Wills Case Doctrines

Art. 774
Estate of K. H. Hemady v. Luzon Surety
(1956) [6]
The responsibility of the heirs for the debts of
their decedent cannot exceed the value of the
inheritance they receive from him. Heirs
succeed not only to the rights of the deceased
but also to his obligations.
General rule: a partys contractual rights and
obligations are transmissible to the
successors.
Exceptions under Art. 1311:
1) Nature of the obligation
2) Intransmissibility by stipulation of the
parties
3) Obligation is not transmissible by operation
of law
Art. 777
Unson v. Del Rosario (1953) [12]
The law in force at the time of the decedents
death will determine who the heirs should be.
Art. 2253 provides that rights which are
declared for the first time by the new Civil
Code shall have retroactive effect even
though the event which gave rise to them may
have occurred under the former legislation,
but this is so only when the new rights do not
prejudice any vested or acquired right of the
same origin. In instant case, Ms right of
ownership over the lands became vested in
1945 upon the death of her husband. The new
right in favor of the illegitimate children by the
deceased cannot be asserted to the
impairment of the vested right of M over the
lands in dispute.
De Borja v. Vda de Borja (1972) [14]
Ownership passes to the heir at the very
moment of death, who therefore, from that
moment acquires the right to dispose of his
share
Hereditary share in a decedents estate is
transmitted or vested immediately from the
moment of the death of such causante or
predecessor in interest. Thus, there is no legal
bar to a successor (with requisite contracting
capacity) disposing his hereditary share
immediately after such death, even if the
actual extent of such share is not determined
until the subsequent liquidation of the estate.

Bonilla v. Barcena (1976) [16]

The heirs have the right to be substituted for
the deceased as party on an action that
survives.
While it is true that a person who is dead
cannot sue in court, yet he can be substituted
by his heirs in pursuing the case up to its
completion.
The moment of death is the determining
factor when the heirs acquire a definite right to
the inheritance whether such right be pure or
contingent. Thus, when F died, her claim or
right to the parcel s of land in litigation was not
extinguished by her death but was transmitted
to her heirs upon her death. Her heirs have
thus acquired interest in the properties in
litigation and became parties-in-interest in the
case.
The question as to whether an action
survives or not depends on the nature of the
action and the damage sued for.
1) Survive: wrong complained of affects
primarily and principally property and property
rights, the injuries to the person being merely
incidental
2) Not survive: injury complained of is to the
person, the property and rights of property
affected being incidental.
In instant case, an action to quiet title over
land in litigation affects primarily and
principally property and property rights, and
therefore is one that survives even after Fs
death.
Art. 804
Suroza v. Honrado (1981) [41]
Art. 804 provisions are mandatory.
Consequently, failure to comply with the two
requirements nullifies the will.
The will on its face is void because it is
written in English, a language not known to
the illiterate testatrix, and which is probably a
forged will because she and the attesting
witnesses did not appear before the notary as
admitted by the notary himself.
A judge who admits to probate such a will
should face disciplinary action. In the absence
of opposition, the judge should have
personally conducted the hearing on the
probate of the will so that he could have
ascertained whether the will was validly
executed.

Abangan v. Abangan (1919) [46]

It may sometimes be presumed that the
testator knew the language in which the will
was written.
The circumstance appearing in the will itself
that the same was executed in Cebu and in
the dialect of this locality where the testatrix
was a neighbor [sic] is enough, in the absence
of any proof to the contrary, to presume that
she knew this dialect in which the will was
written.
RFB: same ruling in Gonzales v. Laurel
(1923). On the authority of these cases it
seems that, in order for the presumption to
apply, the following must appear:
1) The will must be in language or dialect
generally spoken in the place of execution;
and
2) The testator must be a native or resident of
said locality
Art. 806
Payad v. Tolentino (1936) [49]
Thumb mark as signature.
Testatrix, assisted by counsel, placed her
thumb mark on each and every page of the
questioned will and that said counsel merely
wrote her name to indicate the place where
she placed said thumb mark. In other words,
counsel did not sign for the testatrix. She
signed by placing her thumb mark on each
and every page thereof. A statute requiring a
will to be signed is satisfied if the signature is
made by the testators mark. It is clear,
therefore, that it was not necessary that the
attestation clause in question should state that
the testatrix requested her counsel to sign her
name inasmuch as the testatrix signed the will
in question in accordance with law.
Matias v. Salud (1958) [50]
The legal requisite that the will should be
signed by testator is satisfied by a thumbprint
or other mark affixed by him; and that where
such mark is affixed by the decedent, it is
unnecessary to state in the attestation clause
that another person wrote the testators name
at his request.
In the instant case, it was shown that the
herpes zoster that afflicted the right arm and
shoulder of the testatrix made writing a difficult
and painful act, to the extent that, after writing

