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SUCCESSION TSN

From the lectures of Atty. Lielanie Yangyang-Espejo, CPA


Ateneo de Davao College of Law | Tres Manresa 2015
SECTION 7. Legacies and Devises
October 1, 2015 (ZM)
Art. 924. All things and rights which are within the
commerce of man be bequeathed or devised.
A devise is a specific gift of real or immovable property.
Legacy is a specific gift of personal or movable property. It
also covers intangibles or incorporeal rights. We discussed
before what can be the subjects of succession; the properties,
rights and obligations. So under 924, what can be devised, all
things and rights which are within the commerce of men.
So our discussion before on what properties or rights may be
transmitted through succession that would be the same here.
Take note, 924 only mentions things and rights. It does not
mention obligations. But the subject of succession can be
properties rights and obligations although again in legacies
and devises, who would accept if you hereby bequeath to A
my debt of 1M. nobody will accept that.
Art. 925. A testator may charge with legacies and devises not
only his compulsory heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of
the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond the
amount of the free portion given them. (858a)
For example a legacy or devise is provided in the will. Who
has the obligation to deliver the property devised or
bequeathed? If nobody is charged in particular, then it is the
estate through the executor or administrator. So he or she
should deliver the property devised or bequeathed to the
devisee or legatee. The testator may also charge that
obligation to the compulsory heirs.
The legacy or devise may be part of what has been xxx to the
heir but if it is a compulsory heir it should not exceed the free
portion. It should not affect his legitime. Only that portion
which is given over and above the legitime can be charged
with the legacy or devise.
A legatee or devisee himself may also be charged with the
obligation to deliver the legacy or devise. But again the law
says only to the extent of the value of the legacy or devise
received by them. If they have been given a legacy of 1M the
charge cannot exceed 1M.
If you are a legatee and you have been charged to deliver a
legacy, that legacy which you are to deliver is what we call
SUB LEGACY or if you are devisee and you charged with the
obligation to deliver a devise that is a SUB DEVISE.
Art. 926. When the testator charges one of the heirs with a
legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be liable in
the same proportion in which they may inherit. (859)

So, he may charge one particular heir or all of them. If he


charges one then he alone shall be obliged. For example ang
legacy na nadawat niya is 4M and isa kay 3M and isa kay 2M
and all of them are charged with the obligation to deliver a
legacy to another person worth P200,000 and that 200 shall
be charged to their legacies. How shall they contribute? In
proportion to that they inherit.
Art. 927. If two or more heirs take possession of the estate,
they shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of them
should have been negligent. (n)
So this is one of the provisions of law where you remember
before in your obligations and contracts as a general rule if
two or more debtors concur in one and the same obligation,
the obligation is joint, so each to his own. But there can also
be solidary obligation if the obligation expressly so provides or
if the nature of the obligation provides for solidarity or if the
law provides for solidarity. So this is one the provision of law
which provides for solidarity.
Two or more heirs take possession of the estate. Before
distribution, the estate should be under administration but if
before partition, because there is already partition and the
shares are delivered then to each his own and ilahang
obligation.
But before partition, and that two or more heirs take
possession of the estate and something happens like a house,
A B and C possessed the house and through the negligence of
A the house is burned. Who is liable for the damages? All of
them and their obligation is solidary. Even if one of them is
negligent although among them, they can ask for
reimbursement from the one who was actually negligent. But
as to third persons, as to the estate itself, the obligation is
solidary.
Art. 928. The heir who is bound to deliver the legacy or
devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind.(860)
So for example A is a legatee and then he is also charged to
deliver a legacy like A will deliver to X a Honda civic car. So it
is not specified even if you say Honda civic car as to the plate
number etc, and there are several Honda civic cars in the
estate. There are blue, yellow, white and pink Honda civic
cars. So what if the legatee delivered to sub-legatee the pink
one and then there is actually a problem with that car because
there is a case and eventually the sub-legatee was
dispossessed of that car. There is a warranty on the part of
the legatee.
This warranty will apply only if the legacy is indeterminate and
indicated only as to its kind. Why? Because if the legacy is
indeterminate, the choice as to what shall be delivered
belongs to the legatee, so if he chose to deliver the pink one
and there is a problem he must replace it with another one.
This will not apply if the legacy is specific like if the testator
says, I hereby charge A the obligation to deliver to X this
Honda civic pink with plate number etc. so here the legatee
has no choice. He cannot deliver some other car. He must

