Codicils and Incorporation by Reference: Article 825

Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 82
(2) The will must clearly describe and identify the same,
CODICILS AND stating among other things the number of pages
Subsection 5
INCORPORATION BY Arts. 825-827
thereof;
(3) It must be identified by clear and satisfactory proof as
REFERENCE
the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses on
ARTICLE 825 each and every page, except in case of voluminous
A codicil is a supplement or addition to a will, made after the books of account or inventories. (n)
execution of a will and annexed to be taken as a part thereof, by
which any disposition made in the original will is explained, Incorporation by Reference
added to, or altered. GR: No document can be probated unless said document complies
with the formalities of wills.
Codicil is derived from the Latin word “codex” and literally means as
little code or a little will – which may be larger or longer than a will. XPN: Incorporation by Reference. – Even if the document which is
incorporated to the will and therefore is part of the document to be
“Annexed to be taken as a part thereof” – meaning that a codicil cannot probated, this document need not have to be in the form of the will
exist on its own. The original will can exist by itself but the codicil unlike a codicil which is again annexed to the will hence must comply
cannot. This means that the validity of the codicil depends upon the with forms of the will and also probated.
validity of the will.
Rationale: It is to provide for those cases when a testator wishes to
If the provisions of the will and codicil are inconsistent, the codicil incorporate to his will only be reference (without copying the whole
should prevail because the purpose of a codicil is to amend, alter, or thing) certain documents or papers, especially inventories and books
add to a previously executed will. The later codicil is later expression of of accounts. Thereby, the testator is able to save time and energy.
the testator’s wishes.
Said documents or inventories, when referred to in a notarial will, do
Time When Codicil is Made not need any attestation clause, because the attestation clause of the
A codicil, since it refers to a will, cannot be made before a will, it is will itself is sufficient (Unson v. Abella, 43 Phil. 494).
always made after. Even if the codicil may be later on revoked by
another will or codicil. Requisites for Valid Incorporation by Reference
CODICIL NEW WILL 1. The document or paper referred to in the will must be in
A codicil is executed after the This refers to another will which existence at the time of the execution of the will;
will and is considered as part of exists independently of the
the will. original will and without The usual purpose of an incorporation by reference is for convenience
reference to the original will. it is to do away with the re-execution of a document which is already in
The codicil explains, adds to, Has no regard to the previous existence.
supplements, and alters the will, it does not explain, or add
provisions in the original will. to, or supplement the original For example, if T left several properties and he already prepared an
will. inventory of such making a 200-page inventory of his properties, and
The codicil may revoke only a When you execute a new will, T would now like to execute a will, he does not have to rewrite in his
part of the original will. the entire previous will is will those properties which already contained in the inventory. He can
revoked as a general rule. incorporate in his will by reference his inventory. But that inventory has
Because a codicil is taken as a When you execute a new will, to be in existence at the time of execution.
part of the original will, then they are separate, the one
the original will and codicil are revoking the other. 2. The will must clearly describe and identify the same, among
taken as one. other things, the number of pages thereof;
ARTICLE 826 The description and identification of the attached document or paper
In order that a codicil may be effective, it shall be executed as in being referred to as well as the number of pages. Describe the
the case of a will. inventory and state it has 200 pages.
Formalities of Codicils 3. It must be identified by clear and satisfactory proof as the

As in the case of wills, there can be: document or paper referred to therein;
1. Notarial or ordinary codicils; or
2. Holographic codicils This refers to identification. This can be done during the probate
proceeding even through extrinsic evidence can be presented to prove
A notarial will may be revoked by either a notarial or holographic codicil; that this document that is being referred to in the will as the one to be
similarly, a holographic will may be revoked by a holographic or notarial incorporated.
codicil. If a codicil is not executed with the formalities of a will, said
codicil is void. A valid will can never be revoked by an invalid codicil. 4. It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of
ARTICLE 827 account and inventories.
If a will, executed as required by this Code, incorporates into
itself by reference any document or paper, such document or It must be signed by the testator and the witnesses in each and every
paper shall not be considered a part of the will unless the
page – which is also for purpose of identification except in cases of
following requisites are present:
voluminous books of account or inventories. Note the exception is as
(1) The document or paper referred to in the will must be
in existence at the time of the execution of the will; to the signing of every page but not the signing is dispensed – there
must still be signatures, sufficient pages must be signed but not
necessarily each and every page.
Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

And Civil Code of the Philippines Annotated by Justice Paras (2016) ; 2018-2019 TSN d
Requirement to be Stated in the Face of the Will ARTICLE 829

1. The fact that there is a reference to a document or paper. A revocation done outside the Philippines, by a person who does
2. The clear description and identification of the document. not have his domicile in this country, is valid when it is done
3. The number of pages. according to the law of the place where the will was made, or
according to the law of the place in which the testator had his
domicile at the time; and if the revocation takes place in this
Requirement to Appear on the Face of Document Incorporated
country, when it is in accordance with the provisions of this Code.
1. The signature of the testator;
2. The signature of the witnesses. Conflicts Rules for Revocation of Wills
(a) If revocation is in the Philippines, follow Philippine law regardless of
Requirements that May be Proved by Extrinsic Evidence
the residence or domicile or citizenship of testator.
1. That the document is in existence at the time of the
execution of the will;
(b) If revocation is outside the Philippines
2. That the document is the one being referred to in the will.
(1) If revocation is made by a resident of the Philippines
Incorporation Can generally be Done Only in Notarial Wills (i) Law of the place of revocation
General Rule: Only notarial wills shall have incorporation by reference (ii) Law of the place of domicile (Philippines)
1. These documents have to be signed by the testator and by (2) If revocation is made by a non-resident of one who is not
the witnesses, there are no witnesses in holographic wills. domiciled in the Philippines
2. In notarial wills, the contents can either be in handwriting, (i) Law of the place were the will was made
typewritten or both. Thus, the documents attached may be (ii) Law of the place of domicile of testator
either typewritten or handwritten by the testator.
ARTICLE 830
Exception: It may be a holographic will: No will shall be revoked except in the following cases:
1. When the holographic will has at least three witnesses, there (1) By implication of law; or
can be incorporation by reference because by then, the (2) By some will, codicil, or other writing executed as
subscribing witnesses in the holographic will, although a provided in case of wills; or
surplusage can sign the document to be incorporated. (3) By burning, tearing, cancelling, or obliterating the will
2. Even if there are no witnesses but the document to be with the intention of revoking it, by the testator
incorporated are entirely written, signed and dated in the himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or
hand of the testator. In this case, there is a pure holographic
obliterated by some other person, without the express
will. There can be a valid incorporation by reference. 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
REVOCATION OF WILLS fact of its unauthorized destruction, cancellation, or
Subsection 6
AND TESTAMENTARY Arts. 828-834 obliteration are established according to the Rules of
DISPOSITIONS Court. (n).
Modes of Revocation
ARTICLE 828
1. By implication of law
A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void. 2. By some will, codicil, or other writing executed as provided
in case of will (by subsequent instrument)
Wills are Essentially Revocable 3. By overt acts
As long as the testator is alive he can always change his mind and
revoke his will even if the will has already been probated because the 1. Revocation by Implication of Law
testator can probate the will during his lifetime, even if the heirs, This is the kind of revocation produced by operation of law, when
legatees, devisees have already accepted the testator can revoke will. certain acts or events take place a will has been made rendering void
or useless either the whole will or certain testamentary dispositions.
Revocation
Is the act of the mind terminating the potential capacity of a will to Examples of Revocation by Operation of Law
operate at the death of the testator manifested by some outward acts (1) Article 957 – when after testator has made a will, he sells,
and signs symbolic thereof. In revocation, it requires the concurrence donate the legacy or devise. The act of selling or alienation is
of the intent; the act of the mind or animus revocandi and some actual considered as an act of revocation.
and visible act or sigs or some overt act. Thus there must be o In case there was no intention to revoke, there
1. Intent to revoke plus must be showing thereof otherwise presumption
2. Overt Act of revocation prevails. (e.g. Pacto de retro sale)
(2) Article 106, Family Code – provisions in a will in favor of a
General Rule: The testator can always revoke his will during his lifetime. spouse who has given cause for legal separation shall then
Exception: Testator is not sound mind at time of revocation. be revoked by operation of law. This means that the guilty
spouse is disqualified to inherit from the innocent spouses.
(3) Article 1032 – when an heir, legatee, or devisee commits an
In Macam v. Gatmaitan 60 Phil. 358, a will was presented for probate
act of unworthiness
and no objection was presented. After the judgment had become final
(4) Article 936 – when a credit had been given as a legacy is
and executory, a codicil made after the executed was presented for
judicially demanded by the testator. This is in case legacy by
probate. May the codicil be still probated?
remission of debt, but after execution testator brings a
judicial action for collection – then deemed revoked.
Yes. Since codicil may have revoked expressly or impliedly
(5) Article 854 – when one, some or all of the compulsory heirs
the will, and it is well known that a will is essentially revocable. It is not
have been preterited or omitted, institution of heir is void. If
indeed essential for both the will and the codicil to have been
one is not a legal heir, he or she cannot receive inheritance.
presented for probate at the same time.

2. Revocation by Subsequent Document or Instrument “Crumpling” in Roxas v. Roxas (48 OG 2177)

There are two kinds of revocation under this instance: While in US the mere act of crumpling of the will does not constitute a
(1) Express Revocation – it is expressly stated in the second will revocation, but in PH case of Roxas, the court impliedly allowed
or codicil that it revokes the previous one or all other wills crumpling as one of the overt acts provided there is animus revocandi.
executed prior to the execution – also known as revocatory
clause which is a express revocation. Scenario: A wanted to revoke his will, so he threw it into a stove so that
(2) Implied Revocation – if there is no express statement but it would be burned later on when a fi re would be lighted in the stove.
the provisions of the second will and the first are totally and However, the will was later removed by another person from the stove
completely inconsistent and irreconcilable. BEFORE the stove was lighted.
Requisites for Revocation by Subsequent Instrument Held: There was NO revocation here, for while there was intent to
1. Testamentary capacity at the time of revocation revoke, there never was the overt act of burning. (75 Am. Jur., Wills, Sec.
2. Subsequent instrument must be valid 501). However, the person who prevented the revocation, if he be an
3. Subsequent instrument must contain a revocatory clause (if heir or a legatee or devisee, will still NOT inherit, not because of
express) or be incompatible (if implied) with the former will revocation by means of an overt act (for indeed there was NO overt act)
showing intent to revoke but because of revocation by implication of law, said person being
4. Subsequent will must be admitted to probate incapacitated to inherit by reason of UNWORTHINESS. (See Art. 1032).
Validity requirement from Admittance to Probate requirement Burden of Proof

If T executed a notarial will in 2000 giving A all his properties and then Presumption: A duly executed will has not been revoked. Burden of
in 2005 a new will – a holographic will – giving to B all his properties. proof lies who opposes the probate of the will which was alleged to
But there was a fire that burned the house and no copy of holographic have been revoked.
will was available and then the testator died.
 Can a witness testify to the existence of the holographic will? TESTATE ESTATE OF ADRIANA MALOTO v. COURT OF APPEALS
GR 76464, February 29, 1988
In Gam v. Yap, a copy of the holographic will must be presented in
court, even a photocopy (in case of the loss or destruction of original) Facts: Adriana Maloto died leaving behind a last will and testament, the
because the court has to be satisfied of that the holographic will has heirs however commenced intestate proceedings and while case was
been written, dated and signed in the hands of the testator. If there is pending an extrajudicial settlement of estate was made and was approved
no such copy there can be no comparison. by the court in 1964.
Therefore, there is no revocation by a subsequent document because However, few years later in 1967, Atty. Palma discovered a document
even if there holographic will would have been valid (second), it cannot named Katapusan ng Pagbubulat-an (Testamento) dated 1940 purporting
to be the LWT of Adriana which was found by Atty. Palma upon checking
revoke the earlier notarial will because the holographic will was not
the cabinet drawer of his former associate late Atty. Hervas who was the
admitted to probate (fourth requisite)
decedent’s counsel. It was submitted to CFI Iloilo.
3. Revocation by Overt Act The will while it contained the same heirs but with different proportions as
compared to the four equal distribution in the extrajudicial settlement, it
Requisites for Application of Revocation by an Overt Act also provided for devisees and legacies to other parties. This prompted the
1. Testator has testamentary capacity time of performing act; parties to file for MR and for annulment of intestate proceedings and the
allowance of the will.
2. The act must be any of the overt act mentioned in Article 830:
a. Burning – it is not required that the whole However, there was an allegation in this case that such will is not the will of
instrument is completely burned. Even if only a Adriana because Adriana’s househelp , Guadalupe was instructed by the
portion of the document is burden, it is considered testatrix to burn documents or papers alleging to be the will. CA ruled that
as an act of revocation. (But not accidentally) there was animus revocandi in the destruction.
b. Tearing – even if by hands or by scissors, a slight
Issue: Was there revocation? – No.
tear is sufficient to be considered as an act of
revocation; revokes if only signatures was torn
(1) Must be Coupled with Animus Revocandi. – It is clear that the physical
c. Cancelling – when you place a mark or a line act of destruction of a will, like burning in this case, does not itself mean an
across the writings but not on the spaces. effective revocation unless it is coupled with animus revocandi on the part
d. Obliterating – or the blotting out or by eraser of the testator. It is not imperative that the physical destruction is made by
the testator himself. It may be performed by another but under the express
3. The act must be a completed act or at least a completion of direction and in the presence of testator. The document destroyed must be
the subjective phase of the over act the will itself.
GR: Even if tearing is not complete or the burning is not
complete then there is an act of revocation. (2) Paucity of evidence that papers burned was the will or that it was
made in her presence and under her express direction – It was not proved
XPN: When the testator starts burning his will but realized however that the papers burned has been established to be a will at all. It
that he really does not want to revoke his will and desists was not even proven that the burning was under the express direction of
from burning – thus there is no act of revocation due to the Adriana or that it was made in her presence. The witnesses stated that they
were the only ones present in the stove (kitchen) were will was alleged to
voluntary desistance by the testator.
have been burned. The testimonies deemed inconclusive.
4. There must be intent to revoke or animus revocandi Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
5. The revocation must be done by the testator himself or by accompanied by the overt physical act of burning, tearing, obliterating or
some other persons in his presence and under his express canceling the will carried out by the testator or by another person in his
direction. presence and under his express direction.

ARTICLE 831 NAVAL v. NAVAL

Subsequent wills which do not revoke the previous ones in an GR L-11823, February 11, 1918
express manner, annul only such dispositions in the prior wills as
are inconsistent with or contrary to those contained in the later Facts: Simeona Naval executed a will in February 13, 1915 but was however
wills. disallowed on the ground that testatrix did not sign it in the presence of
three witnesses and the two witnesses did not sign the presence of each
Implied Revocation by Subsequent Instrument other.
There is implied revocation when the testator, after having executed
the will executed another will or codicil, not containing a revocatory Later, the nieces and legatees of Simeona file din the same court for the
clause but its contents are inconsistent with the former will, then there allowance of another will executed on October 31, 1914 and this was
is an implied revocation. opposed arguing that the there was a subsequent will – 1915 will which
revokes the 1914 will.
Effect: It annuls only such dispositions in prior wills as are inconsistent
with or contrary to those contained in the later wills. Issue: Was the 1914 will revoked by the 1915 will? – No.
Held: While a former will is by operation of law revoked by a VALID

ESTATE OF MAMUYAC, GAGO v. MAMUYAC subsequent will, making it indispensable that for the 1915 will to revoke the
GR 26317, 45 Phil. 902, January 29, 1927
1914 will it must first be valid. However, it appears from the record that the
1915 will was not perfect or valid and executed in accordance with the law,
Facts: Miguel Mamuyac (died 1922) executed a last will and testament in then it did not operate to revoke the 1914 will.
1918. Gago presented such will for probate which was opposed because
the deceased executed another will in 1919. Thus, Gago then presented the NOTE: Even if the 1915 will would have a revocatory clause, such clause is
1919 will but was again opposed alleging that it was a carbon copy, which still void because the will is void.
the original thereof was cancelled during the lifetime of deceased. RTC
found that he executed another will in 1920.
Issue: Was the 1919 will cancelled? – Yes. Doctrine of Dependent Relative Revocation
This is where the act or destruction is connected to the making the will
Held: Presumption of revocation of absence of original will. - The law does so as squarely to raise the inference that the testator meant the
not require any evidence of the revocation or cancellation of a will to be revocation of the old would depend on the efficacy of the new
preserved. It therefore becomes difficult at times to prove the revocation or disposition and if for any reason the new will intended to be made as a
cancellation of wills. The fact that, such cancellation or revocation has substitute becomes inoperative, the revocations fails and the original
taken place must either remain unproved or be inferred from evidence will remain in full force and effect.
showing that after due search the original will cannot be found.  Ex.: When the first will was torn after the execution of the
second will – doctrine of dependent relative revocation.
Where a will which cannot be found is shown to have been in the  Ex.: When first will has already been torn long before the
possession of the testator, when last seen, the presumption is, in the execution of the second will, what applies is absolute
absence of other competent evidence, that the same was cancelled or revocation under Article 830.
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death.
MOLO v. MOLO
In view of the fact that the original will of 1919 could not be found after GR L-2538, September 21, 1951
the death of the testator Miguel Mamuyac and in view of the positive
proof that the same had been cancelled, we are forced to the Facts: Mariano Molo died on 1941 and he left two wills, the 1918 will and
conclusion that the conclusions of the lower court are in accordance the 1939 will. The 1939 will contains a clause which expressly revokes the
1918 will. In 1941, Juana (wife) filed a petition for probate of the 1939 will
with the weight of the evidence. In a proceeding to probate a will the
but was opposed, this was set aside by the court for failure to execute in
burden of proof is upon the proponent clearly to establish not only its
accordance with law.
execution but its existence.
Copies of wills should be admitted by the courts with great caution. When In 1944, Juana filed another petition for probate of the 1918 will and this
it is proven, however, by proper testimony that a will was executed in was opposed because (among other contentions) the will has subsequently
duplicate and each copy was executed with all the formalities and been revoked by the 1939 will. However before this petition was heard the
requirements of the law, then the duplicate may be admitted in evidence battle for liberation came and the records case were destroyed (burned).
when it is made to appear that the original has been lost and was not
cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G. R. No. It was contended here that the testator after executing the 1939 will with
26063.) After a careful examination of the entire record, we are fully full knowledge of its revocatory clause, testator deliberately destroyed the
persuaded that the will presented for probate had been cancelled by the original of the 1918 will arguing that the 1918 will submitted was only a
duplicate of the original.
testator in 1920.
Issue: Is the revocatory clause of the disallowed 1939 will valid and
effective as to nullify the 1918 will? – No.
ARTICLE 832
A revocation made in a subsequent will shall take effect, even if Held: (1) No evidence on deliberate destruction. – There is no evidence
the new will should become inoperative by reason of the which may directly indicate that the testator deliberately destroyed original
incapacity of the heirs, devisees or legatees designated therein, of 1918 will because of his knowledge of the revocatory clause of the 1939
or by their renunciation. will. The only evidence was that the original was in possession of testator
until execution of second will and the original was not found.
Doctrine of Absolute Revocation
There can be a valid but ineffective will in case the heirs, devisees or (2) Doctrine of dependent relative revocation. – Granting for the sake of
legatees do not have capacity to succeed or had renounced. However, argument that the earlier will was voluntarily destroyed by the testator after
a valid and ineffective will can still revoke the previous will. the execution of the second will, which revoked the first, could there be any
 The will must be valid and not invalid or void doubt, under this contention, that said earlier will was destroyed by the
 The will is only ineffective testator in the honest belief that it was no longer necessary due to the
express revocation in the 1939 will?

Can we say that the destruction of the earlier will was but the necessary
consequence of the testator’s belief that the revocatory clause contained in REPUBLICATION AND Subsection 7
the subsequent will was valid and the latter would he given effect? REVIVAL OF WILLS Arts. 835-837
If such is the case, then it is the court’s opinion that earlier will can still be
admitted to probate under the principle of dependent relative revocation: REPUBLICATION REVIVAL
It is the re-establishment by the It is the re-establishment to
This doctrine is known as that of dependent relative revocation, testator of the previously validity by operation of law of a
and is usually applied where the testator cancels or destroys a will or revoked will or one invalid for previously revoked will.
executes an instrument intended to revoke a will with a present intention want of proper execution as to
to make a new testamentary disposition as a substitute for the old, and the form or for other reasons so as
new disposition is not made or, if made, fails of effect for same reason. to give validity of said will.
It involves the act of the It involves the operation of law.
The doctrine is not limited to the existence of some other document, testator.
however, and has been applied where a will was destroyed as a There is a will previously A will previously revoked
consequence of a mistake of law. revoked or a will invalid as to
form or a will invalid for any
The rule is established that where the act of destruction is
other cause
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 a new disposition intended to be substituted, the revocation will ARTICLE 835
be conditional and dependent upon the efficacy of the new disposition; and The testator cannot republish, without reproducing in a
if, for any reason, the new will intended to be made as a substitute is subsequent will, the dispositions contained in a previous one
inoperative, the revocation fails and the original will remains in full force. which is void as to its form.
This is the doctrine of dependent relative revocation. The failure ARTICLE 836
of a new testamentary disposition upon whose validity the revocation The execution of a codicil referring to a previous will has the
depends, is equivalent to the non-fulfillment of a suspensive conditions, effect of republishing the will as modified by the codicil.
and hence prevents the revocation of the original will. But a mere intent to
make at some time a will in the place of that destroyed will not render the Republication is the re-establishment of a will that is:
destruction conditional. It must appear that the revocation is dependent  Previously revoked
upon the valid execution of a new will.  Invalid as to form, or
 Invalid for any other cause
Therefore, in the case at bar, even if arguing that the testator deliberately
destroyed the 1918 will in view of the 1939 will, it will not have the effect of Types of Republication
defeat the 1918 will because the 1939 will was not valid was set aside.
1. Express republication or republication by re-execution;
- Is a republication in a subsequent will of a previous one
ARTICLE 833 which is void as to form (835)
A revocation of a will based on a false cause or an illegal cause is - Those requirements under Forms of Wills are wanting,
null and void.
void as to its form.
2. Implied republication or republication by reference
Revocation Based on False or Illegal Cause
- Is the execution of a codicil referring to a previously
This is one of the aspects of the dependent relative revocation, or under
revoked will or will valid as to form but void because of
this article, a revocation made under a mistake. Thus if the testator
extrinsic defects such as lack of testamentary capacity ,
makes a will making A his heir and learned that A died, so testator made
such as sound mind (836)
another will instituting B as an heir but it turns out A was still alive, it is
- Void but not as to form like sound mind
deemed that A inherits, because the revocation was based on a false
cause. (See: Molo v. Molo).
Republication by Reference or Implied Republication (836)
This is when the previous will is void but not because of the form but
When the revocation is made by a subsequent instrument, the false
because of extrinsic defects such as testamentary capacity it can be
cause must be stated in the face of the will.
republished by republic ation by reference.
Scenario: If the testator states in his second will: “I am not sure whether
If T made a will in 2000, and in 2005 T executed a codicil stating that the
A is dead or still alive. However, I hereby revoke the legacy to him which
dispositions of 2000 are still valid and are of full force and effect – the
I made in my first will.” Is there a revocation?
codicil has the effect of republishing the old will.
Yes. The testator cannot be said to be proceeding upon an
Effect on After-Acquired Properties
error. Article 833 renders void those which are of false cause or an
Under 793 as a general rule, only those properties existing at the time
illegal cause.
of the execution of the will shall be included in the legacy or devise.
Any other property acquired by testator after execution – not included.
ARTICLE 834
The recognition of an illegitimate child does not lose its legal
effect, even though the will wherein it was made should be
Exceptions:
revoked. 1. When expressly provided for by the testator (793)
2. When a will is republished by a codicil (834)
Effect of Revocation of Will with Recognition of Illegitimate Child
While a will is essentially revocable, recognition is irrevocable unless If in 2000 X has 10 hectares of parcel of land and in 2004, by accretion
there be vitiated consent and moreover: the land became 11 hectares. And then in 2007, T executed a codicil
(1) Recognition is not a testamentary disposition republishing the will and he mentioned n the codicil that he added
(2) Recognition does not wait for the testator’s death to become some other heirs and that the provisions of the testament of the 2000
effective - takes effect immediately will are in full force and effect – he can now claim that 11 hectares.

ARTICLE 837 MANINANG v. CA

If after making a will, the testator makes a second will expressly GR L-57848, June 19, 1982
revoking the first, the revocation of the second will does not
revive the first will, which can be revived only by another will or Public policy requires probate proceeding for unless the will is probated and
codicil. notice thereof is given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory.
Revival and the Principle of Instanter
Facts: Clemencia Aseneta died at the age of 81 on May 1977 leaving then a
[1] Principle of Instanter; Revival by Another Will or Codicil holographic will. Soledad Maninang filed a petition for probate of the will of
If first will is expressly revoked by the second will, and the second will decedent with CFI Quezon (Testate Case)
is revoked (law does not state how), but there is no third will.
 The revocation of second will does not revive the first will, it Bernardo Aseneta (adopted son) claims to be the sole heir and instituted
the Intestate Case in CFI Rizal. Bernardo moved to dismiss the testate case
can only be revived by:
on the ground that the holographic will was null and void due to preterition.
1. Another will
2. Codicil Maninang argued that the probate court’s inquiry is limited to the extrinsic
 This is the Principle of Instanter because there is an express validity of the will and that Bernardo was effectively disinherited.
revocatory clause.
Lower court ordered dismissal of the Testate Case, MR was denied and
[2] Revival by Operation of Law appointed Bernardo as administrator of the intestate estate.
If the first will (instituted A as sole heir) but a second will was made
which instituted B instead, there is implied revocation. But if the Issue: Was it proper to dismiss the case? – No.
second will is revoked, the first will is revived, this is revival by
operation of law, thus the first will is revived. Held: (1) Probate of will, generally mandatory. - The Court finds that court
a quo acted in excess of jurisdiction when it dismissed the Testate Case.
Revival in Cases of Preterition under Article 854 Generally, the probate of a Will is mandatory. “No will shall pass either real
If the compulsory heir in the direct line is omitted in the will resulting or personal property unless it is proved and allowed in accordance with the
Rules of Court.” The law then enjoins the probate of the Wills and public
to a preterition, the institution of heirs shall be annulled,
policy requires it because unless the Will is probated and notice thereof is
 But, if the compulsory heir who has been preterited dies
given to the whole world, the right of a person to dispose of his property by
ahead of the testator or predecease the testator, then the Will may be rendered nugatory.
effect of preterition is erased, the will is now revived.
(2) Normally, probate of a will does not look into the intrinsic validity. -
The authentication of the will decides no other question than such as touch
ALLOWANCE AND Subsection 8
upon the capacity of the testator and the compliance with the requisites or
DISALLOWANCE OF WILLS Arts. 825-827 solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency of the
ARTICLE 838 provisions, these may be impugned as vicious or null even after the will has
No will shall pass either real or personal property unless it is been authenticated.
proved and allowed in accordance with the Rules of Court.
Opposition to the intrinsic validity or legality of the provisions of the will
The testator himself may, during his lifetime, petition the court cannot be entertained in a probate proceeding because its only purpose is
having jurisdiction for the allowance of his will. In such case, the merely to determine if the will has been executed in accordance with the
pertinent provisions of the Rules of Court for the allowance of requirements of the law.
wills after the testator's a death shall govern.
(3) Nuguid v. Nuguid; Balanay v. Martinez rulings are mere exceptions to
The Supreme Court shall formulate such additional Rules of Court the general rule. – The Nuguid and the Balanay cases provide the exception
as may be necessary for the allowance of wills on petition of the rather than the rule. The intrinsic validity of the Wills in those case was
testator. passed upon even before probate because of practical considerations so
demanded.
Subject to the right of appeal, the allowance of the will, either
during the lifetime of the testator or after his death, shall be (4) Dismissal of testate case; determination of the issues has not been
conclusive as to its due execution. (n) thoroughly considered. - By virtue of the dismissal of the Testate Case, the
determination of that controversial issue has not been thoroughly
Probate of Wills considered. We gather from the assailed Order of the trial Court that its
Probate is a special proceeding to establish the validity of a will. If a conclusion was that respondent Bernardo has been preterited. We are of
person dies with a will that will is not automatically given effect. The will opinion, however, that from the face of the Will, that conclusion is not
has to be probate first. Probate proceedings are intended to determine indubitable.
the genuineness and due execution of the will.
There is a need to ensure that the will was made in accordance with the HEIRS OF ROSENDO LASAM v. VICENTA UMENGAN
law, that it was made without coercion; he had testamentary capacity. GR 168156, December 6, 2006
These are proceedings in rem, as probate proceedings are special Facts: Petitioners are the heirs of Rosendo (son of Isabel Cuntapay from the
proceedings which seeks to establish a status or a fact. This is a kind of first marriage) and respondent is Vicenta Umengan (daughter of Abdon
proceeding where it is binding to the whole world. Once there is now who was the son of Isabela Cuntapay from the second marriage). Isabel
publication, the court would acquire jurisdiction over the proceedings. Cuntapay was the owner of an eastern portion of the subject lot.
In 2001, the heirs of Rosendo Lasam filed a case for unlawful detainer
Probate of Wills is Mandatory
against Vicenta Umengan, who was then occupying the subject lot, heirs
It is clear from the Article that “no will shall pass either real or personal
argued that they were the owners of the lot having inherited it from their
property unless it is proved and allowed.” The testator cannot state in his father – Rosendo and argued that Umengan was just temporarily allowed
will to dispense the need of probate because it is required by law. to stay in the property and would vacate upon demand.

Umengan argued that her father being one of the heirs of Isabel inherited Mercado now contends that the probate of the will of his deceased wife
through intestate succession and that her father bought other shares in the operates as a bar to his criminal prosecution for the alleged forgery of the
subject lot. said will.
MTCC ruled in favor of the heirs of Rosendo Lasam and directed the Issue: May Atilano Mercado be convicted after the will has been duly
ejectment of Umengan. MTCC gave credence to the newly discovered last probated? – No.
will and testament purportedly executed by Isabel Cuntapay where she
bequeathed the lot to Rosendo. MTCC discussed that the will was not yet Held: (1) The probate of will conclusive as to its genuineness and due
probated; and found that the subject lot was already bequeathed to Lasam execution. - The probate of a will by the probate court having jurisdiction
thus the Umengan had no right to possess as his father had no share on the thereof is usually considered as conclusive as to its due execution and
subject property. RTC affirmed such ruling. validity, and is also conclusive that the will is genuine and not a forgery.
The probate of a will in this jurisdiction is a proceeding in rem.
CA reversed finding formal defects in the will (no attestation, second page
had lacking signatures, not acknowledged). The provision of notice by publication as a prerequisite to the allowance of
a will is constructive notice to the whole world, and when probate is
Petitioners base their claim of right to possession on the theory that their granted, the judgment of the court is binding upon everybody, even
father Rosendo was the sole owner of the subject lot by virtue of newly against the State.
discovered last will and testament and the Umengan was possession by
mere tolerance. Conclusive presumptions are inferences which law makes so peremptory
that it will not allow them to be overturned by any contrary proof however
Issue: Was the lower court correct in relying upon the last will and testament strong. The will in question having been probated by a competent court,
as basis in saying the Lasam had a right over the property? – No. the law will not admit any proof to overthrow the legal presumption that it
is genuine and not a forgery.
(1) Unprobated will cannot be the source of any right. – The purported last
will and testament of Isabel Cuntapay could not be properly be relied upon Criminal action will not lie in this jurisdiction against the forger of a will
to establish the right of the heirs to possess the lot because the will has not which had been duly admitted to probate by a court of competent
yet been probated as provided under Article 838. jurisdiction. After a judgment allowing a will to be probated has become
final and unappealable, the law as an expression of the legislative wisdom
In Cañiza v. Court of Appeals, the Court ruled that: "[a] will is essentially goes no further and the case ends there. [Res Judicata]
ambulatory; at any time prior to the testator’s death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no NOTE: Last paragraph of Article 838: Subject to the right of appeal, the
right can be claimed thereunder, the law being quite explicit: ‘No will shall allowance of the will, either during the lifetime of the testator or after his death,
pass either real or personal property unless it is proved and allowed in shall be conclusive as to its due execution.
accordance with the Rules of Court.’
Principles as to Probate
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore
1. Probate is mandatory and is a matter of public policy.
any will can have force or validity it must be probated. To probate a will
2. Probate proceeding is a proceeding in rem.
means to prove before some officer or tribunal, vested by law with authority
for that purpose, that the instrument offered to be proved is the last will and 3. Once final, the decree of the court becomes conclusive as to
testament of the deceased person whose testamentary act it is alleged to the due execution of the will.
be, and that it has been executed, attested and published as required by
law, and that the testator was of sound and disposing mind. It is a 4. Estoppel is not applicable in probate proceedings (Alsua-
proceeding to establish the validity of the will." Moreover, the presentation Betts v. CA).
of the will for probate is mandatory and is a matter of public policy.
ALSUA-BETTS v. CORT OF APPEALS
Following the above truisms, the MTCC and RTC, therefore, erroneously GR L-46430, July 30, 1979
ruled that petitioners have a better right to possess the subject lot on the
basis of the purported last will and testament of Isabel Cuntapay, which, to The principle of estoppel is not applicable in probate proceedings.
date, has not been probated. proceedings, a ruling laid down in the case of Testate Estate of the Late
Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo penned by
Stated in another manner, Isabel Cuntapay’s last will and testament, which Justice J.B.L. Reyes:
has not been probated, has no effect whatever and petitioners cannot claim
any right thereunder. Hence, the CA correctly held that, as against Finally, probate proceedings involve public interest, and the
petitioners’ claim, respondent has shown a better right of possession over application therein of the rule of estoppel, when it will block the
the subject lot as evidenced by the deeds of conveyances executed in her ascertainment of the truth as to the circumstances surrounding the
favor by the children of Isabel Cuntapay by her first marriage. execution of a testament, would seem inimical to public policy. Over and
above the interest of private parties is that of the state to see that
testamentary dispositions be carried out if, and only if, executed
MERCADO v. SANTOS conformably to law.
GR 45629, September 22, 1938
Facts: Atilano Mercado filed a petition for probate of will of his deceased Estoppel, Inapplicable
wife, Ines Basa. The probate met no opposition and upon testimony of one Suppose that T left a will, and the heirs despite the existence of the will,
of the attesting witness, probate court admitted will into probate in 1931. executed an extra-judicial settlement of the estate – but this can only
be allowed if the decedent died intestate. If there was a will, it must be
In 1932, Rosario Basa filed a complaint against Mercado for Falsification or probated and properties be distributed in accordance with the will.
Forgery of the will (charge was dismissed thrice). Fiscal moved for the
reinvestigation of the case and for the fourth time Mercado was arrested. If A, one of the heirs, received his share under extrajudicial settlement,
if the changes his mind later on and instead sought for the probate of
Mercado moved to dismiss the charges because the will alleged to have
the will instead, he cannot be estopped because the principle of
been forged and had already been probated, and that the order probating
estoppel does not apply in probate proceedings.
the will is conclusive as to the authenticity and due execution thereof.