one signature on the second page, she

dropped the pen because of an attack of pain
that lasted many minutes, and evidently
discouraged attempts to sign.
It is to be conceded that where a testator
employs an unfamiliar way of signing, and
both the attestation clause and the will are
silent on the matter, such silence is a factor to
be considered against the authenticity of the
testament; but the failure to describe the
unusual signature by itself alone is not
sufficient to refuse probate when the evidence
for the proponent fully satisfies the court that
the will was executed and witnessed as
required by law.
Garcia v. Lacuesta (1951) [54]
A cross as signature.
It is not here presented that the cross
appearing on the will is the usual signature of
the testator or even one of the ways by which
he signed his name. The mere sing of a cross
cannot be likened to a thumbmark, because
the cross cannot and does not have the
trustworthiness of a thumbmark.
Barut v. Cabacungan (1912) [56]
When agent must write.
As regards the validity of the will, it is
unimportant whether the person who writes
the name of the testatrix signs his own or not.
The important thing is that it clearly appears
that the name of the testatrix was signed at
her express direction in the presence of the
three witnesses and that they attested and
subscribed it in her presence and in the
presence of each other.
It may be wise, as a practical matter that the
one who signs the testators name signs also
hi own; but that is not essential to the validity
of the will.
Nera v. Raymundo (1911) [61]
Signing in the presence of witnesses
Jaboneta v. Gustilo: The true test of
presence of the testator and the witnesses in
the execution of a will is not whether they
actually saw each other sign, but whether they
might have seen each other sign, had they
chosen to do so, considering their mental and
physical position with relation to each other at
the moment of inscription of each signature.
The position of the parties with relation to

each other at the moment of the subscription

of each signature must be such that they may
see each other sign if they choose to do so.
Jaboneta doctrine: the question whether the
testator and the subscribing witnesses to an
alleged will sign the instrument in the
presence of each other does not depend upon
proof of the fact that their eyes were actually
cast upon the paper at the moment of its
subscription by each of them, but that at that
moment existing conditions and their position
with relation to each other were such that by
merely casting their eyes in the proper
direction they could have seen each other
sign.
Icasiano v. Icasiano (1964) [64]
The inadvertent failure of one witness to affix
his signature to one page of a testament, due
to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to
justify denial of probate. That the failure of the
witness to sign page three was entirely
through pure oversight is shown by his own
testimony as well as by the duplicate copy of
the will, which bears a complete set of
signatures in every page.
RFB: The Icasiano holding cannot, and should
not, be taken as a departure from the rule that
the will should be signed by the witnesses on
every page. The carbon duplicate was regular
in all aspects. A cavalier disregard of the
formal requirements of wills in reliance on
Icasiano is not recommended.
Cagro v. Cagro (1953) [68]
The signatures of the witnesses must be at
the bottom of the attestation clause.
Fact: signature of the three witnesses do not
appear on the bottom of the attestation
clause, but the page containing the clause is
signed by the witnesses on the left-hand
margin.
The attestation clause is a memorandum of
the facts attending the execution of the will
required by law to be made by the attesting
witnesses, and it must necessarily bear their
signature. An unsigned attestation clause
cannot be considered as an act of the
witnesses, since the omission of their
signature at the bottom thereof negatives their
participation.
The signatures on the left-hand margin

cannot be deemed as their signature to the

clause because said signatures are in
compliance with the legal mandate that the
will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by
the witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add
such clause to a will on a subsequent
occasion and in the absence of the testator
and any or all of the witnesses.
Dissenting opinion of Bautista Angelo: (a)
substantial compliance; (b) the uncontradicted
testimony of the witnesses that the clause was
already written in the will when the same was
signed obviates fear of the majority that the
clause may have been only added on a
subsequent occasion and not at the signing of
the will.
Javellana v. Ledesma (1955) [70]
Acknowledgement before a notary public.
Fact: Codicil signed by testatrix and
witnesses at the hospital; the notary public
brought the codicil to his office, and signed
and sealed it there.
Whether or not the notary signed the
certification of acknowledgement in the
presence of the testatrix and the witnesses
does not affect the validity of the codicil. The
Civil Code does not require that the signing of
the testator, witnesses and notary should be
accomplished in one single act.
The subsequent signing and sealing by the
notary of his certification that the testament
was duly acknowledged by the participants
therein is not part of the acknowledgement
itself nor of the testamentary act.
RFB: (a) ratio: The certification of
acknowledgement need not be signed in the
presence of the testator and the witnesses; (b)
obiter: Art. 806 does not require that the
testator and the witnesses must acknowledge
on the same day that it was executed.
Cruz v. Villasor (1973) [72]
The notary public cannot be counted as one
of the attesting witnesses.
The notary public before whom the will was
acknowledged cannot be considered as the
third instrumental witness since he cannot
acknowledge before himself his having signed
the will. If the third witness were the notary
public himself, he would have to avow, assent,

or admit his having signed the will in front of

himself. This cannot be done because he
cannot split his personality into two so that
one will appear before the other to
acknowledge his participation in the making of
the will.
Furthermore, the function of the notary public
is, among others, to guard against any illegal
or immoral arrangement. That function would
be defeated if the notary public were one of
the attesting or instrumental witnesses. For
then he would be interested in sustaining the
validity of his own act.
To allow the notary public to act as third
witness, or one of the attesting and
acknowledging witnesses, would have the
effect of having only two attesting witnesses to
the will which would be in contravention of the
Article 805 requiring at least three credible
witnesses to act as such and of Article 806
which requires that the testator and the
required number of witnesses must appear
before the notary public to acknowledge the
will.
Art. 808
Garcia v. Vasquez (1970) [75]
Provision of Article 808 mandatory.
Fact: testatrixs vision was mainly for viewing
distant objects and not for reading print.
For all intents and purposes of the rules on
probate, the testatrix was not unlike a blind
testator, and the due execution of her will
would have required observance of Article
808. The rationale behind the requirement of
reading the will to the testator if he is blind or
incapable of reading the will himself (as when
he is illiterate) , is to make the provisions
thereof known to him, so that he may be able
to object if they are not in accordance with his
wishes.
Alvarado v. Gaviola (1993) [80]
The requirement has been liberally applied,
the SC declaring substantial compliance to be
sufficient.
Facts: The lawyer who drafted the will and
subsequent codicil read them aloud in the
presence of the testator, the three
instrumental witnesses and the notary public.
The latter four followed the reading with their
own respective copies previously furnished
them.