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
deliver the car specified by the testator so there is no
warranty here against eviction if it is specific.
Art. 929. If the testator, heir, or legatee owns only a part of,
or an interest in the thing bequeathed, the legacy or devise
shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its
entirety. (864a)
Here, the thing given is only partly owned by the testator or
the heir or legatee charged, and the testator did not specify
as to how much would be given to the legatee like he owns
of the 10 hectare land in Matina and he mentions in the will
that he is giving that land to X as a sub devise. It is
understood that the sub devise is limited only to unless it is
expressly provided otherwise. If the testator says I won but
I am giving the whole to X. so that would be the whole. How
can the estate deliver the whole when the testator only owns
? in that case if the testator knew at the time of the devise
that he did not own the entire things but he mentioned that
he would give the entire thing, there is an implied directive to
the estate to acquire the other half from the owner. If the
owner refuses to give that portion or he demands an
excessive price. In that case the estate would only have to
give the just value of that thing to the legatee or devisee or to
whoever that is to be given.

So even if at the time he made the legacy or devise, dili siya


tag-iya and supposedly it is void and then subsequently the
testator becomes the owner then the legacy or devise
becomes effective.
If you remember 793, the law on after acquired property:
Art. 793. Property acquired after the making of a will shall
only pass thereby, as if the testator had possessed it at the
time of making the will, should it expressly appear by the will
that such was his intention. (n)
As we discussed before, 793 refers to a legacy or devise. 793
simply says that whatever is added to the legacy r devise after
the execution of the will but before the death of the testator
will not go to the legatee or devisee.
Example, the testator devised to A a land 10 hectares in
Matina. At the time of the execution of the will, the land had
10 hectares. but because of accretion two years after the
execution of the will, the land increased in size so nahimo
siyang 11 hectares. upon the death of the testator how much
can the devisee claim? Under 793 only that property existing
as of the time of the execution of the will shall be included in
the legacy or devise; after acquired property shall not be
included.
Exceptions:

Art. 930. The legacy or devise of a thing belonging to


another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition
shall take effect. (862a)

1.

Article 793, unless expressly so provided for by the


testator.

2.

in case of republication by means of a codicil

3.

Article 930.

Again the general rule is that you cannot what you do not
own, if you give by way of legacy or devise a thing which is
not owned by you, and you did not know that you did not own
the thing. So you erroneously believed that you own that
thing so the legacy or devise would be void.

Even if technically the property acquired by the testator is


after acquired property, diba at the time of the execution of
the will dili pa siya ang owner, it only existed after the
execution of the will when the testator acquired ownership
over the thing. Still, even of it is after acquired, the legacy or
devise shall still be effective, so this is the third exception.

I hereby give to A the land which is adjacent to my house


he thought that it was his land but turned out that it was not
owned by him, that will be void.

Take note, 930, the testator at the time of the execution of


the will is not the owner at all of the thing. 929, partly owner

What if, wala pa siya namatay, he made that will and


subsequently the neighbor, the true owner of the land,
donated that land to the testator and subsequently the
testator later died. Can the devisee claim the land? The law
says But if the thing bequeathed, though not belonging to
the testator when he made the will, afterwards becomes his,
by whatever title, the disposition shall take effect. So it is
valid.
If you remember in sales, you sold a property and youre not
the owner of the property. That is not valid. So even if you
deliver the property, there is no transfer of ownership because
the seller is not the owner. But subsequently now becomes
the owner, can he take back the property that the buyer
bought? No. because he is now in estoppels by operation of
law, there is delivery to the buyer. The buyer again by
operation of law immediately becomes the owner of the
property to murag ing-ana gihapon.

siya.

Art. 931. If the testator orders that a thing belonging to


another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or the
estate must acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to alienate the
same, or demands an excessive price therefor, the heir or the
estate shall only be obliged to give the just value of the
thing. (861a)
Take note the same thing in 931, the testator is not the owner
of the thing but he knows he is not the owner and despite
that knowledge he is giving the thing as a devise or legacy.
That is valid. In 930, the testator does not know that he is not
the owner so here the legacy or devise is not valid. Going
back to 931, because he is not the owner of the thing, to give
effect to that devise pr legacy, the estate would have to
acquire the thing. So if the owner refuses to alienate or

