua, and Ignacio, have a right to 10/24 of the parcels of land. ISSUE: WON half brother and sisters can inherit. YES.RATIO: The applicable provisions are articles 975, 1006, and 1008. In the absence of descendants, ascendants, illegitimate children or a surviving spouse, 1003 provides that collateral relatives shall succeed to the entire estate of the deceased. It appearing that Maura died intestate without an issue, and her husband and all her ascendants died ahead of her, she issucceeded by the surviving collateral relatives, namely the daughter of her sister of full blood and the 10 children of her brother and 2 sisters of half blood in accordance with 975 By virtue of said provision, the nephews and nieces are entitled to inherit in their own right. The only difference in their right of succession is that the share of the sole niece of full blood is double that of the half blood nieces and nephews.____Bacayo v. BorromeoMelodia Ferraris was presumed dead, hence her estate was opened for succession. Her relatives who are claiming a share in the estate [ are: her aunt Filomena Bacayo (the half sister of her dad) and her nieces and nephews, the children of her deceased brother. ISSUE: Who is entitled to inherit'HELD: The nieces and nephews, to the exclusion of the aunt A decedent's uncles and aunts may not succeed ab instate so long as nephews and nieces of the decdent survive and are willing and qualified to succeed. The absence of brother sisters, nephews, and nieces of the decedent is a precondition to the other collaterals being called to the succession. An aunt of the deceased is as far distant as the nephew from the decedent (3 degrees) since in the collateral line to which both kinds of relatives belong, degrees are counted first ascending to the common ancestor and then descending to the heir. Nephews and nieces do not inherit by right of representation, unless concurring with brother or sisters of the deceased.E. The StateART 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding sections, the State shall inherit the whole estate.____rOLENTINO

• When a person dies intestate and leaves no heir behind, the property goes to the state. This is based not only on public policy, but also by the consideration that private property is enjoyed only under the protection of the State, and when it can no longer be enjoyed becai'se there are no persons to enjoy it, it should revert to the state.ART 1012. In order that the State may take possession of the property mentioned in the Preceding - article, the pertinent provision of the Rules of Court must be observed. _____TOLENTINO• The rules of court provide for the procedure for the escheat of property left without any heir in Rule 91.ART 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated.If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located.Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant.__________________Page 173 of 207REVIEWER IN SUCCESSION

2007AThe court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used.ART 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered the state, such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the ___proceeds as may not have been lawfully spent._____• THE STATE AS A LEGAL HEIRWhen there are no OC (relatives within the 5th civil degree of consanguinity), the property goes back to the state in accordance with the Regalian doctrine• What is this Regalian doctrine?At first, all property were owned by the state. Private-ownership became an institution only because the state allowed it. The state allows the property to devolve by descent tc a relative within the 5th civil degree.In default of such a relative the property goes back to the state.• Is the reversion to the state ipso facto?No. Where the property reverts back to the State, the state must follow the procedures provided for in the Rules of Court. This is the rule on escheat. The state must file an escheat proceeding before ft can get the inheritance. Maliwanag ba yan?MAGIC NOTESQ: What are the three kinds ofintesate heirs? A: They are as follows:1. Relatives:- Ascendants ._j- illegitimate- legitimate- Descendants- illegitimate- legitimate- Collaterals- half-blood- full-blood2. Surviving spouse (SS)3. StateQ: What is the first principle in intestacy? A: The nearer excludes the more remote.Q: If only legitimate children survive, how much will they getand how will they share? A: They will get the entire estate of the decedent. They have todivide the estate among themselves equally (per capitadivision).Q: Suppose there are no LCs but only legitimate descendants (LD), how will they inherit and share the inheritance?A: Always by right of representation. Each descendant will get the share per stirpes.Q: A died predeceased by his three children B, C, and D. B had one child E. C has 2, F and G. And D has 3, H, I, andJ. Who are the nearest relatives?Page 174 of 207A: EFGHIJ.Q: How will they inherit? A: By right of representation.Q: How will they share?A: Per stirpes.E will get 1/3. This is the share of his father B, F and G will get 1/6 each- The total of their share is the share corresponding to their father C. H, I and J will get 1/9 each which totals 113 which is the share of their father D. You .call this inheritance, by right of representation.Q: Suppose F died survived by Children I and L. W,ll Linherit notwithstanding the first rule? A: Yes, even if they are of the third degree.

Q: Will they be excluded by EGHIJ? A: Technically yes but they will inherit by right of ' representation. They will represent their father F.C: How much will K and L get?A: Each will get 1/2 so that their shares total to the share of F whom they represent. Maliwanag iyan ha? So children, grandchildren and all descendants will inherit by way of representation- There is one instance where they will inherit in their own right and thai is in case of repudiation when all the children (BCD in the cast above) repudiate their inheritance. There is no right of representation in case of repudiation under art- 969. Therefore all the grandchildren will inherit in their own right.Q: How will the grandchildren share when they inherit intheir own right? A: We divide the estate into six corresponding to the 6grandchildren. Each grandchild will get 1/6 of theestate.Q: If F is dead, will K and L inherit? A: Yes, by right of representation again.Q-Why?A: Because they will be representing not C who repudiated the inheritance but F who predeceased and is inheriting in his own right. Since F is inheriting in his own right, he can transfer his right to his heirs so that K and L can represent F who is the heir in the inheritance. Therefore, K and L will get 1/12 each.Q: Suppose only C is alive, B and D predeceased, whowill inherit and how will they share? A: E will represent B and gets 1/3. F and G will not getanything because C is still alive. HIJ will get 1/9 eachin representation of D.Q: Suppose C, though the only one alive, repudiated, whatwill F and G get? A: Nothing since C repudiates. There is no representationin repudiation.Q: Where will Cs share go?A: To Bs and Ds heirs by tight of accretion. We will go to this later.REVIEWER IN SUCCESSION

2007AI'm just trying to point to you that descendants, legitimate or illegitimate always inherit by right of representation. There is only one instance where they will inherit in their own right and this is in case all those nearer in degree shall repudiate the, inheritance.Q: Suppose the LC survive with 1C, how will they divide the estate by way of intestacy?A: The answer is in Art 983. If illegitimate children survive with legitimate children, the shares of the former shall be in proportions prescribed in Art 895. The proportions provided for in Art. 895 have already been repealed by the Family Code.The proportion now is that the share of 1 1C is equal to 1/2 of the share of one LC.Q: Let us take one example. There arc 2LC and 8 1C and the estate is P240.000. Now how do we divide the estate?A: Let us apply literally Art 983 which is the rule in intestacy. We will apply this directly into the estate. Computing their shares applying the proportions in the law directly into the estate, we divide the entire estate such that the share of one 1C is equal to half of the share of one LC. To do that, we apply the ration and proportions to arrive at following: One LC will get 2 parts so that: 2LC x 2 = 4 One 1C will get I part so that: 8LC x 1 = 8 Therefore one LC will get 2/12 x P240.000 = 40,000. And one 1C will get 1 12 x P240.000 = 20,000.This is the literal application of Art. 983.Q: But wait a minute, the literal application of Art 983 will impair the legitimate because the legitimate of 2 LC is equivalent to 1/2 of the estate or P 120,000 or P60,000 each. But if we apply literally art. 983, the share ot each child is P40.000 so that the legitime was impaired. The legitime must not be impaired. Therefore, we should not adopt this solution. To be sure that the legitime is not impaired, we follow a second solution. (Tandaan ninyo, under intestate succession art 983 commands that we apply the proportion specified in the law directly to the estate. But if we apply literally Art 983 it will lead to impairment. How do we avoid this effect?)A: In order to be sure that the legitime is not impaired, we give the first their legitime. So we give the legitimes in this way.Given: LC =2 1C =8 Estate =240,000Required legitimes of LC and 1CSolution:LC =1/2 E=60.000 each. Total LC: 120.0001C =1/2 of LC =30,000 each. Total 1C: 240.000Total: P360.000 or 120.000 in excess.Since the estate is less than the total of all the legitimes, we pay first the legitime of LC which is 120,000. After paying this, the balance of 120,000 will be given to the 1C as their intestate share to bePage 175 of 207divided among themselves equally so do each 1C ends up with 15,000.Q: Suppose, then: are 2 LC and 2 1C, how will they share7 A: Under the first solution by applying art 983 directly.2LCx2=4 2ICx1=2YTotal shares: 6One LC =2/6 x 240,000 =80,000 One 1C =1/6 m 240;000 =40,000Total intestate share paid so far:LC 80,000x2 160,000. This is LCs total legitime

1C 40,000 x 2 80.000. This Is ICs total legitime"' Total: 240,000In this case, the legitimes of both type, of children are not impaired. This is because of the peculiar set of circumstances. But how would you know when it would impair the legitime? So do not follow this solution in case there are 1C and LC Follow the second solution by giving them their respective legitimes and you will arrive at the same result. Hence:*LC= 240.0000/2 = 120,000 One LC =60,0001C =60,000 One 1C = 30,000Total legitimes so far paid:= 160,000 x 2 LC + (30,000 x 2 1C)=120,000 +60.000= 180.000Balance: P240.000 -180,000 = 60.000Let us then divide the balance in accordance with the proportion in Art 983. The proportion is 2 is to 1. One LC will get 2 pans and one 1C will get one part. Hence:One LC: 2/6 (60.000) =20.000. Intestate share 1 LC One 1C: 1/6 "(60,000) =10.000. Intestate share 1 1CTherefore, one LC will get a total of P80.000 and one 1C will get a total of P40.000. We arrive at the same result without necessarily impairing the legitimes of the children. There is no need to resort to trial and error to determine whether there is impairment of the legitimes. This is a more convenient solution.Q: Suppose the LC concurs with SS. How will they share?A: We follow the provision of an 996. If a widow or widower and legitimate children or descendants are left, the SS has in the succession the same share as that of each of the children.This art provides that the SS will have equal share with the LC. We apply this proportion directly and there is no way the legitime will be impaired. Why? Because the SS is only one.Given: LC= 9SS =1 Estate =240,000REVIEWER IN SUCCESSION

2007ARequired: compute the intestate shareSolution: Divide 240,000 by 10 or each will get 24,000.Q: Is there a ay where the legitimes will be impaired?A: No way because there is only one surviving spouse. Suppose there is only 1 LC and 1 SS?We apply art 996. So since the estate is 240,000, we divide it into 2 or each will get 120,000 each We apply the proportions directly for as long as the legitimes are not impaired Here, the legitime of one LC is 1/2 and the SS is 1/4. No legitimes were impaired. This is the case of Santillon v. Miranda 14 SCRA.But since the SS is supposed to get only 1/4 as legitime, in the case above, the spouse gets 1/2 by getting the balance of 1/4 also. This will be unfair to the LC because he will not get any of the free portion. The entire FP or 1/4 will go to the SS Do you follow?Q: Therefore, to whom shall we give the balance? A: Four solutions were proposed namely:1. Padilla and Cagioa: art 996 says "illegitimate children" and not "legitimate child". The law did not provide for the concurrence of one LC surviving with SS. Since there is no provision, we have to devise our own rule in accordance with the principles of succession. So, these guys proposed the rules on exclusion. They said "give the legitime of the legitimate child (1/2). Give the legitime of the SS (1/4). So there is a balance of 1/4. Since the law does not provide to whom this 1/4 will go. then it must go to the legitimate child because the legitimate child is preferred over the SS. The LC excludes the SS because the law does not provide for a concurrence.This was highly criticized. Excuse me, there is no exclusion here If the legitimate children could not exclude the SS. more so if the LC is only one.2. Reyes and Puno: we give the LC his 1/2 and the SS his 1/4. The balance of 1/4 should be divided in accordance with the proportion 2:1. Hence. 2/3 of the balance will go to the LChild and 1/3 of the 1/4 balance will go the SS.This solution is equitable but there is no statutory basis therefor. Under an. 996. their sharing is equal and not 2:1.3. Third solution: To that balance, we will apply art. 996. They will divide that balance equally since there are only 2 of them. Hence, the L child will get 1/2 of 1/4 balance and the SS will get 1/2 of 1/4.4. Tolentino, Jurado, and Paras apply directly the proportion in Art. 996 as long as the legitime is not impaired. % of the estate to the SS and % of the estate to the LC. Why? Because the word •children' includes the word "Child." Art. 996, though, speaks of children, must also include "child." So we must apply art. 996 also in case there is only 1 LC and SS.Q: Which of these 4 solutions was followed by the SC? Page 176 of 207A: The fourth solution was followed by the SC in the case of Santillan vs. MirandaHence, we must apply the proportion directly: % SS and Y? LC. Sabi equal eh. llan ba sila? Dalawa lang. So hati sila.Q: Where did the entire balance go? A: To the surviving spouse.The SC said that this may be unfair to the legitimate child but dura lex sed lex.DC: Of course, the most equitable solution is that proposed by Reyes and Puno. Pero there is no statutory basis for tn'at solution.