Substantial compliance is acceptable where

the purpose of the law has been satisfied,
because the solemnities surrounding the
execution of wills are intended to protect the
testator from all kinds of fraud and trickery but
are never intended to be so rigid and inflexible
as to destroy testamentary privilege.
It was not only the lawyer who read the
documents. The notary public and the three
instrumental witnesses likewise read the will
and codicil, albeit silently. With four persons
following the reading word with their own
copies, it can be safely concluded that the
testator was reasonably assured that what
was read to him (those which he affirmed
were in accordance with his instructions),
were the terms actually appearing in the
typewritten documents.
Art. 809
Caneda v. CA (1993) [87]
Fact: petitioners aver that the attestation
clause is fatally defective since it fails to
specifically state that the instrumental
witnesses to the will witnessed the testator
signing the will in their presence and that they
also signed the will and all the pages thereof
in the presence of the testator and of one
another.
SC agrees with petitioners. The absence of a
statement that the witnesses signed the will
and every page thereof in the presence of the
testator and of one another is a fatal defect
which must necessarily result in the
disallowance of the will. Such defect in the
attestation clause cannot be characterized as
merely involving form of the will or the
language used therein which would warrant
the application of the substantial compliance
rule contemplated in Art. 809. The defect is
not only in the form or the language of the
attestation clause but the total absence of a
specific element required by Art. 805 to be
specifically stated in the attestation clause.
Proper interpretation of the substantial
compliance rule in Art. 809: Omission which
can be supplied by an examination of the will
itself, without the need of resorting to extrinsic
evidence, will not be fatal and,
correspondingly, would not obstruct the
allowance to probate of the will being
assailed. However, those omissions which
cannot be supplied except by evidence

aliunde (from another source, from

elsewhere, from outside source) would result
in the invalidation of the attestation clause and
ultimately, of the will itself.

Art. 810
Roxas v. De Jesus (1985) [103]
Issue: whether FEB./61 appearing in the
holographic will is a valid compliance with Art.
810.
A complete date is required to provide
against such contingencies as that of two
competing wills executed on the same day, or
of a testator becoming insane on the day on
which a will was executed. There is no
contingency in this case.
As a general rule, the date in a holographic
will should include the day, month, and year of
its execution. However, when, as in the case
at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the
authenticity of the will is established and the
only issue is whether or not the date FEB./91
is a valid compliance with Art. 810, probate of
the holographic will should be allowed under
the principle of substantial compliance.
Labrador v. CA (1990) [105]
Fact: date appears in the body of the
holographic will.
The law does not specify a particular location
where the date should be placed in the will.
The only requirements are that the date be in
the will itself and executed in the hand of the
testator. Both requirements are present in the
subject will.
Art. 811
Azaola v. Singson (1960) [110]
The three-witness provision in case of
contested holographic wills is directory, not
mandatory.
Since the authenticity of the will was not
contested, proponent was not required to
produce more than one witness; but even if
the genuineness of the holographic will were
contested, Art. 811 cannot be interpreted as to
require the compulsory presentation of three
witnesses to identify the handwriting of the
testator, under the penalty of having the
probate denied.

Since no witness may have been present at

the execution of a holographic will, none being
required by law, it becomes obvious that the
existence of witnesses possessing the
requisite qualifications is a matter beyond the
control of the proponent.
Art. 811 foresees the possibility that no
qualified witness may be found (or what
amounts to the same thing, that no competent
witness may be willing to testify to the
authenticity of the will, and provides for resort
to expert evidence to supply the deficiency.
Such resort to expert evidence is conditioned
by if the Court deem it necessary, which
reveal that what the law deems essential is
that the Court should be convinced of the
wills authenticity. Since the law leaves it to
the trial court to decide if experts are still
needed, no unfavorable inference can be
drawn from a partys failure to offer expert
evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay
witnesses.
SCs conclusion: the rule of Art. 811, par. 1,
is merely directory and is not mandatory.
Codoy v.Calugay (1999)
Fact: holographic will challenged for forgery.
6 witnesses of proponent did not categorically
state that they know the handwriting and
signature of the testatrix; whereas, 2 did so.
Issue: whether the provisions of Art. 811 is
mandatory, i.e., for probate of contested
holographic will at least three witnesses
explicitly declare the signature in the will is the
genuine signature of the testator.
SC (Pardo): We are convinced, based on
the language used, that Article 811is
mandatory. We have ruled that shall in a
statute commonly denotes an imperative
obligation and is inconsistent with the idea of
discretion and that the presumption is that the
word shall when used in a statute is
mandatory. Case remanded because the
Court found that the testimony of the
aforesaid 2 witnesses was not convincing.
Query: has this ruling reversed Azaola,
supra.?
1) Azaola is not on all fours with this case.
Here, the will was contested (ground: forgery),
in Azaola the will was not contested.
2) RFBs personal view: No, because the
basis of the remandthat the Court did not