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
demands and excessive price, then the estate would have to
give the legatee or devisee the just value of the thing.
Why is it in 930 it is void? In 931 it is valid? Because 931 it is
very clear that the testator knows that he is not the owner but
despite that he is giving the thing. In 930 wala pa kabalo
because when he made the will, he thought that he was the
owner and it was found out that he was not the owner. We
cannot presume that had the testator known that he was not
the owner he would still give the thing. We are not sure of
that. So here the legacy or devise is void. In 931, we are clear
na ihatag jud niya masking kabalo siya na dili iya.
Art. 932. The legacy or devise of a thing which at the time of
the execution of the will already belonged to the legatee or
devisee shall be ineffective, even though another person may
have some interest therein.
If the testator expressly orders that the thing be freed from
such interest or encumbrance, the legacy or devise shall be
valid to that extent. (866a)
In 2000, the testator executed a will. He devised to A a parcel
of land. But A is actually the owner of the land. What is the
status of that devise? It is void. You cannot give to A what A
already owns.
The law says even if another person may have an interest
over the thing. Example, this land is owned by A but he
mortgaged the land because he has a debt of 1M and the
testator devised to A the land. Again, what is the status of
that devise or legacy? It is void? How about the fact that it
was mortgaged? It does not matter because it is still void.
What if the testator says, I hereby give this land to A and I
order the land be given and encumbered to A. it shall be free
from all encumbrances the status is that the devise is void
because it is owned by A. But what is the effect of that
declaration by the testator that it should be free from
encumbrances, that will be given effect. So the estate will pay
the loan of 1M so that the land can be freed from the
mortgage but as to the devise itself, it is void because the
land is owned by A.
Take note, 932, at the time of the execution of the will it is
the legatee or devisee that owns the thing bequeathed or
devised.
Art. 933. If the thing bequeathed belonged to the legatee or
devisee at the time of the execution of the will, the legacy or
devise shall be without effect, even though it may have
subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after such
time, he can claim nothing by virtue of the legacy or devise;
but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate. (878a)
Again the first paragraph refers to a situation where the
legatee or devisee is the owner at the time of the execution of
the will. The legacy or devise is void. What if A sold the land?
In 2001 A sold the land in 2005 at the time of the testators
death, A is actually no longer the owner of the land because

he already sold it in 2001 but he was the owner at the time of


the execution of the will in 2000. Will this have an effect on
the legacy or devise? Just remember as long as the thing
devised or bequeathed is owned by the legacy or devisee at
the time of the execution of the will, it is void even if
subsequently he sold the property. Ang tan-awon nato, time
of the execution of the will.
The second paragraph, the situation is that at the time of the
execution of the will, the legatee or devisee is not the owner.
But subsequently, nakuha niya. So in 2000, the testator
devised to A a land. Dili si A and tag-iya. Maybe the testator
owns it or if some other person the testator knew nga dili
iyaha. So he devised the land to A in 2000. In 2001, the land
was acquired by A. and in 2005 the testator died, A is still the
owner of the land. What is the status of that devise made by
the testator in his will to A? At the time of death, ang tagiya
ato is si legatee or devisee na.
So the law says if he acquired it gratuitously, for example in
2001, gi donate diay tong land kang A, and then iyaha na, he
cannot demand anything at all from the estate. He can claim
nothing by virtue of the legacy or devise. Why? Because the
object of a legacy or devise is for the legatee or devisee to
acquire the thing gratuitously diba. He already acquired it
gratuitously during the lifetime of the testator so wala. But if A
acquired it by onerous title, like gipalit niya in 2001, the estate
would have to reimburse A with the price to give effect to the
intention that the testator wanted to give the land to A
gratuitously. So valid and legacy or devise kay at the time of
the execution of the will, the legatee or devisee is not the
owner.
We also have the term in succession, the term ADEMPTION
it is the process of giving effect inter vivos to a disposition
mortis causa. So naa kay mortis cause disposition but it can
be given effect even during the lifetime of the testator. for
example the testator is the owner of that land, gi donate niya
kang A and land even after he devised, meaning ana, wala na
siyay intention na I devise kay gihatag naman niya during his
lifetime.
Art. 934. If the testator should bequeath or devise something
pledged or mortgaged to secure a recoverable debt before the
execution of the will, the estate is obliged to pay the debt,
unless the contrary intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the
thing bequeathed is burdened, passes with it to the legatee or
devisee. (867a)
Here, the property bequeathed or devised has been pledged
or mortgaged. It doesnt matter under 943 whether the
mortgage or pledge was done before or after the execution of
the will by the testator. I hereby give to A a specific land but
the land is mortgaged. Namatay is testator. is the legacy or
devise valid? Yes because the testator is the owner. What are
the rights of the devisee upon the death of the testator? He
may demand the delivery to him of the land plus he may

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
demand that the etstate pay the debt so that the thing can be
freed from the mortgage or pledge.

and 200k so P500,000 nalang. So that is the legacy of credit


or remission.

So remember, pledge or mortgage to secure a recoverable


debt whether the pledge or mortgage was done before or
after the execution of the will. So the estate will have to pay
the debt so that the pledge or mortgage will be extinguished.

What if instead of paying nangutang nuon siya ug additional.