5. The right to ask for probate does not prescribe. (2) Leviste had no direct interest in the probate proceeding. – Leviste was
not a party to the probate proceeding in the lower court and he had no
In the case of In Re: Estate of Pilapil (72 Phil. 545), the right to ask for direct interest in the probate of the will. His only interest in the estate is an
probate does not prescribe. There is nothing in the Rules of Court nor indirect interest as former counsel for a prospective heir. One who is only
the New Civil Code that required for a period for filing for the probate indirectly interested in a will may not interfere in its probate.
of the will. One can always file anytime for probate.
NOTE: Rosa del Rosario was no longer an heir because being a devisee, her
right over the property is only dependent upon the will but the will has to
Annulment of Will, Not Allowed
be probated and here it was denied.
In the case of Galanosa v. Archangel (83 SCRA 676), an action for the
annulment of will is not allowed. To contest a will, an opposition should
have been filed in the probate proceedings and to pursue this
opposition in the appellate court in case the will is admitted to probate. Illustration of Persons Without Direct Interest
Otherwise, the decree of probate becomes conclusive as to the formal 1. Adopted or illegitimate child with respect to the estate of
validity and due execution of the will. relatives of adopter or parent – considered as a stranger.
2. Former counsel of a prospective heir of a will under
When Court Acquires Jurisdiction contingent fee contract (Leviste v. CA)
Rodriguez v. Borja 3. Nephew in testamentary succession (Maloles II v. Phillips)
1. By filing a petition for probate of will; or 4. Iron Bar Rule under Article 992.
2. By delivering a copy of the will to the court.
MALOLES II v. PHILLIPS
Who Can Participate in Probate Proceedings? GR 129505, January 31, 2000
Facts: Dr. Arturo de Santos filed a petition for probate of his will in the RTC
Persons Who May Intervene alleging that he has no force heirs and named the sole legatee and devisee
In order that a person may be allowed to intervene in a probate the Arturo de Santos Foundation and named Phillips as executrix. Maloles II
proceeding, he must have an interest in the estate or in the will, or in filed a Motion for Intervention claiming that as the only child of Alicia de
the property to be affected by it. He must be an interested party or one Santos (Arturo’s sister), he was the sole full-blooded nephew and nearest
who would be benefited by the estate such as an heir or one who has a of kin of Dr. De Santos. He also alleged that he was a creditor of the testator.
claim against the estate like a creditor, and whose interest is material
and direct not merely incidental or contingent. Issue: Can Maloles intervene? – No.
LEVISTE v. COURT OF APPEALS Held: (1) Direct interest in the estate or in the will. – In order for a person
GR L-29184, January 30, 1989 to be allowed to intervene in a proceeding, he must have an interest in the
estate or in the will or in the property to be affected by it. He must be an
Facts: In 1963, Benedicto Leviste, a practicing attorney, entered into a interested party or one who would be benefited by the estate such as an
written agreement with Rosa del Rosario to appear as her counsel in a heir or one who has a acclaim against the estate like a creditor, and whose
petition for probate of holographic will of the late Reselva. It was agreed interest is material and direct.
that Leviste’s contingent fee would be 35% of the property Rosa may
receive upon probate of the will. (2) Maloles is not an heir nor legatee. – He is not a compulsory heir, legatee
of the decedent in the will. As the only and nearest collateral relative of the
Leviste received a letter from Rosa informing him that his services were decedent, he can inherit only in case of intestacy. He can only inherit when
terminated due to “conflicting interest” as Leviste had the moral the will is annulled. His interest is therefore not direct nor immediate.
obligation t o protect the interest of his brother in law Llanes, whom Del
Rosario intended to eject as lessee in the property involved in the will. NOTE: As there was no compulsory heir, no legitime is prejudice. He has no
personality to participate in probate proceeding. He has no right to be
Leviste files a Motion to Intervene to Protect His Rights to Fees for protected in the first place.
Professional Services. Where he argues that by virtue of his contract of
services with Del Rosario, he is a creditor of the latter citing Article 1052 Issue: How about as to the claim of being a creditor? – Belatedly filed.
(where in case heir repudiates inheritance, prejudiced creditors may file
petition to authorize them to receive in the name of repudiating heir). (3) Belatedly filed and not supported by evidence. – Nor does Maloles have
any right to intervene in the settlement proceedings based on his allegation
Indeed there was a Motion to Withdraw Petition for Probate alleging that that he is a creditor.
Rosa waived her rights to the devise in her favor, but this was denied by the
trial court. However, the will was disallowed for failure to comply with the BUTIONG v. SURIGAO CONSOLIDATED MINING
requirement as there were only 2 witnesses among others. GR L-13938, July 31, 1968
Leviste filed an appeal which was opposed by Rosa, arguing that Leviste Facts: Butiong filed for the probate of a document purporting to have been
was not a party-in-interest. executed by Christian Harris as his last will and testament, constituting
Butiong as the sole and universal heir of all the testator’s properties located
Issue: Whether Leviste, an attorney who was engaged in an contingent in the Philippines, consisting of shares of stock and interest in the Mindanao
fee basis, in order to collect his fees, make an appeal despite refusal of Mother Lode Mining Co., Inc., and of shares of stock, interest and one (1%)
client to appeal the decision of disallowance of the will? – No. per cent royalty in the Surigao Consolidated Mining Co., Inc.
Held: (1) Leviste is not a creditor and Article 1052 does not apply. – Here, The Surigao Consolidated Mining Co., Inc. opposed the probate upon the
Leviste is not a creditor of Rosa del Rosario. The payment of his fees is ground of forgery. After appropriate proceedings, the lower court admitted
contingent and dependent upon the successful probate of the holographic the disputed document to probate. Hence, such appeal.
will. Since the petition for probate was dismissed, the contingency did not
occur. Thus, Leviste is not entitled to his fees. Butiong maintains that the lower court erred in entertaining appellant's
opposition and in not dismissing its appeal. It is obvious that Butiong's
Article 1052 also presupposes that the debtor is the legal heir, and since the contention is well taken.
petition for probate of the will was dismissed, she lost her right to inherit
from the decedent, thus Leviste cannot accept anything in her name. Issue: Can Consolidate mining intervene as an oppositor? – No.

Held: Indeed, it is well-settled that one who has or can have no interest in menace or undue influence and that the will is genuine and not a forgery,
succeeding a decedent cannot oppose the probate of his alleged will. that he was of the proper testamentary age and that he is a person not
Appellant herein does not claim to have such interest in the succession to expressly prohibited by law from making a will. The intrinsic validity is
Christian Harris. Accordingly, the lower court should not have considered another matter and questions regarding the same may still be raised even
its opposition to the probate of the will much less given due course to the after the will has been authenticated. Thus, it does not necessarily follow
present appeal. that an extrinsically valid last will and testament is always intrinsically valid.
The fact of ownership of the stocks does not give it any personality nor does Even if the will was validly executed, if the testator provides for dispositions
that make it a creditor of the estate. As mere owner of the shares of stocks, that deprives or impairs the lawful heirs of their legitime or rightful
it has no interest in the proceedings. inheritance according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be given effect.
Purpose of the Requirement of Direct Interest
Such determination having attained that character of finality is binding on
In Leviste v. Court of Appeals, the court declared that is not that
this Court which will no longer be disturbed. Not that this Court finds the
thereby the court may be prevented from learning facts which would
will to be intrinsically valid, but that a final and executory decision of which
justify or necessitate a denial of probate, but rather that the courts and the party had the opportunity to challenge before the higher tribunals must
the litigants should not be molested by the intervention in the proceedings stand and should no longer be reevaluated.
of persons with no interest in the estate which would entitle them to be
heard with relation thereto. (2) Alejandro’s disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his “only beloved wife”,
Matters in Probate Proceedings is not a valid reason to reverse a final and executory order. Testamentary
dispositions of properties not belonging exclusively to the testator or
Kinds of Probate properties which are part of the conjugal regime cannot be given effect.
1. Ante Mortem Probate – instituted by the testator during his Matters with respect to who owns the properties that were disposed of by
lifetime; Alejandro in the void will may still be properly ventilated and determined
2. Post Mortem Probate – instituted by the interested party in the intestate proceedings for the settlement of his and that of his late
spouse’s estate.
(heirs, creditors) of the estate.
Two Phases of Probate Proceedings Other Relevant jurisprudence

1. Probate Proper – extrinsic validity determined NUGUID v. NUGUID The due execution thereof, the testator’s
2. Distribution Phase – when question of intrinsic validity of 17 SCRA 449 testamentary capacity, being of sound
the will shall be entertained. mind and the compliance with the
requisites or solemnities prescribed by
Matters Discussed in Probate Proceeding law, are the questions solely to be
presented and to be acted upon by the
General Rule: During the probate proceedings the probate court court
therein merely determines the extrinsic validity of the will. Specifically: PASTOR, JR. CA The issue in the probate of a will is
1. Question of Identity – whether the instrument offered for GR L-56430 restricted to that kind of validity of the
probate is the last will and testament of the testator. will which for example determines
whether or not the testator was
2. Question of Due Execution – whether the will was executed
possessed of a sound mind, whether or
according to the formalities required by law.
not he freely executed the will, and
3. Question of Testamentary Capacity – whether the testator
whether or not the will had been
had the testamentary capacity at the time of the execution
executed in accordance with legal
of the will; whether or not he was of sound mind; and
formalities.
whether he was already 18 years old when will was made.
The question of ownership is an
DOROTHEO v. COURT OF APPEALS extraneous matter which the probate
GR 108581, December 8, 1999
court cannot resolve with finality. The
said court may only provisionally pass
Facts: Aniceta Reyes died in 1969 without her estate being settled. Her
upon titles of properties to be included
husband Alejandro also died thereafter. In 1977, Lourdes Dorotheo filed for
the probate of the last will and testament of Alejandro. In 1981 the will was in the inventory of estate properties,
admitted to probate. It was then meted with a Motion to Declare the Will subject to final decision in a separate
Intrinsically Void which was granted and the will was declared intrinsically action to resolve the question of
void. ownership.
LIM v. CA Jurisdiction over probate and matters
Issue: May a last will and testament admitted to probate but declared 323 SCRA 102 resolved therein
intrinsically void in an order that has become final and executory be given CORONADO v. CA Probate court generally has no power to
effect? – No. GR 78778 pass upon questions of ownership.
Held: (1) Probate proceedings deal generally with the extrinsic validity of Probate Court, Matters it Cannot Rule Upon
the will sought to be probated, particularly on three aspects: 1. Whether or not a certain legacy or devise is valid, because it
[1] Whether the will submitted is indeed, the decedent’s last will and
pertains to the intrinsic validity of the will
testament;
2. Whether or not the disinheritance of an heirs is valid
[2] Compliance with the prescribed formalities for the execution of wills;
3. Qualification of certain persons to inherit from the testator
[3] Testamentary capacity of the testator; and
4. Questions pertaining to impairment of legitime
[4] Due execution of the last will and testament.
5. Filiation
Under the Civil Code, Due Execution includes a determination of whether 6. Title to property
the testator was of sound and disposing mind at the time of its execution, 7. Preterition
that he had freely executed the will and was not acting under duress, fraud,

CAMAYA v. PATULANDONG Following Cuizon, the probate court exceeded its jurisdiction when it
GR 144915, February 23, 2004 further declared the deed of sale and the titles of petitioners null and void,
it having had the effect of depriving them possession and ownership of the
Facts: In 1972, Rufina Reyes executed a notarized will wherein she devised property.
a lot to her grandson Anselmo Mangulabnan Lot 288-A. Her son Bernardo
was appointed in the will as executor. During her lifetime, she herself filed (2) Torrens Title not Subject to Collateral Attack. - Moreover, following
a petition for probate of her own will before CFI Nueva Ecija and it was Section 48 of the Property Registry Decree which reads:
admitted to probate in January 1973.
SECTION 48. Certificate not subject to collateral attack. - A certificate of title
On June 27, 1973 she executed a Codicil modifying the devise in her will shall not be subject to collateral attack. It cannot be altered, modified, or
where her 4 children and Anselmo would inherit the property: cancelled except in a direct proceeding in accordance with law, petitioners’
titles cannot, under probate proceedings, be declared null and void.
“UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan,
Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No. (3) Judgment in the Partition Case did Not Bar Probate of Codicil. - Though
NT-47089, na aking ipinamana sa aking apong si ANSELMO P. the judgment in the partition case had become final and executory as it was
MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 5-6, ng aking not appealed, it specifically provided in its dispositive portion that the
HULING HABILIN (Testamento), ay ipinasiya kong ipagkaloob at ipamana decision was “without prejudice [to] ... the probate of the codicil.”
sa aking mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA at
JUAN nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P. The rights of the prevailing parties in said case were thus subject to the
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi outcome of the probate of the codicil. The probate court being bereft of
bawat isa sa kanila. authority to rule upon the validity of petitioners’ titles, there is no longer
any necessity to dwell on the merits of petitioners Camayas’ claim that they
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng are innocent purchasers for value and enjoy the legal presumption that the
aking HULING HABILIN ay aking pinagtitibay na muli.” transfer was lawful.
Rufina Reyes died on May 14, 1988.
Mangulabnan then sought the delivery to him by executor Bernardo the Exceptions
title to Lot 288-A. Bernardo refused in view of the Codicil..
ARANAS v. MERCADO
This prompted Mangulabnan to file for Action for Partition, and the RTC GR 156407, January 15, 2014
ordered the partition of the properties and to deliver the copy of subject
property to Mangulabnan – but without prejudice to probate of the codicil. Facts: This involved the intestate estate of Emigdio Mercado. In 1991,
Thelma (daughter from second marriage) filed petition for appointment of
Patulandong then filed before RTC for Petition for Probate of Codicil. Teresita (second wife) as administrator of the estate and was issued.
Meanwhile, Mangulabnan caused the Cancellation of Title of testatrix over Teresita as administrator, submitted inventory of the estate indicating the
the lot and a TCT was issued in his name. Mangulabnan sold such to the Emigdio left no real properties but only personal properties (cash, furniture,
Camayas in 1991 and TCT was also issued to them. piece of jewelry, shares of stocks).
In 1996, the court in the probate proceedings admitted Codicil to probate. Thelma (on the belief that there are other properties) moved RTC to direct
It declared the sale to the Camayas void and reissuance of the title to the Teresita to amend inventory and be examined about such. Despite
recipients of the property as instructed by the Codicil. Teresita’s compliance Thelma opposed the approval of inventory.
Camaya argues that the probate court had no jurisdiction to declare null After a series of hearings that ran for almost eight years, RTC ruled that the
and void the sale and titles. inventory submitted by Teresita had excluded properties that should be
included ordering the amendment of inventory.
Issue: Did the RTC exceed its jurisdiction when it declared null and void
and ordered the cancellation of the TCT of the Camayas as well as the In a MR, Teresita, joined by other heirs of Emigdio, sought reconsideration
deed of sale? – Yes. of the order on the ground that one of the real properties and parcel of land
in the deed of assignment were already in the possession and registered
Held: (1) Limited Jurisdiction of the Probate Court. - In Cuizon v. Ramolete, in the name of Mervir Realty. MR was denied.
this Court elucidated on the limited jurisdiction of a probate court, to wit:
Issue: Was it proper for RTC to direct the inclusion of certain properties in
“It is well-settled rule that a probate court or one in charge of the inventory notwithstanding that such properties had either been
proceedings whether testate or intestate cannot adjudicate or determine transferred by sale or exchanged for corporate shares in Mervir Realty by
title to properties claimed to be a part of the estate and which are equally the decedent Emigdio Mercado during his lifetime?
claimed to belong to outside parties. All that said court could do as regards
said properties is to determine whether they should or should not be Yes. It was proper for the RTC to have included such.
included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the Held: (1) Special and Limited Jurisdiction of the Probate Court. – Here, the
parties, the administrator, and the opposing parties have to resort to an general rule is that jurisdiction of the trial court, either as a probate court or
ordinary action for a final determination of the conflicting claims of an intestate court, relates only to matters having to do with the probate of
title because the probate court cannot do so. the will and/or settlement of the estate of deceased persons, but does not
extend to the determination of questions of ownership that arise during the
Having been apprised of the fact that the property in question was in the proceedings.
possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent All that the said court could do as regards said properties is to determine
court should have denied the motion of the respondent administrator and whether or not they should be included in the inventory of properties to be
excluded the property in question from the inventory of the property of the administered by the administrator. If there is no dispute, there poses no
estate. It had no authority to deprive such third persons of their possession problem, but if there is, then the parties, the administrator, and the
and ownership of the property” opposing parties have to resort to an ordinary action before a court
exercising general jurisdiction for a final determination of the conflicting
claims of title.

(2) Subject to Exceptions as Justified by Expediency and Convenience. - MORALES v. OLONDRIZ

The probate court is authorized to determine the issue of ownership of GR 198994, February 3, 2016
properties for purposes of their inclusion or exclusion from the inventory to
be submitted by the administrator, but its determination shall only be Facts: Alfonso Olondriz (decedent) died leaving his wife and children as
provisional unless: heirs. Believing that he died intestate, the respondent heirs of Olondriz filed
a petition for the partition (Partition Case) in July 4, 2003.
[1] the interested parties are all heirs of the decedent, or
[2] the question is one of collation or advancement, or In July 11, 2003, however, Iris Morales filed a Probate of a Will that was
[3] the parties consent to the assumption of jurisdiction by the probate allegedly made in1991. The will appointed Morales as administrator and
court and the rights of third parties are not impaired. dividing the estate into 6 parts. Notably, the will omitted Francisco, an
illegitimate son of Alfonso.
Then, the court is competent to resolve issues on ownership. Verily, its
jurisdiction extends to matters incidental or collateral to the settlement and Morales moved to suspend the partition case and the heirs moved to
distribution of the estate, such as the determination of the status of each dismiss the probate proceedings on the ground of preterition from the will.
heir and whether property included in the inventory is the conjugal or The intestate proceedings were suspended for the probate proceedings.
exclusive property of the deceased spouse.
RTC observed that Moral admitted the Francisco is an heir of Alfonso and
(3) RTC followed the procedure for the inventory. - The explanations that he was omitted from the will and based on the evidentiary hearing,
indicated that the directive to include the properties in question in the Francisco was clearly preterited. Thus RTC ruled to proceed to intestacy.
inventory rested on good and valid reasons, and thus was far from
whimsical, or arbitrary, or capricious. The CA reasoned that while probate proceedings take precedence over
intestate proceedings, the preterition of a compulsory heir in the direct line
(4) Torrens Titles would not prevent inclusion . - The fact that the annuls the institution of heirs in the will and opens the entire inheritance
properties were already covered by Torrens titles in the name of Mervir into intestate succession. Morales however argues that the probate of the
Realty could not be a valid basis for immediately excluding them from the will is mandatory.
inventory in view of the circumstances admittedly surrounding the
execution of the deed of assignment. Issue: Should the probate proceedings continue? - No.
This is because: The Torrens system is not a mode of acquiring titles to lands; Held: (1) Effect of Preterition. - Preterition is the complete and total
it is merely a system of registration of titles to lands. However, justice and omission of a compulsory heir from the testator’s inheritance without the
equity demand that the titleholder should not be made to bear the heir’s express disinheritance – omission of compulsory heir/s in the direct
unfavorable effect of the mistake or negligence of the State’s agents, in the line and effect is that is shall annul the institution of heirs but the devises and
absence of proof of his complicity in a fraud or of manifest damage to third legacies shall remain valid insofar as the legitimes are not impaired.
persons.
Consequently, if a will does not institute any devisees or legatees, the
The limited jurisdiction of the RTC as an intestate court might have preterition of a compulsory heir in the direct line will result in total intestacy.
constricted the determination of the rights to the properties arising from In the present case, the decedent’s will evidently omitted Francisco
that deed, but it does not prevent the RTC as intestate court from ordering Olondriz as an heir, legatee, or devisee. As the decedent’s illegitimate son,
the inclusion in the inventory of the properties subject of that deed. This is Francisco is a compulsory heir in the direct line. Unless Morales could show
because the RTC as intestate court, albeit vested only with special and otherwise, Francisco’s omission from the will leads to the conclusion of his
limited jurisdiction, was still "deemed to have all the necessary powers to preterition.
exercise such jurisdiction to make it effective."
Issue: Was it proper for RTC to pass upon the intrinsic validity of the will
during probate proceedings? – Yes.
ROMERO v. COURT OF APPEALS
GR 188921, April 18, 2012 The general rule is that in probate proceedings, the scope of the court’s
inquiry is limited to questions on the extrinsic validity of the will; the
The determination of whether a property is conjugal or paraphernal for probate court will only determine the will’s formal validity and due
purposes of inclusion in inventory of the estate rests with the probate court. execution. However, this rule is not inflexible and absolute.
The jurisdiction to try controversies between heirs of a deceased person It is not beyond the probate court’s jurisdiction to pass upon the intrinsic
regarding the ownership of properties alleged to belong to his estate, has validity of the will when so warranted by exceptional circumstances. When
been recognized to be vested in probate courts. practical considerations demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate court should meet the
The matter in controversy is the question of ownership of certain of the issue. The decedent’s will does not contain specific legacies or devices and
properties involved — whether they belong to the conjugal partnership or Francisco’s preterition annulled the institution of heirs.
to the husband exclusively. This is a matter properly within the jurisdiction of
the probate court which necessarily has to liquidate the conjugal The annulment effectively caused the total abrogation of the will,
partnership in order to determine the estate of the decedent which is to be resulting in total intestacy of the inheritance. The decedent’s will, no
distributed among his heirs who are all parties to the proceedings matter how valid it may appear extrinsically, is null and void. The conduct
of separate proceedings to determine the intrinsic validity of its
In the present case, petitioners assume that the properties subject of the testamentary provisions would be superfluous. Thus, we cannot attribute
allegedly illegal sale are conjugal and constitute part of their share in the error – much less grave abuse of discretion – on the RTC for ordering the
estate. To date, there has been no final inventory of the estate or final case to proceed intestate.
order adjudicating the shares of the heirs. Thus, only the probate court can
competently rule on whether the properties are conjugal and form part Note: It was shown in this case that the fact of preterition was not disputed
of the estate. It is only the probate court that can liquidate the conjugal by the parties. They were given a chance, through evidentiary hearings, to
partnership and distribute the same to the heirs, after the debts of the prove that Francisco received a house and lot inter vivos as an advance on
estate have been paid. his legitime. However they were not able to prove it. This is an instance
where even though at the point of probate proper the court can look into
NOTE: If one of the spouses die, the liquidation of the conjugal partnership the intrinsic validity for practical consideration – and to avoid waste of time.
or absolute community shall be made in the same proceeding.

RAMON CHING AND PO WING PROPERTIES v. RODRIGUEZ Our rules require merely that the petition for the allowance of a will must
GR 192828, November 28, 2011 show, so far as known to the petitioner:
(a) The jurisdictional facts;
Facts: Respondents Cheng and others filed a complaint against Ching and (b) The names, ages, and residences of the heirs, legatees, and devisees of
petitioners, the complaint was captioned Disinheritance, Declaration of the testator or decedent;
Nullity of Agreement, Wavier, etc. The Chengs argue that they are the heirs (c) The probable value and character of the property of the estate;
of Lim San also known as Antonio Ching and that Ramon Ching (d) The name of the person for whom letters are prayed; and
misrepresented himself as the son of Antonio and Lucina but in fact he was (e) If the will has not been delivered to the court, the name of the person
just adopted and his birth certificate was just simulated. having custody of it.
In 1996, Antonio Ching died of a stab wound and police investigators have Jurisdictional facts refer to the fact of death of the decedent, his residence
identified Ramon as the prime suspect and he now stands as lone accused at the time of his death in the province where the probate court is sitting,
for the murder charge filed against him. Ramon here remained at large. or if he is an inhabitant of a foreign country, the estate he left in such
province.
Upon the circumstances cited and using Article 919 (on disinheritance), the
Chengs concluded that Ramon can be legally disinherited thus prohibited The rules do not require proof that the foreign will has already been allowed
to receive any share form the estate of Antonio. and probated in the country of its execution.
A motion to dismiss was filed for lack of jurisdiction over the subject matter Petitioners Manuel and Benjamin obviously have in mind the procedure for
arguing that since the complaint sought to rule upon a disinheritance, then the reprobate of will before admitting it here. But, reprobate or re-
it should be the probate or intestate court’s jurisdiction and not to the RTC authentication of a will already probated and allowed in a foreign country
acting as an ordinary court. MTD was denied. CA affirmed. is different from that probate where the will is presented for the first time
before a competent court.
Issue: Can Ramon Ching be disinherited?
Reprobate is specifically governed by Rule 77 of the Rules of Court. Contrary
to Manuel’s stance, since this rule applies only to reprobate of a will, it
Held: (1) Disinheritance only by a will. - disinheritance can be effected only
cannot be made to apply to the present case.
through a will wherein the legal cause therefor shall be specified. No will or
any instrument supposedly effecting the disposition of Antonio's estate was
In reprobate, the local court acknowledges as binding the findings of the
ever mentioned. Hence, despite the prayer for Ramon's disinheritance, Civil
foreign probate court provided its jurisdiction over the matter can be
Case No. 02-105251 does not partake of the nature of a special proceeding
and does not call for the probate court's exercise of its limited jurisdiction. established. Besides, petitioners Manuel’s and Benjamin’s stand is fraught
with impracticality.
The Complaint filed was not instituted conclusively to resolve the issues as
to the estate, hence it is not a proper subject for a special proceeding for If the instituted heirs do not have the means to go abroad for the probate
the settlement of the estate of a deceased person. of the will, it is as good as depriving them outright of their inheritance, since
our law requires that no will shall pass either real or personal property
(2) Complaint is Not Strategically Sound. - The respondents' resort to an unless the will has been proved and allowed by the proper court.
ordinary civil action before the RTC may not be strategically sound, because
a settlement proceeding should thereafter still follow, if their intent is to ARTICLE 839
recover from Ramon the properties alleged to have been illegally The will shall be disallowed in any of the following cases:
transferred in his name. (1) If the formalities required by law have not been
complied with;
Note: There is no such thing as praying to the court for disinheritance of an (2) If the testator was insane, or otherwise mentally
heir. It is only the testator himself who can disinherit the heir. So if there is incapable of making a will, at the time of execution;
no disinheritance during the lifetime of a person then there can be no (3) If it was executed through force or under duress, or the
disinheritance. influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some
IN RE: IN THE MATTER OF THE WILL OF PALAGANAS other person;
GR 169144, January 26, 2011 (5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
Facts: In 2001, Ruperta Palaganas, a Filipino who was naturalized as US the instrument he signed should be his will at the time
citizen died single and childless and left a last will and testament she of affixing his signature thereto.
executed in California, she designated her Brother Sergio as executor.
Grounds for Disallowance of Wills
In 2003, her brother Ernesto filed for the probate of the will but this was General Categories
opposed by the nephews Manuel and Benjamin on the ground that the will
(1) Failure to comply with the formalities (1)
should not be probate in the PH but in the US where she executed it.
(2) Lack of testamentary capacity (2)
RTC admitted the will to probate, the nephews went to CA arguing that an (3) Vitiated consent (3-6)
unprobated will executed by an American citizen in the US cannot be
probate for the first time in the Philippines. But CA affirmed RTC. GR: These grounds are exclusive.
XPN: Revocation, because even if the will is executed in compliance
Issue: Whether or not a will executed by a foreigner abroad may be probated
with all the formalities prescribed by law and the testator was of sound
in the Philippines although it has not been previously probated and allowed in
mind and at the legal age that time, that there was no vitiation of
the country where it was executed. – Yes.
consent but he already revoked – still the will cannot be probated.
Ruling: Our laws do not prohibit the probate of wills executed by foreigners
abroad although such will has not been probated and allowed in the Void or Valid; No Voidable Wills
countries of their execution. A foreign will can be given legal effects in our While in Obligations and Contracts the presence of the vices of consent
jurisdiction pursuant to Article 816 of the New Civil Code which provides such as fraud, mistake, undue influence , duress, etc. would render the
that the will of an alien who is abroad produces effect in the Philippines if
contract voidable – in Wills it renders the contract void. There is no such
made in accordance with the formalities prescribed by the law of the place
where he resides or according to formalities observed in his country.
thing as a voidable will – it is either valid or void.

Revocation from Disallowance We stress that the party challenging the will bears the burden of proving
the existence of fraud at the time of its execution. The burden to show
otherwise shifts to the proponent of the will only upon a showing of
REVOCATION DISALLOWANCE
credible evidence of fraud.
Both presupposes an existing will and because of revocation or
disallowance the existing will becomes null and void. Unfortunately in this case, other than the self-serving allegations of
Voluntary act of the testator Through a judicial decree and petitioner, no evidence of fraud was ever presented. It is a settled
and requires that there must be testator has no participation in doctrine that the omission of some relatives does not affect the due
animus revocandi disallowing a will execution of a will. That the testator was tricked into signing it was not
With or without cause There is a ground under 839 sufficiently established by the fact that he had instituted his wife, who was
Can be partial or total Generally total unless the fraud more than fifty years his junior, as the sole beneficiary; and disregarded
or undue influence affects only petitioner and her family, who were the ones who had taken “the cudgels
a part of the will of taking care of [the testator] in his twilight years.”
Can only be done during the Usually invoked after the
lifetime of the testator testator’s death Moreover, as correctly ruled by the appellate court, the conflict between
the dates appearing on the will does not invalidate the document,
“because the law does not even require that a [notarial] will be executed
ORTEGA v. VALMONTE and acknowledged on the same occasion.” More important, the will must
GR 157451, December 16, 2005 be subscribed by the testator, as well as by three or more credible witnesses
who must also attest to it in the presence of the testator and of one another.
Facts: In 1980, Placido came back to the Philippines and lived in a house Furthermore, the testator and the witnesses must acknowledge the will
and lot which he owned in common with his sister Ciriaco Valmonte and before a notary public. In any event, we agree with the CA that “the variance
titled in their names. in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the
Two years after his arrival from the US, Placido, at the age of 80 married instrumental witnesses.”
Josefina who was then 28 years, in a ceremony on February 5, 1982. Placido
executed a last will and testament in English of 2 pages dated in 1983. Notably, petitioner failed to substantiate her claim of a “grand conspiracy”
in the commission of a fraud. There was no showing that the witnesses of
The first page contains the entire testamentary dispositions and a part of the proponent stood to receive any benefit from the allowance of the will.
the attestation clause and was signed at the end or bottom of that page by The testimonies of the three subscribing witnesses and the notary are
the testator and on the left hand margin by the three instrumental credible evidence of its due execution. Their testimony favoring it and the
witnesses. The second page contained the continuation of the attestation finding that it was executed in accordance with the formalities required by
clause and the acknowledgment and was signed by the witnesses at the law should be affirmed, absent any showing of ill motives.
end of the attestation clause and again on the left hand margin.
The will provided that:

Section 2
2. I give, devise and bequeath unto my loving wife JOSEFINA C.
INSTITUTION OF HEIR Arts. 840-856
VALMONTE, one half portion of the follow-described properties which
belongs to me as co-owners: ARTICLE 840
Institution of heirs is an act by virtue of which a testator
3. All the rest, reside and remainder of my real and personal properties,
designates in his will the person or persons who are to succeed
including my savings account bank book in USA which is in the possession of
him in his property and transmissible rights and obligations.
my nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
Characteristics of an Instituted Heir
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last (1) Voluntary Heirs. – This applies in testamentary succession because
will and testament, and it is my will that said executrix be exempt from filing compulsory heirs need not be instituted in the will for them to inherit.
a bond; They are entitled as a matter of right, even if they are not mentioned in
the will. They are also different from legatees or devisees as they are
The probate was opposed, among other grounds, but the petitioner does instituted to the universality of the property, right and obligation or to
not dispute the due observance of the formalities in the execution of the an aliquot, spiritual, ideal or spiritual share.
will, but maintains that the circumstances surrounding it are indicative of
the existence of fraud. Particularly, she alleges that respondent, who is the
(2) Continues Personality of Testator. – They also succeed not only to
respondent, who is the testator’s wife and sole beneficiary, conspired with
the property and right but also to the obligations of the testator, but
the notary public and the three attesting witnesses deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of the execution only limited as to the value of inheritance received by the heir.
and attestation of the will.
(3) Natural Persons. – As a rule instituted heirs are natural persons,
Petitioner contends that it was “highly dubious for a woman at the prime of while juridical persons may be instituted as heirs there are additional
her young life to almost immediately plunge into marriage with a mon who requisites to be complied with. The minimum requirement: Conceived
was thrice her age and who happened to be a Fil-American pensionado” at the time of death of testator.
thus casting doubt on the intention of respondent in seeking the probate
of the will. Moreover, it supposedly defies human reason, logic and Article 40. Birth determines personality; but the conceived child
common experience for an old man with a severe psychological condition to shall be considered born for all purposes that are favorable to it,
have willingly signed a last will and testament. provided, it be born later with the conditions specified in the
following article.
Held: We are not convinced. Fraud is a a trick, secret device, false
statement, or pretense, by which the subject of it is cheated. It may be of Article 41. For civil purposes, the fetus is considered born if it is
such character that the testator is misled or deceived as to the nature or alive at the time it is completely delivered from the mother’s
contents of the document which he executes, or it may relate to some womb. However, if the fetus had an intra-uterine life of less than
extrinsic fact, in consequence of the deception regarding which the testator seven months, it is not deemed born if it dies within twenty-four
is led to make a certain will which, but for the fraud, he would not have hours after its complete delivery from the maternal womb.
made.

Suppose grandmother institutes unborn child (still inside the womb) as [2] But if one has compulsory heirs
the heir to half of her estate – this is valid conditioned on the fact that  There is a need to respect the legitimes of compulsory heirs
the baby must be born because without birth that child does not  The free portion can, however, be given to anybody also
become a person and will not inherit the estate. including the compulsory heirs.
If child dies after delivery: ARTICLE 843

 If the child had intrauterine life of at least 7 months – deemed The testator shall designate the heir by his name and surname,
to have inherited since it is considered born upon delivery and when there are two persons having the same names, he shall
 If the child had intrauterine life of less than 7 months indicate some circumstance by which the instituted heir may be
o If child died after 24 hours, deemed to have civil known.
personality and deemed to succeed to the state
o If child died within 24 hours, the child would not Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no
be able to inherit, there was no civil personality
doubt as to who has been instituted, the institution shall be valid.
(4) Acquires Disposable Portion and Cannot Impair Legitime. – The
How the Designation of Heir is Made
heirs acquire rights limited to the disposable portion and cannot impair
By their name or surname (e.g. John Doe)
the legitime.
 If two persons have the same – indicate some circumstance
so that they shall be known. (e.g. John Doe, the law student)
(5) Presumed Equal – The institution of heirs is presumed to be equal,
unless there is a contrary intention made in the will by the testator.
In case of omission of name, but if designated in such manner that it
cannot be doubted that who was designated was that person, then the
REQUISITES FOR A VALID INSTITUTION institution shall be valid. (e.g. “my niece” and only one niece).
1. Will must be extrinsically valid. Institution as concept in
testamentary succession, cannot be effected if no valid will.
ARTICLE 844
2. It must also be intrinsically valid. There must be no An error in the name, surname or circumstances of the heir shall
impairment of legitimes. not vitiate the institution when it is possible, in any other
3. There must be no preterition otherwise under 854, then the manner, to know with certainty the person instituted.
institution of heirs in the will shall be annulled.
4. The heir must be certain or ascertainable. The voluntary heir If among persons having the same names and surnames, there is
should be identifiable or can be identified. a similarity of circumstances in such a way that , even with the
5. Institution must be effective. Such as when the voluntary use of other proof, the person instituted cannot be identified,
heirs already predeceased the testator, or repudiation or due none of them shall be an heir.
to incapacity.
Effect of Error
ARTICLE 841 GR: It will not vitiate the institution when it is possible, in any other
A will shall be valid even though it should not contain an manner to know with certainty the person instituted.
institution of an heir or such institution should not comprise the  “Any other manner” – oral declarations made by the testator
entire estate, and even though the person so instituted should not cannot be used (Article 785).
accept the inheritance or should be incapacitated to succeed.
XPN: If there is such similarity in circumstances in such a way that even
In such cases the testamentary disposition made in accordance with the use of other proof, the person instituted cannot be identified,
with law shall be complied with and the remainder of the estate none of them shall be an heir.
shall pass to the legal heirs.
ARTICLE 845
Non-Necessity of Institution of Heir Every disposition in favor of an unknown person shall be void,
Even if the will does not contain an institution of an heir the will is valid unless by some event or circumstance his identity becomes
for example in Seangio v. Reyes, in case that a will only contains a certain. However, a disposition in favor of a definite class or
disinheritance the will is still valid as it excludes a compulsory heir from group shall be valid.
the estate – and can be probated. The revocation in the will still stands
even if the will itself has become ineffective. Unknown Instituted Heir
GR: Disposition shall be void.
Even if institution does not comprise entire estate. When T disposes
only 1/4 of the estate there will be a mixed succession, then there shall XPN: Unless by some event or circumstance the identity becomes
be probate as to the 1/4 and intestate or legal succession shall apply to certain such as the existence of an identifying circumstance can
the remaining 3/4 of the estate. happen before or after the death of the testator.
 (e.g. Nephew who enters priesthood – Estate of Rigor v. Rigor)
ARTICLE 842  He must have been conceived at the time of institution – at
One who has no compulsory heirs may dispose by will all his the moment of death.
estate or any part of it in favor of any person having capacity to
succeed.