find the testimony of the 2 witnesses

satisfactoryis perfectly consistent with
Azaola that quality of the testimony, not the
quantity of the witnesses, is the criterion.
Thus, SCs statement that three-witness rule
is mandatory is an obiter. We can read Azaola
and Godoy together.
Gan v. Yap (1958) [114]
In the probate of a holographic will, the
document itself must be produced. Therefore,
a lost holographic will cannot be probated.
When the will itself is not submitted, the
means of opposition and of assessing the
evidence, are not available. And then, the only
guaranty of authenticitythe testators
handwritinghas disappeared.
The execution and the contents of a lost or
destroyed holographic will may not be proved
by the bare testimony of witnesses who have
seen and/or read such will.
Ordinary vs. holographic wills. The difference
lies in the nature of wills. In holographic wills,
the only guarantee of authenticity is the
handwriting itself; in ordinary wills, the
testimony of the subscribing or instrumental
witnesses and of the notary. The loss of the
holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to
authenticate.
Rodelas v. Aranza (1982) [122]
Exception to the Gan ruling.
Issue: whether a lost holographic will can be
proved by means of a photostatic copy.
Evidently, the photostatic or xerox copy of
the lost or destroyed holographic will may be
admitted because the authenticity of the
handwriting of the deceased can be
determined by the probate court (i.e.,
comparison can be made with the standard
writings of the testator.
Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
Issue: whether the original unaltered text
after subsequent alterations and insertions
were voided by the Trial Court for lack of
authentication by full signature of the testatrix,
should be probated or not.
Velasco v. Lopez: when a number of

erasures, corrections, and interlineations

made by the testator in a holographic will
have not been noted under his signature, the
will is not thereby invalidated as a whole, but
at most only as respects the particular words,
erased, or interlined.
However, when as in this case, the
holographic will in dispute had only one
substantial provision, which was altered by
substituting the original heir with another, but
which alteration did not carry the requisite of
full authentication by the full signature of the
testator, the effect must be that the entire will
is voided or revoked for the simple reason that
nothing remains in the will after that which
could remain valid. To state that the will as
first written should be given efficacy is to
disregard the seeming change of mind of the
testatrix. But that change of mind can neither
be given effect because she failed to
authenticate it in the manner required by lay
by affixing her full signature.
Velasco ruling must be held confined to such
insertions, cancellations, erasures or
alterations in a holographic will, which affect
only the efficacy of the altered words
themselves but not the essence and validity of
the will itself.
Subsection 4-Witnesses to Wills
Article 821
Gonzales vs. CA
Under the law, there is no mandatory
requirement that the witness testify initially or
at any time during the trial as to his good
standing in the community, his reputation for
trustworthiness and reliableness, his honesty
and uprightness in order that his testimony
may be believed and accepted by the trial
court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code
are complied with, such that the soundness of
his mind can be shown by or deduced from
his answers to the questions propounded to
him, that his age (18 years or more) is shown
from his appearance, testimony, or
competently proved otherwise, as well as the
fact that he is not blind, deaf or dumb and that
he is able to read and write to the satisfaction
of the Court, and that he has none of the
disqualifications under Article 821 of the Civil

Code. The attributes of the good standing of

the witness in the community, his reputation
for trustworthiness and reliableness, his
honesty and uprightness are presumed of the
witness unless the contrary is proved
otherwise by the opposing party.
In probate proceedings, the instrumental
witnesses are not character witnesses for they
merely attest the execution of a will or
testament and affirm the formalities attendant
to said execution.
Credible witnesses' mean competent
witnesses and not those who testify to facts
from or upon hearsay.
Subsection 6
Article 830
Maloto vs. CA
It is clear that the physical act of destruction of
a will, like burning in this case, does not per
se constitute an effective revocation, unless
the destruction is coupled with animus
revocandi on the part of the testator. It is not
imperative that the physical destruction be
done by the testator himself. It may be
performed by another person but under the
express direction and in the presence of the
testator. Of course, it goes without saying that
the document destroyed must be the will
itself."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 accompanied by
the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out
by the testator or by another person in his
presence and under his express direction.
Gago vs. Mamuyac
The law does not require any evidence of the
revocation or cancellation of the will to be
preserved. It therefore becomes difficult at
times to prove the cancellation or revocation
of wills. The fact that such cancellation or
revocation has taken place must either remain
unproved or be inferred from evidence
showing that after due search the original will
cannot be found. Where a will which cannot
be found is shown to have been in the

possession of the testator, when last seen, the

presumption is in the absence of other
competent evidence, that the same was
cancelled or 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. It will not be
presumed that such will has been destroyed
by any other person without the knowledge or
authority of the testator.

Subsection 8- Allowance and Disallowance of

Wills
Article 838
Guevara vs. Guevara
The proceeding for the probate of a will is one
in rem, with notice by publication to the whole
world and with personal notice to each of the
known heirs, legatees, and devisees of the
testator. Although not contested, the due
execution of the will and the fact that the
testator at the time of its execution was of
sound and disposing mind and not acting
under duress, menace, and undue influence
or fraud, must be proved to the satisfaction of
the court, and only then may the will be
legalized and given effect by means of a
certificate of its allowance, signed by the
judge and attested by the seal of the court;
and when the will devises real property,
attested copies thereof and of the certificate of
allowance must be recorded in the register of
deeds of the province in which the land lies. It
will readily be seen from the above provisions
of the law that the presentation of a will to the
court for probate is mandatory and its
allowance by the court is essential and
indispensable to its efficacy.
The heirs may not disregard the provisions of
the will unless those provisions are contrary to
law. Neither may they do away with the
presentation of the will to the court for
probate, because such suppression of the will
is contrary to law and public policy. The law
enjoins the probate of the will and public