In 2006, 200k in 2007, 300k. At the time of death ang utang
is 1.5M so how much is the value of the legacy of credit or
remission? 1M which is the value at the time of the execution
of the will or 1.5M, the value at the time of death? Its only
1M. nganung way apil ang additional 500k? Because again,
we have 793, the rule on after acquired properties. So the
additional loans are considered in the nature of after acquired
properties.

Now this will not apply if the thing is burdened not by a


pledge or mortgage to secure a recoverable debt. For
example, the testator owned a land and devised it to A but
the land was used by the testator as a property bond to
secure the provisional liberty of another person. And then the
testator died. Can the devisee demand na I free ang land
from the burden from having been constituted as a property
bond? Walay obligation ang estate. So the burden passes on
to the devisee in that case. Kung misibat tong piniriso na
subject sa bond, wala xxx pud ang property. Unlike kung
pledge or mortagge, na dapat bayaran sa estate ang utang
secured by the pledge or mortgage.
This is the meaning of Any other charge, perpetual or
temporary, with which the thing bequeathed is burdened,
passes with it to the legatee or devisee.
So if it is not pledge or mortgage to secure a recoverable
debt, walay obligation si estate to free that property from that
burden.
Art. 935. The legacy of a credit against a third person or of
the remission or release of a debt of the legatee shall be
effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the
credit or debt which may be due the testator at the time of his
death. (870a)
935 talks about a legacy of credit and a legacy of remission.
For example, D borrowed 1M from the testator. so D is the
debtor of the testator. if in his will the testator says whatever
receivables I may have from D at the time of my death, those
receivables are already considered, remitted or condoned. So
what we have is a legacy of remission in favor of D.
For example the testator said whatever receivables I may
have from D at the time of my death, I am already giving
those receivables to X so what we have in favor of X is a
legacy of credit.
The law says that the legacy of remission or legacy of credit
shall be valid only with respect to those credit or debt which
exist at the time of his death.
For example, the testator made a will in 2005 and nangutang
si D also in 2005 and then in 2006 nibayad si D ug P200,000.
Nibayad napud siyag P300,000 in 2007. Namatay si testator
2010. How muchy would be the legacy of credit or remission?
Only that which exists at the time of death. So 1M minus 300k

Art. 936. The legacy referred to in the preceding article shall


lapse if the testator, after having made it, should bring an
action against the debtor for the payment of his debt, even if
such payment should not have been effected at the time of
his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge. (871)
First paragraph, we are referring to the legacy of credit or
legacy of remission. The law says the legacy shall lapse
meaning it shall be considered revoked if after having made
the will giving to A the credit or condoning after the executing
of the will, the testator brought an action for collection, for
example, 1M, he executed a will saying whatever receivables
I may have from D at the time of my death I consider it
condoned legacy of remission. After making the will, he filed
an action for collection against D and wala nag bayad si D and
then the testator died. So can D collect the 1M na legacy? No
more because it has been revoked even if the testator did not
say that I am revoking it but his action of filing a case for
collection, that is an act considered by law as revocation,
thats actually revocation by operation of law which is one of
the three modes of revocation.
Remember, the law says should bring an action this
contemplates a judicial action. If the testator merely sent a
demand letter that would not amount to revocation. So there
has to be a judicial action.
The second paragraph refers to a legacy of a thing which is
owned by a legatee or devisee. So assuming A borrowed
P10,000 from testator and to secure his loan, he pledged his
ring to the testator. So in a pledge you deliver to the pledge
the possession, the pledgor should be the owner. So the
testator bequeathed to A that ring which was pledged by A. so
A is the owner of the ring diba a legacy or devise of a thing
belonging to the legatee or devisee is void so void to siya na
legacy.
What are its legal consequences? The law says it is
understood to discharge only the right of pledge. So what is
the meaning of it shall discharge the right of pledge?
meaning, wala nay pledge naa gihapoy utang. Remember ang
utang lahi siya sa collateral. So naa gihapoy utang but it is no
longer secured kay wala namay pledge.
So the consequence of that would be:

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
1.

The legacy is void because the thing belongs to the


legatee

voluntarily delivered or paid. So the law on natural obligations


would be applied.

2.

The pledge is extinguished. So the testator would


have to return the ring to the legatee or pledgor.

3.

The loan still subsists. The estate may still collect


from A but because there is no longer a pledge unya
wa pa kabayad, they can no longer proceed against
the ring because extinguished na ang pledge.

Art. 940. In alternative legacies or devises, the choice is


presumed to be left to the heir upon whom the obligation to
give the legacy or devise may be imposed, or the executor or
administrator of the estate if no particular heir is so obliged.