ARTICLE 846
Heirs instituted without designation of share shall inherit in
One who has compulsory heirs may dispose of his estate provided
equal parts.
he does not contravene the provisions of this Code with regard to
the legitime of said heirs.
Principle of Equality
Freedom of Disposition of Estate If testator wanted them to have different shares, the T should have then
[1] If one has no compulsory heirs: specified so in the will. Thus, the presumption shall be equal.
 He can give his estate or any portion thereof to anybody as  This applies to the institution as to the Free Portion
long as there is capacity to succeed.

Suppose T instituted in his will as heirs A, B and C. A is legitimate child There are six sisters, two of which are deceased and five nieces.
of T. The value of the estate is 24M, how much shall each heir receive?
The lower court ruled that the portions given shall be divided into six equal
Divide the estate as to the free portion and legitime parts corresponding to the number of sisters – each living sister should get
 P24,000,000 / 2 = P12,000,000 1/6 each and the children of those deceased sister shall divide on the 1/6
share that was for the deceased sister.
Legitime of P12M Free Portion of P12M
However, this division was questioned arguing that the codicil should have
As the compulsory heir, A is Absent designation of shares been construed as to mean that the estate shall be divided equally between
entitled to receive his legitime they shall be presumed equal: the living sisters and the children of the deceased sisters all in equal share
in the value of P12M. meaning each niece shall have the same share the surviving sister.
P12M / 3 = P4M each instituted
heir. Note that A is still an Issue: Should a niece receive same share as that of a surviving sister? - Yes
instituted heir – an heir can be Held: (1) Intention of Testatrix. – It was the intention of testatrix to divide
both compulsory and voluntary her property equally between her sisters and nieces.
The court below based its construction upon the theory that the other
If what was given included specific properties. Suppose the value of construction would be "an admission that the testatrix desired to favor her
estate is P900,000 but deceased sister Eufemia Uson, who left three children, more than her other
 A received car worth P250,000 deceased sister Antonia Uson, who left two children, and moreover both
 B received jewelry worth P70,000 would be more favored than any of the other four surviving sisters, one of
whom was married at the time of the execution of the said codicil and
 C received laptop worth P100,000
without doubt had children."
How is the principle of equality be applied in this instance?
(2) The wording of the codicil. – First, declares that after the death of her
Divide the estate into three – P300,000 (presuming this free portion) husband “my sisters and nieces xx shall succeed as heirs.”
Heirs Equal Shares Received To be Given Second, testatrix names and identifies each one of the persons whom she
A P300,000 P250,000 P50,000 desires to succeed in the property after her husband. Mentioned specially
B P300,000 P70,000 P230,000 are the nieces as well as the sisters. The nieces are referred to in no different
C P300,000 P100,000 P200,000 way from the sisters.
Third, taking the two, and the last clause she names all of the persons whom
Note: It would depend on the tenor of the will, it could be possible that
she desires to take under her will be name "so that they must take and
there are specific legacies or devises, as to the balance and as to the
enjoy the property in equal parts as good sisters and relatives." Is then
equality.
decisive of her intention that sisters and nieces shall take and enjoy the
property in equal parts.
ARTICLE 847
When the testator institutes some heirs individually and others It shall now be divided into 9 equal parts and not 6 equal parts.
collectively as when he says, "I designate as my heirs A and B, and
the children of C," those collectively designated shall be
considered as individually instituted, unless it clearly appears ARTICLE 848
that the intention of the testator was otherwise. If the testator should institute his brother and sisters, and he has
some full blood and others of half‐blood, the inheritance shall be
Principle of Individuality distributed equally unless a different intention appears.
For example “I designate as my heirs A and B, and the children of C.”
 X and Y are the children of C, they shall receive the same Institution of Brothers and Sisters
shares as A and B despite being referred to collectively.
 They shall be considered individually instituted. Testamentary Succession Intestate Succession
 Thus the estate shall be divided into four. Shares are the same unless a Brother of the full-blood gets
different intention appears. double the share of the brother
Applies only to the free portion. Thus the legitime of the compulsory (Principle of Equality) of the half blood (Art. 1006).
heirs shall not be included in the computation.
ARTICLE 849
NABLE v. USON When the testator calls to the succession a person and his
children, they are all deemed to have been instituted
GR L-8927, March 10, 1914
simultaneously and not successively.
Facts: This involved the clauses in the codicil of the will of Filomena Uson.
Principle of Simultaneity
First. I declare that all the property which belongs to me as conjugal property, I hereby institute B and his thrchildren to my entire estate.
referred to in my said testament, shall be the property of my aforesaid husband,
Don Rafael Sison; in case all or part of said property exists at my husband's Applying the Principle of Individuality, there are four divisions of the
death, it is my will that at his death my sisters and nieces hereinafter named estate, for B and the 3 children. Under Principle of Simultaneity, there
succeed him as heirs. is no need to wait for B’s death because they all inherit at the same
time – equally and simultaneously. There can be successive institution
Second. I declare to be my sisters in lawful wedlock the persons named Doña in substitution of heirs.
Antonia Uson, now deceased, who has left two daughters called Maria
Rosario, widow, and Maria Paz, unmarried; Maria Romualda Uson, widow of
Estanislao Lengson; Ignacia Uson, married to Don Vicente Puson; Eufemia ARTICLE 850
Uson, now deceased, who is survived by three daughters called Maria Salud, The statement of false cause for the institution of an heir shall be
Maria Amparo, and Maria Asuncion; and Maria Pilar Uson; Maria Manaoag considered as not written, unless it appears from the will that the
Uson, unmarried, issued had by our deceased after Don Daniel Uson with one testator would not have made such institution if he had known
Leonarda Fernandez, alias Andao de Lingayen, so that they may have and the falsity of such cause.
enjoy it in equal parts as good sisters and relatives.

Statements of a False Cause Her disposition of the free portion of her estate (libre disposicion) which
GR: The statement of a false cause in the institution shall be considered largely favored the respondent Perfecto Cruz, the latter's children, and the
as not written. The institution shall still be given effect. children of the respondent Benita Cruz, shows a perceptible inclination on
 “I hereby give to A one-half of my estate for A took care of me her part to give to the respondents more than what she thought the law
while I was in a coma.” If turned out false, still valid. enjoined her to give to them.
XPN: Unless it appears from the will that the testator would not have ARTICLE 851
made such institution if he had known the falsity of such cause. If the testator has instituted only one heir, and the institution is
limited to an aliquot part of the inheritance, legal succession
 “I would have wanted to give B one-half of estate, but because
takes place with respect to the remainder of the estate.
A took care of me when I was in a coma, I am giving it to A.”

 If false, A would not get the inheritance because if testator The same rule applies if the testator has instituted several heirs,
would have known then A would not be instituted. each being limited to an aliquot part, and all the parts do no cover
the whole inheritance.
If revocation is based on a false cause, the revocation is not valid. But,
if the institution is based on revocation, the institution is still valid to Effect of Institution to a Part of the Estate
give effect the institution. Article 851 applies when there is a remainder or balance and there is no
intent to give all to the instituted heirs, otherwise the remainder should
Liberality or Generosity of Testator be divided proportionately under Article 852.
AUSTRIA v. REYES [1] One heir instituted – the remaining shall go legal succession.
GR L-23078, February 27, 1970
[2] Several heirs are instituted. – The remaining will go to the legal heirs
Facts: A petition for ante-mortem probate proceedings was filed by Basilia by way of intestate succession.
Austria of her last will and testament. The bulk of the estate were to pass to
the respondents Cruzes (Perfecto, Benita, Isagani, Alberto and Luz) all of ARTICLE 852
whom had been assumed and declared by Basilia as her own legally If it was the intention of the testator that the instituted heirs
adopted children. Basilia died two years after her will was allowed to should become sole heirs to the whole estate, or the whole free
probate – the petitioners (nephews and nieces) filed petition in intervention portion, as the case may be, and each of them has been instituted
for partition alleging that the five respondents had not in fact been to an aliquot part of the inheritance and their aliquot parts
lawfully adopted rendering them mere strangers to the decedent without together do not cover the whole inheritance, or the whole free
any right to succeed as heirs. portion, each part shall be increased proportionally.
Issue: Should the institution of Cruz et al. as heirs be annulled? – No. Effect of Institution to a Part but Intent is to Give Entire Estate
Art. 852 applies only if the intent is to give all only to those instituted,
Held: (1) Requisites for Annulment of Institution of Heirs. – Before the otherwise legal succession takes place as to the remainder, unless said
institution of heirs be annulled under Article 850, it must be shown that remainder has been completely disposed of by way of legacies or
[1] The cause for institution must be stated in the will;
devises. In other words, while Art. 851 provides the general rule, Art.
[2] The cause must be shown to be false;
852 states the exception.
[3] Must appear from the face that testator would have not made such if
she had known the falsity of the case.
IN CASE OF EQUAL SHARES:
(2) Cause for institution, not stated. – Petitioner argue that the impelling
reason of institution of the respondents was the belief of testatrix that I hereby institute A, B and C my entire estate at one-fourth each.
under the law she could not do otherwise. But if this were the case, she did
not make it known in her will. If estate is P12,000,000, divided by 3 it shall be P4,000,000 the share is
then increase proportionately, if the designation of shares is equal.
Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have Estate: P12,000,000
found it convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should very well A (1/4 share) P12M/4 = P3M + P1M = 400K
indicate her complete agreement with that statutory scheme.
B (1/4 share) P12M/4 = P3M + P1M = 400K
C (1/4 share) P12M/4 = P3M + P1M = 400K
But even this, like the petitioners' own proposition, is highly speculative of
what was in the mind of the testatrix when she executed her will. One fact
= P9M P3M = P12M
prevails, however, and it is that the decedent's will does not state in a P3M balance
specific or unequivocal manner the cause for such institution of heirs. We
cannot annul the same on the basis of guess work or uncertain implications.
IN CASE OF UNEQUAL SHARES:
(3) No showing of possibility to revoke if known. – Would the late Basilia
caused the revocation of the institution of heirs if she had known the she I hereby institute as heirs to my entire estate – to A as to the one-fourth;
was mistaken in treating these heirs as her legally adopted children? Or to B as to the one-half; and to C as to the one-eight.
would she have instituted them nonetheless?
Suppose with estate at the value of P12,000,000 but sharing is:
The decedent's will, which alone should provide the answer, is mute on this  A is instituted to 1/4
point or at best is vague and uncertain. The phrases, "mga sapilitang
 B is instituted to 1/2
tagapagmana" and "sapilitang mana," were borrowed from the language of
the law on succession and were used, respectively, to describe the class of  C in instituted to 1/8
heirs instituted and the abstract object of the inheritance. They offer no
absolute indication that the decedent would have willed her estate other Looking at the sharing, it shall not cover the estate and there is still a
than the way she did if she had known that she was not bound by law to remainder – and if the intent was to give entire estate to the instituted
make allowance for legitimes. heirs the shares shall be increased accordingly.

Estate: 24,000,000
Proportional Reduced
First, determine share each instituted heir is entitled to according Reduction Shares
to the sharing provided by law: A 1/4 6M 6/26 x 2M (461,538) 5,538,462
B 1/2 12M 12/26 x 2M (923,077) 11,076,923
A 1/4 1/4 x 24,000,000 6,000,000 C 1/8 8M 8/26 x 2M (615,385) 7,384,615
B 1/2 1/2 x 24,000,000 12,000,000 TOTAL 26M
TOTAL (2,000,000) 24,000,000
C 1/8 1/8 x 24,000,000 3,000,000 EXCESS 2M
TOTAL 21,000,000
BALANCE 3,000,000 Thus, to proportionally decrease the shares, subtract proportional
reduction to the share that each heir should have been entitled.
Note that there is still a balance of P3,000,000. Article 852 instructs
that if it was the intention of the testator that the instituted heirs
ARTICLE 854
should become the sole heirs to the whole estate then the excess The preterition or omission of one, some, or all of the compulsory
shall be distributed not with the same sharing but instead, each heirs in the direct line, whether living at the time of the execution
part shall be increased proportionately. of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid
Proportional Increased insofar as they are not inofficious.
Increase Shares
A 1/4 6M 6/21 x 3M 857,142.86 6, 857,142.86 If the omitted compulsory heirs should die before the testator,
B 1/2 12M 12/21 x 3M 1,714,285.71 13,714,285.71 the institution shall be effectual, without prejudice to the right of
C 1/8 3M 3/21 x 3M 428,571.43 3, 428,571.43 representation.
TOTAL 21M
TOTAL 3,000,000 24,000,000 Preterition
BALANCE 3M
It is the omission of one, some or all of the compulsory heirs in the
direct line, whether living at the same time of the execution of the will
Thus, to get proportionally increased shares, add the proportional
or born after the death of the testator, which, as a consequence, shall
increase to the share entitled to each heir.
annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not inofficious. THERE MUST BE A WILL.
ARTICLE 853
If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, REQUISITES OF PRETERITION
or the whole free portion, as the case may be shall be reduced
proportionally. 1. Omission
Effect if Institution Exceeds Estate It is immaterial whether the omission be intended or inadvertent, as
There shall be a proportionate reduction: long as there is an omission. As long as the heir is not expressly
excluded. There is no mentioned that “I hereby disinherit A.” Thus it
I hereby institute as heirs to my entire estate – to A as to the one-fourth; does not matter whether it be deliberate or inadvertent.
to B as to the one-half; and to C as to the one-thirds.
2. Omission is total and complete
Suppose with estate at the value of P12,000,000 but sharing is:
 A is instituted to 1/4 It does not mean that the heir is not mentioned in the will, there is then
 B is instituted to 1/2 preterition, it must also be considered that:
 C in instituted to 1/3
Looking at the sharing, it shall cover more than estate and then it (a) The heir is not instituted in the will as heir or is not given
exceed the whole inheritance or the whole free portion, the will shall anything in the will either by legacy or device – he is not
then be reduced proportionately. mentioned in the distribution – not given anything in will.
Estate: 24,000,000 Ex.: “I have five children, A,B,C, D and E. E is the most beautiful of all of
them.” But in the distribution E was not given anything. There is then
First, determine share each instituted heir is entitled to according preterition in this case.
to the sharing provided by law:
Ex.: If the estate is valued at P10,000,000 but A is given only P1,000 or
A 1/4 1/4 x 24,000,000 6,000,000 even P1 – there is no preterition because there is no omission in this
B 1/2 1/2 x 24,000,000 12,000,000 case. But, A is entitled to completion – give the balance of the legitime.
C 1/3 1/3 x 24,000,000 8,000,000
TOTAL 26,000,000 (b) The omitted heir is also not a donee or a recipient of any
EXCESS 2,000,000 property from the testator during the lifetime of the testator.
Note that there is still an excess of P2,000,000. Article 853 instructs Meaning, for there to be preterition, the omitted heir in the will should
that the parts together exceed the whole inheritance or the not have received anything that can be considered as an advance to
whole free portion then as the case may be it shall then be reduced his or her legitime.
proportionately.
Thus, even if heirs is omitted in the will but during the lifetime of the
Note again that the P2,000,000 exceeds that the whole inheritance, testator, the testator donated to the heir a property, the heir is then not
but this reduction should not be reckoned on the sharing but on preterited. The donation shall be collated – meaning, it shall be
the proportional reduction which is shown by the following brought back to the estate considered as an advance.
computation:

But this is not limited to donation – this includes those advances made
to the heir during the lifetime of testator which could be considered as A, B, C and D are legitimate children of the testator. E is the best
an advance to the legitime of heir. Such as bail, payment of debts or friend of the testator and estate is valued at P10,000,000
presumptive legitimes in freak succession and even expenditures in the
election can even be considered. Situation 1: Preterition
Omission that Results in Preterition, Summary I hereby leave my entire estate of P10,000,000 to my children A,
(1) Person is not an heir, not a devisee, not a legatee, thus B and C and my best friend E.
receives nothing in the will.
(2) No donation inter vivos was given to him. Here it can be seen that D has been preterited, D being a legitimate
(3) There is nothing which could be inherited by intestacy child which is a compulsory heir in the direct line.
because the whole estate was distributed by will. What is the effect? The institution of A,B,C and E is annulled. The estate
(4) There is no prior delivery of presumptive legitimes. shall then be distributed by legal succession. By the annulment of the
institution of heirs there are no more institutions that can be given
3. The will must dispose of the entire estate effect. Thus, the estate shall be distributed by intestacy.
Meaning, there is nothing left to be distributed by legal succession – Legal Heirs: A, B, C and D (4 legal heirs)
there is no partial intestacy. Because if there are still part of the estate Value of Estate: P10,000,000
that is subject to succession, there would be no preterition because Computation:
there are still properties which the heir can participate or completed. 𝑃10,000,000
𝑃2,500,000
There is difference between completion of legitime from preterition. 4 ℎ𝑒𝑖𝑟𝑠
4. The omission must be compulsory heirs in the direct line Distribution:
Groups of Compulsory Heirs A B C D

1. Legitimate children and descendants, with respect to their P2,500,000 P2,500,000 P2,500,000 P2,500,00
legitime parents and ascendants; ___
2. In default of the foregoing, legitimate parents and
ascendants, with respect to their legitime children and How about E? – E is not a legal heir but a friend. He can only inherit if
descendants; only there is a will but the will is annulled because of preterition.
3. The surviving spouse; __________
4. Other illegitimate children.
Situation 2: Preterition but there is a Legacy or Devise
Note: While all might be considered as compulsory heirs, but for the
purposes of preterition – only those compulsory heirs in the direct line I hereby institute as my sole heirs to my entire estate of
shall be considered – the ascendants and descendants. P10,000,000, my children A, B and C and I am giving P1,000,000
to my best friend E.
Who Can be Preterited?
Compulsory heirs in the direct line, specifically ascendants and Here, once again, D is omitted and there shall be preterition. But, note
descendants, ad infinitum and adopted children. The spouse cannot that E here receives a legacy. And again, the effect of preterition is that
claim preterition because she is not a relative in the direct line (Acain v. it shall result to the annulment of the institution of heirs but the
Court of Appeals 155 SCRA 100). What happens if the spouse is legacies and devises shall remain valid as long as not inofficious.
omitted? Then the spouse would just be given his or her legitime. There
would be no preterition. Therefore there is no annulment of the Inofficious means that the legacy or device would not impair here the
institution of the heirs. legitime of the compulsory heirs. Meaning, they can be covered in the
free portion. Thus, determine first is the legacy or device is inofficious:
5. The preterited heir must survive or must not have
predeceased the testator Total Value of Estate: P10,000,000
General Rule: Even if the testator omitted in his will a compulsory heir 𝑃10,000,000
𝑃5,000,000
in the direct line such a son or daughter but that omitted son dies 2
ahead of the testator there is no longer a preterition because the son
never inherited and heir. Legitime: P5,000,000 Free Portion: P5,000,000
Exception: If the preterited heir left a representative. Such as when Is the P1,000,000 legacy to E inofficious?
the son had also his own child, then the grandchild has the right of No. Because the P1,000,000 can be covered under the free portion of
representation. Thus, the omitted heir should not predecease the P5,000,000. Meaning, it did not exceed the free portion and did not
testator and even if he predeceases the testator, he should not leave a encroach the legitimes.
representative, then otherwise there would still be preterition.
How about the balance?
EFFECTS OF PRETERITION
FIRST METHOD
Effect of Preterition
The institution of heirs is annulled. Hence, estate shall be distributed in Distribution of Legitime:
accordance with the rules on legal succession. But the devisees and the
𝑃5,000,000 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑒
legacies shall be valid insofar as they are not inofficious. If the omitted 𝑃1,250,000 𝑒𝑎𝑐ℎ
compulsory heir should die before the testator, the institution shall be 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
effectual, without prejudice to the right of representation.

Distribution of Free Portion: Therefore, whatever was received by the compulsory heirs during the
lifetime of testator shall be considered as advances to their legitimes.
𝑃5,000,000 𝑃1,000,000 𝐿𝑒𝑔𝑎𝑐𝑦 𝑡𝑜 𝐸 The donation to D was P2 Million which was over and above legitime.
The legacy is still valid because it is not affected by the annulment of Distribution of Free Portion:
the institution of heirs and it is not inofficious:
Note that, the legitime that D is entitled is only P1.5M, but he received a
𝑃4,000,000 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑟𝑒𝑒 𝑃𝑜𝑟𝑡𝑖𝑜𝑛 donation of P2M. Meaning there was excess. D need not return the P.5M
𝑃1,000,000 𝑒𝑎𝑐ℎ but it would not be considered as being charged to the free portion.
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
Distribution shall be (in millions): 𝑃6,000,000 𝑃500,000 𝑒𝑥𝑐𝑒𝑠𝑠 𝑃5,500,000
In addition, note that free portion will be divided to four instituted

Legitime Free Portion Total
heirs because there is no preterition (because D received donation).
A 1.25 1 2.25 Thus, the institution of A, B, C and best friend E is not annulled because
B 1.25 1 2.25 there is no preterition.
C 1.25 1 2.25
D 1.25 1 2.25 𝑃5,500,000
𝑃1,375,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
E [N/A] 1 1 4 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
Total 5 5 10
SECOND METHOD Distribution shall be as follows (in millions)

𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃1𝑀 𝐿𝑒𝑔𝑎𝑐𝑦 𝑜𝑓 𝐸 𝑃9𝑀 A 1.5 1.375 2.875
B 1.5 1.375 2.875
𝑃9,000,000 C 1.5 1.375 2.875
𝑃2,250,000 𝑒𝑎𝑐ℎ
4 D 1.5 0.5 2
E [N/A] 1.375 1.375
Total 6 6 12
The second situation would emphasize the importance if one is an heir,
legatee or devisee, because if there is preterition, even if one is not a Therefore, upon the distribution of the remaining estate of P10M, D will
compulsory heir but a legatee or devisee he or she can still receive as not actually receive in the distribution as he already receive the P2M
long as these are not inofficious. But if one is an instituted heir but not ahead as donation (considered as an advance to his legitime). He is
a compulsory heir and there is preterition, nothing shall be received. then deemed considered to receive his legitime (P1.5M) and the excess
was even charged to the free portion. There is no preterition.
Situation 3: Donation Inter Vivos and More than Legitime
Situation 4: Donation Inter Vivos Less than Legitime
I hereby institute to my entire estate as my sole heirs A, B, c and
my best friend E.” I hereby institute to my entire estate as my sole heirs A, B, c and
my best friend E.”
But, D actually received a donation of P2,000,000 during the lifetime
of testator. Is D preterited? But, D actually received a donation of P500,000 during the lifetime of
testator. Is D preterited?
Here, there is no preterition because the omitted heir already received
donation valued at P2,000,000. What will happen is that there shall be Here, again there is no preterition, remember that even if P1 is given,
a computation for the Net Estate. there is no preterition, but what will happen is that there must first be
computation of the net estate:
In computing the net estate, there shall be a collation, the donation
shall be included in the calculation of the net estate (also deducting the
liabilities or debts the estate may be made liable). In computing the net estate collate the donation made:
𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃. 5𝑀 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛 𝑡𝑜 𝐷 𝑃10.5𝑀

In computing the net estate collate the donation made:
After getting the net estate, determine the legitime and the free portion
𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃2𝑀 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛 𝑡𝑜 𝐷 𝑃12𝑀 of the net estate:
After getting the net estate, determine the legitime and the free portion 𝑃10,500,000
of the net estate: 𝑃5,250,000
2
𝑃12,000,000 Distribution of Legitime:
𝑃6,000,000
2
𝑃5,250,000
𝑃1,312,500 𝑝𝑒𝑟 𝑐ℎ𝑖𝑙𝑑
The institution: “I hereby institute to my entire estate as my sole heirs A, 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
B, C and my best friend E covers the free portion.
Thus, each child shall receive P1,312,500 each. But, note that D already
Distribution of Legitime: received P500,000 as donation (considered as advances) then shall be
deducted from the legitime. D shall then receive only:
𝑃6,000,000
𝑃1,500,000 𝑝𝑒𝑟 𝑐ℎ𝑖𝑙𝑑
4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠 𝑃1,312,500 𝑃500,000 𝑃812,500

Distribution of Free Portion: Distribution of Legitime:
𝑃5,250,000 𝑃5,000,000
𝑃1,312,500 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟 𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠 4 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
Free portion will be divided to four instituted heirs because there is no Note that D already received P5,000 by way of legacy it shall be
preterition (because D received donation). Thus, the institution of A, B, deducted from the legitime. D shall then receive only:
C and best friend E is not annulled because there is no preterition.
𝑃1,250,000 𝑃5,000 𝑃1,245,000
Distribution of Estate: Distribution shall be as follows
Distribution of Free Portion:
A 1, 312,500 1,312,500 2,625,000 𝑃5,000,000
𝑃1,250,000 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟
B 1,312,500 1,312,500 2,625,000 4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
C 1,312,500 1,312,500 2,625,000
Free portion will be divided to four instituted heirs because there is no
D 1,312,500 [N/A] 1,312,500 preterition (because D received legacy). Thus, the institution of A, B, C
E [N/A] 1,312,500 1,312,500 and best friend E is not annulled because there is no preterition.
Total 5,250,000 5,250,000 10,500,000
Distribution (in millions):
But note, the distribution above is based on the net estate, thus the
total should be P10.5M. However, if the distribution is to be reckoned: Legitime Free Portion Total
A 1.25 1.25 2.5
Received at the Time of Death B 1.25 1.25 2.5
Considering that P500K was already given to D as donation (advance), C 1.25 1.25 2.5
then what remains in the estate is P10M. D 1.25 [N/A] 1.25
(1.245+0.05)
Thus, in the amount received at the time of death, the reduced legitime E [N/A] 1.25 1.25
of D (P812,500) shall be given because the P500K that was already
Total 5 5 10
given as donation is considered as an advance to his legitime and
therefore is deducted therefrom:
Note, here that what was given was a legacy not a donation inter vivos
and thus there is no need to collate (that is why the total value is still
10M not 10.05M).
A 1, 312,500 1,312,500 2,625,000
B 1,312,500 1,312,500 2,625,000
Caution: Be careful with the wordings of the will – I hereby leave my
C 1,312,500 1,312,500 2,625,000 entire estate to the following persons xxx and the balance equally
D 812,500 [N/A] 812,500 among xxx. – the above computation was applied.
E [N/A] 1,312,500 1,312,500
Total 4,750,000 5,250,000 10,000,000 Situation 6: In Case of Legacy but No “My Entire Estate”
Other Advances that can be Considered and Collated I hereby leave a legacy of P5,000 to D and institute as my heirs A,
Donation are not only those that can be considered as advances to the B, C and my best friend E.
legitime, others are:
1. If parents paid the debts or
2. If parents paid for the bail, in case of imprisonment
3. Running in election, the expenses are paid for. I hereby leave P5,000 to D and I hereby institute as heirs A,B, C
4. Option collation, such as when the parents decide to charge and my best friend E.
expenses (like unwarranted length of postgraduate study).
Always remember that institution refers only to the free portion.
Situation 5: In Case of Legacy and to the “My Entire Estate” Looking at the above, those mentioned are treated only as disposing
the free portion.
I hereby leave my entire estate worth P10,000,000 to the following
persons: Determine the legitime and the free portion:
D – P5,000 𝑃10,000,000
𝑃5,000,000
2
The remaining will be distributed equally to A, B, C and E.
Distribution of Legitime:
Here, there is no donation inter vivos but D is mentioned in the will.
There is no preterition because there is a legacy of P5,000. 𝑃5,000,000
𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
The testator said that the balance shall be distributed equally among A,
B, C and E. But clearly, P5,000 is way below the legitime of D. The Distribution of Free Portion:
computation shall be as follows: Now, unlike the previous example (Situation 5), there is no phrase that
states “My entire estate”, therefore we limit such to the free portion.
Determine the legitime and the free portion:
Here, D received the P5,000 as legacy and others are instituted heirs.
𝑃10,000,000
𝑃5,000,000 𝑃5,000,000 𝑃5,000 𝑃4,995,000
2

Under the Principle of Equality, since the Testator did not specify the b. Exception: If the testator expresses in his will that
sharing of the instituted heirs A,B, C and best friend . They shall receive he is disposing his entire estate.
in equal shares of the amount.
B. As to the phrasing:
a. “I hereby institute as sole heirs to my entire estate”
𝑃4,995,000
𝑃1,248,750 𝑝𝑒𝑟 𝑖𝑛𝑠𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟 – there can preterition
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠 b. “I hereby institute as sole heirs A,B,C and best
friend E” – only refers to the free portion.
Free portion will be divided to four instituted heirs because there is no Situation 8: Part of Estate Disposed but More Than Legitime
preterition (because D received legacy). Thus, the institution of A, B, C and
best friend E is not annulled because there is no preterition. I hereby leave P8,000,000 to A,B, and best friend E
Distribution: or
Legitime Free Portion Total I hereby leave P8,000,000 in equal shares to A,B and best friend E
A 1,250,000 1,248,750 2,498,750
B 1,250,000 1,248,750 2,498,750 Suppose the following:
C 1,250,000 1,248,750 2,498,750 1. Testator has A,B and C as legitimate children
D 1,250,000 5,000 1,255,000 2. Testator as E as best friend
[N/A] 1,248,750 1,248,750 3. The estate is valued at P12,000,000
E
Total 5 5 10
Meaning that out of P12,000,000 of the Total Estate:
 Disposed in will – P8,000,000
Situation 7: No Donation, No Legacy and Not “My Entire Estate”
 Not disposed in will – P4,000,000
I hereby institute as my heirs A,B,C and my best friend E.
There is then a need to determine the legitimes of each child in order
or
to see whether the distribution is inofficious.
I hereby institute as my sole heirs A,B,C and my best friend E.
Determine the legitime and the free portion:
There is NO PRETERITION. Remember the basic rule that institution
shall only be applied to the free portion, one need not institute the 𝑃12,000,000
heirs to their legitimes. (There is no statement “to my entire estate”). 𝑃6,000,000
2
Determine the legitime and the free portion: Distribution of Legitime:
𝑃10,000,000 𝑃6,000,000
𝑃5,000,000 𝑃2,000,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
2 3 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
Distribution of Legitime: Then looking at the undisposed portion of the estate, which is P4M, it
can be seen that the supposed legitime of C was not impaired and in fact
𝑃5,000,000 there is still an excess of P2M.
𝑃1,250,000 𝑝𝑒𝑟 𝑐𝑜𝑚𝑝𝑢𝑠𝑙𝑜𝑟𝑦 ℎ𝑒𝑖𝑟
This then shows that C is not preterited and he is entitled to be given
Distribution of Free Portion: his legitime. He can participate in the portion not disposed of by will. So,
each child is entitled to P2M. C’s legitime can be satisfied out from the
𝑃5,000,000 undisposed portion.
4 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
𝑃4,000,000 𝑃2,000,000 𝐶 𝑠 𝑙𝑒𝑔𝑖𝑡𝑖𝑚𝑒 𝑃2,000,000
Then the remaining P2M that is undisposed by will shall be distributed

Distribution (in millions): by legal succession to all the legal heirs:
Legitime Free Portion Total 𝑃2,000,000

𝑃670,000 𝑝𝑒𝑟 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟
A 1.25 1.25 2.5 3 𝑙𝑒𝑔𝑎𝑙 ℎ𝑒𝑖𝑟𝑠
B 1.25 1.25 2.5
1.25 1.25 2.5 [NOTE: Should be P666,666.67]
C
D 1.25 [N/A] 1.25
Distribution in Accordance to the Will:
E [N/A] 1.25 1.25
Total 5 5 10 𝑃8,000,000
3 𝑖𝑛𝑠𝑡𝑖𝑡𝑢𝑡𝑒𝑑 ℎ𝑒𝑖𝑟𝑠
But, if the testator said “I hereby instituted A,B,C and my best friend E
as my sole heirs to my ENTIRE ESTATE” then there is preterition. There [NOTE: Should be P2,666,666.67]
is a need to ascertain then in the will what the testator is disposing.
Now referring back to their legitimes, A, B and C are entitled to P2M as
Rules in Case of Institution of Heirs legitime. Now, under the will, what was given to them, especially A and
B is P2.67M which is more than their legitime.
A. As to the portion referred
a. Institution of heirs refers to the free portion as a
general rule, for it is the essence of institution.