Q: What if there are legacies given in case it is a partial intestacy, who's share must answer for these? A: Whoever gets the free portion must give the legacies. In the case above, where there are 9LC and 1SS, all of them divided among themselves the free portion. Hence, all of them must contribute to the legacies given. In the case above also where there is one LC and 1 SS, the free portion was clearly received by the SS. Hence, the SS must give the legacies. : .".".:,.Q: In case of partial intestacy where legacies are given and if all of the 9LC and the SS must contribute for the legacy, will it impair the leg/time? A: No.Example: LC = 9 SS = 1Estate = 240,000Share of 1 LC .= 240,000/10 = 24,000There is no way for the legitime to be impaired because the total share of the LC in this case is 24,000 x 9 = 215,000 while their legitime supposedly is only 120,000. The legitime of one child is 120,000/9 = 18.000 while his intestate share is 24,000. Hence, he gets more than his legitime and this excess he gets from the free portion. Therefore, all of them wouiod suffer for whatever legacies j provided for in the will in case of intestate succession.But in case there is only 1 LC and a SS. the entire free portion was given by law to the SS as she will be receiving % or including the % free portion not used in paying the legitimes. Take note that the child gets the other half. We cannot ask the child to pay the legacy because if we do. then he will receive less than his legitime. This is not allowed under the law. The testator cannot impose a charge on the legitime of a compulsory heir. Therefore, the legacy must be taken from the share of the spouse who received the free portion.The rule is therefore is that we apply the proportion in the law. making sure the legitimes are not impaired, then we determine who gets the free portion and from this, we must get the legacy provided for in the will of the testator. Tandaan niyo ito.Q: Suppose the concurrence is between legitimate ascendantsand LC, how will they share? A: The legitimate ascendants are excluded.REVIEWER IN SUCCESSION

2007AQ: Suppose the concurrence is between illegitimateascendants and LC? A: The illegitimate ascendants are excluded.Q: Suppose the concurrence is between LC, 1C, and SS, how will they share?A: Since there are already 1C, there is a possibility that the legitimate's share will be impaired. TO avoid impairment of the legitimes, we give the survivors first their legitimes and the balance will be divided in accordance with the ratio 2:1, taking the surviving spouse as LC. Do you follow?Let us go now to the 1C. If the 1C survive alone, then all of them will get the estate to be divided among themselves equally (per capita division). If all the Illegitintate children arc dead, then all their descendants will inherit by of representation under art 902, whether legitimate or Illegitimate and they will divide the inheritance per stirpes.Q: A has an Illegitimate child B. B lias an illegitimate child C and legitimate child D. D has illegitimate child E and legitimate child F. May C represent B in the inheritance of the father?A: Yes under art 902.Q: May D represent B in the inheritance of A? A: Yes under art 902.Q: Suppose D is dead and B is already dead, may E representD in the inheritance of A? How about F, may he representD in the inheritance of A? A: These are problems which are not in the law and which areasked in the exam. This is not provided for in the law. Wecannot apply arts. 902,992,959, and 990.Q: A has 1C named B. B has 1C named C and LC named D. If B is dead, C and D will repres3nt. In representing B, how may C and D share? Equally or do we apply 2:1 ratio?A: We apply the ratio 2:1.Q: If B repudiated, will C (1C) inherit in his own right? A: Yes. C may inherit from A (art. 902).Q: May D inherit from A? in his own right? How about art 992? A: Those are the questions- Marami pa yan when we reach collaterals. Paiikutin nito ang ulo ninyo.Q: Suppose the 1C concurs with the illegitimate Parents (IP)?In compulsory succession, may they concur? A: No since the 1C excludes the IPQ: How about the LP concurring with 1C in compulsorysuccession? A: Yes.Q: In compulsory succession, suppose they concur, how much are their shares?A: Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one half of the estate whatever be the number of the ascendants or of the illegitimate children. So under this art , the intestate share of the 1C is 1/2 and that of the LP is also 1/2. However, the tegitime of the 1C, under the law, isPage 177 of 207only 1/4 so that in case of intestate succession, the 1C get more.Q: How will the estate be divided? A: There are 2 proposed solutions:1. Give the LP or ascendants their legit'me of 1/2, give the 1C their legitime of 1/4 and the balance must be divided in the proportion of 2:1, the LP getting 2/3 of the balance and the 1C getting only 1/3 of the balance2. Another solution is that after giving than their respective legatimes. divide the balance of 1/4 in accordance with art 991 so that the LP will get 1/2 of the balance of 1/4 and the 1C will get 1/2 of the balance of 1/4.

DC disagrees witn the two proposed solutions According to his, the proportion in art 991 must be applied directly as in the case of Santillon V. Miranda. Hence the LP will get 1/2 of the estate and the iC wi!1 get 1/2 of the estate under this art.Q: How about LP concurring with 1C in compulsorysuccession? A: Yes.Q: In compulsory succession, how much are the legitimes ofthe LP and the 1C? A: LP = V, 1C = '/4 FP = '/Q: In intestate succession, suppose they concur, how much are their shares?A: Art 991 If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-\ half of the estate whatever be the number cf the ascendants or of the illegitimate children.So under this art, the intestate share of the IC is 1/2 and that of the LP is also 1/2. However, the legitime of the IC. under the law. is only 1/4 so that in case of intestate succession, the 1C get more How will the estate be divided? DannyCon says that 1C must get % and LC Yi. Same principle as Santillon vs. Miranda.OTHER COLLATERALSQ: If they survive alone, meaning there are no ascendants,descendants, or SS, how much will the BNSS get? A: They will get the entire estate.Q: Will there be an impairment of legitime? A: No because they have no legitime in the first place since they are not compulsory heirs.Q: How much will they share in the inheritance? A: The BS will inherit in their own right.Q: Will they share equally?A: It depends. Those of the full blood will get the share of twice the share of the half blood.Q: How about the NN?REVIEWER IN SUCCESSION

2007AA: They are excluded by the BS except when the agent or representation is proper or when all the BS have repudiated in which case, the NN will inherit in their own right.A has sons BCD. C has 2 LC: E and F. D has only one child, G. B dies long before A was dead. Therefore, only C and D will inherit. EFG are excluded because C and D are nearer in degree. However, if C is dead also, E F will inherit by right of representation. So the estate will go to D (1/2) and E and F (1/4 each). G is excluded.Q: If F is also dead, EFG are heirs. How will they share theestate? A: Per capita. EFG will get Yi each.Q: Why?A: Because there is no right of representation in favor of the NN when all the uncles and aunties are dead. There is only representation when at least one uncles is alive who concurs with the NN. IF there is none, the NN will inherit in their own right. Art. 975 provides that when the children of 1 or more brothers and sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles and aunts. But if they alone survive, they shall inherit in equal portions. Okay?You have to relate this with art. 1066: brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.Last time, I discussed with you the problem of C and D wherein C is only the one alive but he repudiates. The question is will D and F inherit in their own right or will they be excluded. Walang solution sa book.When all the brothers and sister repudiated the inheritance, then the NN will succeed in their own right and they will share per capita and not per stirpes unlike in the case of descendants. Descendants always inherit per stirpes except when all the children repudiated, in which case, the descendants will inherit per capita. Tandaan niyo iyan.If BSNN with other collaterals (OC, the OC are excluded. So the BSNN excludes the OC. But the BSNN are excluded with ascendants and descendants. They, however, concur with the SS. The SS excludes only one legal heir which is a relative: OC. Of course, the state is also excluded but it is not a relative.The BSNN excludes also only one kind of legal heir: OC.Q: Who are the OC?A: These are relatives of the decedent within the 5th civil degree of consanguinity other than the BSNN. They will only inherit when there are no ascendants, descendants, SS and BSNN.Let us plot them:D3

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\l/ NJA H2 I3

•^4-" Ms

Among the collaterals, we observe the first rule; the nearer excludes the more remote. But among all of them (within same degree) they will share without preference to their lines, or full or half blood under Art 1009.If G and J survive alone, only J (4th) will inherit G ;- (5th) will be excluded.If F and J survive alone, then they will divide the ; estate equally since-they belong to the same degree.But if I survives with other collaterals, the OC are (- j. excluded Because I is a niece. (Remember BSNN which exclude the OC within the 5th degree).If D (ascendant) survives with H (brother), H is excluded (asc. Excludes BSNN and OC).

To summarize the rules set forth above:1. The nearer excludes the more remote;2. The ascendant excludes the BSNN;3. The BSNN excludes the OC;, 4i When OC of the same degree, the division is without preference as to the line or the blood5. The BSNN are excluded by the descendant and ascendant; and6. BSNN occurs only with SSNOTES:• If decedent is a LEGITIMATE CHILDa) LC & DESb) LP & ASCc) 1Cd) SSe) Collaterals up to 5th degree 0 State• If decedent is an ILLEGITIMATE CHILDa)b)c)d)e) 0LC & DES1C & DESIPSSBSNNStatePage 178 of 207INTESTATE SHARESA. LC & DES alone: whole Concurrence:1. 1C: V4 share of 1 LC2. SS:1 share of LC(996)3. 1C: 1/2 share of 1 LC SS: 1 share of 1 LC4. IP: excluded(978/979) (983) (999) (993)REVIEWER IN SUCCESSION

2007AB. LP & ASC alone: whole E (985) Concurrence:1. IC:y2E (991) LP: % E2. LP: 1/2 E (997) SS: % E3. LP:%E (1000) 1C: % E SS: % E4. BSNN: excluded (985)C. 1C & DES alone: whole E (988) Concurrence:1. IC:1/jE (998) SS: '/2 E2. BSNN: excluded (1003)3. IP: excluded (993)D. SS alone: whole E (995) Concurrence:1. SS:1/4E (1001) BSNN: % E2. SS: % E (997 by analogy) IP: % EE. IP alone: whole E (993) Concurrence: 1. BSNN: excluded (985)F. BS alone: whole E (1003) Concurrence:1. Half-blood BS 2:1 (1006)2. NN(byRt. Of Rep) (1005)G. Other collaterals up to 5th degree H. StateI. ADOPTED CHILD 190 FCAdopter now concurs with NP and ascendants, the 1C and SS of the adopted.1. LC: 1 share of LC 1C: % share of LC SS: 1 share of LC2. L/IP or LA: % E Adopters: V4 E3. SS or 1C: % E Adopters: V4 E4. 1C: 1/3 E SS: 1/3 E Adopter: 1/3 E5. Adopters alone: whole estate6. Only collaterals: whole estate7. Adopter: % E (Tolentino) Collaterals: '/z E8. L/IP or LA alone: whole estatePage 179 Of 207 * REVIEWER IN SUCCESSION2007APROVISIONS COMMON To TESTATE AND INTESTATE SUCCESSION

XXII. RIGHT OF ACCRETION A. ConceptARi-AOART 1015. Accretion is a right by virtue of which., when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs.TOLENTINO:• The right of accretion is based upon the presumed will of decedent. When the testator leaves one specific thing to two or more persons, without express designation of shares, undoubtedly he gives to these persons a preference over the thing given. Naturally, when one of the persons designated repudiates or is incapable of succeeding, the law respecting the will of the testator, gives the4 vacant shares to the co-participants. But when the testator designates a substitute, the right of accretion shall not take place for he has expressed his intention to give to the substitute the vacant share.• Accretion is based on the presumed will of the testator. But he can expressly provide that Jhere shall be no accretion among persons who would

otherwise be entitled thereto. Conversely, he may validly provide for accretion in a case where no accretion would take place under the provisions of law.• There are some who sustain the view that an heir cannot repudiate the share that goes to him by right of accretion. Others, however, like Castan, believe that a distinction should be made between testate and intestate succession. In case of testamentary succession, the heir can renounce the accretion and accept only his own part of the inheritance, because each are considered two different parts of the inheritance. But in intestate succession, accretion is compulsory in nature, such that none of the heirs can accept his own portion and renounce the vacant portion.• Manresa advances the view that the equitable solution is to give the co-heirs the option to renounce the right of accretion. Scaevola is inclined to give the co-heirs this liberty of choice. Accretion is a right and not an obligation. The nature of the right of accretion is voluntary and not compulsoiy.• Tolentino is inclined to agree that accretion can be renounced. In case of testamentary succession, the distinction made by Castan has a sound juridical basis. The personal portion is given the will of the testator, while that which passes by accretion is only by operation of law as the presumed will of the decedent. The heir may feel that he should respect the express will of the testator and accept the portion given to him by will; but he may not feel so bound as to the portion given to another but which passes to him by right of accretion.• Even in case of intestacy, we believe repudiation of accretion is permissible. Article 990 of the Old Civil Code which provided that "acceptance or repudiation of inheritance may not be made partially, for a term, or conditionally," has been omitted in the present code. Thus,Page 180 of 207the heir may accept or repudiate partially. Hence, accretion can be renounced.:-W/here there is representation, whether testamentary or intestate succession, it cannot be said that there is a vacant portion, thus, there can be no accretion.ART 1016. The words "one-half for each" or in "equal shares" or any others which, though designating an aliquot share part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion.__________________TOLENTINO:• The first requisite of accretion in testamentary succession calls for a unity of object and a plurality of subjects, or one inheritance or the same portion thereof and two or more persons called to the same. Plurality of subjects means that there must be more than one person called to the inheritance.• For there to be accretion, it is necessary that the subjects be called to the same inheritance, or same portion thereof. Tow or more persons must be called jointly to the inheritance in the same wili and under the same testamentary disposition without the testator making a distribution of shares among them or fixing a quota or amount for each heir by designations which make only one the owner of a separate mass of property.• If testator institutes A and B to his property in halves or in equal shares, there is still accretion. Where the testator, however, designates an aliquot part separately for each heir or states numerically or by quantity what each heir shall receive there will be no accretion.• There is no accretion in the following examples:When he says, "I leave one-half of my estate to A. one-sixth to B and two-sixths to C" or when he says, "I bequeath my house worth P20 thousand to A and B. such that P10 thousand shall go to A and P10 thousand to B.• Scaevola is of the view that when the institution is made in unequal parts, there will be no accretion. The difference in quotas indicates the intention of the testator to limit the right of each heir exclusively to the part to which he is instituted.• The designation of quotas may be made by the testator in such a manner that there will be accretion as to some heirs and none as to others. Example: " I leave one-third of my estate to A, one-third to B, and other third to C and D." Here, there will be accretion only between C and D.• Therefore, when the heirs are instituted collectively and together to the inheritance or some portion thereof in such a manner that there is created as among them a condition of co-ownership or indivision in which each has an equal participation, clearly indicating the intention of the testator to give to them the property or portion concerned as a single unit, accretion will take place, whether or not the testator has expressly stated such equality in participation. For accretion, it is enough that from the language used by the testator it can be inferred that he has no intention to make a division materially or in aliquot parts of the inheritance or property.REVIEWER m SUCCESSION