Art. 937. A generic legacy of release or remission of debts


comprises those existing at the time of the execution of the
will, but not subsequent ones. (872)
Kung nag bayad, ang balance lang at the time of death ang
considered na legacy of remission or credit pero kung
nangutang ug dugang, wala nay labot sa legacy of credit or
remission katung subsequent utang because aside from 937,
we also have 793 on after acquired properties.
Art. 938. A legacy or devise made to a creditor shall not be
applied to his credit, unless the testator so expressly declares.
In the latter case, the creditor shall have the right to collect
the excess, if any, of the credit or of the legacy or
devise. (837a)
So here, it is the testator who is the debtor, naa siyay utang
kay C and then in his will he gave to C 1M as a legacy. Should
it be applied to, halimbawa si testator naay utang kay C na
1.5M and then in his will the testator gave a legacy to C of 1M
should that be applied to his debt? The law says no. So si C
can receive the 1M as a legacy plus he may collect the 1.5
debt of the testator. unless the testator so expressly so
declares nga kaning 1M bawas ni siya sa akong utang then
it shall be applied. So ang ma collect nalang after the delivery
of the legacy is katung P500,000.
Art. 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the disposition
shall be considered as not written. If as regards a specified
debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations. (n)
Here, pagtuo ni testator naa siyay utang pero wala diay. I
hereby allocate 1.5M to C in payment of my debt. But it turns
out wala siyay utang. The law says the disposition shall be
considered as not written. So if he says I hereby allocate to C
1.5M in payment of my debt then ang utang nalang diay niya
is 1,2M then dili ihatag ang 300k. unless a contrary intention
appears then katu jung tanan iyang ipahatag despite the fact
nga ang utang is 1.2 lang.
The last paragraph says this is without prejudice to the
fulfillment of natural obligations for example in natural
obligation, a debt that has prescribed. So the testator has a
debt to C but the debt has already prescribed. In his will, the
testator provides for the payment to C of his debt. If that is
paid, the estate can no longer recover what has been

If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations of
the same kind shall be observed, save such modifications as
may appear from the intention expressed by the
testator. (874a)
You remember alterative obligations, there are several
prestations due but the delivery of any one of them is
sufficient to extinguish the entire obligation. Like the
obligation is to deliver jewelry, car or a horse. The delivery of
any one of them would be sufficient. So here, alternative
legacy or devise.
So ang gi ingon sa testator hatagi si X ug jewelry or car or
horse, dili tanan, isa lang. so kinsa ang mupili kung unsa ang
ihatag? So it will be the heir. So halimbawa si heir ang gi
charge na i-deliver ang legacy or devise so siya or executor or
administrator kung walay gi charge with the obligation. So
once the choice is made, irrevocable na siya. But of course
when you say the choice is made, made not in the mind only
of the heir charged kay he can always change his mind, once
na deliver na niya he cannot change it anymore. Halimbawa
namatay si heir, legatee or devisee who was charged with the
obligation to choose, then the obligation to choose will be
exercised by the respective heirs. Halimbawa si A ang heir na
gitagaan ug obligation to choose, namatay siya then his heirs.
Art. 941. A legacy of generic personal property shall be valid
even if there be no things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if
there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the delivery
of a thing which is neither of inferior nor of superior
quality. (875a)
So here the legacy or devise is generic. When you say generic
it is not specified, it is described only as to its kind and there
is no such thing of the same kind in the estate. Like I hereby
give to A a car but there is no car in the estate.
The law says if it is a legacy of a generic personal property, it
is valid even if there be no things of the same kind in the
estate. So kung walay car then mangita is estate ug car para
mahatag kang legatee.
But, if it is a devise of indeterminate real property and there
is no such real property in the estate the devise is void. I

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
hereby give to A a land but there is no land in the estate.
Mangita ba ug land ang estate para ihatag kang A? dili. Void

siya.