Distribution (in millions) Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in
second marriage of Julian L. Teves and his four minor children.
Legitime Disposed Excess Total
Don Julian and the two children of the first marriage (Emilio and Josefa) had
A (2) 2.67* 0.67 3.33
executed a Deed of Assignment of Assets in favor of JLT Agro transferring
B (2) 2.67* 0.67 3.33 ownership over Lot 63.
C 2 - 0.67 2.67
E - 2.67 - 2.67 Later on, Milagros Donio (second wife) and her four children executed a
Total 2 8 2 12 Deed of Extrajudicial Partition of Real Estate allotting Lot 63 to her and
two children. Antonio Balansag and Hilaria Cadayday bought Lot 63 from
NOTE: As long as legitimes are not impaired, provisions are effected. Milgaros Donio.
Balasag and Cadayday as buyers, filed a case against JLT Agro seeking for
Situation 9: Part of Estate Disposed but Less Than Legitime
the declaration of nullity and cancellation of TCT of JLT Agro.
RTC dismissed complaint ruling that the property no longer formed part of
I hereby leave P11,000,000 to A,B, and best friend E the estate of Julian Teves as it was earlier assigned to JLT Agro and no longer
proper subject of extrajudicial partition, and they could not have sold it.
Suppose the following:
1. Testator has A,B and C as legitimate children CA reversed RTC ruling that nobody in his right judgment would preterit his
2. Testator as E as best friend legal heirs by simply executing a document like the Supplement Deed
3. The estate is valued at P12,000,000 which practically covers all properties which Don Julian had reserved in
favor of his heirs from the second marriage.
There is no preterition because the will did not dispose of the entire
estate, thus, C can still participate by legal succession. But, it is not This shows that the CA found that the assignment made by Don Julian is a
enough to satisfy the legitime of C. As illustrated in Situation 8, each prohibited preterition of Don Julian’s heirs from the second marriage.
of them is entitled to a legitime of 2M.
Issue: Was there preterition in this case? – No.
Then there is a need to Complete the Legitime of C. The P1M that is (1) Concept of Preterition. - Manresa defines preterition as the omission of
for C must be given. It shall be taken from the disposition, which was the heir in the will, either by not naming him at all or, while mentioning him
P11M, now, what the testator can dispose by will is only P10M. as father, son, etc., by not instituting him as heir without disinheriting him
expressly, nor assigning to him some part of the properties. It is the total
I hereby leave P11M to A, B No need to apply to the free omission of a compulsory heir in the direct line from inheritance.
and my best friend E. portion.
I hereby institute A, B and my Need to apply to the free portion. It consists in the silence of the testator with regard to a compulsory heir,
best friend E as my heirs. 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
Points to Remember disinheriting him, even if he is mentioned in the will in the latter case. But
1. Identify the legitimes, determine based on the legitimes if there is no preterition where the testator allotted to a descendant a share
less than the legitime, since there was no total omission of a forced heir.
the portion distributed by the will is enough. If enough, then
take the share of the omitted heir from the undisposed
(2) There Was No Will. - Don Julian did not execute a will since what he
portion and if there is excess of the undisposed portion, then resorted to was a partition inter vivos of his properties, as evidenced by the
it shall be distributed by legal succession (Situation 8) court approved Compromise Agreement. Thus, it is premature if not
2. If the portion distributed is not enough to satisfy the irrelevant to speak of preterition prior to the death of Don Julian in the
legitime of the omitted heir, then reduce the estate disposed absence of a will depriving a legal heir of his legitime. Besides, there are
in the will to complete the legitime of the omitted heir who other properties which the heirs from the second marriage could inherit
was not preterited, and then all others can be given effect. from Don Julian upon his death. A couple of provisions in the Compromise
(Situation 9). Agreement are indicative of Don Julian’s desire along this line.
JLT AGRO v. BALANSAG Hence, the total omission from inheritance of Don Julian’s heirs from the
GR 141882, March 11, 2005 second marriage, a requirement for preterition to exist, is hardly imaginable
as it is unfounded.
Facts: Don Teves contracted two marriages. First with Antonia Baena and
had two children. And after Antonia died, Don Teves married Milagros
Donio and they had four children. ACAIN v. IAC
GR 72706, October 27, 1987, En Banc
The issue revolves around a parcel of land Lot No. 63 originally registered in
the name of the conjugal partnership of Don Julian Teves and Antonia. Facts: This involved the will of the late Nemesio Acain. Constantino Acain
When Antonia died the land was involved in an action for partition and filed with RTC Cebu a petition for probate of the will on the premise that
there was a compromise agreement. Nemesio left a will which Constantino and his siblings were instituted as
heirs. The will contained a disposition of the testator’s property where the
On that compromise agreement as approved by CFI, the land was declared properties shall be given to Nemesio’s brother Segundo – but in case
as property owned in common by Don Julian and the two children of the Segundo dies ahead of Nemesio, it shall be given to Segundo’s heirs
first marriage – it remained undivided during the lifetime of Don Julian. The (Constantino and his siblings).
two children were given properties at the Bais Cadastral, but remainder of
properties including Lot 63 remained with Don Julian. Indeed Segundo predeceased Nemesio – thus Constantino and siblings
claim to be heirs. This was opposed by Virginia Fernandez who is a legally
In the Compromise Agreement, it was stated that: adopted daughter of the testator and widow Rosa Diongson. The petition
was sought to be dismissed because the widow and adopted daughter
In the event of death of Julian Teves xxx In other words, the properties now have been preterited.
selected and adjudicated to Julian L. Teves (not including his share in the
Issue: Was there preterition? – Yes.

(1) Concept of preterition. – Under Article 854, preterition consists in the The eldest son of Policronio, Conrado, signed the extrajudicial partition in
omission in the testator's will of the forced heirs or anyone of them either behalf of his siblings. Here, the Heirs of Policronio found that there was a tax
because they are not mentioned therein, or, though mentioned, they are declaration in the name of Policronio. Believing that these lands are
neither instituted as heirs nor are expressly disinherited. deemed excluded from the extra-judicial partition, they filed a Complaint
for Declaration of Ownership, Recovery of Possession, Annulment of
(2) No preterition as to the widow. - Insofar as the widow is concerned, Documents, Partition, and Damages against the rest of the Heirs of Alfonso.
Article 854 of the Civil Code may not apply as she does not ascend or
descend (direct line) from the testator, although she is a compulsory heir. But here the RTC dismissed the case finding that the Deed was only made
or taxation purposes as there was no valid consideration and the sale was
Stated otherwise, even if the surviving spouse is a compulsory heir, there is then absolutely simulated.
no preterition even if she is omitted from the inheritance, for she is not in
the direct line. Here, the heirs of Policronio argue that the absence of them in partition or
lack of the authority of their representative, results at the very least in their
(3) Preterition of adopted child. - However, the same thing cannot be said preterition and not of the invalidity of the entire deed of partition. They
of the other respondent Virginia A. Fernandez, whose legal adoption by the argued that, if there was actual preterition, the extrajudicial partition was
testator has not been questioned by petitioner not voidable but under Article 1104, a partition made with preterition of
any of the compulsory heirs shall not be rescinded but the heirs shall be
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare proportionately obliged to pay the share of the person omitted.
Code, 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 It is to be emphasized that Conrado was authorized by his siblings to sign
a legal heir of the adopter. It cannot be denied that she has been totally the extra-judicial partition in their behalf.
omitted and preterited in the will of the testator and that both adopted
child and the widow were deprived of at least their legitime. Neither can it Issue: Was there preterition? – No.
be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child. Held: (1) Heirs of Policronio gave their consent. – The posited theory on
preterition is no longer viable. It has already been determined that the Heirs
(4) Effect of preterition. - Pretention annuls the institution of an heir and of Policronio gave their consent to the Deed of Extra-Judicial Partition and
annulment throws open to intestate succession the entire inheritance. The they have not been excluded from it. Nonetheless, even granting that the
only provisions which do not result in intestacy are the legacies and devises Heirs of Policronio were denied their lawful participation in the partition,
made in the will for they should stand valid and respected, except insofar as the argument of the Heirs of Alfonso would still fail.
the legitimes are concerned.
(2) There Was No Will. - Preterition has been defined as the total omission
The universal institution of petitioner together with his brothers and sisters of a compulsory heir from the inheritance. It consists in the silence of the
to the entire inheritance of the testator results in totally abrogating the will testator with regard to a compulsory heir, omitting him in the testament,
because the nullification of such institution of universal heirs-without any either by not mentioning him at all, or by not giving him anything in the
other testamentary disposition in the will-amounts to a declaration that hereditary property but without expressly disinheriting him, even if he is
nothing at all was written. Carefully worded and in clear terms, Article 854 mentioned in the will in the latter case. Preterition is thus a concept of
of the Civil Code offers no leeway for inferential interpretation. testamentary succession and requires a will. In the case at bench, there is
no will involved. Therefore, preterition cannot apply.
No legacies nor devises having been provided in the will the whole property
of the deceased has been left by universal title to petitioner and his brothers A perusal of the Deed of Extra-judicial Partition would reveal that all the
and sisters. The effect of annulling the "Institution of heirs will be, heirs and children of Alfonso Ureta were represented therein; that nobody
necessarily, the opening of a total intestacy except that proper legacies and was left out; that all of them received as much as the others as their shares;
devises must, as already stated above, be respected. that it distributed all the properties of Alfonso Ureta except a portion of
parcel 29 containing which was expressly reserved; that Alfonso Ureta, at
(5) Constantino lost legal standing; not an heir anymore. – [Note: the time of his death, left no debts; that the heirs of Policronio Ureta, Sr.
Constantino was the son of the testator’s brother]. While initially were represented by Conrado B. Ureta; all the parties signed the document,
Constantino might have the personality to pursue to probate proceedings was witnessed and duly acknowledged before Notary Public Adolfo M.
but because intestacy have occurred due to the preterition of the adopted Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs
child – then Constantino is in effect not an heir of the testator (because to whom some of the properties were transferred before for taxation
preterition annuls the institution of heirs). He has no legal standing to purposes or their children, expressly recognize and acknowledge as a fact
petition for the probate of the will. that the properties were transferred only for the purpose of effective
administration and development convenience in the payment of taxes and,
therefore, all instruments conveying or effecting the transfer of said
HEIRS OF POLICRONIO v. HEIRS OF LIBERATO URETA properties are null and void from the beginning.
GR 165748, September 14, 2011
Facts: Policronio and Liberato are children of Alfonso Ureta, who was very Testator Did Not Know Pregnancy
well during his lifetime. Policronio, being the eldest child who failed to finish Suppose that the testator made a will wherein he disposed of his entire
schooling worked on his father’s lands. estate, he gave all his properties to his children and he died later on.
In a meeting with his four children, Alfonso was suggested to in order that However, it was discovered that the wife of the testator was pregnant,
his inheritance taxes be reduced, he should make it appear that he had sold
but the testator did not know of this fact that his wife was pregnant
some of his lands to his children. Thus, one of the deeds of sale covering the
when he made the will and provided for the distribution of his estate in
disputed property was executed in favor of Policronio covering 6 parcels
the will. Will this be considered a preterition?
of land. All except one of these lands were tenanted, the tenants however
turned over he produce not to Policronio but to Alfonso. When Alfonso died
produce was turned over to Liberato as administration of Alfonso’s estate. Yes. There will still be preterition because who was omitted
was a child (provided that it be born later alive subject to the conditions
Liberato and Policronio died. The heirs of Alfonso executed a Deed of Extra of Article 40 and 41) of the testator who is clearly a compulsory heir in
Judicial Partition covering all the lands of Alfonso, including those which the direct line as provided for under Article 854. However, this would
are covered in the Deeds executed to reduce inheritance taxes. not apply if the child was conceived after the testator died, for the
obvious reasons, that it was not his child.

ARTICLE 855 [2] Legitime

The share of a child or descendant omitted in a will must first be A compulsory heir succeeds to his or her legitime as it is what is
taken from the part of the estate not disposed of by the will, if any; reserved to by the law for them. In fact, there is no need to institute the
if that is not sufficient so much as may be necessary must be taken compulsory heirs in the wills as to their legitime as it is provided by law.
proportionally from the shares of the other compulsory heirs.
Omitted Heir, Where Share Taken General Rule: When the compulsory heir predecease, repudiate or had
If the child had not received anything by virtue of a donation, or by will, become incapacitated, they transmit nothing to their heirs.
still if anything is left of the inheritance which he may get by intestacy
there is no preterition. Again, if what is to him to him by intestacy is less Exception: When the Right of Representation applies.
than his legitime, he is entitled to a Completion of Legitime.
When there is a right of When there is no right of
[For illustration, see Situations 8 and 9 under Article 854]. representation: representation:
1. Predecease 1. Repudiation, note
Thus, it has been said that it is of the essence of preterition that there 2. Incapacity that in repudiation, it
be complete forgetfulness, not in the will necessarily, but in inheritance 3. Disinheritance includes even the
– testate, intestate or mixed. legitime
Ordinarily, in a true case of preterition (such as when there is no part of Therefore, if the compulsory heir dies with respect to the legitime
the estate left undisposed by will) Article 855 would not apply and the (because there is no right of representation to the free portion), then
procedure is just to divide the property intestate. And if there would be one has to check if the heir has a right to representation – if there is a
allowable legacies or devisees (which are not inofficious), the right to representation, then the representative steps into the shoes of
procedure is almost the same, just deduct the legacies and devises and the original heir.
divided the remainder as an intestacy.
Illustration: Testator T has three children, A, B and D. A also has a child,
In testamentary succession, there is the concept of free portion, M. While B has N and O as children. D also has three children X, Y and Z.
meaning that in the institution of heirs and the distribution of those
stated in the testamentary provisions is held to cover only the free
portion and not the legitime, unless expressly stated. TESTATOR
It is a rule that the legitime should not be subject to conditions,

burdens, liens or charges other than those expressly provided for. A B D
Usually, the legitime comprises half of the net estate of the testator
while the other half comprises of the free portion.
M N O X Y Z
ARTICLE 856
A voluntary heir who dies before the testator transmit nothing to
his heirs. ______________________________________________________

A compulsory heir who dies before the testator, a person Estate Value: P24,000,000
incapacitated to succeed, and one who renounces the
Legitime: P12,000,000
inheritance, shall transmit no right to his own heirs except in
cases expressly provided for in this Code.
Free Portion: P12,000,000
Voluntary Heirs and Compulsory Heirs to the Free Portion I hereby institute as my sole heirs A, B and my best friend C.
[1] Free Portion

Situation 1:
In the free portion, the instituted heirs can be the:
(a) Voluntary heir (a compulsory heir can be one)
A, B and D are all alive upon the death of the testator.
(b) Legatee
(c) Devisee
Rule of Proximity
In succession, we apply the rule on proximity, the nearer relatives would
In case any of them die, they shall transmit nothing to their heirs. This
exclude those who are far. Thus, even under the law on legitimes, even
is because they are only voluntary heirs and it is a rule that:
if the enumerated compulsory heirs include the children and their
descendants, it does not follow that if the testator had children and the
THERE IS NO RIGHT OF REPRESENTATION IN THE FREE PORTION descendants, all of them will inherit. Only those most proximate to the
testator, which are his children shall inherit.
Therefore, when the voluntary heir dies, his heirs cannot lay claim to
the share that was instituted to the voluntary heir when he or she died, In this case, then if A, B, or D neither predeceased, incapacitated or had
this because there is no right of representation in the free portion. repudiated their inheritance, then A, B and D shall receive their part of
the legitime (P4,000,000) and as to the free portion, since there is no
Also remember that a compulsory heir can be a voluntary heir, preterition, then A and B would also receive their part of free portion.
therefore if a compulsory heir is also instituted as a voluntary heir as to
the free portion, when that compulsory heir dies his rights in the free Per Capita
portion as a voluntary heir shall not be transmitted to his heirs, but as Given the situation above (absent predecease, incapacity, repudiation),
to the his share in the legitime, it shall be transmitted because there is then the rule of proximity effectively excludes others and gives the
a right of representation when it comes to the legitime. But again, if right to the nearest relatives. And this shall be in their own right or per
what is involved is the free portion, then if the voluntary heir, legatee capita. They shall inherit in their own right.
or devisee predeceases testator, they transmit nothing to their heirs.

Situation 2: Situation 4:
A died ahead of the testator. A repudiates his inheritance.
If an Heir Predecease the Testator Effect of Repudiation of Inheritance

Always remember that in testamentary succession, there is no right of Unlike the other grounds, repudiation of the inheritance would usually
representation as to the free portion. Here, it can be seen that indeed A include the forfeiture of the legitime. That is why if there is repudiation,
predeceased the testator. Article 856 would then instruct that a there is no right to representation either to the free portion or to the
compulsory heir who dies before the testator transmit no right to his legitime. That is why an heir repudiates, he transmits nothing at all to
own heirs – but this is in respect to the share in the free portion. heirs, either the free portion or the legitime.
Meaning, as to the legitime, there is still right to representation, thus, Therefore, follow the order of priority in distributing the estate of the
as to the legitime (P4,000,000), M would have right of representation decedent. Thus, if A repudiates his inheritance, M is entitled to nothing
being the heir of A with respect to the legitime. either from the free portion nor to the legitime.
But with respect to A’s institution as a voluntary heir in the free portion But consider that:
(which could have also been P4,000,000), this was not transmitted to
M by reason that A predeceased the testator thus A transmits nothing A, B and D repudiates their inheritance.
as to the free portion.
If that is what happens, if all heirs to the legitime would repudiate their
Similarly if: inheritance, this does not mean that there will no longer be succession,
especially as to the legitimes.
B died ahead of the testator.
What will happen is that M, N and O, as well as X, Y and Z, being the
Then, N and O shall have the right of representation with respect to B’s ones next in line following the rule on proximity, they will inherit in
legitime (P4,000,000) meaning it shall then be shared by N and O in the their own rights or Per Capita meaning there will be 6 legal heirs as to
amount of P2,000,000 each. the legitime (P2,000,000 each).
Per Stirpes Section 3

As illustrated, the succession to the legitime of the compulsory heir by SUBSTITUTION OF HEIRS Arts. 857-870
the heirs of the compulsory heir is by right of representation also
known as per stirpes meaning they only succeed to what the person ARTICLE 857
represented would be entitled to receive (opposed to per capita). Substitution is the appointment of another heir so that he may
enter into the inheritance in default of the heir originally
Situation 3: substituted.
A and B died ahead of the testator. Substitution of Heirs

Substitution of heirs only applies in testamentary succession which as
Rule of Priority to be provided for by the testator. This happens when one of the heirs
In succession, if it turns out that the instituted heir is not qualified to cannot receive his share, and if there is a substitute then it shall then be
inherit by reason that he predeceases the testator, becomes followed (order of priority). The substitute enters into the inheritance
disqualified or incapacitated to inherit or repudiates his inheritance, in default of the heir originally instituted.
then the Order of Priority shall apply:
General Classifications
Order of Priority: I S R A I 1. Direct Substitution
1. Institution Article 857 provides for the definition of direct substitution.
2. Substitution In default of the heir originally instituted or if the original heir
3. Representation cannot inherit, then the substitute will take his place. An
4. Accretion example would be “in lieu of A, then B.” There is:
5. Intestacy a. Simple or Common Substitution
b. Brief or Compendious Substitutions
Given the situation that A and B died ahead of testator with respect to c. Reciprocal Substitution
the free portion, we ask the following questions:
1. What happens to the institution? – No effect, predecease. 2. Indirect Substitution
2. Is there a substitute? – None. When all heirs are instituted one after the other. This is when
3. Can there be representation? – No. Representation is not both inherit but one after the other. There is only one kind of
allowed with respect to the free portion. indirect substitution under the Civil Code – Fideicommissary
4. Is there accretion? – Yes. Substitution.
Accretion will take place. Meaning, that the co-heirs, would then Note that the definition of substitution under Article 857 is inaccurate
receive the whole share that should have been given, as provided in or incomplete because it only covers direct substitution, substitution
the order of priority where accretion made by made to him. In short, can also refer to indirect substitution.
accretion happens when the share of an heir will accrue to others.
Thus, the more comprehensive definition would be:
Thus given the example above, if A would die ahead of the testator, and
with respect to A’s share in the free portion, given that representation Substitution is the appointment of another heir so that he may enter
does not apply to the free portion, then it shall accrue to his co-heirs B into the into the inheritance in the default of the heir originally
and C. And if both A and B dies, then it shall accrue to C. instituted or after such heir.

ARTICLE 858 2. Compendious Substitution – when one takes the place of

Substitution of heirs may be: two or more
(1) Simple or common;
(2) Brief or compendious; Inheritance: P100,000
(3) Reciprocal; or
(4) Fideicommissary. X (original heir)
P50,000
Different Kinds of Substitution A (substitute)
1. Direct Substitution P100,000
a. Simple or Common (Article 859) Y (original heir)
b. Brief or Compendious (Article 860) P50,000
c. Reciprocal (Article 861)
2. Indirect Substitution
a. Fideicommissary (Article 863-869) In case of default of all the original heirs that it is to be substituted, then
A shall be the substitute. Meaning, if in case only X predeceases, or
Substitute, Heir of Testator becomes incapacitated or repudiates, there is yet no compendious
The substitute is the heir of the testator and not of the original heir. substitution to the vacant portion.
Thus, the determination of his qualifications based on his qualification
to inherit shall be based on his relationship with the testator. What will happen first is that the share of X will first go to Y, Y being
the co-heir of X, this is because there is a compendious substitution.
ARTICLE 859 When all of them (X and Y) becomes incapacitated, predecease or
The testator may designate one or more persons to substitute the repudiation then A as the compendious substitute receive the P100K.
heir or heirs instituted in case such heir or heirs should die
before him, or should not wish, or should be incapacitated to ARTICLE 861
accept the inheritance. If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who
A simple substitution, without a statement of the cases to which dies, renounces, or is incapacitated, unless it clearly appears that
it refers, shall comprise the three mentioned in the preceding the intention of the testator was otherwise. If there are more than
paragraph, unless the testator has otherwise provided. one substitute, they shall have the same share in the substitution
as in the institution.
Simple or Common Substitution (also known as Vulgar)
The first paragraph talks about express substitution in case of Reciprocal Substitution
1. Predecease This kind of substitution, in essence, is when the instituted heirs are also
2. Renunciation or repudiation made the substitutes of each other. For example, if A and B are
3. Incapacity instituted as heirs to the free portion of P200,000 and are reciprocal
substitutes then what will happen that:
The second paragraph states that if there is no statement as to the (a) In case A predecease, incapacitated or repudiates, then B
cause of the substitution then it will cover the three unless testator has shall receive as substitute A’s share of P100,000, receiving in
provided otherwise. total of P200,000.
(b) In case B predecease, incapacitated or repudiates, then A
ARTICLE 860 shall receive as substitute B’s share of P100,000, receiving in
Two or more persons may be substituted for one; and one person total of P200,000.
for two or more heirs.
More than One Reciprocal Substitute
Brief or Compendious Substitutions
They shall have the same share in the substitution
1. Brief Substitution – when two or more take the place of one as in the institution.
Ex.: A is the original heir and in case of predecease, incapacity or of the

IN EQUAL SHARES:
repudiation of A, then X and Y shall inherit.
A, B and C are instituted heirs to my estate (valued at P24,000,000)
Inheritance: P100,000
and are reciprocal substitutes of each other.
X (substitute)
P50,000
Originally, A, B and C are entitled to P8M each. Then for example, if A
A (original heir) defaults, the share of A will go to B and C. The latter two will get their
P100,000 share as instituted heirs (P8M each) and they shall have same
proportionate share as to the A’s share meaning they shall also receive
Y (substitute) P4M each from A’s share under the principle of equality. They shall then
P50,000 receive a total of P12M each (B and C).
IN UNEQUAL SHARES:
Here there is one heir and two substitutes. If A cannot inherit in case
when A predeceases, becomes incapacitated or repudiates, then X and I hereby institute to my estate: A, B and C. The sharing will be ½ to A,
Y will succeed here; they will have equal shares of P50,000 each. ¼ to B and ¼ to C. They shall also be reciprocally the substitutes of
each other.
However, the testator could also specify how must like: “A is the original
heir instituted, if A defaults, X and Y will be the substitute: X to the ¼ For this example, there is a need to consider the same proportionate
and Y to the ¾ as default. share in the substitution as in the substitution. “Same share” must mean
as same proportionate share and should not be interpreted literally.

First, determine the following shares that each heir should have been Requisites for Fideicommissary Substitution
entitled to:
1. There must be an express mention that it is a
A 1/2 1/4 x 24,000,000 12,000,000 fideicommissary substitution
B 1/4 1/4 x 24,000,000 6,000,000
C 1/4 1/4 x 24,000,000 6,000,000 Manners in Constituting a Fideicommissary Substitution
TOTAL 24,000,000 (a) The word “fideicommissary” must be used; or
(b) Even if it is not denominated expressly a such, but there is an
Suppose that B predeceased the testator, then given that there are express imposition on the part of the first heir to preserve
reciprocal substitutes, then share of A shall be received in substitution and transmit to the second heir.
by B and C.
Thus it must appear in the letters of the will that there is an express
Thus, the following computation shall be made considering that B constitution of a fideicommissary substitution.
cannot inherit anymore due to his predecease and given that there is a
substitution then the shares shall be increased by proportionate to 2. There must be a first heir who shall the obligation to
their institution. After determining the share by substitution then it
preserve and transmit
shall be added to share by institution to determine to the total share.
First Heir or the Fiduciary
Share by Increased
(Fiducario, Heredero or Trustee)
Substitution Shares
A 1/2 12M 12/18 x 6M 4,000,000 16,000,000
The first heir is the one who was the obligation to preserve
B 1/4 (6M) Predeceased, cannot inherit
and transmit the inheritance to the second here. With this obligation,
C 1/4 6M 6/18 x 6M 2,000,000 8,000,000
the first heir cannot alienate, dispose of or destroy the property – he
TOTAL 18M
TOTAL 6,000,000 24,000,000 use only given the right to use, thus he can be considered to a certain
BALANCE 6M
extent as that of a usufructuary. The first heir can possess, enjoy, but
he cannot dispose nor destroy because he has to transmit it unimpaired
ARTICLE 862 to the second heir.
The substitute shall be subject to the same charges and
conditions imposed upon the instituted heir, unless the testator
Usufructuary Fiduciary in Fideicommissary
has expressly provided to the contrary, or the charges or
conditions are personally applicable only to the heir instituted. in a Usufruct Substitution
There is a bond requirement There is no bond requirement
Charges on Conditions in Substitution The usufructuary is not entitled The fiduciary can make
General Rule: If the substitute inherits, he must fulfill the conditions to refund for the expenses allowable deduction for the
imposed on the original heir. expenses as provided in 865.
Exceptions: While the first heir may also be considered as a “trustee” in a certain
1. Testator expressly provided the contrary sense, but the main difference is that a “trustee” in express trusts has
2. Charges or conditions are personally applicable only to the no right to enjoy the property, while the fiduciary can.
heir instituted (e.g. personal qualifications, bar exam).
3. There must be a second heir
Thus, for example if the condition was “to pass the bar exam” but the
substitute is already a lawyer the condition imposed on the institution Second Heir or the Fideicommissary
could not be made to apply to the substitution. (Fideicomisario, Beneficiary or Cestui Que Trust)
FIDEICOMISSARY SUBSTITUTION The second heir shall then be the one who shall receive the
property from the fiduciary and ins considered that have acquired the
ARTICLE 863 right to full ownership as the second heir does not have the obligation
A fideicommissary substitution by virtue of which the fiduciary to preserve and transmit unlike the first heir.
or first heir instituted is entrusted with the obligation to preserve
and to transmit to a second heir the whole or part of the 4. The relationship between the first heir and the second
inheritance, shall be valid and shall take effect, provided such heir must not be beyond one degree
substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or One Degree Means One Generation
first heir and the second heir are living at the time of the death of
This means that the substitute may be the parent or child of the first
the testator.
heir – no other person can be then the fideicommissary. Thus, the
relationship shall be counted from the first heir or fiduciary.
Fideicommissary Substitution
(a) If the parent is the first heir, the second heir is the child
A fideicommissary substitution or also known as indirect substitution is
(b) If the child is the first heir, the second heir is the parent
that by virtue of which a testator institutes a first heir and charges him
to preserve and transmit the whole or part of the inheritance later on to
This interpretation of one degree is congruent with the fact that the
a second heir.
purpose of fideicommissary substitution is to maintain the prosperity
and prestige of one family.
Ex.: “I hereby give to A ½ of my estate. Upon the death of A, that same
inheritance of A will now be enjoyed by B; but A cannot dispose of the
inheritance because upon his death the same property shall go Not Applicable to Juridical Persons
unimpaired to B.” Therefore it is important to note that there is an With this interpretation, where one degree means one generation,
obligation on the part of the first heir to preserve and transmit. there can be no fideicommissary substitution between juridical
persons.

5. Both the first heir and the second heir must be living or Two Exceptions on Legitimes
at least conceived at the time of death of the testator 1. Reserva Truncal (Article 891)
2. Prohibition to Partition, not more than 20 years (Article 1083)
Civil Personality
This to reduce as much as possible the number of years the property Therefore, it is understood that a fideicommissary substitution only
will have to be entailed. For if the second heir were still not even applies to the free portion.
conceived at the time the testator dies, a long time may elapse.
Furthermore, the second heir himself inherits from the testator and ARTICLE 865
one cannot inherit unless he be alive or at least conceived subject to Every fideicommissary substitution must be expressly made in
the conditions under Articles 40 and 41. Clearly, a non-conceived child order that it may be valid.
has no juridical capacity and cannot therefore be given any legal right.
The fiduciary shall be obliged to deliver the inheritance to the
second heir, without other deductions than those which arise
An Apparent Substitution that is Actually an Institution
from legitimate expenses, credits and improvements, save in the
case where the testator has provided otherwise.
PCIB v. ESCOLIN
GR L-27896, March 29, 1974 Fideicommissary Substitution Must be Expressly Made
First paragraph of the Article — to be express, the words
Facts: An American citizen from Texas, Linnie Jane Hodges, died in the
“fideicommissary substitution” need not be given; it is sufficient that
Philippines leaving certain properties, both real and personal, in our
there be the absolute obligation of delivering (and therefore of
country. In her will, she made her husband, Mr. Hodges, her only heir. She
likewise stated in the will that upon her husband’s demise, the undisposed
preserving) the property to the second heir. (Art. 867, No. 1). Moreover,
properties from her estate would be given equally among her own brothers if the intention is clear from the clauses of the will, same would be
and sisters. Some five years later, Mr. Hodges, also a citizen of Texas, died. sufficient to effect this kind of substitution. (G. de Perez v. Garchitorena,
54 Phil. 431). Upon the other hand, just because the words
The administrator of the estate of Mr. Hodges, the PCIB, claims that the “fideicommissary substitution” were used, it does not necessarily mean
designation of the brothers and sisters of Mrs. Hodges was an attempted that it takes effect for after all, the other essential requisites may be
substitution, but cannot be given effect because it is not a simple nor a absent.
vulgar nor a fideicommissary substitution, and that under American law, the
estate of Mrs. Hodges consists of 1/4 of the total conjugal estate. Obligation to Deliver the Inheritance to the Second Heir
The first heir is obliged to deliver the inheritance toe second heir:
Issues: Is the designation of Mrs. Hodges’ brothers and sisters valid? – Yes. (a) If there is a period, then upon arrival of the period
(b) If there is none, then upon the death of the fiduciary.
Held: (1) Not a Simple Substitution. - The designation of the brothers and
sisters of Mrs. Hodges is not a valid substitution (not a simple or vulgar
Allowable Deductions
substitution because the will does not say that said relatives would inherit
GR: Fiduciary shall be obliged to deliver the inheritance to the second
if Mr. Hodges would predecease, be incapacitated, or should repudiate the
heir, without other deductions.
inheritance;
(2) Not a Fideicommissary Substitution. – It is also not a fideicommissary XPN: The following are allowable deductions, unless the testator has
substitution for Mr. Hodges was not obliged to preserve and transmit said provided otherwise:
properties to the relatives of Mrs. Hodges). 1. Legitime expenses
2. Credits and
(3) Institution with a Resolutory Condition for Mr. Hodges. - But this does 3. Improvements
not mean that no effect should be given to their designation, for the truth
is that they were also instituted to said remaining properties. The institution ARTICLE 866
of Mr. Hodges partakes of a resolutory condition, this is really a resolutory The second heir shall acquire a right to the succession from the
term, because Mr. Hodges would surely die, sooner or later that is, time of the testator's death, even though he should die before the
ownership of the inherited properties would end at his death (that is, while fiduciary. The right of the second heir shall pass to his heirs.
he was free, as owner, to dispose of the properties inter vivos, he was not
free to do so mortis causa). Rule in Case Fideicommissary Predecease the Fiduciary
It is a rule that the first heir and second heir are the heirs of the testator
(4) Institution with a Suspensive Condition. - The institution of Mrs. thus what matters is that both of them shall be alive or at conceived at
Hodges’ brothers and sisters is on the other hand an institution subject to a
the time of the testator’s death. The second heir acquires the right to
suspensive condition (this is really a suspensive term), their inheritance
the succession at the time of the testator’s death even if the second heir
having become vested at the time of Mrs. Hodges’ death, but only operative
upon the death of Mr. Hodges. would die ahead of the fiduciary – in such case the rights of the second
heir shall pass to his heirs.
Ex.: Suppose that the testator provided in his will that upon his death A
ARTICLE 864
A fideicommissary substitution can never burden the legitime.
as the first heir shall preserve and use the property for 20 years, and
shall transmit it to B after 20 years. If the testator died in 1990, then A
shall have the obligation to deliver in 2010 to B.
Policy on Legitimes
The legitime is reserved by law to the compulsory heir But supposing that B died in 1995, the fideicommissary substitution still
(a) Without any burden holds because Article 866 provides that in case B predeceases A, then
(b) Without any condition B’s heirs shall acquire the rights in the fideicommissary substitution.
(c) Without any charge
(d) Without any substitution at all. In other words, while it is permissible for the second heir to predecease
the first heir, neither of the two must predecease the testator. Thus if
If this would be allowed, then the testator would easily circumvent the what happens is that B dies in 1989, ahead of the testator, B would
law on legitimes and there would be possibility of conditions that never have acquired any right to the property nor transmit the same.
would in effect deny that the compulsory heir to his or her legitime.
ARTICLE 867 [4] Effect of Secret Instructions

The following shall not take effect: This applies when a person is left a hereditary property in order for that
(1) Fideicommissary substitutions which are not made in person to apply or invest the same according to secret instructions
an express manner, either by giving them this name, or that what communicated by him to the testator, which is ineffective.
imposing upon the fiduciary the absolute obligation to (a) Not allowed: I hereby leave to A P1,000,000 and A may invest
deliver the property to a second heir;
it according to my instruction which I said to him in
(2) Provisions which contain a perpetual prohibition to
confidence.
alienate, and even a temporary one, beyond the limit
fixed in article 863; (b) Allowed: I hereby leave to A P1,000,000 and A may use it in
(3) Those which impose upon the heir the charge of paying any way he deems proper (there is no secret instruction).
to various persons successively, beyond the limit
prescribed in article 863, a certain income or pension; ARTICLE 868
(4) Those which leave to a person the whole or part of the The nullity of the fideicommissary substitution does not
hereditary property in order that he may apply or prejudice the validity of the institution of the heirs first
invest the same according to secret instructions designated; the fideicommissary clause shall simply be
communicated to him by the testator. considered as not written.
Ineffective Stipulations Effect of Nullity of Fideicommissary Substitution