policy requires it, because unless the will is

probated and notice thereof given to the
whole world, the right of a person to dispose
of his property by will may be rendered
nugatory,
De la Cerna vs. Potot
In a case where a joint will between husband
and wife was executed and the will was
probated when the husband died before the
effectivity of the Civil Code, the final decree of
probate has conclusive effect as to the last will
and testament, despite the fact that even then
the Civil Code already decreed the invalidity
of joint wills. A final judgment rendered on a
petition for the probate of a will is binding
upon the whole world and public policy and
sound practice demand that at the risk of
occasional errors, judgment of courts should
become final at some definite date fixed by
law. The probate decree of the will of the
husband could only affect the share of the
deceased husband. It could not include the
disposition of the share of the wife who was
then still alive, and over whose interest in the
conjugal properties the probate court acquired
no jurisdiction, precisely because her estate
could not then be in issue. It follows that the
validity of the joint will, in so far as the estate
of the wife was concerned, must be, on her
death, reexamined and adjudicated de novo,
since a joint will is considered a separate will
of each testator. Thus, probate of the wifes
will is denied as joint wills are now prohibited
by the Civil Code.

the issue as to the voluntariness of its

execution cannot be raised anymore.
The following are included in the term formal
validity and therefore are conclusively settled
by a final decree of probate:
i. that the testator was of sound and disposing
mind
ii. that his consent was not vitiated
iii. that the will was signed by the requisite
number of witnesses
iv. that the will is genuine
Nepomuceno vs. CA
The general rule is that in probate
proceedings, the court's area of inquiry is
limited to an examination and resolution of the
extrinsic validity of the Will. The rule, however,
is not inflexible and absolute. Given
exceptional circumstances, the probate court
is not powerless to do what the situation
constrains it to do and pass upon certain
provisions of the Will. The probate of a will
might become an idle ceremony if on its face
it appears intrinsically void. Where practical
considerations demand that the intrinsic
validity of the will be passed upon, even
before it is probated, the court should meet
the issue.

SECTION 2- Institution of Heir

Article 850
Austria vs. Reyes

Gallanosa vs. Arcangel

A decree of probate is conclusive as to the
due execution or formal validity of a will. That
means that the testator was of sound and
disposing mind at the time when he executed
the will and was not acting under duress,
menace, fraud, or undue influence; that the
will was signed by him in the presence of the
required number of witnesses, and that the
will is genuine and is not a forgery.
Accordingly, these facts cannot again be
questioned in a subsequent proceeding, not
even in a criminal action for the forgery of the
will. After the finality of the allowance of a will,

Before the institution of heirs may be annulled

under article 850 of the Civil Code, the
following requisites must concur: First, the
cause for the institution of heirs must be
stated in the will; second, the cause must be
shown to be false; and third, it must appear
from the face of the will that the testator would
not have made such institution if he had
known the falsity of the cause.

Article 854

Reyes vs. Barretto-Datu

If there is a compulsory heir in the direct line,
such heir is instituted in the will, and the
testamentary disposition given to such heir is
less than her legitime, there is no preterition.
There is no total omission, inasmuch as the
heir received something from the inheritance.
The remedy is for completion of legitime
under Articles 906 and 907.

will tear up by the roots the fabric of the

statute. (Note that what was involved here
was a universal institution of a sole heir,
nothing more. Article 854 annuls his
institution, thus no more heirs are left. Hence,
the entire will is void.)

Aznar vs. Duncan

Manresa defines preterition as the omission of
the heir in the will, either by not naming him at
all or, while mentioning him as father, son,
etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to
him some part of the properties. In a case
where the testator left to one who was a
forced heir a legacy worth less than the
legitime, but without referring to the legatee as
an heir or even as a relative, and willed the
rest of the estate to other persons, it was held
that Article 815 applied, and the heir could not
ask that the institution of heirs be annulled
entirely, but only that the legitimate be
completed.
Acain vs. IAC
An adopted child, if totally omitted in the
inheritance, is preterited and can invoke its
protection and consequences. Since an
adopted child is given by law the same rights
as a legitimate child, the adopted child can, in
proper cases, invoke Article 854 in the same
manner a legitimate child can.

SECTION 3-Substitution of Heirs

Article 863
Palacios vs. Ramirez
What is meant by "one degree" from the first
heir is explained by Tolentino as follows:
"Scaevola, Maura, and Traviesas construe
'degree' as designation, substitution, or
transmission. The Supreme Court of Spain
has decidedly adopted this construction. From
this point of view, there can be only one
transmission or substitution, and the substitute
need not be related to the first heir. Manresa,
Morell, and Sanchez Roman, however,
construe the word 'degree' as generation, and
the present Code has obviously followed this
interpretation, by providing that the
substitution shall not go beyond one degree
'from the heir originally instituted.' The Code
thus clearly indicates that the second heir
must be related to and be one generation
from the first heir.
"From this, it follows that the fideicommissary
can only be either a child or a parent of the
first heir. These are the only relatives who are
one generation or degree from the fiduciary."

Nuguid vs. Nuguid

PCI Bank vs. Escolin
To 'annul' means to abrogate, to make void.
The word annul employed in the statute
(Article 854) means that the universal
institution of petitioner to the entire inheritance
results in totally abrogating the will. Because,
the nullification of such institution of universal
heir without any other testamentary
disposition in the will amounts to a
declaration that nothing at all was written.
Carefully worded and in clear terms, Article
854 offers no leeway for inferential
interpretation. Giving it an expansive meaning

If there is no absolute obligation imposed

upon the first heir to preserve the property
and transmit it to a second heir, there is no
fideicomisaria. The institution is not
necessarily void; it may be valid as some
other disposition, but it is not a fideicomisaria.
SECTION 5- Legitime
Article 887

Rosales vs. Rosales

The surviving spouse referred to in Article 887
who is entitled to the legitime, is the spouse of
the decedent and not the spouse of a child
who has predeceased the decedent.