If you remember before we have an example, there is an


instance na naghatag si testator ug property which is not
owned by him. What is the difference? In that example, there
is a specific property I hereby give to A this land which is
adjacent to my house ang the testator knew na dili to iyaha
pero gihatag gihapon niya. It does not belong to his estate. It
is valid. Here, the estate has an implied obligation to acquire
the thing because we are talking of a specific property but
here, generic lang a land so kung walay land sa estate walay
ihatag. Pero kung naay land then the devise would be valid.
So the right of choice belongs to the executor or
administrator. What is the duty? Halimbawa sa legacy of
generic personal property we dont have a problem even if
there is no such thing in the estate. In generic real property
valid lang siya kung naay same thing sa estate. So the estate
will have to deliver the medium quality. Not inferior, not
superior but medium quality taking into account of course the
status of the person to whom the property is given and the
capacity of the estate.
Art. 942. Whenever the testator expressly leaves the right of
choice to the heir, or to the legatee or devisee, the former
may give or the latter may choose whichever he may
prefer. (876a)
Here the right of choice is given to the heir legatee or devisee.
The general rule under 941, administrator or executor. Pero
pwede siya ihatag sa heir, legatee or devisee. So siya ang
mag pili kung unsa iyang gusto. Again the same rule, he
cannot choose an inferior quality or superior so medium
quality.
Art. 943. If the heir, legatee or devisee cannot make the
choice, in case it has been granted him, his right shall pass to
his heirs; but a choice once made shall be irrevocable. (877a)
It is not difficult to understand to halimbawa namatay siya
unya wala siya naka-make ug choice then the right of choice
will be exercised by his heirs.
Art. 944. A legacy for education lasts until the legatee is of
age, or beyond the age of majority in order that the legatee
may finish some professional, vocational or general course,
provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if
the testator has not otherwise provided.
If the testator has not fixed the amount of such legacies, it
shall be fixed in accordance with the social standing and the
circumstances of the legatee and the value of the estate.
If the testator or during his lifetime used to give the legatee a
certain sum of money or other things by way of support, the
same amount shall be deemed bequeathed, unless it be
markedly disproportionate to the value of the estate.(879a)

944 talks of 2 kinds of legacies: legacy for education and


legacy for support. How long will this legacies last?
For education it will last until the legatee is of age so, 18, or
beyond the age of majority so that he will finish some
professional or vocational or general course provided he
pursues his course diligently. So dili pud forever. Like in law
school, beyond majority man mo so kung naa moy legacy for
education, padayun gihapon siya. halimbawa dugay na kayo
mo sa lawschool, ma justify gihapon ninyo na tagaan gihapon
kog padayun because I am pursuing my course diligently. So
that is now the question. How do you know whether or not it
is pursued diligently. So relative siya.
For support, during the lifetime of the legatee unless
otherwise provided. How much? Depende daw sa social
standing sa person na nag school or na support and the value
of the estate. Kung gahatag si testator ug amount during his
lifetime, pwede to siya himuong basis unless disproportionate
siya sa value of the estate. So these are the guidelines.
Art. 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of
the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced.(880a)
So here there is a pension. A certain annual or weekly amount
which is given as a pension. When can you ask for these
pension or allowance? The law says upon the death of the
testator, but the problem is, were talking here of a legacy so
it should be made in a will and before the will is probated you
cannot use that will as a foundation for any right. So of course
this presupposes that the will is probated and then you can
ask. For example dugay kayo na-probate ang will then as long
as there is probate mag retroact lang imong right so it should
start from the time of death of the testator.
Art. 946. If the thing bequeathed should be subject to a
usufruct, the legatee or devisee shall respect such right until it
is legally extinguished. (868a)
If the thing bequeathed should be subject to a usufruct. For
example the testator bequeathed to A a certain property like a
car. But the car is subject to a usufruct so it is being used by
U. What is the obligation of the estate upon the death f the
testator? of course upon the death of the testator because the
car has been bequeathed to A, then A now becomes the
owner of the car. But it is subject to a usufruct so gina gamit
pa ni U. naa bay obligation si estate na humanon ang usufruct
para pag hatag kay A wala nay burden?
The law says no. the legatee or devisee shall respect such
right until it is legally extinguished. If you remember under
the law on usufruct actually the general rule is that the death
of either party extinguishes the usufruct. So kung silent lang
ang contract ni testator and ni U sa usufruct, upon the death
of the testator mawala na gyud tong usufruct. Pero they can
actually stipulate otherwise. The testator and U may still
provide na even upon the death of either party, the usufruct