If any of the requisites for a valid fideicommissary substitution are not
[1] Fideicommissary substitution not made express present – only the substitution is null and void but is does not prejudice
Article 867, par. 1 provides that the fideicommissary substitutions must the validity of the institution of the heirs first designated. Thus, the
be made in an express manner either by: fideicommissary clause shall simply be considered as not written.
(a) Giving them the name of fideicommissary substitution; or
(b) Upon imposing the fiduciary the absolute obligation to Ex.: Testator instituted A as first heir and B as second heir. If B would
deliver the property to a second heir. predecease the testator, will A still inherit? Yes, as an instituted heir,
notwithstanding the invalidity of the fideicommissary substitution. The
[2] Perpetual Prohibition to Alienate clause on substitution is simply considered not written.
Thus when A states that A cannot alienate, transfer, assign the property
as long as he lives – in effect a perpetual prohibition to alienate which ARTICLE 869
is considered an ineffective stipulation. But, considering Article 870, it A provision whereby the testator leaves to a person the whole or
is submitted that the same would be valid, but only for 20 years. part of the inheritance, and to another the usufruct, shall be valid.
Therefore, what is allowed is a temporary prohibition to alienate as If he gives the usufruct to various persons, not simultaneously,
but successively, the provisions of article 863 shall apply.
provided but not beyond 20 years under Article 870.
Grant of a Usufruct
Fideicommissary Substitution and Article 867, par. 2 and 870
There can be a separate institution of the naked title and to the
Even though is a prohibition to alienate for more than 20 years or to
usufruct to two different heirs. This is valid, and if any of the two will die
impose a perpetual prohibition to alienate, this can be circumvented
then there shall be consolidation o the naked title and the ownership.
by constituting a fideicommissary substitution because the first heir
shall be prohibited from disposing the property because the first heir
Prohibition to the Grant of Usufruct
shall have the obligation to preserve and transmit unimpaired the
1. Successive – If the grant of usufruct to various persons is
property to the second heir.
made successively (To A, and if A dies then to B and then to
C) then the limit under Article 863 would similarly apply –
Temporary Prohibition Beyond the Limits of Article 863 (One Degree)
must not be beyond one degree.
Now suppose that there was a prohibition to alienate, or it was limited
to 20 years (because testator provided a longer one), this prohibition 2. Simultaneously – This is allowed, even if there be more than
one degree as long as it is not successive.
shall be made ineffective even if temporary if shown to be beyond
the limits of Article 863, or exceeding one degree.
ARTICLE 870
The dispositions of the testator declaring all or part of the estate
Testator provided for a prohibition to alienate the property for inalienable for more than twenty years are void.
fifteen years from his death
2000 Testator Died A is bound to respect the prohibition to Prohibition to Alienate for More than Twenty Years
alienate until 2015. If there is a prohibition to alienate, but no period is fixed regarding the
2005 A Died Supposing that A has an heir, B, the latter length of the prohibition, it is understood that the prohibition is good
is still bound to respect the prohibition for twenty years. The same is true if the prohibition is for “forever.”
until 2015.
2010 B Died Supposing that B has an heir, C, the latter Prohibition to Alienate Prohibition to Partition
is no longer bound to respect the Article 870 Article 1083
prohibition even though there are still 5 The testator can prohibit but not exceeding twenty (20) years.
years until 2015. Refers to the free portion Can also be made to apply to
the legitime
This is because Article 867, par. 2 provides
Alienation means the Partition refers to the division
that even a temporary prohibition shall be
disposition of the property to of the property among the
ineffective if goes beyond one degree. another person. heirs.
[3] Payment of Income or Pensions Beyond Limit of Article 863 In Balanay, Jr. v. Martinez (64 SCRA 452), the claim to the specific
portions would ordinarily be void because of the shares of the spouses
This must be successively where A is made to pay B and in case B dies being merely ideal; however since the husband consented, the defect
then C and then D. B and C are proper as they are one degree apart. But was cured and the husband is deemed to have renounced his share.
no longer to D because it would go beyond the limits of Article 863. This is of course, without prejudice to the rights of the creditors.
There is no problem if simultaneous as long as not successively.
MORENTE v. DE LA SANTA
CONDITIONAL TESTAMENTARY
9 Phil. 387, December 19, 1907
DISPOSITIONS AND Section 4
TESTAMENTARY DISPOSITIOS Arts. 871-885 Facts: In her will, the wife provided as follows:
WITH A TERM
1. I hereby order that all real estate which may belong to me shall pass to my
husband, Gumersindo de la Santa;
ARTICLE 871
The institution of an heir may be made conditionally, or for a 2. That my said husband shall not leave my sisters after my death, and that he
certain purpose or cause. shall not marry anyone; should my husband have children by anyone, he shall
not convey any portion of the property left by me, except the one-third part
Kinds of Institution thereof and the two-thirds remaining shall be and remain for my brother
1. Pure and Simple Institution whether there is no condition, Vicente or his children should he have any;
period or charge at all. Upon the death of the testator, the
instituted heir immediately gets the inheritance subject to 3. After my death, I direct my husband to dwell in the camarin in which the
the requirement of probate of will. bakery is located, which is one of the properties belonging to me.
2. Conditional Substitution when the institution is made
Issue: If the husband marries again or leaves the sisters of the wife, or does
subject to a condition (Arts. 871-877;883-884)
not live in the camarin, will he forfeit a part of the devise? – No.
3. Institution Subject to a Term where there is a need to
observe a certain term or period. (Arts. 878, 880-881) Held: (1) Conditions Not to be Presumed. – The happening of these vents
4. Modal Institution for certain purpose or cause (Articles 882- should not be considered as the fulfillment of conditions which would
882). annul or revoke the devise. They were mere orders and there was no
condition or statement that if the should not comply with the wishes of the
Condition is a future or uncertain event, or a future knowledge of a testatrix he would lose the devise given him. The condition should have
past event, upon which the performance of the obligation depends. A been expressly provided. It was not expressly provided.
condition is characterized by futurity and uncertainty.
 A instituted B as an heir provided that B passes the bar exam. But, if the husband would have children with anyone it was expressly
 I will give to you P1M if A survived in the plane crash (this is provided that the forfeiture will take place, as to other grounds there was
future knowledge of a past event). no express mention of a condition. Conditions to affect the disposition must
appear in the language of the will and cannot be presumed.
Term is the day or time when an obligation becomes demandable or
terminates. A day certain is understood to be that which must ARTICLE 872
necessarily come although it may not be known to them. Applied The testator cannot impose any charge, condition, or substitution
succession, it is the day or time when the effect of an institution of there whatsoever upon the legitimes prescribed in this Code. Should he
do so, the same shall be considered as not imposed.
is to being. Term is characterized by futurity and certainty.
 A instituted B as heir, the effect to commence in 2005.
No Charge, Condition or Substitution on Legitimes
As stated earlier, the legitime is reserved by law to the compulsory
Modal Institution is when the institution of an heir is made for a
heirs, to allow conditions or burdens would allow a circumvention to
certain purpose or cause where the statement of the object of the
this policy. Thus, legitimes should not be made subject to any charge,
institution or the application of the property left by the testator or the
condition or substitution.
charge imposed upon him.
 A gave P300,000 so that the same may be spent for the
Valid Prohibitions
interment of C, the late husband of A.
1. Reserva Truncal under Article 891 which is considered as a
burden on the legitime.
Kinds of Conditions
2. Prohibition on Partition under Article 1083 for not more
1. Suspensive Condition – it is a condition which must be
than twenty (20) years.
fulfilled before the institution becomes effective.
Ex.: If A will pass the bar examinations.
ARTICLE 873
Impossible conditions and those contrary to law or good customs
2. Resolutory Condition – the fulfillment of that condition shall be considered as not imposed and shall in no manner
extinguishes the condition. prejudice the heir, even if the testator should otherwise provide.
Ex.: I hereby give to A the use of my house but
when he finds employment he has to leave. Impossible or Illegal Conditions
If the condition is impossible (make a dead man alive) or illegal (to kill
3. Potestative Condition – dependent upon the sole will of another) the condition is deemed void and unwritten but the
the heir. Even suspensive potestative condition is allowed in institution and testamentary disposition shall remain valid. But in
succession. Unlike in Obligations and Contracts, suspensive Obligations and Contracts:
potestative condition is void because it would render the
obligation as illusory, but in Succession it would be fulfilled Article 1183. Impossible conditions, those contrary to good customs
because the heir would receive a benefit. or public policy and those prohibited by law shall annul the obligation
Ex.: I will give A half of my estate, if he cuts his hair. which depends upon them.
4. Casual Condition – it is a condition that is dependent upon If the obligation is divisible, that part thereof which is not affected by
chance. the impossible or unlawful condition shall be valid. The condition not
to do an impossible thing shall be considered as not having been
5. Mixed Condition – it depends partly upon the will of the heir agreed upon. (1116a)
and partly upon chance.
Ex.: Passing the bar exams is not necessarily pure If there is impossibility in the obligations the obligation is annulled
potestative nor of pure chance, it is both. which is different from succession.

The underlying reason for this difference is the liberality or of the ARTICLE 875
generosity of the testator. Thus, even if there is an impossible Any disposition made upon the condition that the heir shall make
condition attached to the institution, it is considered as not written. The some provision in his will in favor of the testator or of any other
institution should not be given effect. person shall be void.
In obligation, there is no such underlying reason on the part of the Disposition Captatoria
creditor. The condition in obligations is really attached to the This kind of disposition is prohibition because it makes will bilateral.
existence of the obligation. Thus, the obligation is annulled. Any disposition in the will should be given by the testator without any
expectation of receiving anything in return. The will is supposed to be
MICIANO v. BRIMO unilateral thus a disposition captatoria is void because is makes the
50 Phil. 687, November 1, 1957 succession right contractual.
Facts: Joseph G. Brimo’s will provided that even if he was a Turk, still he I hereby give to A my land in Jacinto St., Davao City on the condition that
wanted his estate disposed of in accordance with Philippine laws; and that A will also give me his land in Calinan Davao City, or to my child.
should any of his legatees oppose this intention of his, his or her legacy
would be cancelled. Andre Brimo, one of the brothers of the deceased, di This is prohibited, but the disposition captatoria must be clear. This is
not want that this disposition be made in accordance with Philippine laws, because a reciprocal will is valid as long as there the benefit that is
and so he opposed to every move that would divide the estate in given to another is not made a condition for the institution.
accordance with Philippine laws.
ARTICLE 876
Issue: Would Andre Brimo lose his legacy? – No. Any purely potestative condition imposed upon an heir must be
fulfilled by him as soon as he learns of the testator's death.
Held: Condition was Against the Law. - Andre Brimo does not lose his
legacy, because the condition, namely, the disposal of the testator’s estate This rule shall not apply when the condition, already complied
in accordance with Philippine law, is against our laws (Article 16) which with, cannot be fulfilled again.
provide that “intestate and testamentary succession, both with respect to
the order of succession and to the amount of successional rights and to the Potestative Conditions, when Fulfilled
intrinsic validity of testamentary provisions, shall be regulated by the A potestative condition is one the fulfillment of which depends purely
national law (Turkish law) of the person whose succession is under
on the heir. He must perform it personally and nobody else must do it
consideration whatever may be the nature of the property and regardless
for him (Sanchez Roman).
of the country wherein said property may be found.” (2nd paragraph, Art.
16). The condition being disregarded, the legacy becomes unconditional,
and therefore Andre Brimo is entitled to his legacy. GR: It must be fulfilled as soon as the heir learns about the testator’s
death. Thus, it is fulfilled after the death.
ARTICLE 874
An absolute condition not to contract a first or subsequent
XPN: This rule shall not apply when the condition, already complied
marriage shall be considered as not written unless such with cannot be fulfilled again. (Such as when the cutting of hair was
condition has been imposed on the widow or widower by the already made during the lifetime of testator).
deceased spouse, or by the latter's ascendants or descendants.
Manner of Compliance
Nevertheless, the right of usufruct, or an allowance or some The manner of compliance contemplated is substantial compliance
personal prestation may be devised or bequeathed to any person which shall be sufficient because it is a potestative condition. It is now
for the time during which he or she should remain unmarried or dependent upon the will of the heir, meaning, the testator had the
in widowhood. sufficient trust on the heir, legatee or devisee. By imposing the
potestative condition, the testator is delegating now to the heir,
Condition Not To Marry legatee or devisee the manner in which they fulfill the condition.
1. A condition which prohibits to contract a first marriage is hereby
considered absolutely void and may be disregarded or be considered ARTICLE 877
as not imposed. If the condition is casual or mixed, it shall be sufficient if it happen
or be fulfilled at any time before or after the death of the testator,
2. A condition which prohibits remarriage unless he has provided otherwise.
(a) GR: Void for being contrary to morality and public policy.
(b) XPNs: It is valid in the following instances: Should it have existed or should it have been fulfilled at the time
the will was executed and the testator was unaware thereof, it
a. When imposed on the widow or widower by the shall be deemed as complied with.

deceased spouses;
If he had knowledge thereof, the condition shall be considered
fulfilled only when it is of such a nature that it can no longer exist
Ex.: Thus, if H (husband) provides in his will: “I or be complied with again.
hereby give to W (wife) this land subject to the
condition that she will not re-marry.” This is valid Mixed and Casual Conditions, When Fulfilled
for sentimental reasons. Absent any express statement by the testator, then it shall be fulfilled:
1. Anytime before or after the death of the testator;
b. When imposed on the widow or widower by the 2. Should it exist or fulfilled at time will was executed and the
ascendants or descendants of deceased spouse. testator was unaware thereof, it shall be deemed complied;
3. Condition considered fulfilled if it is of such nature that it can
Ex.: For example the mother of the deceased no longer be complied nor exist again (passing bar exam).
husband gave property to the wife by will, the
mother can actually impose the condition of not Strict Compliance is required because it could be inferred that the
to marry as it is considered valid for sentimental testator did not have confidence in the heir and the bequest was made
reasons. subject to chance thus strict compliance is required.

ARTICLE 878 But if the conditions will never be fulfilled - such as when A dies before
A disposition with a suspensive term does not prevent the taking the bar exam. The property will not be distributed among the
instituted heir from acquiring his rights and transmitting them to legal heirs of the testator unless there is institution, representation or
his heirs even before the arrival of the term. accretion that would apply (order of priority).
Effect of Suspensive Term Instances when the estate is placed under administration:
A suspensive term is one that merely suspends the demandability of 1. If institution is subject to a negative potestative condition
the right. It is certain to happen. A suspensive condition however and the caucion muciana has not been given.
suspends not only the demandability but also the acquisition of right. a. Administration ends upon giving of the bond.
2. If there is a suspensive condition or term.
I hereby leave to A ½ of my estate, but A a. Administration ends upon
will get this 5 years upon my death. 1. Arrival or fulfillment of the suspensive term
or condition;
Meaning, A has to wait for the arrival of the term before he can enter 2. If it appears or becomes certain that the
into the inheritance. But if A dies before 5 years then it goes to A’s heirs condition cannot be fulfilled.
because a suspensive term does not prevent him from acquiring his
rights and transmitting them to his heirs, even before the arrival of the ARTICLE 881
terms – thus the institution remains. The appointment of the administrator of the estate mentioned in
the preceding article, as well as the manner of the administration
Effect of a Suspensive Condition and the rights and obligations of the administrator shall be
If it is a suspensive condition, unless the condition is fulfilled the heir governed by the Rules of Court.
does not get the inheritance. The effectivity itself of the institution is
made subject to the condition. Thus, if the condition does not happen Administration under the Rules of Court
and the heir dies, nothing is transmitted unlike in a suspensive term. 1. Executor is the person who is appointed in the will to
administer the properties of the estate of the decedent, also
ARTICLE 879 known as executrix, if female. It would require (1) court
If the potestative condition imposed upon the heir is negative, or appointment; and (2) posting of bond.
consists in not doing or not giving something, he shall comply by 2. Administrator is the person who is appointed if there is no
giving a security that he will not do or give that which has been executor appointed in the will or if in case of legal succession
prohibited by the testator, and that in case of contravention he the heirs cannot agree among themselves. There is also a
will return whatever he may have received, together with its need to file for issuance of letters administration so that the
fruits and interests. appointment will be effective.
Negative Potestative Conditions
ARTICLE 882
This involves a negative potestative condition. Thus, when potestative The statement of the object of the institution, or the application
condition imposed upon their consists in not doing or not giving of the property left by the testator, or the charge imposed by him,
something, then the law requires compliance with certain requisites shall not be considered as a condition unless it appears that such
before the heir can receive the inheritance. was his intention.

Inheritance, When Received That which has been left in this manner may be claimed at once
1. Immediately upon the death of the testator, but provided that the instituted heir or his heirs give security for
2. Required for furnish Caucion Muciana or a bond as a compliance with the wishes of the testator and for the return of
security that the heir will not do or give that which has been anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.
prohibited by the testator.
Modal Institution
Caucion Muciana
A modal institution is a kind of institution where there is an object of
This is the bond or security referred to. The bond or security should be
the institution, application of the property and imposition of a charge.
given in favor of those who would get the property if the condition be
To reiterate, a modal institution occurs when any or all of the following
not complied with (like the intestate heirs or substitute). The favor
are stated in the institution:
persons are naturally the ones who can demand the security.
1. Object of the institution – I institute A as my heir to give
 If the bond is not given then the estate shall be placed under
him enough money to obtain a legal education.
administration under Article 880.
2. Application of the property left by the testator – I hereby
leave to A such parcel of land so that he may use it as a farm.
If the heir violates the negative potestative condition:
3. Charge imposed by testator – A leaves to B his land planted
1. He will forfeit whatever he may have received as inheritance;
with coconuts and B has to give 5% of the produce to C.
2. Together with its fruits and interest;
3. The bond shall also for damages or what has been suffered.
RABADILLA v. COURT OF APPEALS
June 29, 2000
ARTICLE 880
If the heir be instituted under a suspensive condition or term, the Facts: Aleja Belleza died but he instituted in her Codicil, Dr. Jorge Rabadilla
estate shall be placed under administration until the condition is
as a devisee to a large trace of land. The codicil contained the following:
fulfilled, or until it becomes certain that it cannot be fulfilled, or
until the arrival of the term.
[4th] Jorge Rabadilla shall have obligation every year to give Maria Marlina

The same shall be done if the heir does not give the security 100 piculs of sugar (75 export and 25 domestic) until Maria Marlina dies.
required in the preceding article.
[5th] Should Jorge die, his heir to whom he shall give the said lot, shall have
the obligation to still give yearly the 100 piculs of sugar to Maria Marlina on
Administration Pending Suspensive condition or Term
the month of December of each year.
This happens when the suspensive condition or term has not arrived
then the property is placed under administration.

[6th] In the event that Jorge or his heirs sell, lease or mortgage the lot, the In a modal institution, the testator states:
buyer, lessee, mortgagee shall also have the obligation to respect and [1] The object of the institution;
deliver yearly 100 piculs of sugar to Maria Marlina until Maria dies. [2] The purpose or application of the property left by the testator;
[3] The charge imposed by the testator upon the heir
Should the buyer, lessee or mortgagee of the lot did not respect the
command of the testatrix, Maria Malina shall immediately seize the lot Here, the testatrix intended that subject property be inherited by Dr. Jorge
from the heir or latter’s heirs and turn it over to my near descendants and Rabadilla. It is likewise clearly worded that the testatrix imposed an
then these descendants shall have such obligation to deliver the piculs of obligation on the said instituted heir and his successors-in-interest to
sugar until Maria Marlina dies. deliver 100 piculs of sugar to Maria Marlina during her lifetime.
I further command in this Codicil that my heir and his heirs of this lot, that However, the testatrix di not make the inheritance and the effectivity of his
they will obey and follow that should they decide to sell, lease, mortgage, institution as devisee dependent on the performance of the said
they cannot negotiate with others than my near descendants and my sister. obligation. It is clear though, that should the obligation be not complied
with, the property shall be turned over to the testatrix’s near descendants.
Pursuant to the same Codicil, the subject lot was transferred to Dr. Jorge,
but Dr. Jorge died and was survived by his children one of them being The manner of institution of Dr. Jorge Rabadilla under the Codicil is
Johnny Rabadilla (petitioner) et al. evidently modal in nature because it imposes a charge upon the instituted
heir, without, however, affecting the efficacy of such institution.
Maria Marlina then brought a complaint against the heirs of Dr. Jorge
Rabadilla seeking to enforce the provisions of the subject Codicil alleging MODE CONDITION
that the defendant-heirs violated the conditions of the Codicil.
A mode imposes an obligation On the other hand, in a
upon the heir or legatee but it conditional testamentary
Issue 1: Is there simple substitution? – No.
does not affect the efficacy of disposition, the condition must
Held: In simple substitutions, the second heir takes inheritance in default of his rights to the succession. happen or be fulfilled in order
the first heir by reason of incapacity, predecease or renunciation. Here, the for the heir to be entitled to
provisions of the will do not provide that should Dr. Jorge Rabadilla default succeed the testator.
due to predecease, incapacity or renunciation, the testatrix’s near The mode obligates but it does The condition suspends but
descendants would substitute him. not suspend, to some extent it does not obligate.
can be considered as a
What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not resolutory condition.
fulfill the conditions imposed in the Codicil, the property referred to shall
then be seized and turned over to the descendants of the Testatrix. Rules in Case of Doubt
1. In favor of mode over condition. – The doubt shall then be
Issue 2: Is there fideicommissary substitution? – No. resolved in favor of a mode because mode is more in keeping
with the concept of liberality, although one has an obligation
Held: (1) Allowed to alienate and no obligation to preserve. - In a but sure to receive the inheritance as long as obligation is
fideicommissary substitution, the first heir is strictly mandated to preserve
performed.
the property and to transmit the same later to the second heir. Here in this
2. In favor of suggestion over mode. – In case there is doubt
case, the instituted heir is in fact allowed to alienate property provided
that the negotiation is with the near descendants or the sister of the
whether the statement confers an obligation or suggestion
testatrix. Thus, very important element of fideicommissary substitution is then in case of doubt it shall be treated as suggestions more
lacking, the obligation clearly imposing upon the first heir preservation in keeping with the concept of liberality.
and transmission to the second heir. Ex.: “ I hereby leave this house to A, but he will have
to clean it every day.” But it did not state that the
(2) Right to inherit is not definite. - In addition, the near descendants’ right failure to comply shall forfeit – considered as a
to inherit from the testatrix is not definite. The property will only pass to suggestion than a mode.
them should Dr. Rabadilla or his heirs not fulfill obligation to deliver part of
the usufruct to private respondent. ARTICLE 883
When without the fault of the heir, an institution referred to in
(3) Requirement of not beyond one degree not followed. – Article 863 also the preceding article cannot take effect in the exact manner
requires that the second heir or the fideicommissary to whom the property stated by the testator, it shall be complied with in a manner most
is transmitted must not be beyond one degree from the fiduciary. A analogous to and in conformity with his wishes.
fideicommissary substitution is, therefore, void if the first heir is not related
by first degree to the second heir. In this case, the near descendants are not If the person interested in the condition should prevent its
at all related to the instituted heir, Dr. Jorge Rabadilla. fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with.
Issue 3: Is there conditional institution? – No.
Analogous or Substantial Compliance
Held: In a conditional testamentary disposition, the condition must happen If the mode cannot be complied with but without the fault of the heir,
or be fulfilled in order for the heir to be entitled to succeed the testator. the law allows that there can be substantial compliance which shall be
Here, the testatrix did not make Dr. Jorge’s inheritance and the effectivity of acceptable – a manner most analogous and in conformity with the
his institution as a devisee dependent upon the performance of the wishes of the testator.
obligation on the said instituted heir and his successors-in-interest to
deliver 100 piculs of sugar to Maria Marlina during the lifetime of the latter. Constructive Fulfillment
If person interested in the condition prevent fulfillment, without fault
Issue: Is there modal institution? – Yes. of the heir, condition is deemed complied with. For example, the
condition to pass the bar exams but the legal heirs inflicts injuries on
Held: The institution of Dr. Jorge Rabadilla under the subject Codicil is in the instituted heir as to make sure that he cannot take the bar exams at
the nature of a modal institution and therefore Article 882 and 883 applies.
the stipulated time. To prevent injustice being committed upon, the
The institution of an heir in the manner prescribed in Article 882 is known
heir is now deemed to be entitled to the estate because the condition
in the law of succession as institucion sub modo or a modal institution.
is deemed constructively fulfilled.

ARTICLE 884 The testator cannot deprive his compulsory heirs of their legitime,
Conditions imposed by the testator upon the heirs shall be except in cases expressly specified by law. Neither can he impose upon
governed by the rules established for conditional obligations in the same any burden, encumbrance, condition or substitution of any
all matters not provided for by this Section. whatsoever, except:
1. The condition that the property will not be divided up until
Suppletory Application from Conditional Obligations 20 years (Article 1083)
The provisions on conditional obligations shall govern the matters not 2. The concept of reserva troncal
provided for by this Section. In case of conflict, this section shall prevail.
For example, the annulment of the obligation in case of impossible Mechanisms Under the Law to Protect the Legitime
condition, the law on Succession prevails as to the effect. But in all other 1. Collation – this happens when the testator during his
matters which are not inconsistent, then the provisions under lifetime donated all or most of his properties. The law on
conditions imposed in obligations may be applied. collation will insure that the legitime is preserved by
requiring that the values of those properties donated shall
ARTICLE 885 be brought back and added back to the estate at the time of
The designation of the day or time when the effects of the the death.
institution of an heir shall commence or cease shall be valid. 2. Preterition – this also protects the legitime in a way that if a

compulsory heir is omitted in the will, the institution of heirs
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 shall be annulled. Thus, the estate shall be distributed by
the first case he shall not enter into possession of the property legal succession.
until after having given sufficient security, with the intervention 3. Disinheritance – there has to be a valid ground for the
of the instituted heir. disinheritance as provided for by law. Otherwise, the share of
the invalidly disinherited heir is given.
Institutions with a Term 4. Intestacy – the legitime of the heirs are still protected
1. Suspensive Period – when the arrival of period is needed so because they shall not be given shares less than their
that the instituted heir can demand for his inheritance. legitime as that in testamentary succession.
2. Resolutory Period – when the institution is immediately
effective but upon the arrival of the period, the institution ARTICLE 887
ceases, the heir will have to return what has been received The following are compulsory heirs:
by reason of the institution. (1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
In both cases, the legal heir shall be considered as called to the (2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
succession until the arrival of the period or its expiration.
descendants;
(3) The widow or widower;
Institutions with a Suspensive Term (4) Acknowledged natural children, and natural children by
The property to be inherited will be placed under administration, and legal fiction;
would not be given the right to enter into the possession of the (5) Other illegitimate children referred to in article 287.
property until after having given sufficient security.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded
This is because, in case upon the arrival of the period the heir had by those in Nos. 1 and 2; neither do they exclude one another.
already dissipated or destroyed the inheritance, then the security will
answer to the damages or loss suffered at the time of the arrival of the In all cases of illegitimate children, their filiation must be duly
proved.
period.

The father or mother of illegitimate children of the three classes
Institution with a Resolutory Term mentioned, shall inherit from them in the manner and to the
If the resolutory term arrives, the property will not be placed for the extent established by this Code.
administration, but this time the property will be given to the legal
heirs unless in the order of priority there is a substitution, Compulsory Heirs
representation, accretion and last is intestacy. Under the Family Code, there are no more spurious children. Both the
natural and the spurious children are simply called Illegitimate
Section 3 Children having exactly the same rights. Each of them gets half the
LEGITIME Arts. 886-914 share of each legitime child and will be taken from the free portion after
the share of the surviving spouse has been satisfied.
ARTICLE 886
Legitime is that part of the testator's property which he cannot
“In all cases of illegitimate children,
dispose of because the law has reserved it for certain heirs who their filiation must be duly proved”
are, therefore, called compulsory heirs. The illegitimate child has then to prove that he or she is entitled to
inherited by proving one’s filiation. They have the burden to prove the
Legitime, Defined acknowledgment by the putative parent.
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, ILANO v. COURT OF APPEALS
called compulsory heirs. GR 104376, February 23, 1994
The purpose of the legitime is to protect the children and the surviving In this regard, Article 287 of the Civil Code provides that illegitimate
widow or widower from unjustified anger or thoughtlessness of the children other than natural in accordance with Article 269 and other than
natural children by legal fiction are entitled to support and such
other spouse. If there are no compulsory heirs, it follows that there can
successional rights as are granted in the Civil Code. The Civil Code has
be no legitime. Legitimate may be received from two aspects: (1) as a
given these rights to them because the transgressions of social
right; and (2) as the property itself.
conventions committed by the parents should not be visited upon
them. They were born with a social handicap and the law should help them

surmount the disadvantages facing them through the misdeeds of their testimonies of witnesses, and other kinds of proof admissible under
parents. However, before Article 287 can be availed of, there must first be a Rule 130 of the Rules of Court (Uyguangco v. Court of Appeals, 1989).
recognition of paternity either voluntarily or by court action. This arises
from the legal principle than an unrecognized spurious child like a natural UYGUANGCO v. COURT OF APPEALS
child has no right from his parents or to their estate because his rights GR 76873, October 26, 1989
spring not from filiation or blood relationship but from his
acknowledgment by the parent. In other words, the rights of an The issue before the Court is not the status of the private respondent, who
illegitimate child arose not because he was the true or real child of his has been excluded from the family and inheritance by the petitioners. What
parents but because under the law, he had been recognized or we are asked to decide is whether he should be allowed to prove that he is
acknowledged as such a child. an illegitimate child of his claimed father, who is already dead, in the
absence of the documentary evidence required by the Civil Code.
Proving Acknowledgment of an Illegitimate Child Facts: Apolinario Uyguangco died intestate in 1975, leaving his wife and
four legitimate children and considerable properties which they divided
FAMILY CODE among themselves. Graciano, claiming to be an illegitimate son of
ARTICLE 175 Apolinario, and having been left out of the extrajudicial settlement of his
estate, he filed a Complaint for Partition against all the petitioners.
Illegitimate children may establish their illegitimate filiation in
the same way and on the same evidence as legitimate children. Graciano argued that he received support from his father while studying in
high school and was even assigned without objects as storekeeper of the
The action must be brought within the same period specified in Uyguangco store.
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought During presentation of evidence, Graciano admitted that he had none of
during the lifetime of the alleged parent. the documents to show that he was the illegitimate son of Apolinario. The
ARTICLE 172 petitioners moved for dismissal arguing that the secondary evidence could
not be used because he was already an adult when the alleged father died.
The filiation of legitimate children is established by any of the
following: Here, Graciano argues that he has been in continuous possession of the
(1) The record of birth appearing in the civil register or a status of an illegitimate child which is considered as a secondary evidence
final judgment; or under the Family Code (which was applied in this case).
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and Issue: Is Graciano’s action barred? – Yes.
signed by the parent concerned;
Article 175 applies. – The action must be brought if under the second
In the absence of the foregoing evidence, the legitimate filiation paragraph of Article 172 (secondary evidence), the action must be brought
shall be proved by: during the lifetime of the alleged parent. It is clear that the private
(1) The open and continuous possession of the status of a respondent can no longer be allowed at this time to introduce evidence of
legitimate child; or his open and continuous possession of the status of an illegitimate child or
(2) Any other means allowed by the Rules of Court and prove his alleged filiation through any of the means allowed by the Rules of
special laws. Court or special laws. The simple reason is that Apolinario Uyguangco is
already dead and can no longer be heard on the claim of his alleged
Proof of Filiation sons’ illegitimate filiation.
1. Primary Evidence
a. Record of birth appearing in the Civil Register In her Handbook on the Family Code of the Philippines, Justice Alicia
b. Final judgment Sempio-Diy explains the rationale of the rule, thus: "It is a truism that unlike
c. Admission of (il)legitimate filiation in a public legitimate children who are publicly recognized, illegitimate children are
document usually begotten and raised in secrecy and without the legitimate family
d. Admission of (il)legitimate filiation in a private being aware of their existence. Who then can be sure of their filiation but
handwritten instrument and signed by the parent the parents themselves? But suppose the child claiming to be the
concerned illegitimate child of a certain person is not really the child of the latter? The
putative parent should thus be given the opportunity to affirm or deny the
2. Secondary Evidence
child's filiation, and this, he or she cannot do if he or she is already dead."
a. The open and continuous possession of the status
of a legitimate child
b. Any other means allowed by the BERNABE v. ALEJO
i. Rules of Court and GR 140500, January 21, 2002
ii. Special Laws
The right of seek recognition granted by the Civil Code to illegitimate
children who were still minors at the time the Family Code took effect
Means Allowed by the Rules of Court cannot be impaired or taken away. The minors have up to four years from
1. Rule 130, Section 39 – Act or declaration about pedigree attaining majority age within which to file an action for recognition.
2. Rule 130, Section 40 – Family reputation relating to
pedigree such as baptismal certificate, family bible, Facts: The late Ernesto Bernabe allegedly fathered a son with his secretary
inscriptions in monuments, tombstones and others. of 23 years, Carolina Alejo. The son was born in September 18, 1981 named
3. DNA Evidence – allowed but considered as secondary Adrian Bernabe. Ernesto Bernabe died in August 13, 1993. In 1994,
evidence. Carolina, in behalf of Adrian, filed a complaint praying that Adrian be
declared an acknowledged illegitimate son of Fiscal Bernabe and that
It must be added that the illegitimate child is now also allowed to he be given his share in the estate, which is being held by Ernestina, the sole
establish his claimed filiation by "any other means allowed by the Rules surviving heir.
of Court and special laws," like his baptismal certificate, a judicial
admission, a family Bible in which his name has been entered, common However, the RTC dismissed the complaint, ruling that under the provisions
reputation respecting his pedigree, admission by silence, the of the Family Code as well as in the case of Uyguangco v. Court of Appeals
the complaint is now barred.