The reserva troncal only applies to properties

inherited by an ascendant or a brother or
sister. It does not apply to property inherited
by a descendant from his ascendant, the
reverse of the situation covered by Article 891.
Padura vs. Baldovino

Lapuz vs. Eufemio

An action for legal separation which involves
nothing more than the bed-and-board
separation of the spouses (there being no
absolute divorce in this jurisdiction) is purely
personal. Being personal in character, it
follows that the death of one party to the
action causes the death of the action itself
actio personalis moritur cum persona. Thus,
death of either party during the pendency of a
petition for legal separation results in the
dismissal of the case.
Nial vs. Badayog
May the heirs of a deceased person file a
petition for the declaration of nullity of his
marriage after his death? Petitions for the
declaration of the voidability of a marriage can
only be brought during the lifetime of the
parties and not after the death of either. A void
marriage, on the other hand, can be brought
even after the death of either party. The Code
is silent as to who can file a petition for
declaration of nullity of marriage. Any proper
interested party (heirs of the deceased
husband) may attack a void marriage.
Baritua vs. CA
Legitimate ascendants (parents of the
deceased) succeed only when the
descendant dies without a legitimate
ascendant. The surviving spouse concurs with
all classes of heirs. Thus, where an obligation
has been paid to the spouse and
descendants, the obligation is extinguished
and the legitimate ascendants have no right to
claim upon the obligation.
Article 891
Solivio vs. CA

The reserva troncal is a special rule designed

primarily to assure the return of the reservable
property to the third degree relatives
belonging to the line from which the property
originally came, and avoid its being dissipated
into and by the relatives of the inheriting
ascendant.
The reserva merely determines the group of
relatives to whom the property should be
returned; but within that group the individual
right to the property should be decided by the
applicable rules of ordinary intestate
succession, since Article 891 does not specify
otherwise. (RFB: Those reservatarios nearer
in degree to the prepositus will exclude the
more remotely related.)
Florentino vs. Florentino
I Any ascendant who inherits from his
descendant any property, while there are
living, within the third degree, relatives of the
latter, is nothing but a life usufructuary or a
fiduciary of the reservable property received.
He is, however, the legitimate owner of his
own property which is not reservable property
and which constitutes his legitime, according
to article 809 of the Civil Code. But if,
afterwards, all of the relatives, within the third
degree, of the descendant (from whom came
the reservable property) die or disappear, the
said property becomes free property, by
operation of law, and is thereby converted into
the legitime of the ascendant heir who can
transmit it at his death to his legitimate
successors or testamentary heirs. This
property has now lost its nature of reservable
property, pertaining thereto at the death of the
relatives, called reservatarios, who belonged
within the third degree to the line from which
such property came.
The right of representation cannot be alleged
when the one claming same as a reservatario
of the reservable property is not among the
relatives within the third degree belonging to

the line from which such property came,

inasmuch as the right granted by the Civil
Code in article 811 is in the highest degree
personal and for the exclusive benefit of
designated persons who are the relatives,
within the third degree, of the person from
whom the reservable property came.
Therefore, relatives of the fourth and the
succeeding degrees can never be considered
as reservatarios, since the law does not
recognize them as such.
(RFB: Actually there will be only one instance
of representation among the reservatarios,
i.e., a case of the Prepositus being survived
by brothers/sisters and children of a
predeceased or incapacitated brother or
sister.)
Edroso vs. Sablan
1. The reservistas right over the reserved
property is one of ownership.
2. The ownership is subject to a resolutory
condition, i.e. the existence of reservatarios at
the time of the reservistas death.
3. The right of ownership is alienable, but
subject to the same resolutory condition.
4. The reservistas right of ownership is
registrable.

and, moreover, because they have no title of

ownership or of fee simple which they can
transmit to another, on the hypothesis that
only when the person who must reserve the
right should die before them will they acquire
it, thus creating a fee simple, and only then
will they take their place in the succession of
the descendant of whom they are relatives
within the third degree, that is to say, a second
contingent place in said legitimate succession
in the fashion of aspirants to a possible future
legacy.
Sienes vs. Esparcia
1. The reservatarios have a right of
expectancy over the property.
2. The right is subject to a suspensive
condition, i.e. the expectancy ripens into
ownership if the reservatarios survive the
reservista.
3. The right is alienable, but subject to the
same suspensive condition.
4. The right is registrable.
(Query: Edroso case says reservatarios right
is not alienable, Sienes says it is. Resolve.
Personally, I think Sienes is right.)
Gonzales vs. CFI

The conclusion is that the person required by

article 811 to reserve the right has, beyond
any doubt at all, the rights of use and usufruct.
He has, moreover, for the reasons set forth,
the legal title and dominion, although under a
condition subsequent. Clearly he has, under
an express provision of the law, the right to
dispose of the property reserved, and to
dispose of is to alienate, although under a
condition. He has the right to recover it,
because he is the one who possesses or
should possess it and have title to it, although
a limited and revocable one. In a word, the
legal title and dominion, even though under a
condition, reside in him while he lives. After
the right required by law to be reserved has
been assured, he can do anything that a
genuine owner can do.
On the other hand, the relatives within the
third degree in whose favor the right is
reserved cannot dispose of the property, first
because it is no way, either actually,
constructively or formally, in their possession;

Can a reservista convey by will, reservable

property to relervatarios in the third degree
and by-pass those in the second? NO. Article
891 clearly indicates that the reservable
properties should be inherited by all the
nearest relatives within the third degree from
the prepositus. She could not select the
reservees to whom the reservable property
should be given and deprive the other
reservees of their share therein.
The reservable property does not form part of
the reservistas estate and should be given to
all the seven reservatarios or nearest relatives
of the prepositus within the third degree. While
it is true that by giving the reservable property
to only one reservatario, it did not pass into
the hands of strangers, nevertheless, it is
likewise true that the reservista was only one
of the reservatarios and there is no reason
founded upon law and justice why the other
reservatarios should be deprived of their
shares in the reservable property. The

property passes by strict operation of law.