2007AThe second requisite for accretion in testamentary succession is that one of the heirs designated dies before the testator, or renounces the inheritance or is incapacitated to receive it. His portion is left vacant. This is not an exclusive enumeration. There are still other causes which may give rise to accretion. For example, the nonfulfillment of a suspensive condition, imposed upon the instituted heir, the absence of one of the heirs, long enough to have him declared presumptively dead or the inefficacy or nullity of the testamentary disposition. An example of the last mentioned cause is that Art 844, where an error in the name, surname, or characteristics of the heir concur with the fact that the person will not go to the legal heirs under Art 841, but to the other

co-participants, in compliance with the presumed will of the testator. He has instituted a number of voluntary heirs to a definite portion of property, showing his desire that these heirs are preferred with regard to such portion. It is only logical that the share left vacant by one who cannot be identified be given to the other participants by accretion.ART 1019. The heirs to whom the portion goes by the right of accretion take it in the same portion that they inherit. .ART 1020. The heirs to whom the inheritance accrues shall succeed to all the rights end obligations which the heir who renounced or could not receive it would have had.B. In legal successionART 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs.TOLENTINO:• For the... (PORTION UNREADABLE p.3 bottom par) would be a vacant share.• In intestacy, however, there cannot be a vacant share in the strict meaning of the term. So that, whether or not there is accretion, the result is the same. The right of accretion does not really affect the shares that go to the legal heirs who ultimately succeed.• Repudiation will always give rise to accretion, as stated in this art. But there will be no accretion in cases of incapacity of a child or descendant, who has his own children or descendants because representation will take place.• In case of a predeceased co-heir in intestate succession, there is no accretion. The survivors are called to the succession in their own right or by right of representation.C. Compulsory successionART 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.Should the part repudiated be the legitime. theother co-heirs shall succeed to it in their own right, and_____not by right of accretion._____________________TOLENTINO: Page 181 of 207• The rule that there is no accretion in the legitime, but only in the free portion, can be illustrated thus:• Estate of P30 thousand with 2 legitimate children surviving, A and B. The testator provides in his will that he institutes as his sole heirs his children A and B and his friend F. Upon T's death, B repudiates his share The legitime is one-half of the estate, P15 thousand; upon B's repudiation, the entire legitime will go to A in his own right The institution of heirs affects or.ly the free portion, which under the will should be divided in 3 equal parts if all succeeded, or P15 thousand each; but since B repudiated, his share accrues to A and F, who will each get P5 thousand under the will; and P2500 by accretion In the final distribution, A will get P22.500 and F wiil have P7.5CO.D. Testamentary Capacity and IntentART 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations^ _____________________TOLENTINO:• In testamentary succession, the will of the testator is supreme Hence, when he appoints a substitute, this shall (portion cannot be deciphered - page 4, last paragraph). However there may be cases when there is no substitute but there can be no accretion because its requisites are not present In such cases, the vacant portion shall pass to the legal heirs, who shall receive it with the same charges and ohligations. Tnis is (see Tolentino).ART 1023. Accretion shall also take place among devisees, legatees, and usufructuaries under the same conditions established for heirs.MAGIC NOTES• ACCRETION - share of an heir increased by vacant shares vacated by heirs who can't inherit for various reasons• Kinds;1. Testamentary2. Legal(a) Compulsory - 1021: accretion only with respect to free portion of legitime(b) Instestacy - 1018; note: 'repudiate1 includes everything else (error in translation only)TESTAMENTARY ACCRETIONQ: 2 or more heirs instituted pro indiviso to the inheritance.X dies with no compulsory heirs. She institutes her 3 Dance instructors A. B, and Cas her heirs to her entire estate. Suppose A predeceased her, who will inherit? A: BC by accretion, in equal shares (absent provision to the contrary)T institutes ABC as heirs to entire estate, to share 2:1:1. C dies before T. Tdies. Divide the estate. AB get C's share, the ratio is 2:1 also.REVIEWER IN SUCCESSION

2007AQ: 7 has no compulsory heirs. He institutes A to 'A of estate, B to 'A of estate. Accretion?No! Shares are no longer pro indivisoLEGAL ACCRETION - Let us illustrate by a concrete example...A-WV^ BR CESTATE = 240 Will: Wife:B:C = 2:1:1JURADO-MANRESA SOLUTION

Recall that in the Manresa solution, the will's provisions only apply to the FREE portion of the estate.HEIR LEGITIME ACCRETION - LEGITIME WILL

B [60] - [15]

C 60 30 15

W 60 30 30

CONCEPCION-MANRESA SOLUTION - THE CORRECT SOLUTION ACCORDING TO DANNYCON Recall that according to DannyCon, there is no accretion with regard to LEGITIME because th&Jegitime is distributed as if the repudiating heir is not there at all. This is to give justice to 1021 CC. But this solution takes into'consideration that the will's provisions ppply only to the FREE portion.HEIR LEGITIME WILL ACCRETION -WILL

B 0 [15] -

C 120 15 C

W 60 30 10

CONCEPCION-BAVIERA SOLUTIONDISCLAIMER = This is my own personal solution. DannyCon didn't discuss this bit in class. He discussed the second example though...HEIR WILL BREAKDOWN OF WILL COMPLETION OF

LEGITIME

B 60 -30

C 60 Legitime = 120 -KULANG! Will provided for 60 only Free =

+30 +30

W 120 Legitime = 60 Free = 60

-30 reduce the excess free portion

Q: Let us illustrate by another concrete example. Apply the diagram above. But this time, the will says that Wgets Yi, and BC get Divide the estate.JURADO-MANRESAHEIR LEGITIME ACCRETION -LEGITIME WILL

B f60] . [15]

C 60 30 15

W 60 30 30

Page 182 of 207REVIEWER IN SUCCESSION

2007ACONCEPCION-BAVIERA SOLUTIONRecall that according to DannyCon, no accretion with regard to LEGITIME according to 1021. But take into consideration that according to BAVIERA, the provisions of the will apply to the entire estate.HEIR WILL BREAKDOWN OF WILL COMPLETION OF

LEGITIME

B 60 -30

C 60 Legitime = 120 -KULANG! Will provided for 60 only Free =

+30 +30

W 120 Legitime = 60 Free = 60

-30 reduce the excess free portion

NOTICE: There will only be a difference if repudiation of an heir will change the legitimes. If no change in legitimes, then the answer will be the same if you use Concepcion-Baviera or Jurado-ManresaQ: One more time...A:ESTATE = 720 WILL institutes ABCD to entire estateJURADO-MANRESALC = % E

1 LC = (1/2E)(1/4)1 LC = 720/8 = 90Free Portion = 360 - Apply this to the willHEIR LEGITIME DISTRIBUTION ofB's

LEGITIMEW!LL

At 90 E = 45 F = 45 30 E = 15 F = 15 [90]*

BR [90] - [90]*

Cl 90 I = 45 J = 45 30 1 = 15 J=15 [90]*

D 90 30 90

* There is no representation in voluntary successionCONCEPCION-BAVIERA LC = V4 EPage 183 of 2071 LC = 120HEIR WILL Representation for

LegitimeACCRETION"

At 180 Legitime =120 Free = 60

120 E = 60 F = 60 -60

BR [180]* -180

Cl 180 120 -60

REVIEWER IN SUCCESSION

2007ALegitime = 120 Free = 60

I = 60 J = 60

D 180 Legitime = 120 Free = 60

60+60+180 = 300

* Automatically becomes free portion** No representation in testamentary share. So the free portion's testamentary share is now subject to accretion.Q: What if it's intestate?A: Apply sharing provided in the Code, unless there's impairment of legitime. Using the same diagram and facts as above, but this time applying iNTESTATE provisions...JURADOHEIR INTESTATE SHARE ACCRETION TOTAL

At 180 E = 90 F = 90 60 E = 30 F = 30 E=120 F= 120

BR [180] -180 0

Cl 180 I = 90 J = 90 60 E = 30 F = 30 1 = 120 -J = 120

D 180 60 240

CONCEPCION-BAVIERAHEIR INTESTATE SHARE

At 240

Cl 240

D 240

NOTICE: 8 wasn't even computed in the solutionASITKOPage 184 of 207REVIEWER IN SUCCESSION

2007AXXIII. CAPACITY TO SUCCEED A. DeterminationART 1034. In order to judge the capacity of the heir. devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion.

In cases falling under Numbers 2, 3. or 5 of Art 1032. it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.TOLENTINO:• In case the institution in conditional, there is taken into consideration, not only the moment of death of the decedent, but also the time when the condition is fulfilled, because it is only at the latter moment that the rights to the succession are consolidated and produce their effects.• The condition referred to in the third paragraph is the suspensive, because this is the condition on the fulfillment of which the rights dependent thereon are perfected. It cannot include resolutory conditions, under which definite rights arise until abrogated by the fulfillment of the condition.ART 1039. Capacity to succeed is governed by the law of the nation of the decedent.TOLENTINO:* As regards the intrinsic validity of the provisions of the will, as provided for by art. 16 (2) and 1039, the natural law of the decedent must apply.Cavetano v. Leonides. supraHELD: Although on its face, HC was preterited and the court should have denied reprobate outright, it was established in NP's petition for reprobate that AC, at the time of her death, was an American Citizen, and following ART 16 (par 2) and Art 1039, the law governing Ac's will is the law of Pennsylvania, USA. It is settled rule that with respect to the intrinsic validity of the provisions of a will, the national law of the decedent must apply.The Pennsylvania law does not provide for legitimes and all the estate of the decedent may be given by her to a complete stranger. As no mention was made of HC in AC'S will, it cannot be said that he was divested of his legitime upon reprobate.Therefore, the settlement cf the decedent's estate in the Philippines correctly filed with the CFI of Manila, as it was proven that AC, at the time of her death was an American citizen.B. Who may succeedART 1024. Persons not incapacitated by law may succeed by wilt or ab intestate.The provisions relating to capacity by will are _____equally applicable to intestate succession._________TOLENTINO: Page 185 of 207There are two requisites for the possession of capacity to succeed: first, that there be general civil capacity of the person, whether natural or artificial, according to law; and second, that there by no incapacity or prohibition to succeed expressly provided by law.Kinds of Incapacity. There are two kinds of incapacity to succeed: absolute and relative, or per accidens. Those absolutely incapacitated are disqualified to succeed in any form, to anyone, or to any quantity of property; while those who are relatively incapacitated are disqualified only with respect to certain persons or property. To these two kinds of incapacity, a third is.added: unworthiness which means that by reasons of certain acts, a person who has capacity to succeed is deprived of it. It is therefore really a relative incapacity.ART 1025. In order to be capacitated to inherit, the heir, devisee, or legatee must be living at the moment the succession opens, except in case of representation when it is proper.A child already conceived at the time of the death of the decedent is capable of succeeding provided it be bom later under the conditions prescribed in article 41. -: •••-'-;tTOLENTINO:• Only persons may succeed, and there is no person unless there is juridical existence. If the rights to the succession are transmitted from the moment of the death of the predecessor, there must be a subject with juridical capacity to whom the transmission can be made at that precise moment. If no juridical subject exists at the'__ moment of the death of the testator, then there cannot be a transmission at that moment.ART 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, cr charitable purposes.AV other cofporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation and always __ subject to the same.__________________TOLENTINO:• Not all the entities mentioned by this article are persons having juridical existence. They succeed, not by virtue of the general rule of capacity, but by reason of the special provision of this article conferring capacity upon them.ART 1029. Should the testator dispose of the whole or part of his property, for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval, shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Art 1013.ART 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limitedREVIEWER IN SUCCESSION

2007Ato the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all cases, the approval of the Court of First Instance shall be necessary.The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality.____________TOLENTINO:• Here, a class is instituted; and the class is determined. It is only the determination of the individuals belonging to the dass that is left to the persons mentioned by law. In case the testator has not designated the person to make the designation of the poor and the distribution of the property among them, the executor or administrator of the estate shall do so.• When none qualify as poor, the property should be distributed as in case of intestacy, the portion originally destined for the poor passing to the legal heirs of the testator.Parish Priest of Victoria v. Rigor (1979) Father Rigor, parish priest of Pulilan, died leaving a will which was duly probated. In such a will there was a devise to the effect that the property would only go to anyone of his nearest male relatives who would pursue an ecclesiastical career and eventually be ordained as a priest. The will also provided that during the interval of time that there is no qualified devisee, the administration would be in the hands of the incumbent parish priest of Victoria, and his successors.In 1940, the estate of Fr. Rigor was partitioned and the devisees received their respective shares. There was no nephew of the testator who claimed the particular (Iceland, but the same was not delivered to the parish priest because the administrator and the legal heirs believed that the parish priest has no right to administer the (Iceland. The testate proceedings remained pending. After 17 years, the parish priest filed a petition for the delivery of the riceland, since as admitted by the parish priest no male relative ever appeared.TC dismissed the case on the ground that the testator had a grandnephew who was a seminarian. The heirs appealed to the CA which reversed the TC on ground that Father Rigor had created a testamentary trust for his nearest male relative who would take the holy order but that such trust could exist only for twenty years because to enforce it beyond that period would violate the rule against perpetuities. Since no one claimed within the 20 year period, the property should pass to the legal heirs. This appeal by the parish priest of Victoria (interesado, huh!) ISSUE: Who would inherit the property? Held: The legal heirs.As the testator was not survived by a nephew who became priest, the bequest became inoperative and the administration of the ricelands by the parish priest must also become inoperative. The parish priest of Victoria would only become an administrator when any of the testator's nephews living at theC. Who are incapable of succeedingART 1027. The following ore incapable of succeeding:(1) The priest who hears the confession of the testator during his lost illness, or the minister of the gospel who extended spiritual aid to him during the same period;(2) the relatives of such priest or minister of the gospel within the fourth degree, the church order, chapter, community, organization, or institution to which such priest or minister may belong;(3) A guardian with respect to testamentary dispositions given by a ward in his favor befon; the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter his ascendant,' descendant, brother, sister or spouse, shall be valid;(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or nay one claiming under such witness, spouse, parents, or children;(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; •(6) Individuals, associations and corporations not _____permitted by law to inherit.______________Page 186 of 207TOLENTINO:• Extent of Incapacity - The disqualification provided in this article, except the last, apply only to testamentary succession. They have no application to intestate succession. The persons disqualified under these provisions (except the last paragraph) are not absolutely disqualified to succeed; they are disqualified only under certain circumstances, and in relation to particular testators Hence, their disqualification is only (portion unreadable- page 9).« Disqualification of priest of minister - The purpose of this provision is not to restrict the liberty of the testator to dispose of his property, but to safeguard the legal heirs from being frauded by suggestions of some confessors who may induce penitents to dispose of their property in the manner and to the persons contemplated by the prohibition.The last illness referred to here means that of which the testator died.We submit that if the testator recovers from his illness and he enjoys normal health for a sufficient length of time as to enable to him to reflect on the wisdom and consequences of the testamentary disposition he made during his illness, the his failure to revoke the testament must be considered a

ratification of the same, but if no such sufficient length of time has elapsed, tacit confirmation cannot be presumed, and the nullity of the disposition remains.A priest who acts merely as the testator's adviser, staying by his side during his illness is not incapacitated by this article.REVIEWER IN SUCCESSION