But the CA ruled that in the interest of justice, Adriano should be allowed default of legitimate children
to prove that he was the illegitimate son of Fiscal Bernabe. Because the boy [2] Surviving spouse and their descendants;
was born in 1981, his rights are governed by Article 285 of the Civil Code
which allows an action for recognition to be filed within 4 years after the [3] Illegitimate children and [2] Illegitimate parents (no
child has attained the age of majority and the enactment of the Family Code their descendants other ascendants) They inherit
did not take away that right.
only if there are no legitimate
or illegitimate children or
Here, Petitioner contends that Adriano through Carolina, is barred from
descendants.
filing an action for recognition, because the Family Code supplanted the
Civil Code.
Legitime of Legitimate Children and Descendants
(1) Period to File Action for Recognition. – The Family Code provides that Thus, suppose F had two legitimate children A and B. The legitime of A
an action for recognition of an illegitimate child must be brought within the and B is one-half of the hereditary estate. If the estate is worth
lifetime of the alleged parent. The Family Code makes no distinction on P1,000,000, the total legitime of A and B together is equal to P500,000.
whether the former was still a minor when the latter died. Thus, the putative
parent is given by the new Code a chance to dispute the claim, considering The remaining P500,000 is called the free portion. This free portion is
that illegitimate children are usually begotten and raised in secrecy and however subject to the legitimes of the surviving spouse and the
without the legitimate family being aware of their existence. The putative illegitimate children if they exist. For convenience, it would be proper to
parent should thus be given the opportunity to affirm or deny the child’s consider that part of the free portion left after deducting the legitimes
filiation, and this, he or she cannot do if he or she is already dead. of the surviving spouse and the illegitimate children, if present, as the
free disposal, for it is really this part that can be given to strangers and
(2) Family Code provides that Prior Vested Rights shall not be impaired. –
other people.
Article 256 provides that the Family Code shall not have retroactive effect
insofar as it does not prejudice or impair vested or acquired rights in
Formula
accordance with the Civil Code or other laws. A vested right is defined as
one which is absolute, complete and unconditional, to the exercise of which The formula for the legitime of a legitime child under the Family Code:
no obstacle exists, and which is immediate and perfect in itself and not
dependent upon a contingency. But here, it was contented that the filing of 𝐸𝑠𝑡𝑎𝑡𝑒
an action for recognition is procedural in nature where no vested right may 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑒 𝑜𝑓 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑎𝑡𝑒 𝐶ℎ𝑖𝑙𝑑 2
𝑁𝑜. 𝑜𝑓 𝐿𝑒𝑔𝑖𝑡𝑖𝑚𝑎𝑡𝑒 𝐶ℎ𝑖𝑙𝑑𝑟𝑒𝑛
attach to or arise from.
(3) Article 256 is a Substantive Law. – Article 256. It gives Adrian the right
to file his petition for recognition within 4 years from attaining majority age. ARTICLE 889
Therefore, the Family Code cannot impair or take Adrian’s right to file an The legitime of legitimate parents or ascendants consists of one‐
action for recognition, because that right had already vested prior to its half of the hereditary estates of their children and descendants.
enactment.
The children or descendants may freely dispose of the other half,
subject to the rights of illegitimate children and of the surviving
ARTICLE 888 spouse as hereinafter provided.
The legitime of legitimate children and descendants consists of
one‐half of the hereditary estate of the father and of the mother.
Legitime of Legitimate Parents and Ascendants

Note that they are Secondary Compulsory Heirs and will only inherit
The latter may freely dispose of the remaining half, subject to the
rights of illegitimate children and of the surviving spouse as form the decedent in case of default of the legitimate children and their
hereinafter provided. (808a) descendants.
Classes of Compulsory Heirs Suppose that C is the child of M and F. If C’s estate is P1,000,000, the
1. Primary Compulsory Heirs get their legitime even in the legitime of the parents taken together is equal to P500,000; hence, each
presence of other primary compulsory heirs and even in the parent gets P250,000. The remaining P500,000 may be disposed of in
presence of the secondary compulsory heirs. favor of strangers (in favor even of M and F), subject to the legitimes
2. Secondary Compulsory Heirs are those mentioned in No. 2 and rights of illegitimate children and the surviving spouse, if present.
in Art. 887. They inherit only in the absence of No. 1. The The remaining half would refer to the Free Portion.
father or mother of illegitimate children is also a secondary
compulsory heir but only as provided for in Article 903.
Primary Compulsory Heirs Secondary Compulsory Heirs

[1] Legitimate children and their [1] Legitimate parents and
legitimate descendants; ascendants, they inherit only in

TABLE OF LEGITIMES
Taken from Justice Paras Annotation on Succession
Legitimate Legitimate
RELATIVE Surviving Illegitimate Illegitimate
Children and Parents and
SURVIVING Spouse Children Parents
Descendants Ascendants
Legitimate
½ divided by the
Children
number of the X X X X
(Alone)
children
One Legitimate
Child and a
1/2 1/4 X X X
Surviving Spouse
Two or More
Legitimate
Children, Surviving
1/2 divided by Same as 1 1/2 of each
Spouse and X X
number Legitimate Child Legitimate Child
illegitimate
Children
Surviving Spouse,
Illegitimate
X 1/3 1/3 X X
Children
Legitimate Parents
or Ascendants,
Surviving Spouse,
X 1/8 1/4 1/2 X
Illegitimate
Children
Legitimate
Parents
X X X 1/2 X
(Alone)
Illegitimate
Children
X X 1/2 X X
(Alone)
Surviving
Spouse
X 1/2 or 1/3 or 1/2 X X X
(Alone)
Legitimate Parents
and Surviving
X 1/4 X 1/2 X
Spouse
Illegitimate
Parents
X X X X 1/2
(Alone)
Illegitimate
Parents and X 1/4 X X 1/4
Surviving Spouse
ARTICLE 890 Legitime of the Surviving Spouse Concurring
The legitime reserved for the legitimate parents shall be divided With Legitimate Descendants
between them equally; if one of the parents should have died, the
whole shall pass to the survivor.
Estate Value P1,000,000

If the testator leaves neither father nor mother, but is survived by
Legitime: P500,000
ascendants of equal degree of the paternal and maternal lines, Free Portion: P500,000
the legitime shall be divided equally between both lines. If the
ascendants should be of different degrees, it shall pertain One Legitimate Child One-half (1/2) of the hereditary estate shall
entirely to the ones nearest in degree of either line. go to the legitimate child (P500,000)
Surviving Spouse
Division in the Ascending Direct Line One-fourth (1/4) to be taken from the free
portion (P250,000)
MGM MGF PGM PGF Free Disposal (remaining): P250,000
M F Two or More One-half (1/2) of the hereditary estate shall

Legitimate Children be divided among the legitimate children.
 P500,000 / No. of LC
Testator
Surviving Spouse
If there are four children, each will get
 P125,000 each for 4 LC
Estate Value: P12,000,000 Surviving spouse shall be entitled to a

Legitime: P6,000,000 Free Portion: P6,000,000 portion equal to the legitime of each of the
legitimate children or descendants.
 P125,000 (still taken from free
If M and F are alive The legitime shall be divided equally by the portion)
mother (M) and father (F). The grandparents
are excluded under the Rule on Proximity. Free Disposal: P375,000
M = P3,000,000 With Respect to Legal Separation

F = P3,000,000
Innocent Spouse Guilty Spouse
If F predeceased the The mother receives the entire legitime. Surviving Even if the testator is By operation of law, the
testator
Spouse the guilty spouse, the guilty spouse is
M = P6,000,000
surviving spouse may disqualified to inherit
still inherit. from the estate if there
There is no right of representation in the
ascending line, it only pertains to the
is fa final decree of
descending line. Even Article 890 provides legal separation.
that “if one of the parents should have died,
the whole shall pass to the survivor.” In legal separation the guilty spouse is automatically disqualified to
inherit from the innocent spouse even without disinheritance on the
If M and F predeceased The legitime shall be divided equally part of the innocent spouse. But there must be a final decree of legal
the testator between both lines: (1) the maternal line separation.
and (2) paternal line.
ARTICLE 893
Maternal Line = P3,000,000 If the testator leaves no legitimate descendants, but leaves
 Maternal Grandmother = P1.5M legitimate ascendants, the surviving spouse shall have a right to
 Maternal Grandfather = P1.5M one‐fourth of the hereditary estate.

Paternal Line = P3,000,000 This fourth shall be taken from the free portion of the estate
 Paternal Grandmother = P1.5M
 Paternal Grandfather = P1.5M Surviving Spouse Concurring With Legitimate Ascendants
Surviving Spouse Shall have a right to 1/4 of the hereditary
estate
Note: Article 891 on Reserva Troncal is discussed later.  P250,000 to be taken from the
free portion
ARTICLE 892
If only one legitimate child or descendant of the deceased Testator’s Mother and Shall divide equally to the 1/2 of the
survives, the widow or widower shall be entitled to one‐fourth of Testator’s Father hereditary estate.
the hereditary estate. In case of a legal separation, the surviving  P500,000 (Legitime)
spouse may inherit if it was the deceased who had given cause for  P250,000 each parent.
the same. Free Disposal P1,000,000
(P500,000) Legitimate Ascendants
If there are two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the P500,000
legitime of each of the legitimate children or descendants. (P250,000) Surviving Spouse

In both cases, the legitime of the surviving spouse shall be taken P250,000 Free Disposal
from the portion that can be freely disposed of by the testator.
ARTICLE 894 Q. Will this ruling apply in the advent of the Family Code?
If the testator leaves illegitimate children, the surviving spouse “A legally adopted child has the same right as a legitimate child.” But
shall be entitled to one‐third of the hereditary estate of the there is still not ruling that reversed Del Rosario v. Conanan, thus if the
deceased and the illegitimate children to another third. The same scenario will arise, the decision may still be used, until the time
remaining third shall be at the free disposal of the testator. (n) the Supreme Court reverses the decision.
Surviving Spouse with Illegitimate Children ARTICLE 897

If there are no illegitimate children and there are only illegitimate ~ No longer applies under the Family Code ~
children and surviving spouse, the distribution shall be:
1. Surviving spouse – 1/3 ARTICLE 898
2. Illegitimate Child or Children – 1/3 ~ No longer applies under the Family Code ~
3. Free Disposal – 1/3
ARTICLE 899
ARTICLE 895 When the widow or widower survives with legitimate parents or
~ No longer applies under the Family Code ~ ascendants and with illegitimate children, such surviving spouse
shall be entitled to one‐eighth of the hereditary estate of the
ARTICLE 896 deceased which must be taken from the free portion, and the
Illegitimate children who may survive with legitimate parents or illegitimate children shall be entitled to one‐fourth of the estate
ascendants of the deceased shall be entitled to one‐fourth of the which shall be taken also from the disposable portion. The
hereditary estate to be taken from the portion at the free disposal testator may freely dispose of the remaining one‐eighth of the
of the testator. estate. (n)
Illegitimate Children Concurring with Surviving Spouse Concurring with Legitimate Parents or
Legitimate Parents or Ascendants Ascendants and Illegitimate Children
1. Legitimate parents or ascendants – 1/2 Article 899 shall apply only when the following are present:
2. Illegitimate children – 1/4 (a) At least one legitimate parent or ascendant
(b) Surviving spouse
DEL ROSARIO v. CONANAN (c) At least one illegitimate child
GR L-37903, March 30, 1977
Thus, if there are legitimate children or descendant, Article 899 will
Facts: Felix Del Rosario died in 1969 in a plane crash. He left as nearest not be applicable.
relatives Dorotea Conanan as the surviving wife and Marilou Del Rosario
the legally adopted child of Felix and Dorotea. Surviving Spouse 1/8 of the hereditary estate to be taken
from the free portion
The mother of Felix, Getrudes filed a petition for settlement and partition Illegitimate Children 1/4 of the hereditary estate to be taken
of the estate. But the lower court denied Getrudes’ petition. from the disposable portion
Legitimate Parents or 1/2 of the hereditary estate (legitime)
(This arose as an issue because at that time there are conflicting theories Ascendants
about what should be the inheritance of a legally adopted child of deceased
but the law says that the right of the legally adopted child shall be the same
as that of the legitimate child). Estate Value: P800,000
Issue: Would the legally adopted child exclude in the inheritance the Testator Mother and Father: P400,000 (P200,000 each)
parent or ascendant of the deceased? – No. Surviving Spouse: P100,000 (or 1/8 of the estate)
Illegitimate Children: P200,000 (or 1/4 of estate divide by number)
Held: The reason for this was (using the old Civil under Article 343), it that it Free Disposal: P100,000
is unjust to exclude the adopter’s parents from the inheritance in favor of
an adopted person. It must most unfair to accord more successional rights Note: This is called one of the Unholy Provisions because it appears
to the adopted who is only related artificially by fiction of law to the that the spouse is being penalized for not having children with the
deceased, than those who are naturally related to him by blood in the direct testator. Thus, it would be better to have children and avoid having
ascending line. Article 343 had provided: illegitimate children.
“If the adopter is survived by legitimate parents or ascendants and by an ARTICLE 900
adopted person, the latter shall not have more successional rights than an If the only survivor is the widow or widower, she or he shall be
acknowledged natural child.” entitled to one‐half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.
The applicability of Article 343 does not exclude the surviving parent of
the deceased adopter, not only because a contrary view would defeat the If the marriage between the surviving spouse and the testator
intent of the framers of the law, but also because in intestate succession, was solemnized in articulo mortis, and the testator died within
where legitimate parents or ascendants concur with the surviving spouse three months from the time of the marriage, the legitime of the
of the deceased, the latter does not necessarily exclude the former from the surviving spouse as the sole heir shall be one‐third of the
inheritance. (As affirmed by Article 893). hereditary estate, except when they have been living as husband
and wife for more than five years. In the latter case, the legitime
Consequently, the respective shares of the surviving spouse, ascendant and of the surviving spouse shall be that specified in the preceding
adopted child should be determined by Article 1000 of the New Civil Code, paragraph.
which reads: “Art. 1000. If legitimate ascendants, the surviving spouse and
illegitimate children are left, the ascendants shall be entitled to one-half of Surviving Spouse as the Only Compulsory Heir
the inheritance, and the other half shall be divided between the surviving
spouse and the illegitimate children so that such widow or widower shall [1] General Rule – Surviving spouse, if he or she is the only compulsory
have one-fourth of the estate, the illegitimate children the other fourth.”
heir left, then he or she gets one-half (1/2) of the estate. The other half
is left to the free portion and free disposal.

[2] Exception: The surviving spouse gets 1/3 (one-third) if T

1. The marriage was in articulo mortis;
2. The testator or testatrix died within 3 months from time of
celebration of marriage which applies only A (Illegitimate Child)
a. if it was the deceased who was the party in danger
of death at the time of marriage and
b. the cause of death is the same sickness, illness and X (illegitimate) Y (legitimate)
injury existing at the time of marriage
To prevent those marriages made for the pursuit of financial gain. If the illegitimate child (A) predeceased the testator, and he has two
children, Y (legitimate) and Z (illegitimate), both can be represented by
[3] Exception to the Exception: Surviving spouse will get 1/2 if his children whether legitimate or illegitimate. This is because the law
 Despite presence of requirements for the exception in those says that his rights are transmitted upon his death to his descendants,
marriages in articulo mortis, whether legitimate or illegitimate children. Thus, they can represent A
 The couple had been living previously as husband and wife who was an illegitimate child of the testator. In short, if one is an
(without marriage) for more than 5 years. illegitimate child, he can be represented by his descendants, whether
 This is because there is no presumption of financial gain. legitimate or illegitimate.
Applies Only in Testamentary Succession ARTICLE 903

In legal succession, there is no similar provision, hence, the Article The legitime of the parents who have an illegitimate child, when
such child leaves neither legitimate descendants, nor a surviving
applies only to a case of testamentary succession, or whenever the
spouse, nor illegitimate children, is one‐half of the hereditary
legitime is affected, as in the case of mixed succession. estate of such illegitimate child. If only legitimate or illegitimate
children are left, the parents are not entitled to any legitime
ARTICLE 901 whatsoever. If only the widow or widower survives with parents
When the testator dies leaving illegitimate children and no other of the illegitimate child, the legitime of the parents is one‐fourth
compulsory heirs, such illegitimate children shall have a right to of the hereditary estate of the child, and that of the surviving
one‐half of the hereditary estate of the deceased. The other half spouse also one‐fourth of the estate.
shall be at the free disposal of the testator.
Legitime of Illegitimate Parents as the Only Compulsory Heirs
Illegitimate Children as the Only Compulsory Heirs Article 903 contemplates the estate of an illegitimate child.
1. Legitimate children shall be entitled to one-half  The illegitimate parent is always excluded by children
2. Free portion is also one-half whether legitimate or illegitimate.
 But a legitimate parent is only excluded by the legitimate
ARTICLE 902 children and descendants of the testator.
The rights of illegitimate children set forth in the preceding  Legitimate parents concur with illegitimate children.
articles are transmitted upon their death to their descendants,
whether legitimate or illegitimate.
Legitimate Legitimate parents are always entitled to one-
Parents half of the estate (1/2).
Transmission of Hereditary Rights of Illegitimate Children
The right of representation is given to both legitimate and legitimate
Illegitimate
descendants of illegitimate children. Note that the illegitimate child
children
gets 1/2 of the share of the legitimate child.
Illegitimate Note that legitimate parents are excluded in
Parents the presence of legitimate children, thus with
Survivors Distribution
all the more reason they would exclude
Estate: P12,000,000 Legitimate Child illegitimate parents.
2 Legitimate Legitime: P6,000,000 of Testator
Children Each LC: P3,000,000 And again, illegitimate children would exclude
Illegitimate Child illegitimate parents. They are excluded by the
1 Illegitimate Illegitimate Child gets 1/2 of the share of a of Testator presence of the illegitimate child.
Child legitimate child:
 P1,500,000
 To be taken from the free portion RESERVA TRONCAL
Free Disposal: P4,500,000 ARTICLE 891

2 Legitimate Legitime: P6M (P3M per legitimate child) The ascendant who inherits from his descendant any property
Children which the latter may have acquired by gratuitous title from
Spouse shall receive P3M (1/4 free portion) another ascendant, or a brother or sister, is obliged to reserve
Spouse such property as he may have acquired by operation of law for
the benefit of relatives who are within the third degree and who
Illegitimate Child shall receive P1.5M (1/2 of
belong to the line from which said property came.
1 Illegitimate that of illegitimate child from free portion)
Child
Reserva Troncal, Defined
Free Disposal: P1,500,000
It is the process by which an ascendant who inherits by operation of
2 Legitimate Legitime: P6M (P3M per legitimate child)
law from his descendant which the latter may have quired by
Children Spouses: P3M (from free portion)
gratuitous title from another ascendant or a brother or sister, is then
obliged by law to reserve such property for the benefit of third degree
Spouse But there, the “1/2 of Legitimate Child” rule
relatives who belong to the line from which the property came from.
cannot be applied literally, thus remainder of
10 Illegitimate P3M shall be divided into 10 children
Purpose: This is to prevent accidental transfer of property or wealth
Child  P300,000 each
from one line to another line.
 Legatees and devisees (no more)
Parties in a Reserva Troncal Requisites in Order for Property to have Reservable Character
1. Origin 1. That the property was acquired by a descendant called the
a. The person from whom the reservable property prepositus from an ascendant or half-brother or sister by
comes from; gratuitous title;
b. Either an ascendant or (half) brother or sister of the 2. That the said descendant died without an issue or children
prepositus; 3. That the same property or reserva is inherited by another
descendant or reservor or reservista by operation of law
2. Prepositus either through intestate or compulsory succession from the
a. Person to whom the origin transfers the property prepositus and
by gratuitous title 4. That there are living relatives within the third degree
b. The Arbiter of the Reserva because the prepositus counted from the prepositus and belonging to the same line
may alienate or destroy the property and thus from the origin.
prevent the existence of the reserve
Origin or the Descendant from whom the Property Came From
3. Reservor or Reservista 1. He can be the ascendant of the prepositus, or the
a. The ascendant of the prepositus who receives the 2. Half-brother or sister of the prepositus
property by operation of law either as legitime or
by intestacy Origin if Brother or Sister Should be Half-Blood
b. The absolute owner of the property subject to the If the ‘origin’ is the full blood brother of prepositus, there can be no
resolutory condition of existence of third degree distinction of lines. This is because if the ‘origin’ is the full brother it
relatives of the prepositus upon the death of the means that the ascendant-reservor (mother) is in the same line. Thus,
reservor to create a reserva, then the origin should be the half-brother which
basically comes from the other line.
4. Reservees or Reservatario
a. They belong to the same line of the family as that Reserva Troncal Contemplates Legitimate Relationship
of the origin In Gonzales v. CFI of Manila (GR L-34395, May 19, 1981), reserva troncal
b. Must be related to the prepositus in until the third contemplates legitimate relationship. Illegitimate relationship and
degree relationship by affinity are excluded.
c. Subject to the suspensive condition of the death  This means that the brother or sister contemplated by the
of the prepositus law in reserva troncal must be a legitimate half-blood
brother or sister.
The “V” Sign of the Reserva Troncal  This can happen when the one of the parents of the
prepositus dies and the surviving parents remarries.
Origin (Ascendant) Reservor (Ascendant) Transmissions Involved in a Reserva Troncal

1. First transmission is by gratuitous title via inheritance or
donation from an ascendant or half brother or sister to the
descendant
By gratuitous title By operation of law 2. Second transmission is by operation of law via legitime or
intestate succession from the descendant in favor of another
ascendant, the reservor
Prepositus (Descendant) 3. Third transmission of the same property from reservor to
the reservees or the relatives within the third degree from
the deceased descendant belonging to the line of the origin.
Illustration 1: The paternal grandfather donates a land to his
grandson. The grandson now owns the land by virtue of the donation, First Transmission: From Origin to Prepositus by Gratuitous Title
but the grandson died without issue of his own or without children.
Here, the only survivor is the mother (reservor). The mother would FRIAS CHUA v. CFI
inherit the property by way of operation of law the property which GR L-29901, August 31, 1977
originally came from the paternal grandfather.
Facts: When the father died, his son inherited 1/2 of a piece of land from
Under Reserva Troncal, the mother has the obligation to reserve him and the other 1/2 went to the surviving spouse. Upon the death of the
property in favor of the relatives of the prepositus within the third son, his 1/2 share went to his mother by operation of law. The property had
degree and then coming from the line of origin – which is the Paternal been received from the father out of his pure generosity and was therefore
Line. gratuitous. Yet the probate court ordered payment of interests, costs and
other fees.
Here, there was an instance that the property from the paternal line
Issue: Is the said one-half still considered gratuitous for the purpose of the
strayed to the maternal side thus the law under Article 891 reserves the
rule concerning reserve troncal?
reserva to the reservees who must be third degree relatives of the
prepositus coming from the line of the origin.
Held: Yes, for it was really a gratuitous object received from the father, who
had not imposed any condition or burden on the lot. The obligation to pay
There can only be reserva when the property was imposed not by the origin but by the court. Thus, the said 1/2 is
strays from one line of the family to the other line. therefore reservable.
Illustration 2: If the property came from the Maternal Grandfather As explained by Manresa, a transmission is gratuitous when the recipient
then there is no reserva because there is no distinction of lines. Here, does not give anything in return. It matters not whether the property
there can be no reserva troncal because the property is not transferred transmitted be or be not subject to any prior changes. What is essential is
that the transmission be made gratuitously, or by an act of mere liberality
nor strayed to another line.
of the person making it, without imposing any obligation on the part of the
recipient and that the person receiving the property does nothing in return. which the property came, if any survived. Here, Andrea died and the
In this case, the transmission of the property in question to Juanito upon surviving reservee at the time was Cipriana who also died later on.
the death of his father was by means of hereditary succession and it is
therefore gratuitous. (1) The Sale by Reservor to Sienes is Valid Subject to Resolutory Condition.
– The reservista or the reservor has the legal title and dominion to the
The obligation of paying Standard Oil the amount imposed upon them is reservable property subject to a resolutory condition. That the reservor is
imposed by the order of the court and not by the origin Jose. As long as the like a usufructuary of the reservable property. That he may alienate the same
transmission of the property to the heirs is free from any condition imposed but subject to reservation said alienation transmitting only the revocable
by the deceased himself and the property is given out of pure generosity. It and conditional ownership of the reservists, the rights acquired by the
is gratuitous. transferee being revoked or resolved by the survival of the reservatarios at
the time of the death of reservista.
Therefore, the first transmission from the origin to the prepositus must Meaning, the first sale was valid but this is subject to reservation. On the
be by gratuitous title which could be by: part of the reservor that is a Resolutory Condition which are the
1. Testamentary Succession (1) Death of the reservor ;and
2. Legal Succession (2) Survival of the reservees
3. Donation
Thus, when Andrea (Reservor) died, the property burdened by the reserva
will not go to the estate of the reservor but it will go to the reservees.
Reserva must be the very same property which was received from the
Origin. Thus, if the lotto ticket won an amount, there is no reserva (2) The Sale by Reservees to Sps. Esparcia is also Valid but Subject to a
because what is involved is no longer the very same property. Suspensive Condition. – The sale made by the reservees of the property
during the lifetime of the reservor is also valid. This is in nature of a sale of a
Second Transmission: Prepositus to Reservor by Operation of Law future property under Article 1461. The sale however is subject to a
suspensive condition which is the same: (1) Death of the reservor and the
Operation of Law (2) Survival of the Reservees.
1. Legal Succession
2. Testamentary Succession by Legitime
a. Even if there is a will, there can still be transfer by Rights of Reservees Against the Reservor
operation of law if the reservor-ascendant had 1. Real Property
inherited the property as part of her legitime. a. Furnish a bond, security or mortgage to guarantee
b. Even if it is a legitime, it is an exception when it can the safe delivery later on to the reservee of the
be burdened – to be reserved by the reservor on properties concerned
behalf of the reservees. b. Registration of the reserva or by annotation in the
title of the burden of the reserva, the reservees
Third Transmission: Reservor to Reservees themselves can compel the reservor to have the
annotation within 90 days from the death of the
Kind of Ownership by Reservor prepositus (within which the time the reservor
The reservor is a full owner subject to a resolutory condition. The should obtain registration)
resolutory condition is this: If at the reservor’s death, there should exist 2. Personal Property – reservor must make an inventory of
relatives within the third degree of the prepositus belonging to the same property received and have the inventory registered in the
line from the origin, the reservor’s ownership is terminated. Hence the Registry of Property.
property would not be part of the reservor’s estate. Instead the
ownership is transferred to the reservees. Reservees
1. Must be within the third degree of the prepositus
SIENES v. ESPARCIA 2. Must come from the same line as where the property came
GR L-12957, March 24, 1961 from or the origin
3. Must be legitimate relatives
Parties to the Case
[1] Father – Saturnino Counting of Degrees – if the prepositus is a descendant of the origin
[2] First Marriage 1. Direct Relatives
Wife – Teresa Children – Fernando, Paulina and Cipriana a. From child to parents – 1 degree
[3] Second Marriage
b. From child to grandparents – 2 degrees
Wife – Andrea Child – Francisco
c. From child to great grandparents – 3 degrees
Facts: A Lot was originally owned by Saturnino and was issued in the name
2. Collateral Relatives
of Francisco. When Francisco died without issue, Andrea as sole heir sold a. From child to brothers or sisters – 2 degrees
the property to Sienes for P800. b. From child to uncles or aunts – 3 degrees
The surviving half-sisters of Francisco (Paulina and Cipriana) had declared What if all of them survive?
the property in their name and executed a deed of sale in favor of the Sps. In so far as reserva troncal is concerned, it merely determines which
Esparcia. Andrea later on. class of heirs would be entitled to the property. But between and
among these heirs, then the rule in intestate succession is followed:
Issue: Are the sales of Sienes and Esparcia valid? – Yes. 1. Those in the direct line is preferred over those in the
collateral line;
Held: The property was a reservable property. Francisco inherited the 2. If both in direct line or collateral line, those who are in the
property by operation of law from his father Saturnino and upon the death descending line are favored over those in ascending line.
of Francisco, unmarried and without descendants, it was inherited, in turn,
3. Then, the rule on proximity shall be followed, meaning the
by his mother Andrea. Andrea here had the obligation to reserve it for the
nearer relative within the third degree is considered.
benefit of the relatives within the third degree belonging to the line from
Ex. Between great grandparents and grandparents, the
grandparents are preferred

Love first descends, it ascends, then it spreads. Valuation of the Reserva

Under the Law on Reserva Troncal, there are two theories regarding the
valuation of the reserva or the determination of how much is the
MENDOZA v. DELOS SANTOS
GR 176422, March 20, 2013
reservable property:
1. Reserva Maxima – the value of the reserva is as much as can
Reserva troncal is a special rule designed primarily to assure the return of a be covered in the legitime;
reservable property to the third degree relatives belonging to the line from 2. Reserva Minima – for every property transferred by
which the property originally came, and avoid its being dissipated into and operation of law from ascendant to descendant 1/2 is the
by the relatives of the inheriting ascendant. legitime and 1/2 is the free portion.
This would matter if the descendant prepositus died with a will, if he

died intestate, then it shall be by operation of law to the descendant.
Illustration A: Here, A has a total net estate of P15,000,000. Here, A

received a donation of P10,000,000 from his grandfather. A also bought
properties worth P5,000,000. A died without issue. Suppose A left a will.
The legitime of the mother as only survivor would be P7,500,000. Then,

supposing that all the requisites for reserva troncal is present.
How much is the value of the reserva?
Theory of Reserva Maxima

This is as much as can be covered by the legitime. If the legitime of the
Facts: This involved three parcels of land in the name of Julia. Petitioners mother is P7,500,000. The property coming from the origin is P10M. But
alleged that the properties were part of the estate of their grandfather because the legitime is only P7.5M, then the amount that is subject to
Placido. When Placido died Exequiel inherited the property by way of legal reservation is only up to P7,500,000 even if the property coming from
succession. The only descendant of Exequiel was Gregoria who inherited the origin is worth at P10M. This is because it is as much as can be
the property from Exequiel. covered by the legitime.
Gregoria died intestate and without issue. They claimed that after the death Theory of Reserva Minima
of Gregoria, Julia, who was the sister of Leonor (Gregoria’s mother), It presupposes that for every property one-half of which forms part of
adjudicated to herself the properties as sole surviving heir. Hence, the the legitime and one-half forms part of the free portion. Thus in the same
petitioners claim that the properties should have been reserved by Julia in example then of the P10,000,000 donation:
their behalf and must now revert back to them applying Article 891 of the  Legitime is P5,000,000
Civil Code on reserva troncal.  Free Portion is P5,000,000
Held: (1) The lineal character of the reservable property is reckoned from The value of the reserva minima is only P5,000,000 representing the
the ascendant from whom the prepositus received the property by legitime of the P10,000,000 from the Origin.
gratuitous title. – It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he is the origin. The Illustration B: Suppose the grandfather donated property to A of P5M
law does not go father than such ascendant/brother/sister in determining and upon the death of A without issue it went to the mother in the way
the lineal character of the property. of testamentary succession, but on his own the grandchild also obtained
properties amounting to P10M. Total value of estate is P15M.
Here, it is clear that Article 891 provides that the person obliged to reserve
the property should be an ascendant. Here, it is clear that Julia is not the How much is the value of the reserva?
descendant of Gregoria but a collateral relative. Gregoria’s ascendants are
her parents, Exequiel and Leonor, grandparents and so on. Not being the Reserva Maxima
ascendant of Gregoria, Julia is a collateral relative. Since the legitime of the mother is P7,500,000, then as much as can be
covered by the legitime – but the property is only worth P5,000,000 thus
(2) First cousins of the descendant/prepositus are fourth degree relatives clearly only until P5M which is the value of the property.
and cannot be considered reservees/reservatarios. - Moreover, petitioners
cannot be considered reservees/reservatarios as they are not relatives Reserva Minima
within the third degree of Gregoria from whom the properties came. The Then the property itself is divided:
person from whom the degree should be reckoned is the (1) Legitime is P2,500,000
descendant/prepositus―the one at the end of the line from which the (2) Free Portion is P2,500,000
property came and upon whom the property last revolved by descent.
Then the value of the reserva by way of reserva minima is only P2.5M as
It is Gregoria in this case. Petitioners are Gregoria’s fourth degree this is the value which pertains to the legitime.
relatives, being her first cousins. First cousins of the prepositus are
fourth degree relatives and are not reservees or reservatarios. They NOTE: If in Testamentary Succession the portion that is covered by the
cannot even claim representation of their predecessors Antonio and reservation is the legitime which is the maximum amount.
Valentin as Article 891 grants a personal right of reservation only to the
relatives up to the third degree from whom the reservable properties came. Illustration C: Suppose that the grandfather donated to the grandson
The only recognized exemption is in the case of nephews and nieces of the and the grandson died without will and property went to the mother by
prepositus, who have the right to represent their ascendants (fathers and operation of law. If the survivors are the sister of the mother and the wife
mothers) who are the brothers/sisters of the prepositus and relatives within of the grandfather. Is the grandmother a reservee? – No.
the third degree.
The law requires that it be in the line of the origin, and since she is a
In conclusion: spouse of the grandfather is not within such meaning as she is not a
[1] Julia is not the proper ascendant within the purview of Article 891 blood relative of the origin. If there is no reservee there is no reserva.
[2] The petitioners are not the relatives within the third degree.

Prevailing Rule: Reserva Minima Q. Suppose reservable property is expropriated by the government, is
As submitted by Paras, while reserva maxima is in consonance with the the reserva extinguished?
spirit of the lawmaking body, the theory of reserva minima is more just
and more equitable and logical. According to Manresa, in view of the A: The reserva continues on the just compensation as this is
silence of the law on the matter, the principal of reserva minima should required by justice and equity.
be followed.
Q. Suppose the reservable property is insured and then destroyed, is
DIRECTOR OF LANDS v. AGUAS there still a reserva?
GR 42737, August 11, 1936
A: Yes. On the insurance of indemnity. It will be for the
benefit of would-be reservees. If there are no reservees alive it will then
Facts: Isidro Santos donated a land to Tomas Santos. When Tomas died the go to the estate of the reservor.
property was inherited by his son Romeo. Upon the death of Romeo it _____________
passed to his legitimate mother Lucina whose title was annotated with the
reserva. Lucina died and was succeeded by her legitimate father Cayetano.
ARTICLE 904
It was said that Tomas was an adulterous son, meaning Teodoro is not a The testator cannot deprive his compulsory heirs of their
legitimate relative of Romeo even though he is in third degree and he legitime, except in cases expressly specified by law.
belongs to the same line.
Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever
No Deprivation of or Burden on the Legitime

This is due to the very nature of the legitime – that part exclusively
reserved for the forced heirs. Should there be any charge, condition,
substitution or encumbrance upon the legitime, said charge, etc. shall
be considered as not imposed.
Exceptions on Which Burden May be Imposed

1. Reserva Truncal under Article 891
2. Prohibition to Partition for a period not exceeding 20 years
under Article 1083.
ARTICLE 905
Every renunciation or compromise as regards a future legitime
between the person owing it and his compulsory heirs is void,
The surviving alleged heirs are Teodoro and Cayetano. The question is and the latter may claim the same upon the death of the former;
raised whether the property is subject to reserva troncal. but they must bring to collation whatever they may have received
by virtue of the renunciation or compromise.
Held: Reserva Troncal only applies to Legitimate Relationship. – It being
undisputed that Tomas Santos, father or Romeo Santos (prepositus) was an Renunciation or Compromise of Future Legitime is Void
adulterous child of Isidro Santos, the legitimate father of the appellants, it The right to a future legitime is a mere expectancy, an inchoate right
appears that they are illegitimate relatives not having legal status and regarding future inheritance, hence, it cannot be made the subject of a
cannot claim right to the reservation. contract inasmuch as it is against public policy. But upon the death of
the testator, it can now be waived as it becomes a vested right.
When Lucina (reservor) died, there are no legitimate relatives within the
third degree and belonging to the line of origin that existed at the time of However, if upon agreement between the heirs an amount was already
her death and the property in question ceased to be reservable property given to one of them as ‘future legitime’ it will be considered then as
and should pass to the person or persons entitled to it in accordance with
an advance to the legitime and must be brought into collation
the law on succession. It appears that Lucina died intestate without issue
whatever was received by virtue of the renunciation or compromise.
but has a descendant, Cayetano. Thus the inheritance shall pertain to him.
ARTICLE 906
Theory of Delayed Intestacy Any compulsory heir to whom the testator has left by any title less
This is when the resolutory condition of the reserva is fulfilled, then the than the legitime belonging to him may demand that the same be
properties are distributed to the reservees as if they are inheriting from fully satisfied.
the prepositus at the time of the fulfillment of the condition. Since
there is no will, then the reservees inherit by virtue of intestate Completion or Satisfaction of Legitime
succession, the decedent being the prepositus, thus the name delayed If it happens that the compulsory heir receives less than his legitime
intestacy. Meaning, at the time of death of prepositus, the reservees then he is entitled to the remainder – he is entitled to the completion
should already have inherited the property but because of the of his legitime.
presence of the reservor, there was a delay.
Completion of Legitime Preterition
Extinguishment of the Reserva Something is given to their, by Nothing is given to the omitted
1. Upon death of the reservor, it is already extinguished legacy, devise or donation. heir, left out of inheritance and
2. Death of all would-be reservees even by intestacy
3. Upon loss of property without fault or negligence on the part There is no annulment of There is annulment of
of the reservor institution of heirs, need only to institution of heirs
4. Prescription give that to complete legitime
5. Adverse possession if property is not titled The will is still valid subject to The will cannot be given effect
6. Upon registration in Torrens as free from reservation the completion and it be by intestacy
7. Upon waiver by all reservees after death of reservor

ARTICLE 907 ARTICLE 909

Testamentary dispositions that impair or diminish the legitime Donations given to children shall be charged to their legitime.
of the compulsory heirs shall be reduced on petition of the same,
insofar as they may be inofficious or excessive. Donations made to strangers shall be charged to that part of the
estate of which the testator could have disposed by his last will.
Reduction of Inofficious Testamentary Disposition
The legitimes of the forced heirs should not be impaired. It can availed Insofar as they may be inofficious or may exceed the disposable
only by the compulsory heirs. portion, they shall be reduced according to the rules established
by this Code.
Illustration A: Suppose the value of the estate is P12M and he has a
legitimate child, but in his will he gave a legacy of P10M to a friend. This Donations, Where Charged
legacy is inofficious because it is more than the free portion, thus this 1. Donations to Children – these should first be imputed to or
can be reduced. Thus, this can be reduced by petition of the heirs who charged against their legitime; and if the legitime is not
are directly affected. sufficient to cover the donations, the excess should be
charged to the free portion; and if still excessive they should
Illustration B: Suppose it was a Donation, and Testator donated to his be reduced so as not to impair the legitimes of others.
friend a land value at P10M upon his death and left an estate worth P2M. 2. Donations to Strangers – these shall be charged to the part
The legitime upon collation (P10M + P2M = P12M) should be P6M. This of the estate which the testator could have disposed by his
means that the donation is inofficious and the compulsory heirs can last will – meaning that in the free portion.
petition to abate donation and the donee-stranger will return P4M so
that the legitime may be given. Illustration: Suppose T has three children, A, B and C. Y is a best friend
of the testator and considered a stranger. Consider that:
Illustration C: Suppose P10M was donated to A, one of the compulsory 1. C received a donation of P3,500,000
heirs and the value of the estate, then the same shall still be collated and 2. Y received a donation of P1,000,000
thus the legitime should be at P6M. Suppose there are three children (A, 3. Net Estate is P12,000,000
B and C), then the legitimes of B and C. Thus, A has to return to P4M so
that the legitime of B and C be given. Legitime: P6,000,000 Free Portion is P6,000,000
 Value of Estate: P12,000,000
 Legitime and Free Portion: P6,000,000 | P6,000,000 Distribution of Legitime:
 Inofficious Donation to A P6,000,000 / 3 Legitimate Children = P2,000,000 legitime per child
A has to return the excess of P4,000,000 to complete B and
C’s legitime, A - P2,000,000
- P2M of donation is considered advance to A’s legitime. B – P2,000,000
- The free portion of P6M is to answer for donation C – P2,000,000*
remainder (See Article 909). (Only P8M of supposed
P10M donation) * - But since C received P3,500,000 already as donation inter vivos this
shall be considered as an advance to his legitime (Art. 909, par. 1). But
ARTICLE 908 since there is excess, the excess shall be charged to the free portion.
To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts and Legitime (P2M) – Donation Value (P3.5M) = P1,500,000 Excess
charges, which shall not include those imposed in the will.
The excess shall then be charged to the free portion. There is no need
To the net value of the hereditary estate, shall be added the value for C to return the P1,500,000 since there is still a free portion of P6M.
of all donations by the testator that are subject to collation, at the
time he made them. The donation to Y is not inofficious and Article 909, par. 2 provides that
it can still be charged against the free portion.
Formula for Computation of Net Hereditary Estate
Distribution of Free Portion
𝑃𝑟𝑜𝑝𝑒𝑟𝑡𝑦 𝐿𝑒𝑓𝑡 𝐶𝑜𝑙𝑙𝑎𝑡𝑖𝑜𝑛𝑎𝑏𝑙𝑒 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛𝑠 𝐷𝑒𝑏𝑡𝑠 & 𝐶ℎ𝑎𝑟𝑔𝑒𝑠 P6,000,000
(P1,500,000) – Excess of donation to C
Suppose X is a legitimate child and Y is a stranger. (P1,000,000) – Donation to Y
P3,500,000 – Remaining value of the free portion
Value of the Estate at time of death is P10,000,000 This value is then used to satisfy donations, legacies, devises, etc.
 Donations
1. To X – P2,000,000 Rules in Distributing the Free Portion
2. To Y – P1,000,000 If the free portion is not enough to satisfy the donations, legacies, etc.
 Other Debts – P5,000,000 1. First satisfy the donations, and between two or more
 Taxes – P300,000 donations, the earlier donation is preferred;
 Legacies – P2,000,000 2. If there is a preferential legacy or device (911) then it shall be
 Devises – P3,000,000 satisfy; then
3. All others pro-rata
Net Estate = (Property Left + Collationable Donations) – (Debts/Charges)
Net Estate = (P10M + P3M) – (P5M + P300K) NOTE: This only applies if there are donations and compulsory heirs
Net Estate = P13M – P5.3M there is a different rule if there is only legacy or device.
Net Estate = P7,700,000
ARTICLE 910
Note, this does not include legacies and devises.
Donations which an illegitimate child may have received during
the lifetime of his father or mother, shall be charged to his
Because they will be deducted from the net estate itself. This is what is legitime.
meant by “deducting all debts and charges, which shall not include
those imposed in will.” Should they exceed the portion that can be freely disposed of,
they shall be reduced in the manner prescribed by this Code.