Cano vs. Director
Upon the death of the reservista, the
reservatario nearest to the prepositus
becomes, automatically and by operation of
law, the owner of the reservable property. That
property is no part of the estate of the
reservista, and does not even answer for the
debts of the latter. Hence, its acquisition by
the reservatario may be entered in the
property records without necessity of estate
proceedings, since the basic requisites
therefor appear of record. It is equally well
settled that the reservable property cannot be
transmitted by a reservista to her or his own
successors mortis causa, so long as a
reservatario within the third degree from the
prepositus and belonging to the line whence
the property came, is in existence when the
reservista dies.
Chapter 3 Legal or Intestate Succession
Article 977
Section 1 General Provisions
Subsection 2 Right of Representation

collateral relatives. It is also supposed that

one of his purposes in acquiring properties is
to leave them eventually to his children as a
token of his love for them and as a provision
for their continued care even after he is gone
from this earth.
There is no question that a legitimate
daughter of a person who predeceased his
parents, and thus their granddaughter, has a
right to represent her deceased father in the
distribution of the intestate estate of her
grandparents. Under Article 981, she is
entitled to the share her father would have
directly inherited had he survived, which shall
be equal to the shares of her grandparents'
other children.
But a different conclusion must be reached for
persons to whom the grandparents were total
strangers. While it is true that the adopted
child shall be deemed to be a legitimate child
and have the same right as the latter, these
rights do not include the right of
representation. The relationship created by
the adoption is between only the adopting
parents and the adopted child and does not
extend to the blood relatives of either party.
Subsection 3 Illegitimate Children
Article 992

Teotico vs. Del Val

Corpus vs. Administrator
The relationship established by adoption is
limited solely to the adopter and the adopted
does not extend to the relatives of the
adopting parents or of the adopted child
except only as expressly provided for by law.
Hence, no relationship is created between the
adopted and the collaterals of the adopting
parents. As a consequence, the adopted is an
heir of the adopter but not of the relatives of
the adopter. Thus, an adopted can neither
represent nor be represented.
Section 2 Order of Intestate Sucession
Subsection 1 Descending Direct Line
Article 979
Sayson vs. CA
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

There is a successional barrier between the

legitimate and illegitimate relatives of the
deceased. The rule in article 943 is now found
in article 992 of the Civil Code which provides
that "an illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same
manner from the illegitimate child".
That rule is based on the theory that the
illegitimate child is disgracefully looked upon
by the legitimate family while the legitimate
family is, in turn, hated by the illegitimate
child. The law does not recognize the blood tie
and seeks to avoid further grounds of
resentment
Leonardo vs. CA
An illegitimate cannot, by right of
representation, claim a share of the estate left

by the legitimate relatives left by his father

considering that, as found again by the Court
of Appeals, he was born outside wedlock as
shown by the fact that when he was born on
September 13, 1938, his alleged putative
father and mother were not yet married, and
what is more, his alleged father's first
marriage was still subsisting. At most,
petitioner would be an illegitimate child who
has no right to inherit ab intestato from the
legitimate children and relatives of his father.
Diaz vs. CA
Article 992 of the New Civil Code provides a
barrier or iron curtain in that it prohibits
absolutely a succession ab intestato between
the illegitimate child and the legitimate
children and relatives of the father or mother
of said legitimate child. They may have a
natural tie of blood, but this is not recognized
by law for the purposes of Art. 992. Between
the legitimate family and the illegitimate family
there is presumed to be an intervening
antagonism and incompatibility. The
illegitimate child is disgracefully looked down
upon by the legitimate family; the family is in
turn, hated by the illegitimate child; the latter
considers the privileged condition of the
former, and the resources of which it is
thereby deprived; the former, in turn, sees in
the illegitimate child nothing but the product of
sin, palpable evidence of a blemish broken in
life; the law does no more than recognize this
truth, by avoiding further grounds of
resentment. So that while Art, 992 prevents
the illegitimate issue of a legitimate child from
representing him in the intestate succession
of the grandparent, the illegitimates of an
illegitimate child can now do so.
Diaz vs. CA
The right of representation is not available to
illegitimate descendants of legitimate children
in the inheritance of a legitimate grandparent.
It may be argued, as done by petitioners, that
the illegitimate descendant of a legitimate
child is entitled to represent by virtue of the
provisions of Article 982, which provides that
"the grandchildren and other descendants
shall inherit by right of representation." Such a
conclusion is erroneous. It would allow