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
shall still subsist. So in that case walay obligation ang estate
na I free ang thing from the usufruct so it has to be respected
by the legatee or devisee unlike when the burden is in the
nature of a pledge or mortgage to secure a recoverable debt,
in that case the estate has the obligation to free the thing
from the pledge or mortgage.
Art. 947. The legatee or devisee acquires a right to the pure
and simple legacies or devises from the death of the testator,
and transmits it to his heirs. (881a)
Here we are talking of a pure and simple legacy or devise.
Meaning, there is no condition, there is no period, there is no
burden or mode so pure and simple. When will the rights of
the legatee or devisee accrue? From the time of death
because they dont have to fulfill or wait for anything. So
immediately they acquire the property. But of course subject
to probate even though theoretically from the time of death
they already acquired but they have to wait until the will is
submitted to probate but their ownership starts at the time of
death, what if wala niya nakuha pa at the time of death kay
naa pay nahitabo na certain things like katung probate unya
namatay sila, their rights will be transmitted to their heirs.
Art. 948. If the legacy or device is of a specific and
determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of the
testator, as well as any growing fruits, or unborn offspring of
animals, or uncollected income; but not the income which was
due and unpaid before the latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee, who
shall, therefore, bear its loss or deterioration, and shall be
benefited by its increase or improvement, without prejudice to
the responsibility of the executor or administrator. (882a)
Here the legacy or devise is specific and determine and it
pertains to or owned by the testator. Again, this should not be
subject to any condition etc. the law says, the ownership is
acquired upon the death of the testator. what if it is a land,
naay growing fruits, so daghan na siyag bunga. Who owns the
fruits? The estate or the devisee? Basta growing fruits, w ala
pa siya natanggal sa punu-an, owned pa na siya by the
devisee. Part na siya sa iyang devise. Or unborn offspring so
bata, legacy tapos buntis, of course apil to sa imong legacy.
Uncollected income, remember for example gitagaan kag
building and the building is being rented out. So the testator
made a will devising to you the building. That was in 2010.
And then namatay siya 2012. Naay mga 2 years worth na
rentals na wala pa na-collect. So rentals from 2010-2012. And
then wala gihapon nag bayad until 2014. So na gihapoy
uncollected rent 2 years before the death and 2 years after
the death. So what are the rights of the devisee?
Upon the death of the testator in year 2012, he is already the
owner of the building. How about the uncollected rents? Who
is the owner? The law says the uncollected income but not
the income which was due and paid before the latters death
so walay labot tung 2 years before because those rentals
would be in the nature of after-acquired properties under 793

so they would pertain to the estate. But income which accrued


which means earned but not yet collected, in 2012 kay
devisee na na siya because it is part of his ownership. We
discussed that in 781 katung 2 years income after the death.
From the moment of death, because the devisee is the owner,
he bears the risk of loss or deterioration and he also gains by
the increase or improvement.
Art. 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall
pertain to the legatee or devisee if the testator has expressly
so ordered. (884a)
Take note, 948 talks of specific and determinate thing. Kabalo
nata kung unsa gyud ang gihatag kang legatee or devisee. So
you can point that out with particularity. In 949 generic ang
iyang gihatag like a car, a land. How do we know kung unsa
juy ihatag? Depende diba kung unsa ang pillion ni executor or
administrator. Before choosing, wala ta kabalo kung unsa. The
law says the fruits and interest as a general rule, from the
time of death of the testator will not go to the legatee or
devisee because prior to delivery fo the thing to the legatee or
devisee wala ta kabalo kung katu ba gyud. Like 1 hectare
land. Unya naay 1 hectare land sa Matina, sa Calinan, sa
Panabo ug sa Padada. So wala ta kabalo aha didto so di ta ka
ingon na ang fuits sa padada ihatag nako sa imuha kay di ta
sure kung katu ba gyud. But from the time that it has been
delivered to him, katu, all the fruits like sa Padada land, so
from the time na gi-deliver sa iyaha or gi ingon na katu ihatag
sa iyaha then he is already entitled to the fruits.
Unless the testator has expressly so ordered. so the testator
may actually provide that the land and all the fruits in the land
starting from my death shall pertain to the devisee. So katung
Padada land, all fruits starting from the death shall pertain to
the devisee.
Art. 950. If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in the
following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate thing which
forms a part of the estate;
(6) All others pro rata. (887a)
The code name for article 950 is RPSESA.
1.

R stands for remuneratory legacies or devises. These are


made by the testator inconsideration of the services made
by the legatee or devisee but that which does not
constitute a recoverable debt. Just to remunerate the
legatee or devisee for the services he made.

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
2.

P stands for preferred legacy or devise. Katung gi ingon


sa testator na this one shall enjoy preference or priority
so this is a preferred legacy or devise.

3.

S stands for support. Under the family code, support is


everything indispensible for sustenance, food clothing or
medical attendance, even education. But here, we
exclude education under support.
th

4.

Education is treated differently it is in the 4


which is education.

5.

S stands for specific, determinate thing which forms a


part of the estate. If there is a legacy or devise of a
specific thing which is found in the estate that is the 5 th
priority.

6.

priority, E,

All others, I pro rata lang sila all others like legacies of
specific things but not forming part of the estate so they
will fall under that. Or the legacies which are generic or
all others na wala na-mention as remuneratory or
preferred etc.

So what do we mean by 950? For example there are these


kinds of legacies or devises provided in the will but the free
portion is not sufficient. So asa ang unahon ug satisfy? So
unahon natog satisfy ang remuneratory legacies or devises.

Kung naa pay nabilin and naa pay nabilin sa estate sunud
nato tagaan tong legacies which are preferred.
Kung naa pay nabilin sa estate, support and kung naa pa,
education.

Halimbawa, wala na. didto ra ka kutub.