Donations to illegitimate Children Step 2: Determine the Legitime and Free Portion
(a) The donations to said illegitimate children are collationable 1. Determine the heirs involved
and chargeable to their legitime a. 2 Legitimate Children
(b) The donations given to illegitimate children should never b. Surviving Spouse and
impair the legitime of the legitimate children
(c) Any donation in excess of the legitime shall be charged to Then according to the law (see Table of Legitimes), then the legitime
shall be as follows:
the free portion and shall be considered in the same category
a. 1/2 of the estate divided by the number legitimate
as donations to strangers.
children
b. For the surviving spouse, then 1/4
ARTICLE 911
After the legitime has been determined in accordance with the 2. Determine the Amounts of Legitime and Free Portion
three preceding articles, the reduction shall be made as follows: a. Legitime: P1,300,000
b. Free Portion: P1,300,000
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the
Step 3: Distribute the Legitime:
devises or legacies made in the will;
1. Since there are two legitimate children the legitime shall be

divided into two: P1,300,000/2 = P650,000 each LC
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
2. The surviving spouse shall be entitled to P650,000 (which is

1/4 value of the net estate)
If the testator has directed that a certain devise or
legacy be paid in preference to others, it shall not suffer
any reduction until the latter have been applied in full 3. The Free Portion shall be reduced by the legitime of the
to the payment of the legitime. surviving spouse
a. P1,300,000 – P650,000 = P650,000 remaining
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than Step 4: Distribute the Remaining Free Portion
that of the disposable portion, the compulsory heirs Donations – Preferred Legacies and Devises – Pro-rata
may choose between complying with the testamentary
provision and delivering to the devisee or legatee the 1. Since there is a donation, then the remaining FP shall be
part of the inheritance of which the testator could reduced by the donation. Since it is the only donation, there
freely dispose. is no need to ascertain which came earlier. Thus,
a. P650,000 – P600,000 (Donation)
Order of Preference in the Hereditary Estate b. Remaining: P50,000
In Article 911, the legitimes are already satisfied. This now refers to the
free portions. Article 911 applies if the free portion is not sufficient to 2. Since there are no preferred legacies or devises, then we
cover the donation, legacies and devises. proceed to the next.
3. Here, it is clear that while the will may provide for a legacy of
Requisites for Article 911 to Apply
P100,000 and a devise of P200,000. But since the remaining
1. There are compulsory heirs
free portion is insufficient to cover the remaining legacies
2. There are donations inter vivos and devises, it shall be PRO-RATA
3. The free portion is not sufficient to cover the donations,
legacies and devises.
a. 𝑥 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑃
Order of Preference
1. First, give the legitimes b. Total Amount is P300,000; Remaining FP is P50,000
2. Then the donations inter vivos (prefer earlier donations)
c. For the Legacy:
3. Then the preferred legacies and devises
P100K/P300K x P50,000
4. Then all other devises and legacies pro-rata in case the estate
1/3 x P50,000
is not sufficient.
= P16,666.67
Reason Why Donations Inter Vivos Are Preferred Over Mortis Causa d. For the Devise:
1. First, they were made first showing preference in the P200K/P300K x P50,000
generosity of the decedent. As has been aptly said, priority in 2/3 x P50,000
time is priority in right, or first come, first served (Manresa) = P33,333.33
2. Second, donation is a bilateral act which requires acceptance
on the part of the donee, while dispositions mortis causa are
unilateral (Manresa) NOTE: This kind of computation will be referred back in Article 950
3. Third, because donations are generally irrevocable.
ARTICLE 912
Illustration: Suppose T left 2 legitimate children and a surviving spouse. If the devise subject to reduction should consist of real property,
 Value of Estate: P2,000,000 which cannot be conveniently divided, it shall go to the devisee if
 Donation inter vivos to Y for P600,000 the reduction does not absorb one‐half of its value; and in a
 Legacy of P100,000 contrary case, to the compulsory heirs; but the former and the
 Devise of P200,000 latter shall reimburse each other in cash for what respectively
belongs to them.
Step 1: Compute the Net Hereditary Estate
NHE = (Value of Estate + Collationable Donations) – (Debts and Charges) The devisee who is entitled to a legitime may retain the entire
NHE = P2,000,000 + P600,000 property, provided its value does not exceed that of the
NHE = P2,600,000 disposable portion and of the share pertaining to him as legitime.

Reduction of Inofficious Devises The adopted child cannot represent the adopter in representation
This involves devises that should be reduced for being inofficious, insofar as the parents or ascendants are concerned. This is because the
otherwise the legitimes shall be prejudiced. fiction of law created by the adoption is only between the adopter
and the adoptee and does not extend to the relatives of the adopter.
1. If the devise consists of real property which cannot be
conveniently divided (e.g. what will remain is a minute In Representation, it is required that the representative himself must
parcel of land which is useless, like 10 sq.m.) be able and qualified to inherit from the decedent himself. Here, the
adopted child cannot represent the adopter to inherit from ascendant
The law provides that: of the adopter since the fiction of law is between the adopter and the
a. It will go to the devisee if the reduction does not absorb adopted only. The relationship created by adoption does not extend
1/2 of its value, the devisee will then compensate the to the blood relatives of either parties.
compulsory heirs
b. If the reduction absorbs more than 1/2 of its value it shall go MAURICIO SAYSON v. COURT OF APPEALS
to the compulsory heirs, they will compensate the devisee GR 89224-25, January 23, 1992
2. If devisee is also entitled to a legitime Held: (1) Adopted children are exclusive heirs under Article 979. – An
- He may retain the entire property adopted child succeeds to the property of adopting parents in the same
- Provided that the value of property does not exceed manner as a legitimate child.
that of the disposable portion
- And that of the share pertaining to him as legitime The philosophy underlying this article is that a person’s love descends first
to his children and grandchildren before it ascends to his parents and
thereafter spreads among his collateral relatives. It is also supposed that
Meaning, if the value of the property does not exceed the free portion
one of his purposes in acquiring properties is to leave them eventually to
plus his share he can retain the property.
his children as a token of his love for them and as a provision for their
 But if the devise is in excess, it would now affect the legitime continued care even after he is gone from this earth.
of the other compulsory heirs, in this instance he then
follows the first situation: to retain the property but pay the (2) Right of Representation as to Adopted Children. – While there is no
compulsory heirs in cash to satisfy their legitimes. doubt that a legitimate child may represent his parents. But a different
conclusion must be reached in the case of Delia and Edmundo (the
ARTICLE 913 adopted children), to whom the grandparents were total strangers. While
If the heirs or devisees do not choose to avail themselves of the it is true that the adopted child shall be deemed to be a legitimate child and
right granted by the preceding article, any heir or devisee who have the same right as the latter, these rights do not include the right of
did not have such right may exercise it; should the latter not make representation. The relationship created by the adoption is between only
use of it, the property shall be sold at public auction at the the adopting parents and the adopted child and does not extend to the
instance of any one of the interested parties blood relatives of either party.
Sale at Public Auction

If the heirs do not chose to avail themselves of Article 912. Then the Illegitimate Child that is Adopted
property shall be sold at public auction at the instance of any one of It is allowed under the law that a illegitimate child may be adopted to
the interested parties. They can now petition to sell the property and raise the status into legitimacy. In this instance, there is a blood relation
distribute the proceeds. between parent of the ascendant and the adopted illegitimate child.
ARTICLE 914 Here, there is still no right of representation mainly because of the
The testator may devise and bequeath the free portion as he may
Iron-Bar Rule under Article 992 providing a bar between the legitimate
deem fit.
family and the illegitimate child. The adopted did not improve his
status in a sense that he becomes a legitimate child in relation to the
The Free Portion
relatives of the adopted is concerned.
In actuality, the ‘free’ portion is not absolute free in the sense that the
free portion shall be charged the legitime of the surviving spouse and
the illegitimate children. But if after satisfying such, the remaining ISABEL DE LA PUERTA v. COURT OF APPEALS
GR 77867, February 6, 1990
portion is the real free portion and the testator may devise or bequeath
the free portion. This is limited by the rule on Incapacities such as
Held: Indeed, even as an adopted child, Carmelita would still be barred
donations to the paramour. from inheriting from Dominga Revuelta for there would be no natural
kindred ties between them and consequently, no legal ties to bind them
INHERITANCE OF AN ADOPTED CHILD either.
As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent

Inheritance of an Adopted Child
should die before the adopted child, the latter cannot represent the former
An adopted child is entitled to a legitime. It is provided under the law in the inheritance from the parents or ascendants of the adopter. The
that an adopted child shall have the same rights as legitimate children. adopted child is not related to the deceased in that case, because the
filiation created by fiction of law is exclusively between the adopter and the
Can an adopted child represent the adopter? adopted.
Parent of Adopter "By adoption, the adopters can make for themselves an heir, but they
cannot thus make one for their kindred. The result is that Carmelita, as the
spurious daughter of Vicente de la Puerta, has successional rights to the
Adopter intestate estate of her father but not to the estate of Dominga Revuelta. Her
claims for support and inheritance should therefore be filed in the
proceedings for the settlement of her own father's estate and cannot be
Adopted Child considered in the probate of Dominga Revuelta's Will.

Status of Legitimacy Biological Brothers and Sisters of the Adopted Child

In Bartolome v. SSS (2014), the Court stated that: “Our consistent ruling
RA 8552, Domestic Adoption Act that adoption is a personal relationship and that there are no collateral
Section 17. Legitimacy. – The adoptee shall be considered the legitimate relatives by virtue of adoption xxx”
son/daughter of the adopter(s) for all intents and purposes and as such is
entitled to all the rights and obligations provided by law to legitimate With this statement, Atty. Yangyang submits that since the parental
sons/daughters born to them without discrimination of any kind. To this relation is severed, it is all the more as between the adoptee and his
end, the adoptee is entitled to love, guidance, and support in keeping with biological siblings.
the means of the family.
Adopted Child and Children of the Adopter
Adopter Can Inherit from Adopted In Dela Puerta v. CA (1990), the court said: “By adoption the adopter can
make for themselves an heir, but they cannot thus make one for their
Section 18. Succession. – In legal and intestate succession, the adopter(s) kindred.” Meaning, that the adopted child cannot inherit from the
and the adoptee shall have reciprocal rights of succession without children of the adopter. Insofar as the other kindred of adopted is then
distinction from legitimate filiation. However, if the adoptee and his/her concerned, the adopted child as “brother or sister” is not covered.
biological parent(s) had left a will, the law on testamentary succession shall
govern. Adopted Child and Legitimate Parents of Adopter
In Del Rosario v. Conanan (1977), if the adopted child concurs with the
Q. Can the child of the adopted inherit from adopter? legitimate parent, the law provides that the fiction of law created by
Atty. Yangyang’s Submission: There is still no jurisprudence, the adoption is only between the adopter and the adopted child.
it is submitted that the descendant of the adoptee can also inherit form
the adopted as a consequence of adoption. While it is true that an adopted child have the same rights as a
legitimate child and that a legitimate child would exclude legitimate
Biological Parents of Adopted Child parents in cases of legitime, this does not squarely apply to an adopted
child. As stated:
Section 16. Parental Authority. – Except in cases where the biological
parent is the spouse of the adopter, all legal ties between the biological “It is most unfair to accord more successional rights to the adopted,
parent(s) and the adoptee shall be severed and the same shall then be who is only related artificially by fiction of law to the deceased, than
vested on the adopter(s). those who are naturally related to him by blood in the direct ascending
line.” But note that this case involves intestate succession.
General Rule: The biological parents are no longer entitled to inherit
from the adopted. Thus if it appears that the concurring heirs are
1. Adopted Child 1/4
Exception: Bartolome v. SSS where adopter died during minority of 2. Surviving Spouse 1/4
the adopted ad the authority of the parent reverted when the adopted 3. Legitimate Parents/Ascendants 1/2
dies. (RA 8552 was not yet in effect, but was referred to by analogy).
But under the Family Code and Domestic Adoption Act
BARTOLOME v. SSS
GR 192531, November 12, 2014 Family Code
Article 189. Adoption shall have the following effects:
Facts: John Colcol born on 1983, was an electrician onboard Maersk
Danville vessel. He was enrolled under the Employee’s Compensation (1) For civil purposes, the adopted shall be deemed to be a legitimate child
Program. In 2008, an accident occurred on board the vessel were steel of the adopters and both shall acquire the reciprocal rights and obligations
plates feel on John which led to his untimely death. John was childless and arising from the relationship of parent and child, including the right of the
unmarried. John’s biological mother, Bernardina Bartolome filed a claim for adopted to use the surname of the adopters;
the death benefits with SSS. But SSS denied the claim on the ground that
John was already adopted by Cornelio Colcol and is no longer entitled to (2) The parental authority of the parents by nature over the adopted shall
be the beneficiary as the parent of John. terminate and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
Issue: Is Bernardina entitled to the death benefits? – Yes. adopted shall be exercised jointly by both spouses; and
Held: (1) Adopter died during the minority of the adoptee. – When John (3) The adopted shall remain an intestate heir of his parents and other blood
was adopted in 1985 (2 years old), Bernardina’s parental authority was then relatives.
severed. But Cornelio (adopter) died less than three years after adoption
decree when John was still a minor (4 years of age). Here, the minority of RA 8552 Sections 16-18 (Cited earlier). – Substantially the same with FC,
John is a significant factor. Under such circumstance parental authority
should be deemed to have revered in favor of the biological parents. Question here is that: Did these laws supersede Del Rosario v. Conanan?
Section 20, RA 8552 provides that (by analogy) if the petition for rescission Would the adopted child now exclude the legitimate parents?
is granted, the parental authority of the adoptee’s biological parents shall
be restored if the adoptee is still a minor or incapacitated.  If on the side of the legitimate parents: refer to the ruling of the
case of Del Rosario v. Conanan
(2) John named Bernardina as Beneficiary. – In his SSS application, here
she was named as beneficiary and this deliberate act of indicating her as his  If one the side of the adopted child then strictly apply the terms
beneficiary shows that he in a way considered her as his dependent. of RA 8552 stating that there be no discrimination of any kind.
Looking at the confluence of the circumstances – from Cornelio’s death And since the adopted child is considered as a legitimate child.
during John’s minority, the restoration of parental authority and documents
showing singularity of address and John’s clear intention to designate her

as beneficiary – effectively made petitioner, entitled to death benefit
claims as a dependent parent.

Section 6 Held: Under Article 916 of the NCC, disinheritance can be effected only
DISINHERITANCE Articles 915-923 through a will wherein the legal cause therefor shall be specified. This
Court agrees with the RTC and the CA that while the respondents in their
Complaint and Amended Complaint sought the disinheritance of Ramon,
ARTICLE 915 no will or any instrument supposedly effecting the disposition of Antonio’s
A compulsory heir may, in consequence of disinheritance, be estate was ever mentioned. Hence, despite the prayer for Ramon’s
deprived of his legitime, for causes expressly stated by law. disinheritance, Civil Case No. 02-105251 does not partake of the nature of a
special proceeding and does not call for the probate court’s exercise of its
Disinheritance limited jurisdiction.
This is the process or act thru a testamentary disposition of depriving
in a will any compulsory heir of his legitime for true and lawful causes. ARTICLE 917
This can only happen to a compulsory heir. Disinheritance can be made The burden of proving the truth of the cause for disinheritance
only through a will. shall rest upon the other heirs of the testator, if the disinherited
heir should deny it.
ARTICLE 916
Disinheritance can be effected only through a will wherein the Burden of Proof is on the Heirs of Testator
legal cause therefor shall be specified. One of the requisites is that the disinheritance must be for a true cause.
Thus, in case the ground for disinheritance is denied, then the heirs of
Requisites for a Valid Disinheritance (WEL-TET-SIR) the testator must prove that it is really for a true and existing cause.
1. It can be effected only through a valid Will
There must be a will that is valid that complies with all the ARTICLE 918
formalities prescribed by law. Disinheritance without a specification of the cause, or for a cause
the truth of which, if contradicted, is not proved, or which is not
2. It must be made Expressly one of those set forth in this Code, shall annul the institution of
It cannot be made impliedly: “I hereby disinherit A”, heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be
3. There must be a Legal cause for the disinheritance valid to such extent as will not impair the legitime
The law provides for specific grounds for disinheritance
a. Article 919 for the Child or Descendant Effect of Invalid Disinheritance
b. Article 920 for the Parent or Ascendant 1. The institution of heirs is annulled but only insofar as it may
c. Article 920 for the Spouse prejudice the person disinherited, that is insofar as the
legitime of the said heir is impaired.
4. The disinheritance must be for a True cause 2. The devises, legacies and other testamentary dispositions
Even if mentioned in the will, it has to be true. It can even be shall be valid to such extent as will not impair the legitime.
denied by the heir which then must be proved.
Effect of Valid Disinheritance
5. The disinheritance must be for an Existing cause The heir disinherited shall be excluded. He cannot receive by testate or
At the time when the will was made the ground should be in intestate succession. In fact, a will can contain only a disinheritance. In
existence already thus it would not be proper to state in the that case, the estate shall be distributed by intestacy.
will that the ground for disinheritance in the future.
Preterition Valid Disinheritance
6. The disinheritance must be Total or Complete Omission may be either Disinheritance is always
Disinheritance for the legitime must be everything. It must intentional or unintentional, intention thus, it is always an
be total and complete. thus there can be implied express deprivation
deprivation
7. The cause must be Stated in the Will May be with or without cause The cause must be always
Even if the ground may be embarrassing, the ground must stated in the will and must be
have to be stated in the will so that the heir will know the true and legal
ground of his disinheritance and be able to deny such or that Preterition annuls the The disinherited heir gets
there was condonation or reconciliation. institution and the omitted heir nothing either by way of
inherits legitime or by free portion
8. The heir disinherited must also be clearly identified The institution is always void The institution may be valid –
The heir to be disinherited must be mentioned. except when the preterited heir when all the requirements of
predeceases the testator law are followed.
9. The will should not been Revoked
If the will has been revoked then it cannot be probated and Preterition Invalid Disinheritance
any institution of heir will not take effect. The institution of heirs is The institution remains valid
completely annulled. but must be reduced insofar as
RAMON CHING v. RODRIGUEZ the legitime has been impaired.
GR 192828, November 28, 2011 In both cases legacies and devises remain valid insofar as the
legitime has not been impaired.
Facts: The Complaint caption as one for “Disinheritance, Declaration of Both refer to compulsory heirs.
Nullity of Agreement and Waiver, Affidavit of Extrajudicial Settlement, etc.” The
heirs allege that Ramon misrepresented himself ass a son but was in fact
MANINANG v. CA
adopted and Ramon was the prime suspect for the death of Antonio Ching
GR L-57848, June 19, 1982
(decedent) who died due to a stab wound. They alleged from the foregoing
circumstances and upon the authority of Article 919, the respondents
Preterition consists in the omission in the testator’s will of the forced heir
concluded that Ramon can be legally disinherited, hence, prohibited from
or anyone of them, either because they are not mentioned therein, or
receiving any share from the estate of Antonio.
though mentioned they are neither instituted as heirs nor are expressly
disinherited.

Disinheritance, in turn, is a testamentary disposition depriving any ARTICLE 919

compulsory in the legitime for a cause authorized by law. Disinheritance is The following shall be sufficient causes for the disinheritance of
always voluntary, preterition upon the other hand, is presumed to be children and descendants, legitimate as well as illegitimate:
involuntary.
(1) When a child or descendant has been found guilty of an
Preterition under Article 854 shall annul the institution of heirs. The attempt against the life of the testator, his or her spouse,
annulment is in toto, unless in the will there are, in addition, testamentary descendants, or ascendants;
dispositions in form of devises or legacies. In ineffective disinheritance,
such inheritance shall also ‘annul the institution of heirs’ but only insofar as (2) When a child or descendant has accused the testator of a
it may prejudice the person disinherited, which last phrase is omitted in the crime for which the law prescribes imprisonment for six years or
case of preterition. Better stated yet, in disinheritance the nullity is limited more, if the accusation has been found groundless;
to that portion of the estate which the disinherited heirs have been illegally
deprived. (3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;

Effect of Preterition with Valid Disinheritance (4) When a child or descendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to change
Illustration A: The estate is worth P24M. The testator left his three one already made;
legitimate children – A, B and C and his best friend D. He made a will
where: A was preterited, B is validly disinherited and C and D are (5) A refusal without justifiable cause to support the parent or
instituted as heirs for the entire estate. ascendant who disinherits such child or descendant;

Effect of Disinheritance: B shall be excluded. (6) Maltreatment of the testator by word or deed, by the child or
descendant;
Effect of Preterition: It shall annul the institution of heirs. But the devises
and legacies which are not inofficious shall be respected. (7) When a child or descendant leads a dishonorable or
 But the preterition will not affect the disinheritance because disgraceful life;
a disinheritance is not an institution.
(8) Conviction of a crime which carries with it the penalty of civil
Thus the institution of C and D as heirs shall be annulled. Meaning, the interdiction.
estate shall be distributed by legal succession. Thus, since D is not a
compulsory heir he shall be excluded. Causes for Disinheritance of a Child or Descendant
The grounds enumerated shall apply to children and descendants
Legal Succession: Only A and C shall participate since B was validly whether they are legitimate or illegitimate.
disinherited. Thus the estate shall be divided into two:
1. A shall inherit P12,000,000 (1) Found guilty of attempt against the life
2. B shall inherited P12,000,000 1. Found guilty – there should be a final judgment of conviction
by a court of justice, the conviction may come after the
Effect of Preterition with Invalid Disinheritance execution of the will
2. There must be intent to kill
Illustration A: The estate is worth P24M. The testator left his three 3. Against the life of the testator or the spouse, descendant or
legitimate children – A, B and C and his best friend D. He made a will ascendant of testator
where: A was invalidly disinherited and the entire estate was given to B,
4. If attempt is sufficient to disinherit, it follows if the act is then
C and D.
consummated or frustrated there is sufficient cause for the
Effect of Invalid Disinheritance: The institution of the heir is annulled but disinheritance.
only in so far as the legitime is affected. Meaning, the legitime of the heir 5. Being a principal or accomplice is covered. Being an
who was invalidly disinherited shall be given and then the other accessory, it is submitted that it happened after the fact.
provisions shall be given effect.
(2) False Accusation
Determine the Legitime: 1. Testator is accused by child or descendant
 Legitime: P12,000,000 | Free Portion: P12,000,000 2. Accused of a crime for which the law prescribes punishment
 Legitime of each child: P4,000,000 (P12M/3 Children) of 6 years or more
3. If accusation has been found groundless – such as when the
Distribution of the Free Portion testator is acquitted of the imputed crime
 Only B C and D will participate, since the institution of heirs is
only to the free portion The false accusation can be in the form of
 Share of each instituted heir: P4,000,000 (P12M/3 heirs)  Filing a case against the testator
 Testifying falsely against the testator, or
Distribution of Shares
 Indirectly refusing to testify in favor of testator that would be
Heir Legitime Free Portion Total
material to his acquittal
A P4M - P4M
B P4M P4M P8M
(3) Conviction of Adultery or Concubinage with Testator’s Spouse
C P4M P4M P8M
 Here, there must be a final judgment of conviction before
D - P4M P4M
this can be applied.
Total P12M P12M P24M
 Can the spouse be also disinherited? (See Art. 921).
(4) Making a Will or Change by Fraud, Violence, etc.

Therefore, the difference between the two would seem to effect the  When the testator made or changed a will
instituted heirs who inherit in the free portion. Because in preterition,  Due to fraud, violence, intimidation or undue influence by
the institution of heirs is completely annulled while in invalid the child or descendant
disinheritance, only as the institution impairs the legitime.
(5) Refusal without just cause to support the parent or ascendant probably not responsible for the disrespect and disobedience shown to her
 The refusal must be without just cause grandfather in the year 1894 or 1895.
 Refusal to support is unjustifiable based on the circumstance
depending on the means of the person entitled to give After a careful consideration of the record, we are inclined to believe that
the same supports the conclusions of the lower court and that the same
support
supports the conclusions of the lower court that he did not commit the error
complained of in the first assignment of error.
(6) Maltreatment
1. Maltreatment by word (slanderous or offensive language) Note: There was no intelligence and voluntariness in the act committed so
2. Maltreatment by deed (physical maltreatment) it was not considered as a ground for disinheritance.
- There is no mention of the times of maltreatment
- This ground is not present in 920 (Ascendants)
(7) Dishonorable or Graceful Life
 Here, there need not be a judgment of conviction.
SEANGIO v. REYES
 The essence of the cause is that anything that brings
GR 140371-72, November 27, 2006
dishonor or disgrace to the family of the testator merits
This involves a holographic will containing only a disinheritance. The correction in the form of disinheritance.
Kasulatan ng Pag-Aalis ng Mana reads:  However, a single act is not ordinarily sufficient.
 Leading a life – implies continuity.
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip Ex.: Prostitute – the law referred to immoral life of a woman. But it is
at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at submitted that this cause for disinheritance should be broader in scope
anumang mana ang paganay kong anak na si Alfredo Seangio dahil as to include both males and the females.
siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng
masama harapan ko at mga kapatid niya na si Virginia Seangio (8) Conviction of a Crime with Civil Interdiction
labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na 1. There must be final judgment
ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim 2. The crime convicted of must have the accessory penalty of
siya at siya nasa ibabaw.
civil interdiction such as the penalties of death, reclusion
perpetua and reclusion temporal.
Held: There is Maltreatment as a Ground for Disinheritance. - The
document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his ARTICLE 920
estate for the reasons that he cited therein. In effect, Alfredo was The following shall be sufficient causes for the disinheritance of
disinherited by Segundo. For disinheritance to be valid, Article 916 of the parents or ascendants, whether legitimate or illegitimate:
Civil Code requires that the same must be effected through a will wherein
the legal cause therefor shall be specified. With regard to the reasons for the (1) When the parents have abandoned their children or induced
their daughters to live a corrupt or immoral life, or attempted
disinheritance that were stated by Segundo in his document, the Court
against their virtue;
believes that the incidents, taken as a whole, can be considered a form

of maltreatment of Segundo by his son, Alfredo, and that the matter (2) When the parent or ascendant has been convicted of an
presents a sufficient cause for the disinheritance of a child or descendant attempt against the life of the testator, his or her spouse,
under Article 919 of the Civil Code. descendants, or ascendants;

If the maltreatment in the form of gross disrespect and raising of the (3) When the parent or ascendant has accused the testator of a
hand against a grandfather was caused by a child of tender years (14) crime for which the law prescribes imprisonment for six years or
and who a little later became insane., this would not be sufficient cause more, if the accusation has been found to be false;
for disinheritance (Pecson v. Mediavillo, 28 Phil. 81).
(4) When the parent or ascendant has been convicted of adultery
or concubinage with the spouse of the testator;
PECSON v. MEDIAVILLO
GR 7890, September 29, 1914 (5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
The will provides: I declare that one of my daughters, named Teresa, will or to change one already made;
now deceased, left a legitimate daughter named Rosario Mediavillo.
I also declare that I disinherit my granddaughter, the said Rosario (6) The loss of parental authority for causes specified in this
Mediavillo, because she was grossly disrespectful to me and because Code;
on one occasion, when it was I do not remember, she raised her hand
against me. Therefore, it is my will that the said Rosario Mediavillo (7) The refusal to support the children or descendants without
shall have no share in my property. justifiable cause;

Held: Cannot be Validly Disinherited. - It appears from the record that (8) An attempt by one of the parents against the life of the other,
when Rosario Mediavillo was about 14 years of age, she had received some unless there has been a reconciliation between them.
attentions from a young man — that she had received a letter from him —
and that her grandfather, Florencio Pecson, took occasion to talk to her Causes for Disinheritance of Parents or Ascendants
about the relations between her and the said young man; that it was upon This applies whether they are legitimate or illegitimate ascendants.
that occasion when, it is alleged, the disobedience and disrespect were
shown to her grandfather, and that was the cause for her disinheritance by (1) Abandonment or Corruption or Attempted Against Virtue
her grandfather.
a. Abandonment – this does not have to amount to a crime as
long as the child has been deprived of basic necessities.
The record shows that very soon after said event she lost the use of her
b. Induced daughters to live corrupt or immoral life. – this is
mental powers and that she has never regained them, except for very
brief periods, up to the present time. The lower court, taking into when parents encourage their child into prostitution or that
consideration her tender years, and the fact that she very soon thereafter life be corrupt or immoral.
lost the use of her mental faculties, reached the conclusion that she was c. Attempt against virtue. – attempts to rape the daughter and
note – there is no need for final judgment for this.
(2) Attempt Against the Life FAMILY CODE

1. Final judgment of conviction ARTICLE 55
2. Attempt against the life of the testator, his spouse, or his
descendants or ascendants A petition for legal separation may be filed on any of the following
(Basically the same elements as 919, No. 1) grounds:
(1) Repeated physical violence or grossly abusive conduct
(3) False Accusation – similar under Article 919. directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the
(4) Convicted of Concubinage or Adultery with Testator’s Spouse petitioner to change religious or political affiliation;
Same as Article 919 (3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
(5) Making or Changing Will – Same as Article 919 prostitution, or connivance in such corruption or
inducement;
(6) Loss of Parental Authority – It is submitted that loss of parental (4) Final judgment sentencing the respondent to
authority is a ground for disinheritance only if there is fault of the part imprisonment of more than six years, even if pardoned;
of the heir-parent or heir-ascendant. Thus, losing parental authority (5) Drug addiction or habitual alcoholism of the respondent;
due to emancipation is not a proper ground. (6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(7) Refusal to Support Without Just Cause – Similar as Article 919 (8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
(8) Attempt Against the Life of the Other Parent petitioner; or
The usual instance herein is when the testator’s father attempt against (10) Abandonment of petitioner by respondent without
the life of the mother (or vice versa). Then it can be ground of the justifiable cause for more than one year.
offending heir-parent.
 There is no need for final judgment, it can be proved by For purposes of this Article, the term "child" shall include a child
mere preponderance of evidence. by nature or by adoption.
 Note that Art. 920 (2) also contemplates this situation, but
No. 2 requires a final judgment. Guilty Spouse Giving Cause for Legal Separation
 If the situation is between the parents of the testator the a. Any of the grounds for legal separation committed by the
more apt provision is No. 8. guilty spouse is a ground to disinherit him or her
b. There is no need for final judgment under Article 55 as mere
Effect of Reconciliation preponderance of evidence would be sufficient
A subsequent reconciliation between the parents deprives the child c. If there is already a Decree of Legal Separation there is no
the right to disinherit the offending parent. According to Manresa, that need to disinherit because one of the effect would be to
reason tells us the child concerned should not be more severe than the disqualify the guilty spouse to inherit from the innocent
spouse who has been offended. spouse by operation of law.
A reconciliation implies mutual restoration of feelings to the status Causes for Legal Separation as Grounds for Disinheritance
quo, that is to the relationship existing prior to the commission of the 1. Repeated physical violence or gross abusive conduct
act which strained the relationship. A general pardon without removal a. To the innocent spouse
of hurt feelings is not the reconciliation spoken of by law. b. Common child, or
c. Child of the innocent spouse
ARTICLE 921 (VAWC can also be filed)
The following shall be sufficient causes for disinheriting a spouse: 2. Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation
(1) When the spouse has been convicted of an attempt against the 3. Attempt to corrupt or induce to engage prostitution or
life of the testator, his or her descendants, or ascendants; connivance therewith involving the petitioner, common
child or child of petitioner
(2) When the spouse has accused the testator of a crime for which 4. Final judgment sentencing guilty spouse for more than 6
the law prescribes imprisonment of six years or more, and the
years even if pardoned
accusation has been found to be false;
5. Drug addiction or habitual alcoholism
(3) When the spouse by fraud, violence, intimidation, or undue 6. Lesbianism or homosexuality of guilty spouse
influence cause the testator to make a will or to change one a. This cannot be used as a ground against the child
already made; or descendant
7. Contracting a bigamous marriage
(4) When the spouse has given cause for legal separation; 8. Sexual infidelity or perversion
a. NOTE: While there is no similar ground under
(5) When the spouse has given grounds for the loss of parental Article 921. Article 55 of the Family Code provides
authority;
for the ground to disinherit against a spouse who

is guilty of concubinage or adultery and in fact
(6) Unjustifiable refusal to support the children or the other
spouse. even sexual infidelity or perversion suffices.
9. Attempt against the life of innocent party
Causes of Disinheritance of the Spouse a. Under the FC, there is no need for final judgment
The concepts under (1) attempt against the life; (2) false accusation; (3) b. Under Article 921(1), there is a need for a final
making or changing a will; (5) ground for loss of parental authority; and judgment as the wording of the law provides that:
(6) unjustifiable refusal to support are similar with 920. when the spouse has been convicted, there is no
such requirement under Article 55 of the Family
(4) When the spouse has given cause for legal separation Code.