2007AIf the reason for the prohibition is to avoid undue influence by the confessor upon the will of the testator, this reason does not exist when such will has already been solemnly expressed by the time the confession is made.If they are compulsory heirs, it seems clear that they get their legiiimes, because these are given to them by force of law and not by the will of the testator. But if they are relatives who may succeed only in case of intestacy, or even if compulsory heirs, as far as the free portion is concerned, the prohibition applies. The testamentary disposition in their favor shall be void.The fact, however, that the testamentary disposition is void does not absolutely disqualify the relative from succeeding, if they are entitled to succeed according to the order of intestate succession.• Incapacity of guardian - A testamentary disposition made by a ward in favor of his guardianship is void, even if the ward dies after the approval of such accounts. The reason fc r this provision, like that concerning the priest, is the presumption that the disposition made under the circumstances contemplated by the article cannot be the result of the spontaneous and untrammeled will of the ward.• Incapacity of testamentary witness - Under Art 823, the disposition in favor of the witness and other persons mentioned is "void unless there are three other competent witnesses to such will." The exceptions given in Art 823 should be read into the provisions of par (4) of the present article. If there are three other competent witnesses to the will, the fact that the beneficiary attested such will does not have any material effect upon the existence or validity cf the will; hence, his intervention is not essential to the effedJvity of the disposition in his favor. For this reason. his disqualification should cease, as provided in art 823.• incapacity of physician, nurse, or druggist - The disqualification apples only when the will was made during the last illness of the testator and after the beneficiary had at least begun to take care of him. It is only under such circumstances that the presence of influence upon the testator can be presumed.A testamentary disposition which is rernuneratory, such as that which directs the payment of professional fees to the physician, surgeon, nurse, etc. is valid.• Applicability to intestacy - We believe that all the paragraphs of the present article, except the last, refer only to testamentary succession, and does not include intestate succession.ART 1028. The prohibitions mentioned in art 739, concerning donations inter vivos shall apply to testamentary dispositions._______________TOLENTINO:• These disqualifications are based on considerations of morality, and are intended to prevent circumvention of the prohibitions no donations by resorting to the making of a will as a means of disposing of property in favor of the disqualified donees.ART 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void._______________caTOLENTINO:• Interposition Prohibited - What the law prohibits to be done directly cannot be done by indirection. Hence, this article renders void attempts to go around the prohibitions against dispositions in favor of incapacitated persons.The interpositions may be made in either of these ways:„ 1. By the institution of a person who has capacity with a jj verbal charge or direction to deliver the inheritance to— the incapacitated person;^ 2. By disguising the disposition in the dorm of a contract;and 3. By simulating debts in favor of an incapacitatedperson.Who are Disqualified Persons - "Disqualified person" does not include those who are such by reason of unworthiness. The institution of the unworthy person, with knowledge of the cause of unworthiness, is by itself a tacit pardon by the testator.The parties who are really disqualified are those who are in a position to wield an influence upon the mind of the testator; the priest, the guardian, and the attesting witness.ART 1032. The following are incapable of succeeding by reason of unworthiness:(1) Parents who have abandoned their children or induced their daughter to lead a corrupted or immoral life, or attempted against their virtue; •(2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendant or ascendants;(3) Any peison who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless'(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

(5) Any person convicted of adultery or concubinage with the spouse of the testator;(6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already make;(7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the tatter's will;(8) Any person who falsifies or forges a supposed wil of that decedent. ___Page 187 of 207TOLENTINO:• Effect of Unworthiness - If the incapacitated person is a compulsory heir, does he also lose his legitime?Disqualification by reason of unworthiness is a kind of legal disinheritance; it is a penalty declared by law itself for serious offenses committed by the heir, devisee, or legatee against the decedent. The law cannot permit that the inheritance be acquired in full or in part by those guilty of these offenses against the deceased. The effect of unworthiness is thus an exclusion from the entire inheritance; its causes constitute impediments toREVIEWER IN SUCCESSION

2007Asuccession. Hence, the unworthy heir loses everything that he could have otherwise received mortis causa from the decedent including his legitime if he is a compulsory heir. The unworthy heir, devisee, or legatee is treated by the law as if he did not exist, or had predeceased the decedent; hence, he inherits nothing. On Donations - The causes of unworthiness exclude the heir, devisee, or legatee only from the succession. He does not lose what he has already received from the decedent during the lifetime of the latter. Donations inter vivos, therefore, are not affected by the incapacity of the donee to succeed the donor.It should be noted, however, that the act of unworthiness may constitute an act of ingratitude, which would entitle the donor, during his lifetime, to revoke the donation.ART 1035. The causes of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if. having known of them subsequently, he should condone them in writing._____TOLENTINO:• The pardon may be either express or implied. The forms of such pardon are limited to those express specified by the law, not other form being admissible. Executive clemency, or pardon by the President, does not erase unworthiness or incapacity of the heir.• The express pardon is made by the execution of a document in writing in which the decedent condones the cause of incapacity. The only cardinal requisite is that the pardon must be after the act of unworthiness has been committed.• Tacit or implied pardon of the cause of unworthiness is effected if tne testator had knowledge of the thereof at the time he made the will• Once the act of unworthiness has been pardoned, whether expressly or tacitly, the heir is restored to full capacity to succeed the decedent, as if the cause of unworthiness had never existed. The capacity that has thus .beep recovered cannot cease except by a new cause.D. Effect of alienations by the excluded heirART 1036. Alienations of hereditary property, and acts of administration, performed by the excluded heir, before the juridical order of exclusion, are valid as to third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir.E. Rights of the excluded heirART 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children.___________________TOLENTINO: Page 188 of 207The act causing unworthiness being personal, it should not prejudice the innocent children and descendants of an unworthy child or descendant Thus, the present article provides for representation of the unworthy child or descendant by his children and descendants. Only a child or descendant can be thus represented; unworthy parents or ascendants, or the surviving spouse, cannot be represented.ART 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity for any expenses incurred in the preservation of the hereditary property, an~d to enforce such credits as he may have against the estate._______________F. Liabilities of the excluded heirART 1033. The causes of unworthiness shall be without effect if Me testator had knowledge thereof at the time he made the will, or if, having known of themsubsequently, he should condone them in writing.G. Prescription of act/onART 1040. The action for a declaration of incapacity and for the recover of the inheritance, devisee, or legacy shall be brought within five years from time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession.TOLENTINO:• The action referred to by this provision is not only solely for the purpose of declaring the incapacity of the heir who has taken possession of the hereditary property. The action is essentially to compel such heir or legatee to

restore the property, its accessions, fruits and rentals, in accordance with art 1036.ARiTAUREVIEWER IN SUCCESSION

2007AXXIV. ACCEPTANCE AND REPUDIATION OF THE INHERITANCEcollationable donations inter vivos and remissions are concerned.TOLENTINO:• Concept of Acceptance and Repudiation -(a) Acceptance is the act by which the person called to succeed by universal title either by the testator or by law manifests his will of making his own the universality of the rights and obligations which are transmitted to him;(b) Repudiation is the manifestation of such heir of his desire not to succeed to the said universality.• Before the acceptance or repudiation by the person called to the succession, the inheritance remains in a condition of suspension. Once acceptance is made or conversely, repudiation done, the institution of the heir is confirmed or rejected, or the right to succeed perfected or declined, as the case may be.ART 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.TOLENTINO:• The freedom to accept or repudiate the inheritance follows the principle that rights granted by law may be waived, provided that such waiver is not contrary to public interest or order or prejudicial to third persons.• The articles in the law of contracts on the effects of causes vitiating consent are applicable to the laws on repudiation and acceptance of inheritance by analogy.• Inheritance can be accepted or repudiated partially. Reasons:1) The heir is not the continuation of the personality of the deceased;2) The greater right always includes the less: if total acceptance or repudiation can be made, why not partial acceptance or repudiation?3) Creditors of ths estate would not be prejudiced by partial acceptance since they are first paid before the residue of the inheritance is distributed among the heirs;4) Successional rights are not perfected only by the absolute concurrence of the wills of the deceased and the heir; partial concurrence is also allowed by the laws on succession (See Art 995 for example); and besides, succession is not contractual such as to require absolute concurrence of wills (Art 1319)) Hence:(1) an heir who receives a portion by will and another by intestacy may repudiate or accept either; or,(2) a substitute of an heir may repudiate or accept what passed to her by substitution or by institution.PARAS:• The presence of vitiated consent in the acceptance or repudiation gives rise to their revocability. Why? Because these are purely free and voluntary acts.• Legitime may be repudiated.• Reason for allowing repudiation: No one can be compelled to accept the generosity of another.• Acceptance or repudiation cannot be made during the lifetime of the testator or decedent, except insofar as Page 189 of 207ART 1042. The effects of acceptance or repudiation shall always retroact to the moment of the death of the decedent.TOLENTINO:• By fiction of law. the will of the heir to take the inheritance is made simultaneous with the death of the decedent. This is the retroactive effect of acceptance or repudiation. Reason: By the nature of things, the continuity of ownership of property should not suffer interruption.• Acceptance or repudiation with a term or condition is not valid. Reasons:(a) The fundamental principle of succession on the transmission of rights by succession upon death: the law seeks to insure continuity in the ownership of property, without an gap, even for a moment, from the time of the death of the decedent. This kind of acceptance or repudiation, on the contrary, makes uncertain the transmission of rights by succession;(b) The power to impose conditions on the transmission is inherent only in the testator himself, by virtue of his freedom to dispose; the heir however has no such right since he has no right over the property until he accepts the inheritance.(c) Acceptance or repudiation with a term or condition is inconsistent because of the irrevocable character of the acceptance or repudiation (see Art 1056).ART 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritanceTOLENTINO:• The prerequisites of Repudiation / Acceptance:(1) She must be certain of the death of the person from whom she is to inherit. Reasons:(a) he will of the decedent, while living, is changeable; inheritance is so uncertain Acceptance/Repudiation of the same while the testator is alive amounts to nothing at ail; until the decedent's death, the person is not an heir either by the will of the deceased or by law;(b) The person inheriting must survive the decedent and must have capacity to succeed when succession is uncertain.

(2) She must be certain of her rights to the inheritance, i.e. Certain that she is an heir, or that the will is valid, or that there are no relatives closer in degree to the deceased than she is.• Absent these prerequisites, the acceptance/ repudiation is ineffective.PARAS:• Acceptance/repudiation must be made in due time. Due time refers to prerequisites of Acceptance/repudiation explained above.• Death includes presumed death, without prejudice to the supposed decedent's returning (See Art 390-2).REVIEWER IN SUCCESSION

2007ARight to the inheritance must be based on a valid will, in case of testacy; otherwise, acceptance/repudiation is ineffective.ART1044. Any person having the free disposal of his property may accept or repudiate an inheritance.Any inheritance left to the minors or incapacitated persons may be accepted by their parents or guardians. Parents and guartians may repudiate the inheritance left to their wards only by judicial authorization.The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in article 1030.TOLENTINO:« Capacity to Accept- General rule is found in th first paragraph of Art 1044. Capacity to succeed is not the same as capacity to accept, but the latter presupposes the former.• Acceptance by legal representatives, i.e. Parents or guardians, may be done without judicial approval, unless the institution, devise or legacy is subject to a a charge or condition that be performed by the incapacitated (to accept) beneficiary. Repudiation, since it amounts to an alienation of property, always requires judicial authorization. By what court? Hie guardianship court.• Where there is an Institution of the Poor- The persons designated by the testator to determine the beneficiaries in •n institution of the poor in general can only accept the inheritance; they have no power to repudiate. But the individuals seteeted as poor have the freedom to accept or repudiate the portion that may be given to them.Art 1045. The lawful representatives of corporations, associations, institutions, and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary.___________'TOLENTINO:• Why the distinction between acceptance and repudiation, on the matter of court approval? Because the Jaw has taken for granted that the acceptance by the representatives will always be beneficial to the institutions, while the repudiation may not; and, because the institutions may by their nature by of public interest, and repudiation is detrimental to such public interest since the act can result in loss of patrimony.Art 1046. Public official establishments can neither accept nor repudiate the inheritance without the approval of the government itself.__________________TOLENTINO:• Meaning of Public Establishment- This term refers to organizations which have their own and distinct social and public purpose, such as culture beneficence and other similar purposes, separate from the mere manifestations of the governmental functions of the State. For example: Public universities, public libraries, and archives. This term does not refer to mere administrative agencies which doPage 190 of 207not have a separate existence as a legal entity, since » these agencies find their legal representatives in the State O or the government. For example: A provincial government; »4 hence a provincial governor may accept an receive a >! devise in trust without the approval of the National -^ Government (Govt v Abadilla).• Whose approval? - The approval must be given by the head of the department to which the public establishment belongs or is subordinated.DE LEON:• Why is approval of the Government required? Because Public Official Establishments have no juridical personality and hence, testamentary dispositions to them are in reality left to the government through the proper Department Head.• Requisites for P.O.I. - (a) Devoted to public purposes separate from the mere manifestations of the governmental functions of the State; (b) supported by public funds.Art 1047. A married woman of age may repudiate an inheritance without the consent of her husband.TOLENTINO:• Art 1047 refers to repudiation of an inheritance. As a rule, a married woman of age may repudiate an inheritance without the consent of her husband because property acquired by her succession forms part her separate property (see Arts 92 (1), 109 (2), FC) Art 200 cf the NCC has been expressly repealed by the FC.• The rule in case of acceptance by the wife is governed by Art 114 of the NCC. Under this rule the wife does not need the consent of the husband to accept her legitime and her share in the intestacy. Note however that under Art 109 (2) of the FC, property inherited by the wife is her paraphemal property. Under art 1044, any person having the free disposal of her property may accept or repudiate an inheritance. Since the wife has free disposition of

her parapheranal property, and under Art 1044 she has therefore capacity to accept, the requirement of marital consent from the husband for the wife to accept an inheritance is inconsistent with the rule in Art 1044.ART 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent Should they, not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval.__________________DE LEON:• Why the need for judicial approval in case of repudiation by the guardians? Because said judicial approval is necessary for the protection of the interests of the ward.PARAS:• In acceptance through a guardian, no judicial approval is required; such is required in case of repudiation through a guardian.• If the deaf-mute who can read and write has no guardian (i.e., personally), she may accept of repudiate even without the necessity of judicial approval.REVIEWER IN SUCCESSION

2007AART 1049. Acceptance may be express or tacit.An express acceptance must be made in a public or private document.A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir.Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if. through such acts, the title or capacity of an heir has not been assumed.ART 1050. An inheritance is deemed accepted:(1) If the heir sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them;(2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;(3) If he renounces it for a price in favor of all his coheirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. _____(1000)____________________TOLENTfNO:• Tacit acceptance may be presumed from certain acts of the heir. Some acts are enumerated in Art. 1050. Why are they presumed to signify tacit acceptance?• In cases of Sale/Donation/Assignment of Heir's Right. — Because these acts involve alienation and no one can transmit anything that is not his own. To justify his ownership of the inheritance, here must have been implied acceptance. The right to the succession is perfected upon the heir's acceptance, without prejudice to the tatter's retroactive effect.• In cases of gratuitous renunciation in favor of the coheirs. - Because the act of renunciation is in reality that of disposition. The renunciation may be made in favor of all co-heirs; or it may be in favor of all co-heirs provided they are not the persons called by law in case of intestacy.• When the renunciation is in favor of all heirs indiscriminately for consideration. — The repudiation is not a renunciation at all. since the repudiating heir receives something in exchange. The law considers renunciation with consideration as an acceptance, not only in favor of his co-heirs, but also of the persons called to the inheritance by virtue of intestate succession or the right of accretion. The exception would be when the renunciation is gratuitous in favor of all heirs indiscriminately. In this case there is NO implied acceptance and there is really an absolute repudiation because the effect is to give the co-heirs the renouncer's share by accretion, substitution or by intestacy.• Other act of tacit acceptance. - An example would be when the heir demands partition of the inheritance, or when he alienates it. Under Art. 1057, a failure to signify acceptance of repudiation within 30 days after an order of distribution by the probate court is deemed to be an acceptance.• Art. 1050 is not exclusive. Some other acts include:(a) A demand for partition(b) Alienation of certain objects of inheritancePage 191 of 207o(c) See Art. 1057(d) Similar acts.Acts NOT constituting acceptance include: See Art 1050(3) - Renunciation for a price(a) Acts of the heir as administrator(b) Acts of the heir as a partner of the decedent or a co-owner of a property in he inheritance(c) Continued possession of the property(d) Acts of preservation and administration of the property of the deceasedPARAS• The same principles apply if renunciation is in favor of a stranger.• The term "co-heirs" include intestate heirs, substitutes, and co-heirs by right of accretion.ART. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.____ ___