intestate succession by an illegitimate child to

the legitimate parent of his father or mother, a
situation which would set at naught the
provisions of Article 992. Article 982 is
inapplicable to instant case because Article
992 prohibits absolutely a succession ab
intestato between the illegitimate child and the
legitimate children and relatives of the father
or mother. It may not be amiss to state that
Article 982 is the general rule and Article 992
the exception.
The word "relative" as used in Article 992 is
broad enough to comprehend all the kindred
of the person spoken of. The word "relatives"
should be construed in its general
acceptation. Amicus curiae Prof. Ruben
Balane has this to say:
According to Prof. Balane, to interpret the
term relatives in Article 992 in a more
restrictive sense than it is used and intended
is not warranted by any rule of interpretation.
Besides, he further states that when the law
intends to use the term in a more restrictive
sense, it qualifies the term with the word
collateral, as in Articles 1003 and 1009 of the
New Civil Code.
Subsection 4 Surviving Spouse
Article 996
Santillon vs. Miranda
There is a conflict with what the Civil Code
provides as legitime of a spouse and what he
or she may receive by way of intestacy. Art.
892 of the New Civil Code falls under the
chapter on Testamentary Succession;
whereas Art. 996 comes under the chapter on
Legal or Intestate Succession. Art. 892 merely
fixes the legitime of the surviving spouse and
Art. 888 thereof, the legitime of children in
testate succession. While it may indicate the
intent of the law with respect to the ideal
shares that a child and a spouse should get
when they concur with each other, it does not
fix the amount of shares that such child and
spouse are entitled to when intestacy occurs.
Thus, upon intestacy, the provisions of Art.
996 applies.
Chapter 4 Provisions Common to Testate and
Intestate Succession
Section 2 Capacity to Succeed by Will or by

Intestacy
Article 1025
Parish Priest of Roman Catholic Church vs.
Rigor
Where a priest makes a provision in his will
that certain legacies shall pass to his nearest
male relative who pursues priesthood, it is
said to be limited to those living at the time of
the execution of the will. We hold that the said
bequest refers to the testator's nearest male
relative living at the time of his death and not
to any indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee or
legatee must be living at the moment the
succession opens, except in case of
representation, when it is proper" (Art. 1025,
Civil Code).
Section 5 Collation
Article 1061

acceptance, hence any increase in value or

any deterioration or loss thereof is for the
account of the heir or donee.
Thus, it is an error to require a son-in-law of
the decedent to be included in the collation as
he is not a compulsory heir.
Section 6 Partition and Distribution of the
Estate
Subsection 1 Partition
Fajardo vs. Fajardo
There are only two ways in which said
partition could have been made: By an act
inter vivos, or by will. In either case there were
formalities which must be followed. If the
partition was made by an act inter vivos, it
should have been reduced in writing in a
public instrument, because it was a
conveyance of real estate. If by last will and
testament, the legal requisites should have
been observed.

Vizconde vs. CA
Chavez vs. IAC
Collation is the act by virtue of which
descendants or other forced heirs who
intervene in the division of the inheritance of
an ascendant bring into the common mass,
the property which they received from him, so
that the division may be made according to
law and the will of the testator. Collation is
only required of compulsory heirs succeeding
with other compulsory heirs and involves
property or rights received by donation or
gratuitous title during the lifetime of the
decedent. The purpose is to attain equality
among the compulsory heirs in so far as
possible for it is presumed that the intention of
the testator or predecessor in interest in
making a donation or gratuitous transfer to a
forced heir is to give him something in
advance on account of his share in the estate,
and that the predecessors will is to treat all his
heirs equally, in the absence of any
expression to the contrary. Collation does not
impose any lien on the property or the subject
matter of collationable donation. What is
brought to collation is not the property
donated itself, but rather the value of such
property at the time it was donated, the
rationale being that the donation is a real
alienation which conveys ownership upon its

Art. 1080 of the Civil Code clearly gives a

person two options in making a partition of his
estate; either by an act inter vivos or by will.
When a person makes a partition by will, it is
imperative that such partition must be
executed in accordance with the provisions of
the law on wills; however, when a person
makes the partition of his estate by an act
inter vivos, such partition may even be oral or
written, and need not be in the form of a will,
provided that the partition does not prejudice
the legitime of compulsory heirs. (RFB: This
ruling should not be used as it raises
eyebrows very high. It gives a partition an
irrevocable character and allows a
conveyance of the compulsory heirs of their
legitimes even during their lifetimes.)
Legasto vs. Verzosa
A testator may, by an act inter vivos, partition
his property, but he must first make a will with
all the formalities provided for by law. And it
could not be otherwise, for without a will there
can be no testator; when the law, therefore,
speaks of the partition inter vivos made by a
testator of his property, it necessarily refers to

that property which he has devised to his

heirs. A person who disposes of his property
gratis inter vivos is not called a testator, but a
donor. In employing the word "testator," the
law evidently desired to distinguish between
one who freely donates his property in life and
one who disposes of it by will to take effect
after his death.
Article 1082
Tuason vs. Tuason Jr.
Where heirs contracted with a third person to
develop their co-owned lot, with the stipulation
that the co-ownership shall subsist until all the
lots have been sold, is not a violation of Art.
400, and is only a mere incident to the main
object of the partnership, which is to dissolve
the co-ownership.
Article 1088

Garcia vs. Calaliman

Written notice is required for the period of
onemonth for the other co-heirs to redeem
begins to run. Both the letter and spirit of the
new Civil Code argue against any attempt to
widen the scope of the notice specified in
Article 1088 by including therein any other
kind of notice, such as verbal or by
registration. Written notice is indispensable,
actual knowledge of the sale acquired in some
other manners by the redemptioner,
notwithstanding. He or she is still entitled to
written notice, as exacted by the Code, to
remove all uncertainty as to the sale, its terms
and its validity, and to quiet any doubt that the
alienation is not definitive. The law not having
provided for any alternative, the method of
notifications remains exclusive, though the
Code does not prescribe any particular form
of written notice nor any distinctive method for
written notification of redemption