ARTICLE 922 Section 7

A subsequent reconciliation between the offender and the LEGACIES AND DEVISES 924-959
offended person deprives the latter of the right to disinherit, and
renders ineffectual any disinheritance that may have been made.
ARTICLE 924
Effect of Reconciliation All things and rights which are within the commerce of man may
The reconciliation is the mutual restoration of feelings to the status be bequeathed or devised.
quo. It is indeed the resumption of friendly relations. This is different
from forgiveness or condonation which is only a unilateral act. Grant of Legacies and Devises
A legacy is bequeathed while a devise is devised.
The reconciliation has the effect of:  Legacy is a gift of personal property given in a will.
1. If there is no disinheritance yet, then this will deprive the  Devise is a gift of real property given in a will.
testator the right to disinherit the heir;
2. If there is already a disinheritance in the will, that renders the Legacies and devises are testamentary dispositions giving an
disinheritance ineffective. economic benefit or advantage other than an aliquot or fractional part
of the inheritance as distinguished from the giving of gifts from the
A forgiveness made by the testator that is not accept by disinherited institution of heir. They are separated by the testator from the
heir is not reconciliation. This is unilateral on the part of the testator. universality of the inheritance that would have appertained to the heir.
There must be reconciliation in order to deprive the testator the right They refer to the free portion.
to disinherit and renders it ineffectual.
Subject of Legacy or Devise
But, suppose testator made the first will and forgave the son and then Note that while inheritance means all properties, rights and obligations
he made a second will restoring the son to the will – then the son will Article 924 does not mention ‘obligations’ thus what is only covered are
be entitled to his share. Technically this is not a reconciliation, what things and rights within the commerce of men.
took place is a revocation.
Organs of the Human Body
ARTICLE 923 The Organ Donation Act provides that organs of the human body may
The children and descendants of the person disinherited shall be transferred by donation or legacy in a will.
take his or her place and shall preserve the rights of compulsory
heirs with respect to the legitime; but the disinherited parent ARTICLE 925
shall not have the usufruct or administration of the property A testator may charge with legacies and devises not only his
which constitutes the legitime. compulsory heirs but also the legatees and devisees.

Representation of the Disinherited Heir The latter shall be liable for the charge only to the extent of the
The children and descendants are allowed to inherit by representation value of the legacy or the devise received by them. The
the legitime of the disinherited heir because the fault of the heir is not compulsory heirs shall not be liable for the charge beyond the
amount of the free portion given them.
the fault of the representative and it would be unjust to punish them.
Duty of Giving the Legacies and Devises
Estate Value: P12,000,000
1. General Rule – The estate.
Testator It is the estate which must give the legacies and devises also
known as “legacy proper”
A B C 2. Compulsory Heirs
The will may provide that a compulsory heir give a legacy or
devise heir give a legacy or devise but only to the amount of
X free portion given them and shall not reduce nor impair his
legitime. Thus, if A (heir) has a legitime of P1M and was
Suppose that B was validly disinherited. Determine the shares to be charged to devise P500,000 – this cannot be possible since it
received by the heirs. would be impairing his legitime, unless A is also a voluntary
1. Legitime – P6,000,000 | Free Portion – P6,000,000 heir in the free portion with at least P500,000.
2. Legitime – P6,000,000 / 3 (A, X (in representation of B), C)
3. Legitime – P2,000,000 each 3. Devisees and Legatees
The will may also provide that a devisee be charged in giving
Suppose the B is only a minor, is B as the parent, even though he was a sub-legacy or sub-devise. Such as when X which a parcel
disinherited, to administer the property? – No of land was given is required to give P10,000 per month to M
A. Under the law, the disinherited parent has no usufruct or which is a legacy. This involves a legacy within a legacy or a
administration of the property of this minor child devise within a devise. This is allowed since there is no
B. Then the other spouse or other parent shall have the right to legitime to be protected but limited to the value received by
administer
them and not beyond it.
C. If there is no parent available, then appointed guardian.
ARTICLE 926
Note that Article 923, the right of representation extends only to the When the testator charges one of the heirs with a legacy or devise,
legitime. There is no right of representation in the free portion. If the he alone shall be bound.
disinherited person had been given any legacy or devise or part of the
free disposal, the same will still go to the substitutes, if any this is Should he not charge anyone in particular, all shall be liable in
because the disinherited heir is not to receive anything from the free the same proportion in which they may inherit.
portion. Then if there are no substitutes, then accretion if proper, if
accretion is no proper, then the same should go to the legal heirs by In Case Heirs are Charged with Legacy or Devise
way of intestacy. If there is a designation to who is charged, then he alone is bound.

If there is no mention which heir is liable for the charge then Effect of Error in Ownership
 All of them in proportion in which they may inherit. The situation involves here is that the thing is not owned by the testator
 But this is again in proportion to their institution in the free and he thinks he owns it. Here, the legacy or devise is VOID.
portion or free disposal.  But, if the thing bequeathed though not belonging to the
testator, becomes his, by whatever title after he made the
It is important that the heir/s must be charged. If there is no mention will and devise the land (like when the property was donated
at all that the heirs are charged to give the legacy or devise then it is by the true owner) then the disposition SHALL TAKE EFFECT
the estate that shall be liable for the legacy or devise.
This is another exception on the rule of after-acquired properties.
ARTICLE 927 1. When the testator expressly provides that after-acquired
If two or more heirs take possession of the estate, they shall be properties are included (793)
solidarily liable for the loss or destruction of a thing devised or 2. When there is an execution of a codicil that republishes the
bequeathed, even though only one of them should have been will (834); and
negligent. 3. When the testator bequeaths or devises a thing which he did
not own but becomes his by whatever title (930)
Solidarily Liability of Heirs Who Take Possession If the testator knew, that he was not the owner of the property at the
This article presupposes that there was no partition yet because if there time he made the will then Article 931 applies:
is already a partition then each heir is the exclusive owner of specific
portion. Here, there is yet no partition and then two or more heirs take ARTICLE 931
possession of the estate. 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
If there is loss or destruction of a thing to be devised or bequeathed upon whom the obligation is imposed or the estate must acquire
and there is no partition – the law says they are solidarily liable even it and give the same to the legatee or devisee; but if the owner of
though only one of them is negligent. This is one instance that provides the thing refuses to alienate the same, or demands an excessive
for solidary obligation (exception to joint liability presumption). price therefor, the heir or the estate shall only be obliged to give
the just value of the thing.
ARTICLE 928
The heir who is bound to deliver the legacy or devise shall be When the Testator Orders the Acquisition
liable in case of eviction, if the thing is indeterminate and is In this Article it is evidence that the testator knows that he is NOT the
indicated only by its kind. owner of the thing being given, thus he orders the acquisition of the
thing. This “order” may be express or implied, since the law does not
Liability for Eviction distinguish. It may be implied because when a testator, knowing of
1. A thing is considered generic or indeterminate if it is not another’s ownership, gives the property to a legatee or devisee, it can
particularly designated or physically segregated from all be presumed that he really wants the gift to be effective.
other things belonging to the same class. 1. There is an implied instruction to acquire the property and
2. Heir who is bound to delivery is liable in case of eviction if the give the same to the legatee or devisee: “I hereby give the car
things is indeterminate and is indicate only by its kind. of X to Y.” Then it has to be acquired.
2. If the owner however
Ex.: “I am giving to Q a red car.” If the heir delivers the car and the legatee a. Refuses to alienate the same, or
was dispossessed due to foreclosure of chattel mortgage then the law b. Demands an excessive price
says that the heir has liability against eviction because it was the heir The heir obliged or the estate shall only be obliged to give
who chose the object to be delivered. the just value of the thing.
Ex.: “I hereby give to Q my red Honda Civil with plate number 14344.” In ARTICLE 932
this case it involves a specific or determinate thing and there is no The legacy or devise of a thing which at the time of the execution
liability for eviction for such as the heir has no choice which car to of the will already belonged to the legatee or devisee shall be
deliver to the legatee. ineffective, even though another person may have some interest
therein.
ARTICLE 929
If the testator, heir, or legatee owns only a part of, or an interest If the testator expressly orders that the thing be freed from such
in the thing bequeathed, the legacy or devise shall be understood interest or encumbrance, the legacy or devise shall be valid to
limited to such part or interest, unless the testator expressly that extent.
declares that he gives the thing in its entirety.
When Thing Already Belongs to Recipient
Ownership of Only a Part of Thing Bequeathed or Devised 1. Void – if the legacy or devise is already owned by supposed
recipient (even if mortgaged to another), this is because you
GR: The testator can only give what he owns. Meaning the legacy or cannot give something to someone who owns it already. If
devise shall be limited to such part or interest which is owned by the the thing at the time of the execution of the will belonged
testator. Thus, if the testator only had 1/2 of the ownership then it is to the legatee or devisee, the legacy or devise is void.
only that is given, for the testator cannot give what he does not own. 2. Valid as to the extent that the thing is freed from such
interest or encumbrance. – Even though some person has
XPN: Unless the testator express declares that he gives the thing in its an interest in the property like a mortgage, if the testator
entirety (then see the following articles). expressly orders that the thing be freed from such interest or
encumbrance, the legacy or devise shall be valid up to that
ARTICLE 930 extent (such as the payment of mortgage debt).
The legacy or devise of a thing belonging to another person is
void, if the testator erroneously believed that the thing pertained But, if the property to be bequeathed or devised at the time that the
to him. But if the thing bequeathed, though not belonging to the will was executed was not yet owned by the legatee or devisee, but
testator when he made the will, afterwards becomes his, by upon the death of the testator the recipient became the owner then
whatever title, the disposition shall take effect. consider Article 933:

ARTICLE 933 In both legacy of a credit and legacy of remission:

If the thing bequeathed belonged to the legatee or devisee at the  The legacy comprise all interest on the credit or the debt
time of the execution of the will, the legacy or devise shall be which may be due the testator
without effect, even though it may have subsequently alienated  AT THE TIME OF HIS DEATH
by him.

“At the Time of His Death” and After-Acquired Properties
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 1. If the debt is reduced because there way payment, then the
been acquired by onerous title he can demand reimbursement outstanding balance is only included in the legacy of credit
from the heir or the estate. or legacy of remission.
2. If the debt is increased – while the law states that “those due
Belated Acquisition by Legatee or Devisee at the time of his death” this is only limited to the value at
If the thing bequeathed or devise the time of execution of the will because we apply the rule
1. Already belonged to the legatee or devisee at the time of the in after -acquired properties.
execution of the will the legacy or devise is VOID
2. If acquired after such time: Four Exceptions to the Rule on After-Acquired Properties
a. If acquired gratuitously – he can claim nothing by 1. When the testator expressly provides that after-acquired
virtue of the legacy or devise since the gratuitous properties are included (793)
purpose has been made. 2. When there is an execution of a codicil that republishes the
b. If acquired onerously – then the legatee or the will (834); and
devisee can demand REIMBURSEMENT from the 3. When the testator bequeaths or devises a thing which he did
heir or the estate not own but becomes his by whatever title (930)
4. When there is a reduction of the outstanding debt at the
ARTICLE 934 time of the death of the testator (935)
If the testator should bequeath or devise something pledged or
mortgaged to secure a recoverable debt before the execution of ARTICLE 936
the will, the estate is obliged to pay the debt, unless the contrary The legacy referred to in the preceding article shall lapse if the
intention appears. testator, after having made it, should bring an action against the
debtor for the payment of his debt, even if such payment should
The same rule applies when the thing is pledged or mortgaged not have been effected at the time of his death.
after the execution of the will.
The legacy to the debtor of the thing pledged by him is
Any other charge, perpetual or temporary, with which the thing understood to discharge only the right of pledge.
bequeathed is burdened, passes with it to the legatee or devisee.
Effect of Action Against Debtor-Legatee
If Thing is Pledged or Mortgaged If the testator filed an action for collection against the debtor-legatee
If the property is pledged or mortgaged and the property is then made then the legacy is revoked or it “lapses”. The law says ‘bring an action’
a legacy or devise the estate has to pay the debt, thus it will go to the thus a mere demand letter would not revoke the legacy of credit or
devisee free from the mortgage whether it is pledged or mortgaged to legacy or remission. There must be a case filed in court.
secure a recoverable debt.
 The same rule applies when the thing is pledged or Legacy of the Thing Pledged
mortgaged after the execution of the will. If a thing was pledged to the testator as security, like a ring by the
legatee, who owed the testator P1,000,000, and the testator gave to the
Any other charge, perpetual or temporary legatee a legacy of the ring – only the pledge is extinguished and not
 It shall pass to the legatee or devisee the debt. The debt itself which is the principal obligation still remains.
 Example is a lease which transmits the obligation. If the debtor defaults, the testator cannot foreclose the pledge.
The estate has no obligation to free the land from such other burden ARTICLE 937
other than for a mortgage or pledge. A generic legacy of release or remission of debts comprises those
existing at the time of the execution of the will, but not
ARTICLE 935 subsequent ones.
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 Generic Legacy of Release or Remission
that part of the credit or debt existing at the time of the death of The legacy of release or remission which is generic, only those that are
the testator. existing at the time the will was made should be included. Subsequent
ones are excluded. (See discussion in 935).
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 ARTICLE 938
debtor. A legacy or devise made to a creditor shall not be applied to his
credit, unless the testator so expressly declares.
In the second case, by giving the legatee an acquittance, should he
request one. In both cases, the legacy shall comprise all interests In the latter case, the creditor shall have the right to collect the
on the credit or debt which may be due the testator at the time of excess, if any, of the credit or of the legacy or devise.
his death.
Non-Application of Legacy to Credit
Legacy of Credit or Remission This applies to a situation where testator is the debtor. If the testator
1. Legacy of a Credit – This is when the testator is a creditor of makes a legacy or devise in favor of the creditor:
a debtor for P1,000,000 and testator gave this credit to the 1. GR: It shall be treated a legacy or devise and shall not be
legatee. applied to his credit;
2. Legacy of Remission – The testator is legatee’s creditor and 2. XPN: Unless the testator so expressly declares.
the will remitted this debt of the legatee.

If the testator expressly declares that it applies to the credit ARTICLE 941
1. Then if there is excess to the legacy or devise after deducting A legacy of generic personal property shall be valid even if there
the credit, then that excess may be collected by the creditor be no things of the same kind in the estate.
of the legacy or devise:
a. Legacy of P7,000,000; Debt of P5,000,000. The A devise of indeterminate real property shall be valid only if
there be immovable property of its kind in the estate.
creditor can recover excess of P2,000,000.

2. If what is sought to be paid for the debt is a devise, even if it The right of choice shall belong to the executor or administrator
is worth more than the debt, it is a rule in Obligations and who shall comply with the legacy by the delivery of a thing which
Contracts that the debtor cannot compel the creditor to is neither of inferior nor of superior quality.
receive something which is different from what is due. The
creditor has the option to refuse. Legacy or Devise of Generic Property
If the legacy involves a generic or indeterminate property then:
ARTICLE 939 1. If generic personal – it is VALID even if there be none in the
If the testator orders the payment of what he believes he owes but estate implying that the estate is being required to get one.
does not in fact owe, the disposition shall be considered as not 2. If generic real – it is NOT VALID if there be none of its kind in
written. If as regards a specified debt more than the amount
the estate.
thereof is ordered paid, the excess is not due, unless a contrary
intention appears.
Period of Time to be Considered
The foregoing provisions are without prejudice to the fulfillment The period of time to be considered in determining whether or not the
of natural obligations. property exists in the estate is – at the time of the testator’s death for
it is ‘his estate’ which the law refers. The time of the execution of the
Solutio Indebiti and Natural Obligations will is therefore not important (6 Manresa 711). Evidently, this is not the
1. Legacy is Not Written. - If it turns out that the testator does same category as after acquired properties.
not owe anything it the legacy is deemed as not written.
2. Solutio Indebiti. – If payment is ordered but there was excess Quality
it shall not be given to the creditor unless a contrary The one who is obliged to deliver only has the obligation to deliver one
intention appears like in Article 938. with a medium quality taking into account the status of the person to
3. Natural Obligations. – If the debtor-testator pays despite whom the legacy was given and the capacity of the estate to give the
knowing the debt to have prescribed the law on natural property.
obligations apply and the debtor can no longer recover what
he has delivered or paid. ARTICLE 942
Whenever the testator expressly leaves the right of choice to the
ARTICLE 940 heir, or to the legatee or devisee, the former may give or the latter
In alternative legacies or devises, the choice is presumed to be may choose whichever he may prefer.
left to the heir upon whom the obligation to give the legacy or
devise may be imposed, or the executor or administrator of the When Right of Choice is Given to Others
estate if no particular heir is so obliged. Article 942 applies only when the right of choice is expressly given to
one by the testator himself. In this instance, the estate then would have
If the heir, legatee or devisee, who may have been given the to deliver whichever he may prefer.
choice, dies before making it, this right shall pass to the
respective heirs. ARTICLE 943
If the heir, legatee or devisee cannot make the choice, in case it
Once made, the choice is irrevocable. has been granted him, his right shall pass to his heirs; but a choice
once made shall be 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
When Choice is Passed to Recipient’s Heirs
from the intention expressed by the testator. If the legatee or devisee has been given the right of choice, once he
makes the choice it shall be irrevocable.
Alternative Legacies or Devises
This involves alternative legacies or devises – “I hereby order A to give C But, if he was not able to make a choice and then he dies, the right to
a ring or a car.” The option: make a choice is passed on the heirs of the devisees or legatees.
1. Rests upon the heir who has been charged with obligation to
give the legacy or devise ARTICLE 944
2. If there none mentioned, then the executor or administrator 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
of the estate, or
professional, vocational or general course, provided he pursues
3. Another legatee or devisee given the right of choice as stated
his course diligently.
in the will
A legacy for support lasts during the lifetime of the legatee, if the
If the choice is made it is irrevocable. In such case, the obligation ceases testator has not otherwise provided.
to be alternative as it already becomes a simple one. Thus, the choice
made is irrevocable already. If the testator has not fixed the amount of such legacies, it shall be
fixed in accordance with the social standing and the
But if the choice has not been made and the one to make the choice circumstances of the legatee and the value of the estate.
died before making the choice it will pass on to the heirs.
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
The law on Alternative Obligations will apply in suppletory character.
amount shall be deemed bequeathed, unless it be markedly
Since this involves a will the principal law is the wishes of the testator disproportionate to the value of the estate.
in giving effect to the alternative legacy or devise.

Legacy for Education Specific and Determinate Legacies or Devises

 GR: It shall last until the legatee is of age (legal age of 18) The reckoning point for the transfer of ownership is from the moment
 XPN: If the legacy of education was to pursue a professional, of death – subject to the probate of the will. The following therefore
technical or vocational education, then it can be beyond the belongs to the grantee from the death of the testator
age of majority – provided he pursues his course diligently. 1. The devise or legacy itself;
2. The growing fruits;
Legacy for Support 3. The unborn offspring of animals
 GR: It shall last until the lifetime of the legatee 4. Uncollected income (after the death of testator and upon the
 XPN: Unless the testator has provided otherwise. receipt of the legatee or devisee)
a. But not those due and unpaid before the death of
The amount shall be fixed in accordance with the social standing and the testator (rule on After-Acquired Properties)
the circumstances of the legatee and the value of the estate, if it is not
fixed in the will. If the testator, during his lifetime, used to give a certain Res Perit Domino
sum of money then the same amount shall be deemed bequeathed From the moment of death of the testator, the thing shall now be at risk
unless it then be marked disproportionate to the value of the estate. of the legatee or devisee – he now bears the risk of loss or res perit
domino and as well as the advantages of the increase or improvement.
ARTICLE 945
If a periodical pension, or a certain annual, monthly, or weekly ARTICLE 949
amount is bequeathed, the legatee may petition the court for the If the bequest should not be of a specific and determinate thing,
first installment upon the death of the testator, and for the but is generic or of quantity, its fruits and interests from the time
following ones which shall be due at the beginning of each period; of the death of the testator shall pertain to the legatee or devisee
such payment shall not be returned, even though the legatee if the testator has expressly so ordered.
should die before the expiration of the period which has
commenced. Generic Gifts
Since the recipient will not know definitely what he will receive until
Giving of Pensions or Amounts after a selection or choice has been made, it follows that he is entitled
It can only be demanded if: to the fruits only from the time the choice has been made – for it is
1. The testator have died only after such choice the obligation to deliver the gift to him arises.
2. The will has been probated
3. Obligations of the estate must be paid first Exception: If the testator expressly order that the fruits and
4. Legatee may then petition for the first installment upon such interests of the generic thing shall be payable from time of his death.
death and for the following ones which shall be due at the
beginning of each period. ARTICLE 950
If the estate should not be sufficient to cover all the legacies or
ARTICLE 946 devises, their payment shall be made in the following order:
If the thing bequeathed should be subject to a usufruct, the (1) Remuneratory legacies or devises;
legatee or devisee shall respect such right until it is legally (2) Legacies or devises declared by the testator to be
extinguished. preferential;
(3) Legacies for support;
Gift Burdened by Usufruct (4) Legacies for education;
 GR: Upon the death of the testator the rule is that the (5) Legacies or devises of a specific, determinate thing which
usufruct shall be extinguished forms a part of the estate;
(6) All others pro rata
 XPN: When it is provided otherwise, then the estate shall
have no obligation to free property from the usufruct and
Order of Preference for Legacies and Devises
shall pass on to the devisee until legally extinguished.
As discussed in Article 911, Article 950 applies only when the reduction
concerns the legacies and devises. But, when the legitime is impaired
ARTICLE 947
or when there are donations inter vivos chargeable to the free disposal
The legatee or devisee acquires a right to the pure and simple
legacies or devises from the death of the testator, and transmits then Article 911 is the article to apply.
it to his heirs.
Order of Priority [Re-P-S-E-S-A]
Pure and Simple Legacies 1. Remuneratory legacies or devises – these are those given by
If there legacies or devises contain no period nor conditions then once the testator as remuneration for the past services given by
the testator dies and the will is probated and the free portion is then that person to the testator
determined the legacy and devise can now be given to the heir. This 2. Preferential legacies or devises. – those which are indicated
will retroact from the time of death because the operative act of or expressly stated by the testator as preferred.
succession is the death of the testator. 3. Legacies for Support. – Support comprises everything which
is indispensable for the sustenance, medical attendance,
ARTICLE 948 clothing, food and shelter.
If the legacy or devise is of a specific and determinate thing 4. Legacies for Education
pertaining to the testator, the legatee or devisee acquires the 5. Legacies or devises of a Specific, determinate thing which
ownership thereof upon the death of the testator, as well as any forms part of the estate
growing fruits, or unborn offspring of animals, or uncollected 6. All others pro-rata.
income; but not the income which was due and unpaid before the
latter's death. Estate Value: P1,000,000
Heirs: 2 Legitimate Children
From the moment of the testator's death, the thing bequeathed
shall be at the risk of the legatee or devisee, who shall, therefore,
Legitime: P500,000 | Free Portion P500,000
bear its loss or deterioration, and shall be benefited by its
increase or improvement, without prejudice to the responsibility
Computation of Legitime: P250,000 each for the two legitimate children
of the executor or administrator.

Distribution of the Free Portion Legacies of money must be paid in cash, even though the heir or
 If the free portion is sufficient no need to apply Article 950, the estate may not have any.
apply it only when the free portion is insufficient
The expenses necessary for the delivery of the thing bequeathed
Here there was shall be for the account of the heir or the estate, but without
1. Remuneratory Legacy of P200,000 prejudice to the legitime.
2. Preferential Legacy of P50,000
3. Legacy for Support for P180,000 Delivery of the Gift
4. Legacy of Education for P40,000 1. The very thing must be bequeathed and if he is unable to do
5. Devise of a Land in Calinan worth P300,000 so then by paying its value.
6. Jewelry bequeathed to M of P80,000 2. Legacies of money shall be paid in cash even though the
7. Mobile phone bequeathed to N of P60,000 estate does not have any – then the estate shall sell some
properties.
Free Portion
P500,000 Obligation to Deliver
(P200,000) Remuneratory Legacy
 If there is a sub-legacy or sub-devise, then the heir or the
P300,000
legatee or devisee charged with the obligation to deliver;
(P50,000) Preferential Legacy
P250,000  If no one is charged , then the executor or administrator of
(P180,000) Legacy for Support the estate.
P70,000
(P40,000) Legacy for Education Costs: It shall pertain to the one charge (heir or legatee or devisee) but
P30,000 without prejudice to the legitime, in absence thereof the estate.
(P30,000) Devise of Land in Calinan (Specific Devise Part of Estate)
This can no longer be covered fully since FP is insufficient. ARTICLE 953
The legatee or devisee cannot take possession of the thing
Suppose that the devise in Calinan does not form part of the estate: bequeathed upon his own authority, but shall request its delivery
and possession of the heir charged with the legacy or devise, or of
P30,000 – It shall be distributed pro-rata the executor or administrator of the estate should he be
authorized by the court to deliver it.
𝐴𝑚𝑜𝑢𝑛𝑡 𝑜𝑓 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐿𝑒𝑔𝑎𝑐𝑦 𝑜𝑟 𝐷𝑒𝑣𝑖𝑠𝑒
𝑥 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐹𝑃
𝑇𝑜𝑡𝑎𝑙 𝑜𝑓 𝑅𝑒𝑚𝑎𝑖𝑛𝑖𝑛𝑔 𝐿𝑒𝑔𝑎𝑐𝑖𝑒𝑠 𝑎𝑛𝑑 𝐷𝑒𝑣𝑖𝑠𝑒𝑠 Necessity of Making Request for Delivery
While ownership and possession are transmitted from the death of the
Total of Remaining Legacies and Devises testator, actual delivery will have to wait until the will is probated and
 P300,000 (Calinan devise) the debts and obligations of the estate are paid for.
 P80,000 (Jewelry)
 P60,000 (Mobile Phone) ARTICLE 954
 P440,000 The legatee or devisee cannot accept a part of the legacy or devise
and repudiate the other, if the latter be onerous.
5. Devise of P300,000
 (P300,000 / P440,000) x P30,000 Should he die before having accepted the legacy or devise, leaving
 P20,454.55 several heirs, some of the latter may accept and the others may
repudiate the share respectively belonging to them in the legacy
6. Jewelry of P80,000 or devise.
 (P80,000 / P440,000) x P30,000
 P5,454.55 Partly Onerous and Partly Gratuitous Gifts
1. If the devise provides that the second floor of the house must
7. Mobile Phone of P60,000 be maintained clean, the devisee cannot accept the first floor
 (P60,000 / P440,000) x P30,000 only and repudiate the onerous burden on the second floor.
 P4,090.90 2. However, there is no prohibition, to accept only the onerous
and reject the gratuitous.
Check: (P20,454.55) + (P5,454.55) + (P4,090.90) = P30,000 3. If the legatee or devisee died before having accepted the
right to accept or repudiate would passed to the heirs.
Article 911 Article 950
If the testator made donations If there are no compulsory heirs ARTICLE 955
inter vivos and there are even if there are donations. The legatee or devisee of two legacies or devises, one of which is
compulsory heirs. onerous, cannot renounce the onerous one and accept the other.
If both are onerous or gratuitous, he shall be free to accept or
ARTICLE 951 renounce both, or to renounce either. But if the testator intended
that the two legacies or devises should be inseparable from each
The thing bequeathed shall be delivered with all its accessories
other, the legatee or devisee must either accept or renounce both.
and accessories and in the condition in which it may be upon the

death of the testator.
Any compulsory heir who is at the same time a legatee or devisee
may waive the inheritance and accept the legacy or devise, or
Accessions and Accessories renounce the latter and accept the former, or waive or accept
This refers to a specific legacy or devise, thus all accession and the both.
accessories it has at the time of death shall pertain to the recipient.
Onerous and Gratuitous Gifts
ARTICLE 952 1. One cannot renounce the onerous and accept the other but
The heir, charged with a legacy or devise, or the executor or there is no prohibition to accept only the onerous.
administrator of the estate, must deliver the very thing
2. If both are onerous or gratuitous then he shall be free to
bequeathed if he is able to do so and cannot discharge this
accept or renounce both, or renounce either.
obligation by paying its value.

3. But if the testator intended that the two legacies or devises If the alienation was attended with vitiated consent:
should be inseparable from each other, the legatee or  The law also cannot presume revocation since there was no
devisee must either accept or renounce both. voluntariness on the part of the testator. The law presumes
here that the alienation was voluntary.
Compulsory Heir; Waiver  Foreclosure is not covered.
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 [3] Loss
latter and accept the former, or waive or accept both. If the thing bequeathed is totally lost during the lifetime of the testator
or after his death without fault on the part of the heir charged with the
ARTICLE 956 obligation to deliver – the legacy is revoked.
If the legatee or devisee cannot or is unwilling to accept the legacy  But it should be a Specific Thing
or devise, or if the legacy or devise for any reason should become  If it was a generic thing then the obligation to deliver the
ineffective, it shall be merged into the mass of the estate, except bracelet is not extinguished since any bracelet can just be
in cases of substitution and of the right of accretion. deliver.
Effect of Incapacity or Repudiation Nevertheless, the person obliged to pay the legacy or devise shall be
If for some reason the instituted heir cannot accept due to predecease,
liable for eviction if the thing bequeathed should not have been
repudiation or incapacity then follow ISRAI: determinate as to its kind.
1. Check if there is a substitution  If a generic legacy for a car is provided and what was
2. There is no right of representation in the free portion delivered is being claimed by another person and the
3. Check if accretion is proper legatee is disposed of the car, the law provides that he shall
4. If not, then proceed to intestacy. be liable for the eviction.
 Meaning a new car has to be replaced but this applies only
ARTICLE 957 when the legacy is Generic or Indeterminate.
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 ARTICLE 958
denomination it had; 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
(2) If the testator by any title or for any cause alienates the thing testator intended to bequeath or devise.
bequeathed or any part thereof, it being understood that in the
latter case the legacy or devise shall be without effect only with Effect of Mistake in Name of a Thing
respect to the part thus alienated. If after the alienation the thing This is immaterial, as long as the property can be identified. Example is
should again belong to the testator, even if it be by reason of when a table is actually used as a ‘bed’ by the testator.
nullity of the contract, the legacy or devise shall not thereafter be
valid, unless the reacquisition shall have been effected by virtue ARTICLE 959
of the exercise of the right of repurchase; A disposition in general terms in favor of the testator’s relatives
shall be understood to be in favor of those nearest in degree.
(3) If the thing bequeathed is totally lost during the lifetime of the
testator, or after his death without the heir's fault. Nevertheless, Disposition in General Terms
the person obliged to pay the legacy or devise shall be liable for
If the institution states ‘I hereby give 1/4 of my estate to my relatives.’
eviction if the thing bequeathed should not have been
determinate as to its kind, in accordance with the provisions of The relatives meant here are those
article 928. 1. Direct Line – without limit
2. Collateral Line – up to fifth degree (5th) of consanguinity
When Legacy or Devise is Without Effect
1. Transformation Article 959 only allows one rule: Rule on Proximity. The nearest
2. Alienation relatives exclude those who are far, there is no right of representation.
3. Loss Unlike in reserva troncal where the ‘descending-ascending-collateral’
rule is considered, this does not apply in Article 959.
[1] Transformation
If the transformation result to the thing not retaining its form or the I hereby give 1/4 of my estate to all those entitled thereto.
denomination it had.
 Form – the external or outward appearance of a thing Then the legal succession shall apply. Thus Article 959 shall not be
 Denomination – the name usually given to it by the public applied. This now pertains to the rule on legal succession where
according to its essential elements 1. Direct line are favored over the collateral line
Ex.: Ring is transformed into earrings. Different form and denomination 2. Descending line are favored over the ascending line
there is even difference in quantity. Then the legacy is revoked. 3. There is a right to representation.
[2] Alienation END OF SECOND EXAM COVERAGE

Alienation whether by sale or donation is an implied revocation of the
legacy or device. It is revoked by operation of law.
 Even if the property shall be reacquired by the testator, the
legacy or devise is still revoked by operation of law, even if
it by reason of the nullity of the contract, what matters is that
it was alienated by the testator.
If there was a sale with a right of repurchase or pacto de retro sale:
 The law will not presume revocation because by reserving
the right to repurchase, the law sees that the testator wanted
to honor the legacy or devise.


Codicils and Incorporation by Reference: Article 825

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Notes on Wills and Succession | Reginald Matt Santiago | SY 2019-2020 82

Formalities of Codicils 3. It must be identified by clear and satisfactory proof as the

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Requirement to be Stated in the Face of the Will ARTICLE 829

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

2. Revocation by Subsequent Document or Instrument “Crumpling” in Roxas v. Roxas (48 OG 2177)

Validity requirement from Admittance to Probate requirement Burden of Proof

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

ARTICLE 831 NAVAL v. NAVAL

Held: While a former will is by operation of law revoked by a VALID

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

ARTICLE 837 MANINANG v. CA

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Two Phases of Probate Proceedings Other Relevant jurisprudence

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

(2) Subject to Exceptions as Justified by Expediency and Convenience. - MORALES v. OLONDRIZ

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

The will provided that:

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

If child dies after delivery: ARTICLE 843

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

4. The omission must be compulsory heirs in the direct line Distribution:

Groups of Compulsory Heirs A B C D

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Distribution shall be (in millions): 𝑃6,000,000 𝑃500,000 𝑒𝑥𝑐𝑒𝑠𝑠 𝑃5,500,000

In addition, note that free portion will be divided to four instituted

SECOND METHOD Distribution shall be as follows (in millions)

Legitime Free Portion Total

𝑃10𝑀 𝑉𝑎𝑙𝑢𝑒 𝑜𝑓 𝐸𝑠𝑡𝑎𝑡𝑒 𝑃. 5𝑀 𝐷𝑜𝑛𝑎𝑡𝑖𝑜𝑛 𝑡𝑜 𝐷 𝑃10.5𝑀

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Distribution of Free Portion: Distribution of Legitime:

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Then the remaining P2M that is undisposed by will shall be distributed

Legitime Free Portion Total 𝑃2,000,000

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

ARTICLE 855 [2] Legitime

It is a rule that the legitime should not be subject to conditions,

[1] Free Portion

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

A died ahead of the testator. A repudiates his inheritance.

If an Heir Predecease the Testator Effect of Repudiation of Inheritance

Per Stirpes Section 3

A and B died ahead of the testator. Substitution of Heirs

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

ARTICLE 858 2. Compendious Substitution – when one takes the place of

Ex.: A is the original heir and in case of predecease, incapacity or of the

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d

Summarized from the discussions of Atty. Lielanie C. Yangyang-Espejo, CPA d