TOLENTINO:• The law considers that the act of repudiation is more so'emn than the act of acceptance, hence the formal requirements of repudiation in Art. 1051. Its reasons are the following:(a) Repudiation makes transmission by succession ineffective, thereby producing more violent and disturbing consequences which the law cannot permit by more implications or presumptions.(b) The publicity of the repudiation is needed for the benefit of the creditors and the public interest.(c) Repudiation involves acts of disposition and alienation, acts which by their nature require formalities.(d) Repudiation opens the way for other heirs, and it is necessary that this calling of the other heirs be based - on certainty.• Meaning of Public or Authentic instrument. A public instrument is a notarial instalment, while an authentic instrument is one whose genuineness is admitted or dearly proved.• An instrument is'a document, which should be in writing.PARAS:• Repudiation made in a petition to a court must be made within 30 days (See Art. 1057).• One who repudiates is deemed never to have owned or possessed the inheritance (see Art. 533).without prejudice to the rights of the creditors (see Art. 1052).• One is not allowed to repudiate legacies with burdens when he accepts gratuitous legacies (Arts. 954. 955).ART 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, may belong.REVIEWER IN SUCCESSION

2007ATOLENTINO:• The purpose of Art, 1052 is to protect the creditors of the heir.• The acceptance in the name of (he heir shall benefit the creditors only insofar as it covers the amounts of their credits. The excess shall be adjudicated to the person to whom it may pertain under the law.• Requisites to entitle the creditor to accept for the Heir:(a) There must be repudiation by the heir-debtor on legal form, a repudiation valid in law.(b) There must be credits.existing against the heir who repudiates, in favor of one of many creditor/s.• When does the repudiation prejudice the claims of the creditors?(a) When the creditors became such before the repudiation.(b) When the heir-debtor is insolvent and has no sufficient property out of which the creditors may recover what is due them.• Should the heir-debtor have certain property, though not sufficient to cover all. to pay part of the credits, the creditors cannot collect from the share repudiated to the entire debt but only that which cannot be covered by the property of the heir<tebtor.PARAS:• Creditors accept in the name of the heir.• Even if the creditors accept everything that has been repudiated, the renouncing heir is not considered as having accepted - she is still a renouncer and cannot therefore be represented.• For example:A in hie will gave P20.000 to B, and P20.000 to C. B and C are A's legitimate sons. The estate is P40.000. B has a legitimate'child. 0. B owes X P5.000, but B. who is insolvent, repudiated the inheritance. X filed a petition under Art. 1052.(a) Will the petition prosper? Yes, but only to the amount of PS.OOO which is the credit.(b) Who should get the excess P15,000? C should get P 10,000 by way of his legftme and PS.OOO by right of accretion. 0 cannot represent B as to the tatter's tegitime of P10.000. D cannot get the PS.OOO since this amount accrued to B as voluntary heir and since this amount belongs to B by accretion.ART 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs.TOLENTINO:• P died and left J as his heir. Before J accepted or repudiated the inheritance, J died. J left X as his heir. X has the right, under Art. 1053, to accept or repudiate the inheritance from J; if X had repudiated the inheritance from J, X has no right to accept/repudiate the inheritance from P.PARAS:• For the heir's heir to be able to exercise the right under Art. 1053, the first heir must survive the decedent. Hence, in the example above, J must survive P so that the right could be transferred to J's heir, X.Page 192 of 207The heir, X, of the first heir, J, does not inherit from the decedent P, but from the first heir, J. Hence, Art. 1053 is NOT a case of representation. Consequently, unless X accepts the inheritance from J, X cannot exercise the right of accepting or repudiating the inheritance from P which otherwise should be the case of representation.

ART 1054. Should there be several heirs called to the inheritance, some of them may accept and others may repudiate it.ART 1055. If a person, who is called to the same inheritance as an heir by will and ab intestate, repudiates the inheritance in his capacity as testamentary heir, he is understood to have repudiated it in both capacities.Should be repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.______TOLENTINO:• Repudiation of inheritance as a testamentary heir includes repudiation of inheritance as legal heir. The reason is that when an heir who is such by will repudiates, she already shows her dislike to become an heir in any concept whatsoever. Besides, such act reveals the fact that she does net appreciate the wili of the testator and that she does not deserve to become the testator's intestate heir cs well.• Repudiation if inheritance as legal heir does not mean repudiation of inheritance as voluntary heir. The reason is that the express wili of the testator should be respected.PARAS:• T died instituting F. a friend, as only heir. F died after T, before she could signify her acceptance or repudiation of the inheritance from T. F has 5 children. Could 2 of those children repudiate the inheritance and the other 3 to accept the same? Yes, with respect to their respective shares.• Art. 1055. par. 1 means that she is automatically disqualified from receiving the intestate share. This is one form of implied repudiation (see Art. 1051) based on an express repudiation (of the testate share).• With respect to Art. 1055, par. 2. what if the renouncer knew of the testamentary disposition in her favor? May she still accept in her capacity as voluntary heir? Yes. because she may want to respect the express will of the testator though she does not desire to be an intestate heir.ART 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when en unknown will appears.___________________TOLENTINO:• Reason for Art. 1056: To prevent the disruption of rights already vested and the instability of juridical relations.• The rule has two exceptions - See Art. 1056. According to Art. 1330. the vices which annul consent are mistake or error, violence, intimidation, undue influence and fraud.REVIEWER IN SUCCESSION

2007Ar LI I I 1(a) Error: Reference must be made to the substance of the thing, i.e. who the decedent really is; or to the principal conditions of the thing, unless the heir accepting or repudiating the same did not exercise due diligence is appraising the principal conditions of the estate.(b) Violence refers to the external acts imposed upon the heir to accept or repudiate. Intimidation works internally upon the mind of the heir forcing her to accept or repudiate.(c) Fraud must be practiced by a third person, a co-heir, a legatee, a creditor or a stranger. It must be serious and must consist of insidious words or machinations without which there would have been no acceptance or repudiation.Appearance of an Unknown Will: To revoke the acceptance or repudiation, the unknown will must:(a) Institute a person other than ths one who has accepted or repudiated, or(b) Grant additional legacies or revokes some or imposes new charges and dispense with others. Insignificant changes do not matter.There are other causes of revocation, i.e. non-fulfillment of a suspensive condition, no right to the inheritance.Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees, and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance.If they do not do so within that time, they are deemed to ftave accepted the inheritance._______Borromeo-Herrera v. Borromeo (1987)V died without heirs. He however left extensive properties. A purported will of V was denied probate. The testate proceeding was converted into an intestate proceeding. In that proceeding, F filed a motion praying that he be declared as one of the heirs of V. alleging that he was an illegitimate son of V and therefore entitled to receive a tegitime like all other forced heirs. The motion was denied. F filed a MR, changing the basis of his claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary Rights signed by nine heirs, 5 of whom allegedly relinquished their share in the estate to F. The heirs opposed the motion on the ground that, among others, the waiver agreement was void since (a) they could not have waived what they did not own, the hereditary right, and since (b) they could not have renounced what they had not validly accepted under Art. 1043. The opposing heirs based their arguments of the fact that the waiver agreement was executed before an order of partition and a declaration of heirs had been issued.Ruling: The Waiver Agreement is valid. The waiver agreement had a subject matter - the hereditary right. The heirs acquired a right to succession from the moment of deathPARAS:

• If there are no settlement or administration proceedings, this article cannot apply.• Other forms of accepting or repudiating the inheritance are allowed even if there are settlement or administration proceedings (see Art. 1050).• Ait. 1057 provides a way for tacit and implied acceptance Hence, if there are administration proceedings, the heirs cannot repudiate the inheritance after the lapse of 30 days.of the decedent. From that moment the right has been vested, though unconditioned upon the adjudication of the corresponding hereditary portion The properties included in an existing inheritance cannot therefore be considered as belonging to third persons with respect to the heirs. Hence, the inheritance may be renounced even before an Order of Partition has been issued. The renunciation does NOT require prior acceptance. Right to the inheritance is vested upon the moment of death of the decedent, though it is by the act of acceptance that the inheritance is acquired. The renunciation is valid, provided the 2 requisites of Art. 1043 are present. The waiver agreement clearly shows the presence of the said requisites.However, though the agreement is valid, it is nonetheless not effectual. Three elements are essential: (a) The existence of the right; (b) the knowledge of its existence, and (c) an intention to relinquish such right. The third element is lacking. The intention to waive a right was not shown clearly and convincingly.____________________________Page 193 of 207REVIEWER IN SuccESSiOh2007/XXV. COLLATION• Concept of Collation: It is the act by virtue of which the persons who concur in the inheritance bring back to the common hereditary mass the property which they have received from the decedent, so that a division may be effected according to law and the will of the testator. To collate includes three acts linked in a chain:(a) To collate: To restore or to add to the mass of the hereditary estate the value of the donation or gratuitous disposition.(b) To impute: To apply those properties which the decedent has disposed of gratuitously during his lifetime to the legitime or free portion of the inheritance; and(c) To reduce: To annul in part those gratuitous dispositions when they are excessive, (for their different operations, see Arts. 906-911)• Purpose of Collation:, (a) To prevent any heir from being deprived of the legitime or the part thereof which corresponds to him;(b) Tc verify whether the testator has disposed, to the prejudice of the compulsory heirs, of property in excess of the free portion;(c) Among the compulsory heirs, to attain equality among them in the distribution of their legitime.• Collation is proper in both testate and intestate succession.ART 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it maybe computed in the determination of the legitime of each heir, and in the account of the partition._________________________TOLENTINO:« The provisions of Art. 1061 are limited to collation among co-heirs. This does not mean though that strangers are exempt from collation, (see discussion of Art. 908)• Donations during marriage between spouses are prohibited. They are void so the property donated must be considered physically and numerically as part of the estate of the donor spouse.• Donations made before marriage to a donee who later becomes the donor's spouse, are considered as given to a stranger and must be charged against the free portion.• Both ordinary and tacit/indirect donations are subject to collation. Examples of tacit/indirect donations are:(a) Remission or a debt of a co-heir,(b) Repairs/improvements on tenements belonging to an heir;(c) Renunciation of an inheritance in favor of a determinate person;(d) See Art. 1069.PARAS:• There is no necessity for collation if there are no co-heirs, since the purpose of collation is to preserve the legitime and maintain equality among the co-heirs.• "... must bring into the mass of the estate xxx" means collation in value; it does not mean cottation in kind - whenPage 194 of 207D=>-^ A:—\CDthe donee has no money with which to reimburse in case the donation turns out to be inofficious and has to be reduced or revoked totally - which properly speaking, is not "collation" but really a Returning in Kind. • Value refers to the value of the properly donated at the time of the donation. Increase, deterioration, and even the total loss of the property shall be for the benefit or account and risk of the donee (see Art 1071).MAGIC NOTES: (How collation works)

Q: A has P100K. A gave a donation inter vivos to B wo/7/) P10K. A has 2 children. B and C. A died intestate. How should the P90K remaining estate be divided between B andC? P90K10K - Donation must be collated, i.e. aoded. 100K-Net Hereditary Estate (NHE) B and C divide the NHE equally, according to the rules of intestacy. But the P10K shall be imputed to B's share. Hence. B gets only P40K.Q: Suppose L and M are X's legitimate children. During X's lifetime, X have L P15K; M was given P25K; and P. a friend, P50K. X's Estate when he died was worth P90K (P100K-P10K). L complains impairment of his legitime. Is L's complaint well-founded?A: No. The P10K which L had received shou'd be taken into account with his first P15K in determining his legitime.ART 1062. Collation shall not take place among \ compulsory heirs if the donor should have so ; expressly provided, or if the donee should repudiate • the inheritance, unless the donation should be reduced as inofficious.TOLENTINO:• Reason for Art. 1062: The will of the decedent is the supreme law in succession.• Reason for the Exception: There are considerations superior to the will of the testator, i.e. when the property given must be reduced as inofficious.• Collation shall not take place among the co-heirs if the donee should repudiate the inheritance. Reason: Once the donee repudiates her share, she does not become a co-heir. The obligation to collate does not therefore attach to her. She is a stranger to the inheritance.• But what does it mean that "collation shall not take place" or that the "obligation to collate does not attach to the repudiating heir?" The exemption of the compulsory heir from collating simply means that the donation shall not be charged against the legitime. However, the express provision by the testator exempting an heir from collation, as well as the repudiation by a compulsory heir of her inheritance, does not do away with the fact that he has actually received property or value from the decedent and thus diminished the latter's estate. He must, therefore, numerically add or bring back such property or value to the mass of the estate for collation.PARAS:• Not collatable by express provision of will:T gave B, his son, a donation inter vivos of P10K. In Ts Deed of Donation, T declared that the P10K is notREVIEWER IN SUCCESSION

2007Acollatable. T has another child, C. T died leaving an estate of P90K. Divide the estate between B and C. \Answer: B and C get equal shares. PIOKgoestoB • as preference. Hence:90K + 1QK - Donation inter vivos100K-NHE Legitime: B = 25K C = 25KShare in Free Portion: B = 30K C = 20KART 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired.TOLENTINO:• This article means that testamentary dispositions shall be chargeable against the free portion, not against the legitime - "not deemed subject to collation."• Contrast the rule in this article with the rule on donations inter vivos.• Exception: The testamentary disposition of the testator that the thing given by will shall be brought to collation -merely means that the disposition shall be charged against the legitime, if the beneficiary is a compulsory heir.• Example: T has 2 legitimate children M and N. T made a will, giving M a iegacy of P10K. No other provision was made in the will. The estate was worth P100K. P10K was given as a legacy; P90K remains to be divided.Answer: M gets P45K and N gets P45K. The P10K is advanced to M's share in the free portion.If the P10K was given to M as a donation inter vivos, the P10K shall be added or collated to the P90K, and shall be charged to M's legitime. Hence, M gets P40K while N gets P50K.• Example: T has 2 legitimate children E and F. In Ts will, E was given a legacy of P80K. The total estate was worth P100K. Divide the P20K between E and F.Answer. F gets the P20K, while the legacy shall be reduced by P5K to complete F's legitime, P25K. (1/2 of estate is P60K; divided by 2 to get the share of each heir)• Example: T has 2 legitimate children. A and B. T originaly had P100K. T gave to A a donation of P10K and to 6 a legacy of P10K. Divide the remaining P80K.Answer The donation given to A is collatable, so the total estate to be divided is P80K + P10K = P90K A and B are entitled to P45K each A's share = P45K - P10K = P35KB's share = P45K - the legacy is charged upon the free portionART 1064. When grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property.They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced._____________

• The grandchildren if they concur with their uncles or aunts or cousins, are obliged to collate all that their parents, if alive, would have been required to bring to the hereditary mass. This is an exception to the general rule that only the persons who received donations should collate. The basis of this obligation is the right of representation.• The properties received by the parents who are represented, shall therefore be charged against their " legitime. ."-* This obligation subsists even if the grandchildren should•^ renounce their inheritance from their father. The• obligation is extinguished .by the repudiation of inheritanceD from their grandfather, or by their disinheritance, or bytheir incapacity. The obligation does not exist if thegrandchildren inherit in their own right as the heirs next indegree.• The grandchildren inheriting by right of representation are obliged to collate the properties that they themselves have gratuitously received from their grandparent.PARAS:• Example: F, the father, receives a donation inter vivos from GF. the father:pf F. F predeceases GF. But before F's death, he gave the donation by way of legacy to L, F's friend. GS, the son of F, represents F in the inheritance from GF. GS is obliged to collate the value of the donation, though GS himself did not inherit it.• Art. 1064 applies only when the grandchildren survive with their uncles, aunts or cousins.• Par. 1 of Art. 1064 applies also in both incapacity and disinheritance, not only in.the case of predecease.ART 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children.TOLENTINO: Page 195 of 207TOLENTINO:• Compulsory heirs are obliged to collate only the properties they received personally and in their own name from their ascendants. Hence, under this article, the parents cannot be under the obligation to collate in the inheritance of their ascendants any property which were donated by the latter to the parent's children.• But the value of such donation must be brought into the mass of the hereditary estate of the parent's ascendants, like a donation to a stranger, and if found to be in excess of the free portion it should be reduced as inofficious.PARAS:• Example: GF has 2 sons. F and G. GF donated to FS P10K. FS is F's son. The remaining estate was worth P90K when GF died intestate. Divide the estate.Answer: G and F share equally in the P90K. F need not collate the P10K given to his son.• Example: Does FS need to collate?Answer: (a) Yes, if by collation it is meant that the value must be computed to find out if the legitime ha been impaired or not, and (b) No. if collation meant that the P10K will be imputed to FS's legitime, because FS is not a compulsory heir of GF and is therefore not entitled to a legitime for he is excluded by F.REVIEWER IN SUCCESSION

2007ACAGUIOA:• The article speaks of grandchildren inheriting by right of representation and therefore does not cover the cases where the grandchildren inherit in their own right as would happen in the case of repudiation by the parents. In that case, the said grandchild shall be bound to collate what they themselves have received from the grandparent during his lifetime and not the donation given to the grandchild's father, since as to that portion, such is deemed a donation to a stranger, imputable to the free portion.ART 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated._______________________I I I I I I I I I I 1 I ITOLENTINO:• The rule contemplates a situation where the heir's spouses received the donation. The heir should not be obliged to collate something he did not receive. This means that the value of the donation should not be charged against his legitime.• Where the property is donated to both the heir and the tatter's spouse jointly, the heir is obliged o collate Yi of the donated property, and it is but just that the same is considered an advance on his legitime. The other half however is considered a donation to a stranger.PARAS:• Non-collation does not mean, in this article, that the value should not be computed, but that its value should not be considered as an advance on his legitime.• All donations, whether given to strangers or to compulsory heirs, should always be reduced if found inofficious (Art. 752).ART 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment or customary gifts are not subject to collation._______________TOLENTINO:

• Under this article, the expenses for support, etc. are not subject to collation, i.e. their value is not brought back into the mass of the hereditary estate and is not imputed against any portion of such estate. These expenses do not have the character of a donation.• "Education" is limited to elementary and secondary education, excluding the study of a profession of the taking of a career (See Art. 1068).• Allowances given to the spouse and the children pending the liquidation of the conjugal partnership are not covered by this article. Insofar as said allowances exceed the value of the fruits, they are considered as advancement of their inheritance and dearly must be subject to collation (See Art. 186, FC).PARAS:• Example: P suffered an accident which required medical attendance for 2 years. Her parents spent P2M. Is the P2M subject to collation? NO.Page 196 of 207• Support after death, or allowances during the liquidation of the estate are not covered by this article. Said allowances are advances of the inheritance.CAGUIOA:• May the testator order that the expense mentioned here be collated? NO, because the prohibition of law is absolute.ART 1068, Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be. brought to collation unless the parents so provide, .or unless they impair the legitime: but when the collation is required, the sum which the child would have spent if he had lived in tne house and company of his parents shall be deducted therefrom.TOLENTINO:• This article covers expenses for Career, or expenses incurred to give the heir some special training or aptitude for a particular profession, excluding instruction for primary and secondary, education. Expenses are for books, matriculations,- allowances, etc. These expenses are NOT collatable unless so ordered by the parents or they .- prejudice the legitime.• "Not be brought to collation" means that they are generally _i chargeable against the free portion. The child's expenses, however, were she living in the house and company of her parents shall be deducted from the collatable sum. Those expenses should not be taken to the mass of the estate, but should fall under Art. 1067.• See Art. 194, FC. Support includes education for a profession. Hence, the scope of Art. 1067 should include that of Art. 1068. but to give effect to both Arts. 1057 and 1068, simply ignore the definition under Art. 194 of Support.• Difference between 1067 and 1068: Art. 1067 refers to expenses incident to paternity and support, Art. 1068 refers to expenses beyond what is required for support.• Example: C has finished studying Denstistry. L. C's father, buys for him the equipment needed by a dentist. Are L's expenses collatable. i.e. imputable to his legitime? YES, unless the testator provides otherwise.PARAS:• The expenses generally are considered as an advance to the free portion, provided the legitime is not impaired.CAGUIOA:• But when said expenses are imputable to the legitime, the whole amount is not to be imputed but only that in excess of the sum which the child would have spent if he had lived in the house and company of his parents.ART 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation.TOLENTINO:• The amount paid for the debt of a child, is to be collated and charged against his legitime, unless the debt is no longer subsisting and enforceable, i.e. in the case of prescription, of previous payment, etc. or unless the childREVIEWER IN SUCCESSION

2007Abecomes the mere debtor of the parent, i.e. in case the parent acts as the surety to her child and is later forced to pay the debt. In both exceptions, the child will no! collate the amount, but she remains subject to a civil action for the recovery of the amount as a credit of the estate. Should the heir repudiate:(a) If there were a donee, he would not collate except to the extent that it prejudices the legitime; and(b) If the heir be a debtor of the estate, the entire amount used in the discharge of the debt could be recovered.PARAS:• Why are these expenses collatable? expenses are considered a donation.Because theseART 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.TOLENTINO:• This article exempts from the general rule of collation the wedding presents, consisting of jewelry, etc. given by parents and ascendants to their children and descendants. Being given through pure liberality, they should ordinarily be collated. This article however imposed a limitation.• The amount which exceeds the limitation shall be subject to collation and chargeable against the legitime if the donee is a compulsory heir who accepts the inheritance, otherwise it shall be reduced as inofficious insofar as it exceeds 1/10 of the free portion.

PARAS:• The 1/10 limitation is available for each child.• The wedding gifts by provision of law may consist of •jewelry" or "clothing" or "outfit," but by analogy, cash or money or real property may be included within the scope of the article, (contra: JBL Reyes & Puno)• Example: T has 2 legitimate children, Q and R. When the 2 children married, T gave Q a pin worth P10K and a bracelet to R worth P20K, as wedding gifts. T left an estate worth P190K. Should the gifts be reduced?Answer To determine whether to reduce or not, first determine the free portion (FP). Hence: P190K + P10K + P20K = P220K -» FP is P110K (one-half is the legitime of Q and R)(a) Q's gift is NOT inofficious since the P10K does not exceed 1/10 of P110K (P11K).(b) R's gift should be reduced by P9K since it exceeds 1/10 of the FP. The P9K should be chargeable against R's legitime because the law considers it as an advance thereof.• Example: If T died instestate, what is Q's and R's share? Answer P190K + P9K = P199K(a) Q gets P99.500 (199K divided by 2)(b) R gets P90.500 since P99.500 - P9K. P9K is an advance to R's legitime.CAGUIAO:• This article does not cover gifts by persons who do not have ascendants or descendants, i.e. compulsory heirs who have a right to the legitime, because only compulsory heirs can ask for the reduction of inofficous donations. ItPage 197 of 207also does not apply to donations by the bride or groom to each other since that is covered by Art. 130, FC. Requisites of Art. 1070:(a) The gifts are wedding gifts by parents and ascendants.(b) The gifts must consist precisely of jewelry, clothing and outfit.(c) The value should not exceed 1/10 of the FP.1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee.TOLENTINO:« Collation may be effected by bringing back to the hereditary estate the same property donated by or bringing in only its value. The first method is incompatible with the right of ownership which donation carries with it. The CC has adopted the second method.• Value to be collated is the fair market value (FMV) which the property had at the time of the donation. However, the value stated in the Deed of Donation is not conclusive; the true value at the time of the donation must be proved by competent evidence.• Subsequent change in value is borne by the donee because she owns the thing donated.• In an action for partition, P was ordered by the trial court to collate the 5 parcels of land which were donated to her by her mother in the letter's lifetime. P objected to the order as violative of Art. 1071. Held: The donee can in no case be compelled to collate the same things donated, in view of the fact that what were really donated at the time was only their value. (Guererro v. De La Cuesta)ART 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. ________PARAS:• X was legally married to A. They had a legitimate child D. X and A donated to D a house during their lifetime. Later A died. When D participates in A's inheritance, only % of the value of the house should be collated by him.CAGUIOA:• The article presumes that the parents donated by halves. The basis of this presumption is the conjugal partnership which is created by marriage. The rule therefore of this article is applicable to grandparents but not to the parents of illegitimate children.ART 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. ____________ _____REVIEWER IN SUCCESSION

2007APARAS:• L has 2 children, O and M. O had been given a donation of a watch worth P10K during L's lifetime. L died leaving an estate worth P90K. Since O is supposed to receive a total of P50K, O will receive only P40K. Min turn should be given, as much as possible, a watch in the estate worth P10K and cash worth P40K.'~lf the watch cannot be given, see Art. 1074.ART 1074. Should the provisions of the preceding article be impracticable, if the property donated was. immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of the quotation; and should there be neither cash nor marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction.If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price.

PARAS:• Rights, if Real Property:(a) Get property of same kind.(b) If none, get cash or securities.(c) If none, sell property to get cash.• Rights, if personal property:(a) Get property of same kind.(b) If none, get equivalent (in value) of personal property.ART 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened.For the purpose of ascertaining their amount, the fruits end interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment.TOLENTINO:• When the property donated to an heir is accepted, it becomes his own, including its increase and deterioration. At the moment of the donor's death, when the duty to collate arises, the donee's right over the property is modified:(a) When the donee brings back, though by fiction, to the hereditary mass, the things he has received, including the fruits and interests thereof;(b) All the heirs are entitled to the hereditary mass, including its fruits.• Basis for determining amount: The amount of fruits and income derived from the property of the same kind and quality in the hereditary estate.PARAS:• X has 2 legitimate sons F and G. F had been given a donation of land as an advance of the inheritance. Prior to X's death, full ownership over the land and its fruits belong to F, but from the moment X dies, all the fruits thereof up to the moment of distribution is made belong to the estate (should be added in the computation of the NHE).• Reasons for the law:(a) The property donated is really an advance of inheritance.(b) See Art 781 on what inheritance includes.Page 198 of 207ART 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him. though they may not have augmented its value.The donee who collates in kind an immovable, which has been given to him. must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition is effected.As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them: he has, however, the right to remove them. if he can do so without injuring the estate._____TOLENTINO:• This article may be understood to refer to either of two senses of collation: (a) Collation proper or the mathem.Uical addition of the value of the thing donated to that of the hereditary estate; nothing material or tangible enters the estate by collation; or (b) the reduction of inofficious donations.• If this article is understood in the first sense, then it is in conflict with Art." 1071. The subsequent increase or deterioration, and even the total loss or destruction of the thing donated, whether accidental or culpable, shall be for the benefit or account and risk of the donee. Yet, the present article makes the co-heirs liable to reimburse the donee for such expenses for preservation when ths expenses fcr preservation redound to the donee's oenefit Moreover, under Art. 1071, the same thing* donated are not to be brought to collation and partition, but only the«r value at the time of the collation. Art. 1076 provides foi a donee who collates in kind an immovable which has been given to him. Resolving this conflict, the Code Commission explains that the present article gives the donee the option of returning the very thing donated or o< paying the value if the same. But this resolution confuses collation proper with the payment of money or delivery o« property in making the collation.• X has 2 legitimate children. B and C. X made a donation to B of a piece of land worth P100K at the time of the donation; at the time of the death of the decedent it was already worth P200K. if after collating the P100K, and the legrtimes and FP have been determined, the donation is found inofficious to the extent of P50K, what portion of the land should be returned to the estate?Answer: 1/i of the land should be returned. It is the value at the time of death which should be the basis of the proportion. Why? Because the amount of the excess of the inofficious donation represents the amount of impairmenl of the legitimes and hence onlt the amount should be paid back to the estate, whether it be in cash or in property; and the increase in the value of the property shall be for the benefit of the donee.• According to Justice JBL Reyes, Art. 1076 could be applied only to the case of the donation that becomes revoked as inofficious in its totality under Art. 912. It is only then that the very same thing donated must be returned.ART 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason,REVIEWER IN SUCCESSION

2007Aprovided adequate security is given.PARAS:• Questions on collation do not interrupt distribution - as long as adequate security is given.

• Just because more than 30 years have elapsed since the perfection of the donation, it does not follow that collation is barred by prescription for prescription on said matter did not run as long as the donor was still aliv.• Only properties r&ceived by gratuitous title may be the subject of collation. It may be done whatever be the character or nature of the donation, but in the case of remunerative or onerous donations, only insofar as they exceed the value of the service of the charge.Dizon-Rivera v. Dizon (1970)Testator did not make any donations during her lifetime, provided for the distribution and partition of her entire estate.Her willHELD: Collation does not apply where no donations were made by testator during her lifetime. Also, heirs cannot compel payment of their tegrtime in real estate instead of money as specified in the will._______________________De Roma v. CA (1987)Candelaria de Rama had 2 legally adopted daughters, Buhay & Rosalinda. She died intestate. Buhay was appointed administratrix and in due time filed an inventory of the estate. This was opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to Buhay and the fruits had not been collatedrtnduded Buhay argued that those properties were not included in the inventory because the Deed ot Donation contained an express prohibition to collate as an exception to Art. 1062. The Deed of Donation contained the following words: *sa pamamagrtan ng pagbibigay na di mababawing muli xxx."Ruling: The phrase merely described the donation as irrevocable and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under 1061. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Art. 1062. Absent such a dear indication of that intention, apply the general rule._____________________Locsinv. CAM992)M.L. executed a will where he instituted his wife as the sole & universal heir of all his properties. M.L. and his wife C.L. were childless. They had agreed that their properties, after both of them shall nave died, should revert to their respective sided of the family, Le. M.L.'s properties would go to his Tocsin relatives" and those of C.L. to her "Jaucian relatives. M.L's will was admitted to probate. Nine years later. C.L pursuant to their agreement, began transferring by sale, donation of assignment, M.L's as well as her own properties to their respective nephews and nieces. C.L. affirmed and ratified the transfers she had made during her lifetime in favor of her husband's relatives. Her own relatives, who had already received their legacies and hereditary shares of her estate, filed an action to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyance were inofficious, without consideration, and intended solely to circumvent the laws on succession. The TC ruled in favor of the Jaucians and ordered the Locsins to reconvey ownership & possession of all properties belonging to the estate of C.L. The CA affirmed.Page 199 of 207REVIEWER IN SUCCESSION

2007AXXVI. PARTITION AND DISTRIBUTION OF THE ESTATEA. PartitionART 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of thjs deceased._________________TOLENTINO:• From the moment of death of the decedent, and pending the actual partition of the estate, the heirs become co-owners of such estate, each one having an undivided interest in the property to the extent of his share therein.• Being a co-owner, each heir has a right to his own interest or share and she may sell such share or interest to a stranger. This is not a case of "future inheritance" since the decedent is already dead.DE LEON:• Where there is only one heir From the moment of the death of the decedent, the heir, if there is only one. becomes the sole owner of the estate (Art. 777). There is no need or a judicial declaration of heirship. An affidavit of extra-judicial adjudication suffices to settle the entire estate.ART 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value.______________TOLENTINO:• The partition as defined in this article refers to the actual division of the properties, pursuant to the order of distribution. This definition is supplemented by Art. 1082.• The order of distribution, generally based on a project of partition, designates the shares which pertain to the heirs, devisees or legatees. If the order of distribution omits to designate particular and specific properties as belonging to each beneficiary, the undesignated portion is left in a state of co-ownership. In such a case, the co-heirs have the right to ask for a partition. But an independent and separate action to partition an estate pending administration proceedings in the probate court, which has the power to distribute such estate, is unnecessary and improper.• The order of distribution is conclusive upon all parties who have notice cf the proceeding, but does net bind those who have no notice of the hearing held prior to the order of distribution to determine the persons entitled to the

estate. Therefore, those deprived of their rightful shares may still bring an accion reivindicatoria. Such order approving the project of partition and directing the delivery of the residue of the estate, after paying debts and expenses to the persons entitled thereto, brings to a dose the administration proceedings.PARAS:Partition may either be:• Judicial, or that done by Court pursuant to an Order of distribution which may or may not be based on a project of partition. The executor or administrator has no obligationPage 200 of 207to submit a project of partition, but the court may compel her to do so. The court may make the partition either in an ordinary action for partition or in the course of administration proceedings (Rule 69 and 90, RoC). • Exrajudicial. or that made by the decedent himself by an act inter vivos or by will (Art. 1080), or by a third person entrusted by the decedent 9Art. 1081), or by the heirs themselves (Rule 74, Sec. 1, RoC). The latter can be done as long as:(a) There are no debts; and(b) Everyone concerned is of age or represented by guardians (Rule 74, Sec. 1)Further, it can be done orally, i.e not covered by theStatute of Frauds, because a partition is not exactly aconveyance but rather a confirmation by the heirs of theirownership of the property. Of course to register thepartition agreement made by the heirs (to prejudice thirdparties), a public instrument is needed (Rule 74, Sec. 1).^. If there is only one heir, devisee or legatee, she mayZ£) adjudicate to herself the entire estate by means of an•— affidavit filed in the Office of the Register of Deeds. In any ~~j case, court approval is needed for said E-J partition.•£? The renunciation of the inheritance made by one. heir in favor of another may be regarded as in the nature of partition among the heirs; so is an assignment of rights over the estate made by an heir.An E-J partition executed without the knowledge and consent of the other co-heirs cannot prejudice the latterART 1080. Should a person make a partition of his estate by an act inter vivos. or by will, such partition shall be respected, insofar as it does not prejudice the leg/time of the compulsory heirs.A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.____________TOLENTINO:• A distinction must be made between:(a) The disposition of property - refers to the distribution of the estate among the heirs designed by the testatrix to take effect after her death; said act must necessarily appear in a testament because it is the expression of the testatrix's last will and must be surrounded with the appropriate formalities(b) its partition - refers to the division of the estate in conformity with that disposition and the testatrix may make this division in the same will or act in another will or by an act inter vivos.• Before a testatrix may by an act inter vivos partition her property, she must first make a will with all the formalities provided by law. Reason: Since the partition inter vivos necessarily refers to that property which she has given to her heirs. Where therefore, the will is void for lack of the legal requisites, the partition made of the estate during the lifetime of the deceased is also void.• Partition inter vivos may be made in a will or in a public instrument, if involving real estate, and reduced to writing, because it would be a conveyance of the estate.• The partition inter vivos may be revoked. For e.g. if the will isrevoked by the testator, the partition is revoked. This article does not create a contractual succession (anREVIEWER IN SUCCESSION

2007Aexception to Art. 1347) or authorize an irrevocable disposition of property.DE LEON:• A partition inter vivos by a person of her property may be made even without a valid will executed by the decedent wherein she made a disposition of her property to her heirs. Reason: The article uses the word "person" which replaced the old CC'S term "testator." But the partition will be effective only after death. The partition merely makes a physical division of hereditary property, if there is a will, then it is in pursuance of the disposition in the will; if there is no will, it is presumed that the decedent's intention is that the partition must be in conformity with the rules laid down by the law in case of intestacy. The mode of disposition is not the partition, but intestate succession. In the latter case, however, the partition cannot be made in favor of a stranger since she cannot inherit by the laws of intestacy.ART 1081. A person may. by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the coheirs.The provisions of this and of the preceding articles shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatory, in such case, shail make an inventory of the

property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees.TOLENTINO:• Only the simple power to partition may be delegated by the testator, but no the disposition of the estate. The partition must be in accordance with the said dispositionPARAS:• Mandatory: The person entrusted to make the partition should NOT be a co-heir. Reason: Probable partiality The partition may be either approved or rejected by the heirs. If rejected, the probate court decides the conflict.ART 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction.TOLENTINO:• An example of an act "to put an end to indivision": - An agreement among the heirs so sell the property of the estate and give the proceeds to one of them. If the beneficiary dies, her right to the proceeds is transmitted to her own heirs.CAGUIOA:• The basis of the right to demand partition is Art. 494.ART 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in Art. 494. This power of the testator toprohibit division applies to the legitime.Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the coheirs.—\CDTOLENTINO:• There is a right of every co-heir to demand partition of the estate and the right subsists as long as the co-ownershipexists. . -.. .• Only burdens that may be imposed upon the legitime: The prohibition of division and the reserve troncal• Scope of prohibition: Alienation by a co-heir of her undivided share in the estate. Reason: Art. 1082 states that any act by which an heir gets out of the indivision should be construed as included in the prohibition against partition.PARAS:• Prohibition must be express.• Prohibition cannot- exceed 20 years. Only the excess however is void, if prohibition exceeds 20 years.• Prohibition does NOT include the sale, by mutual agreement, of the property and the division of the proceeds among the heirs.• Termination of co-ownership even when forbidden: (a) See Arts. 1830-31; and (b) existence of compelling reasons.ART 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fuliilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional._______________________PARAS:• Pure heirs, i.e. -not conditional voluntary (not compulsory heirs) heirs, can demand partition anytime, subject to Art. 1083. But this partition is provisional, until it is known that the condition has not been fulfilled.Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061)TOLENTINO:• Partition of real estate may either be extra-judicial or judicial (Rule 69, RoC).DE LEON:• Every co-heir, however, shall after partition be liable for defects of title and quality of the portion assigned to each of the others (Art. 510).Page 201 of 207ART 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall payREVIEWER IN SUCCESSION

2007Atne others the excess in cash.Nevertheless, if any of the co-heirs should demand that the thing be sold at a public auction and that strangers be allowed to bid, this must be done._______DE LEON:• See Arts. 595 and 498.ART 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made "bpon such property, and for any damage thereto through malice or neglect._________________PARAS:• Reimbursement can be brought in an action for judicial partition. If the partition is extra-judicial, an action for reimbursement would lie by itself.DE LEON:

• The objects of mutual reimbursement among co-heirs are:(1) Income and fruits from the property for they belong to the co-heirs;(2) Useful and necessary expenses, for if they share in the benefits & improvements, they should also share in the charges; and(3) Indemnity for damages.ART 1088. Should any of the heirs set! his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimDursing him for the price of the sa/e. provided they do so within the period of one month from the time they were notified in writing of the sale t>y the vendor.______________________TOLENTINO:• Five requisites for the exercise of the right of legal redemption:(a) There are several heirs of the common inheritance;(b) That one of them sells his hereditary rights;(c) That the sale is made to a stranger, and before the partition has been made;(d) That one or more of the co-heirs demand the repurchase within a period of one month, counted from the time she or they were notified in writing of the sale; and(e) That the buyer is reimbursed the price of the sale.• This article does not apply to sales of property of a decedent by the executor on orders of the probate court.• The alienation must be a sale, whether voluntary or forced, of hereditary rights.• Who are strangers? Those who are not heirs on the succession. Heirs are those who are called to succeed, by will or by law, and who actually succeed.• Who can redeem? Only a co-heir. When the heirs are ascendants, both maternal and paternal, any of them, whatever the line, is entitled to redeem the right sold by another in a different or on the same line. The right of redemption passes to the heirs of the co-heir. The selling heir does not have a right of redemption. Nor do her heirs have the right.Page 202 of 207• An heir who has herself sold her own right is not entitled to make the redemption of the right sold by another heir to a third party, because she herself ceases to be an heir after selling her right to the inheritance, unless the sale of her own right is subject to conventional redemption and she reacquires it under such agreement.• A stranger who purchases a co-heir's rights is not a coheir, hence she is NOT entitled to redeem if another coheir sells her hereditary rights to another stranger.• The right to redeem cannot be alienated; it is personal to the co-heii and intransmissible.• Should more than one.co-heir claim the right to redeem, all those who claim the-right within the period allowed by law should be allowed to redeem in proportion to their respective interests in the inheritance, regardless of priority in making the demand for redemption, unless subrogation has already taken place.• Subsequent purchases of the hereditary right acquire the same burdened with the right of redemption of the co-heirs at the price for which the heir who sold ft parted with it.• When the sale is of an interest in some particular i property or properties of the inheritance, the right of redemption that arises in favor of the other co-heirs is that ~ recognized in Art. 1620 as pertaining to co-owners.• Art. 1088 presupposed the fact that there has as yet been no distribution of the estate among the hsirs - they hold only the hereditary right itself. The moment such distribution has taken place, and the heirs have taken possession of the hereditary properties, even in a state of indivision, they cease to be co-heirs and become co-ownersPARAS:• Example: R, E and D inherited from X a piece of land pro-indiviso. Each got an equal share of 1/3. When R died, their share was altered, thus: E got 2/3 while D got 1/3 Only E inherited from R. E sold his 2/3 share to Q D claims the right of redemption. Valid claim?Ans wer: D cannot redeem as co-heir under 1088, but only as co-owner under 1620. Reasons:(a) The sale was not of a hereditary right;(b) There was. already a partition, though the land was still undivided, and(c) D is ngt a co-heir of E with respect to inheritance from R.• Notification of the actual sale, either in writing or oral. Reason: the purpose of the law is to inform the co-heirs of the fact of sale - is achieved by oral notification.• Knowledge by co-heirs of the fact of sale is sufficient to make the one-month prescription run.ART 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated.ART 1090. When the title comprises two or more pieces of land which have been assigned to tow or more coheirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be theREVIEWER IN SUCCESSION

2007A{_ same, the oldest shall have the title.DE LEON:

• "Title" refers to the document evidencing the right of ownership, not the right itself.• Entitled to receive the title upon the termination of co-ownership after partition. New title in co-heir's name shall be issued.• Note the order of preference in Art. 1090.• Relate with Effects of Partition.Ibadev. Pod953)Catalina Navarro sold the entire parcel of land, which was her and her deceased husband's conjugal property o the Canoy spouses who later sold it to Bienvenido Ibarle. Both sales were not registered. Catalina subsequently sold as her children's guardian, one-half of the same land belonging to the children, to Esperanza Po.Ruling: The. sale to the Canoy spouses was VOID, Therefore, when Catalina sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial being needed to confirm the children's title, it follows that the first sell was null and void insofar as it included the children's share.On the other hand, the sale to Po having been made by authority of the competent court, was undeniably iegai and effective. The fact that it has not been recorded is of no consequence.__________________________Alsua Betts v. CA (1979)A subsequent notarial will of Don Jesus Alsua expressly cancelled, revoked and annulled all the provisions of his probated holographic will made on Jan. 5, 1955 and his codicil of Aug. 14, 1956 and named Francisca Alsua-Betts and Pablo Alsua as heirs of his future properties before death. When Don Jesus died, Francisca filed a petition for probate which was opposed by her brothers and sister, Pablo, Amparo and Fernando as contravening the E-J partition of 1949 agreed upon by Don Jesus, his deceased spouse Dona Florentine and all his children an Don Jesus' probated holographic and codicil. TC allowed probate. CA reversed.Ruling: Respondents insist that Don Jesus was bound by the E-J partition of 1949 and had in fact consented to the said partition by making a holographic will and codicil with exactly the same provisions as those of Dona Tinay, which respondent court sustained. However, Don Jesus was not forever bound thereby for his previous holographic will and- codicil and as such, would remain revocable at his discretion. Art. 828 of the NCC is clear "A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be NO restriction and may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar, already been probated. The legitime of the forced heirs were left unimpaired, as in fact, not one of the forced heirs claimed or intimated otherwise. The properties that where disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be disposed of by him to whomsoever he may choose. If he now favored Francisca more, as claimed by private respondents, or Pablo, as in fact he was, the court cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so.__________Dimavuga v. CA (1984JSpouses Genaro Dimayuga ad Segundina Gayapano owned a homestead with Torrens title They had a son Manuel. Genaro had a mistress Emerenciana Panganiban. by whom he begot five children In 1940 Segundina died Genaro's mistress gave birth to Nelia in 1944 Genaro married Emerenciana. legitimating Nelia A month before Genaro's death he executed a notarized partition of real property treating the homestead as his sole property ad not conjugal from the previous marriage. Out of the 13 hectares, Manuel got 5 '/? hecatares, while the 5 illegitimate children and Nelia got 7 1/10 hectares. 19 years later, Manuel executed an Affidavit of partition which he registered and was able to obtain Torrens title for the 13-ha homestead. The 6 children filed; a^complaint for annulment of the title and for equal division of the homestead among all the 7 children of Genaro including Manuel. TC annulled Manuel's title and gave the other half to the 6 children. CA gave Manuel 'A and Nelia Y».Ruling: Under the old CC, Art. 1056 (now 1080) provides that "if the testator should make a partition of his property by an act inter v/vos or by will, such partition shall stand insofar as it does not prejudice the legitime of the forced heirs." This has been construed, in a line cf old cases, to mean that a person who makes an inter vivos partition must first execute a will. If the will is void, the partition is void. So, in this case, the partition of Genaro was void, because there was no will to begin withThe partition was in fact contrary to law. Genaro was not free to dispose of the entire homestead. Upon the death of his wife, he only inherited one-half of the homestead, the other half belonged to their only son Manuel. So Genaro could only dispose by an act inter vivos one-half of the homestead. In that one-half portion, Manuel and Nelia. as Genaro's legal and forced heirs, had a 2/3 legitime.In donating the said one-half portion to his six illegitimate children, Genaro deprived Manuel of his legitime, 01 in effect, made him renounce his future inheritance.Manq-ov v. CA (1986)Old man Tumpao had a first wife by whom he begot 3 children. Upon her death, he took a second wife by whom he had no issue but who had 2 children she adopted. On Sept. 4. 1937, Old man Tumpao executed what he called a last will and testament appointing his son Bando Tumpao to carry out the testament. On Sept. 7.1937, the heirs consisting of the 3 children by the 1st wife, the 2 adopted children of the 2nd wife executed1 an Agreement affirming

the disposition of the property to them, agreeing to the appointment of Bando to take charge of the distribution after partition. Two -days later, Old man Tumpao died. The parties remained in possession of the lots assigned for 23 years. On Nov. 4,1960, the 3 children by the 1st wife executed an E-J partition in which they divided the property among the three of them only. The 2 adopted children filed a complaint for reconveyance. The 2 children contended that the land was acquired during the 1st marriage. TC ordered reconveyance. CA reversed and held the will null and void because it had not been probated, the agreement of partition nullified because it was a partition inter vivos and not been approved by the Director of the Bureau of Non-Christian Tribes.Ruling: The partition Agreement affirming the disposition in the will is NOT valid and binding.Under Art. 1056 of the old CC which governs this case, a person during his lifetime may partition his property among his heirs to take effect after his death and this deed is neither a will nor a donation but an instrument of a special character, sui generic, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of thePage 203 of 207REVIEWER IN SUCCESSION

2007Aproperty, limited only by his creditors and the intangibility of the legitime of the forced heirs. That such partition is not governed by the rules of wills or donations inter vivos is a consequence j)f its special nature._________________________Doromal v. CA (1975)The Doromals bought 6/7 share of the property owned by Justice Antonio Horilleno on April 30, 1968 and his siblings. Filomena Javellana, successor to Horilleno's sister Esoeranza after the sale offered to repurchase the 6/7 undivided share for P30K. The Doromals refused. Filomena filed this case. TC held that Filomena had no more right to redeem because she was informed cf the sale (not of the final disposition) and because she should be thanKful for having bean included as one of the heirs. CA reversed.Ruling: Filomena is entitled to redemption. Art. 1819 of the Old CC bestows unto a co-owner the right to redeem and to be subrogated under the same terms and conditions stipulated in the contract, and to avoid any controversy as to the terms and conditions under which the Fight to redeem may be exercised, it is best that the period therefore should not be deemed to have commenced unless the notice of the disposition is made after the formal deed of disposal has been duly executed. And it being beyond dispute that the respondent has never been notified in writing of the execution of the deed of sale by which petitioners acquired the subject property, it necessarily follows that her tender to redeem the same made on June 10, 1968 was well within the period prescribed by law.__________Gabila v. Perez (1989)Pablo, Ramon and Mercedes, all sumamed Perez, executed in favor of Carios Gabila, a deed of sale of a parcel of land registered in the name of their deceased father Mariano Perez, which they inherited upon his demise. The deed of sale was duly signed and ratified before a notary public arid possession of the (and was immediately delivered to Gabila.However, the vendors took no steps to execute an E-J partition of their father's properties as promised so that his title to the land can be transferred in the children's names and from them to Gabila.Gabila filed an action praying for an E-J settlement of the properties of the deceased, and the execution of requisite instruments for the registration and transfer of the title to him.Ruiing: Gabila, as vendee of the land, has a right to receive, and Perez has the obligation to trander to him not only the possession and enjoyment of the land but also the certificate of title. The TC overlooked the maxim ubi jus ibi remedium. Where there is a right, there is a remedy.Their sale to the appellant of the property described in the TCT which they inherited from Mariano putan end to their co-ownership over it. Consequently there is no further need for them to partition it, the purpose of partition being to separate, divide, and assign a thing held in common among those to whom it may belong. The TC correctly observed that the Perezes may no longer partition the land in question because they had already sold it.The deed of sale serves the purpose of an affidavit of adjudication of the lot to the Perez's as heirs of their father. The adjudication renders the stipulation in the deed regarding execution of the E-J partition superfluous and unnecessary.Alonzo v.l ACM 9871Five brothers inherited in equal shares a parcel of land registered in the name of their parents. Cetestino Padua on March 15, 1963 transferred his share to Alonzo. A year later Estaquia, his sister soldPage 204 of 207Chavez v. IAC (1990)Manuela Buenavista assigned and distributed to her children in equal pro-indiviso shares her paraphemal property but reserved for herself the possession of the land and the enjoyment of the fruits during her lifetime. Buenavista's children Presentation, Floserpina and Raquel sold their shares to their sister Conception with the consent of their mother. Despite the transfers, Buenavista sold the entire property in favor of her daughter Raquel Chavez and her husband Gerardo Jumenez. Thereupon, Buenavista sold the same

property to Pepito Ferrer. Plaintiffs, three children of Buenavista, filed action. The TC dismissed. CA reversed and nullified the subsequent sales.Ruling: Art. 1080 of the CC allows a person to make a partition of his estate either by an act inter vivos or by will and such partition shall be respected insofar as it does not prejudice the legitime of the compulsory heir. While the law prohibits contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, in case expressly authoiized by law.This clearly gives a person two option in making partition of his estate either by an act inter vivos or by will. The Deeds of Sale executed by the 3 children in favor of Concepcion are evidence of a valid partition of the land in question by and between Buenavista and her children as she not only gave her authority thereto but also signed the sales. The Deeds of Sale are not contracts entered into with respect to future inheritance but a contract perfected and consummated during the lifetime of Buenavista, who signed the same and gave her consent thereto. Such partition inter vivos executed by the property owner herself is valid.______Bautista v. Grinio-Aguino (1988)Manuel Bautista owns a registered to his name the land in question. A deed of absolute sale has issued to Manolito Bautista and was registered. Manolito executed a deed of sate in favor of the other private respondents. Manuel took a second wife Emiliana and had a child Evangeline in 1949. The property in question was the subject matter 9of an E-J partition of the property among the heirs of Juliana Nojadera, first wife of Manuel in 1966. Manuel denied participation but the NBI authenticated Manuel's signature in the E-J partition of property.Ruling: The finding that the signature of the deceased petitioner in the deed of E-J partition is authentic is correct, and can no longer be questioned before the Supreme Court.____REVIEWER IN SUCCESSION

2007AAn extra-judicial settlement of the estate applies only to the estate left by the decedent. Property of the surviving husband that does not belong to the decedent's estate cannot be the subject matter of an E-J partition of the estate of the deceased wife.The deed of E-J partition is void ab initio for including in the partition property which does not pertain to the estate of the deceased and which deprives the lawful owner thereof of his property without due process of law.The partition is also void as it effectively resulted in the preterition of the right of the compulsory heir of the deceased. The preterition was attended with bad faith.An E-J partition cannot constitute a partition of the property during the lifetime of its owner; partition of future inheritance is prohibited by law.__________________De los Santos v. De la Cruz, supraGertrudes de los Santos, daughter of Maraana de la Cruz and grandniece of decedent Pelagia de la Cruz, and Maximo de la Cruz, executed an E-J partition agreement. TC held that de Ics Santos, being a party to the partition agreement, was estopped from questioning de la Cruz's right to inherit from Pelagia.Ruling: De los Santos is NOT an heir of Pelagia. She does not have a right to represent her mother. Art. 972 provides that the right of representation takes place among relatives on the direct descending line, but never in the ascending. In the collateral line, it takes place onty in favor of the children of brothers and sisters, whether they be full or half-blood.Much less could she inherit in her own right, as Art. 962 provides that in every inheritance, the relative nearest in degree excludes the more distant one, saving the right of representation when proper takes place.In this case, the relative nearest in degree to Pelagia are her nephews and nieces, one of whom is de la Cruz. Necessarily, defts Santos, a grandniece, is excluded from the inheritance.fi. Effects of PartitionLART 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him._______________________TOLENTINO:• Refer to Rule 69,Sec. 11, RoC, for the contents of a Judgment for Partition.• Refer to Rule 69, Sec. 12, RoC, re the effect on Third parties.• The registered title of a purchaser of the interest of an heir or heirs in a particular parcel of land cannot be affected by a subsequent voluntary partition among the heirs.• Purchase of a hereditary right of an heir: Whatever property is adjudicated to the vendor-heir in the partition.• A judicial partition in probate does not bind the heirs who were not parties thereto.ART 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of. each property adjudicated._______PARAS:• The warranty refers to:Page 205 of 207(a) Title [eviction], and(b) quality [hidden defects] Nature of Warranty:(a) It is reciprocal and proportionate; and(b) it may be waived. Warranty against Eviction:(a) Eviction need not be by final judgment before recourse to the warranty can be sought; and

(b) eviction need not be of full ownership; an encumbrance which must be respected is sufficient.ART 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs; but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified.Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve._______________PARAS: ^• This article deals with:'(a) Proportionate liability;(b) responsibility in the meantime for another's insolvency; and(c) right of reimbursement.ART 1094. An action to enforce the warranty among coheirs must be brought within ten years from the date the right of action accrues.ART 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is madeThe warranty of the solvency of the debtor can only be enforced during the five years following the partition.Co-heirs do not warrant bad debts, if so known to, and accepted by the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs.PARAS:• This article refers to the Warranty of Debts.• There may be:(a) Good debts [collectible debts](b) Bad debts• Warranty for good debts(a) Warrants that the debtor is solvent at the time of partition [not later](b) Good for 5 years following the date of partition• No warranty for bad debts, so an heir accepts them at her own risks.ART 1096. The obligation of warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the partition unless in appears, or it may be reasonably presumed, that his intention was otherwise, but the ______legitime shall always remain unimpaired;_____.REVIEWER IN SUCCESSION

2007AJ(2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distribute of the property.________________Guilas v. Judge (1972)Alejandro Lopez, husband & administrator of the estate of deceased Jacinta Limson o'e Lopez and their adopted child Juanita executed a project of partition of properties even if Juanita was not at all recognized in the will of Jacint. TC approved the project of partition. Juanita filed an action io annul the project of partition on the ground of lesion, preterition and fraud. Alejandro claims that tha testate proceedings had already been dosed and terminated and he ceased as a consequence to be executor of the estate of the deceased. TC found for Alejandro.Ruling: The probate proceedings had not yet been terminated. The probate court loses jurisdiction over an estate under administration only after the payment of all debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed.______________________De los Santos v. De la Cruz, supra.HELD: Being a mere grandniece, plaintiff cannot inherit by right of representation (as per ART. 972), nor in her own right (as per ART. 962). In the collateral line, the right of representation does not obtain beyond children of brothers/ sisters, in the full/ half blood. Defendant as nephew would exclude plaintiff from the inheritance.______________C. Rescission and Nullity of PartitionART 1097. A partition may be rescinded or annulled for the same causes as conracts.TOLENTINO:• Rescission and nullity are distinct actions, though practically, in certain cases, produce the same effects.(a) Nullity = the act is supposed never to have existed(b) Rescission = the act is valid at the origin though it afterwards became ineffective.• A voluntary partition cannot be attacked, even collaterally, by those who executed it.• Partition is a contract.ART 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time

__they were adjudicated.____________TOLENTINO:Page 206 of 207• This article applies only to cases of partition among coheirs.• Refer to Art. 1092 on warranty as to quality.DE LEON:• Lesion is the injury suffered inconsequence of inequality of situation by one party who does not receive the full equivalent for what she gives in a sale or any commutative contract.• If the lesion is less than Y», the proper action is one for damages or indemnification which should include fruits and interests. -"~• An heir who suffered no lesion cannot maintain an action for partition on account of lesion suffered by another heir.ART 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may be reasonably be presumed, that the intention of the testator was otherwise.PARAS:• This article applies whether the lesion is ',«, more than V4 or less than V4. The partition made by the testator may be rescinded.-> ART 1100. The action for rescission on account of lesion shall prescribe after four years from the time the Z, partition was made.__________________PARAS:• In case of judicial partition, the 4 years run from the date of court approval.ART 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition.Indemnity may be made by payment in cash or by the delivery of a thing or the same kind and quality as that awarded to the plaintiff.If a new partition is made, it shall affect neither those who have not been prejudiced nor those who have not received more than their just share._____DE LEON:• The new partition shall not affect the original partition in its entirety, but only the shares of those who have been prejudiced and those who have received more than their just share.ART 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. _________PARAS:• Reason for article: Rescission requires mutual restitution.ART 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution ofREVIEWER IN SUCCESSION

2007Acthe objects or securities which have been omitted.PARAS:• This involves a preterition, not in the institution, but in the partition of one or more objects. Its gives rise to a mixed succession, not rescission.ART 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other person interested: but the latter shall be proportionately obliged to pay the person omitted the share which belongs to him.________________PARAS:• This involves a preterition of compulsory heirs, not in he institution, but in the partition.• An illegitimate child preterited in the partition can bring an action for recovery of his share from the other heirs to whom the property has been adjudicated.ART 1105. A partition which includes a person believed to be an heir, but who is not. shall be void only with respect to such person.___________________________DE LEON:• The erroneous inclusion will not invalidate the partition.• Where there are several heirs, only the partition with respect to the non-heir is void. The non-heir should return said partition to be redistributed to the lawful heirs.• Where there is only one lawful heir and she shares the inheritance with others who are not entitled to inherit, the