So kung naa pa adto naka sa number 5.

Kung naa pay nabilin after number 5, halimbawa naa pay


nabilin na 100,000 pero naa siyay legacies like legacy number
1, 300,000. Ang legacy number 2 is 150,000 and number 3
kay 200,000. So obviously dili jud enough and nabilin na
100,000. How do we satisfy? Pro rata.
300k+150k+200k = total

300k______x 100k = share pertaining to legacy 1


total
Q: do you remember a similar provision where the value of
the free portion is not sufficient to satisfy all the legacies and
devises and other testamentary provisions? We have 911. In
911 we discussed the rule. The rule is if there are donations
made t strangers and there are legacies and devises, diba the
donations made to strangers during the lifetime of the testator
shall be charged to the free portion. Legacies and devises are
also charged to the free portion. What of the free portion is
not sufficient to satisfy all these donations, legacies or
devises?
Under 911, the rule is between donations and legacies and
devises, donations are to be satisfied first so they enjoy
preference. So unahon tog hatag sa free portion ang
donations. Kung 2 or more donations, the earlier donations

enjoy priority over the recent ones. Unahon ang mas karaan.
Kung naa pay nabilin and there is a preferred legacy then
satisfy the preferred legacy. After the preferred legacy, all
others, pro rata na. wala na silay distinction. So ang maelevate lang sa 911 kay katu rang preferred legacy. After that
pareha na sila tanan ug status.
But here in 950 we have the RPSESA. Unahon ang
remuneratory then preferred. Support. So when do we apply
911 and when do we apply 950? Just remember, 911 will be
applied if duha ka conditions ang mag-concur:
1.

There are compulsory heirs; and

2.

There are donations inter vivos.

In that case we follow article 911. Kay halimbawa naay


compulsory heirs pero walay donations inter vivos then purely
legacies lang and devises you follow 950 sa free portion. Or
halimbawa naay donations inter vivos pero walay compulsory
heirs, follow gihapon 950 because if there are no compulsory
heirs we do not even collate the donations.
So 911 if there are compulsory heirs and donations inter
vivos. Kung dili mag-concur or wala tanang conditions we
follow 950.
OCTOBER 5, 2015 (JCP)
Art. 954. The legatee or devisee cannot accept a part of the
legacy or devise and repudiate the other, if the latter be
onerous.
Should he die before having accepted the legacy or devise,
leaving several heirs, some of the latter may accept and the
others may repudiate the share respectively belonging to
them in the legacy or devise. (889a)
He cannot accept the gratuitous and repudiate the onerous.
How about if he accepts the onerous and repudiates the
gratuitous. The law says, cannot accept a part of the legacy or
devise and repudiate the other, if the latter be onerous. He is
just prohibited to repudiate the onerous and receive or accept
the gratuitous. There is no prohibition that he will receive the
onerous and repudiate the gratuitious.
Art. 955. The legatee or devisee of two legacies or devises,
one of which is onerous, cannot renounce the onerous one
and accept the other. If both are onerous or gratuitous, he
shall be free to accept or renounce both, or to renounce
either. But if the testator intended that the two legacies or
devises should be inseparable from each other, the legatee or
devisee must either accept or renounce both.
Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or
devise, or renounce the latter and accept the former, or waive
or accept both. (890a)
The difference between Art. 954 and Art 955 is that here
there are two or more legacies or devises, so the same thing
he cannot accept the gratuitous and renounce the onerous.

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
But again, there is no prohibition if he will accept the onerous
and repudiate the gratuitous. If both are onerous and
gratuitous so he can repudiate either or accept both or
renounce both, there is no prohibition unless the testator
intended that the two legacies or devise should be
inseparable. Dili pwede mamili dapat duhaj ud. All or nothing.
In that case, you cannot accept one and reject the other.
Accept All or Reject All if that is the intention of the testator.

This article talks about revocation by operation of law. We


discussed before revocation, there are 3 modes: (1)
Revocation by operation of law, (2) Revocation by subsequent
instrument or document and (3) Revocation by Overt Act.

In the second paragraph, this refers to a compulsory heir who


is at the same time a legatee or devisee. You can waive your
legitime and accept the legacy or devise or renounce the
legacy or devise and accept the legitime.

Here the testator did not expressly mention that he is


revoking the legacy or devise. In fact, he may not even have
the intention to revoke the legacy or devise but because he
performs these acts the law presumes that there is revocation.

Art. 956. If the legatee or devisee cannot or is unwilling to


accept the legacy or devise, or if the legacy or devise for any
reason should become ineffective, it shall be merged into the
mass of the estate, except in cases of substitution and of the
right of accretion. (888a)

(1) Transformation. He transforms the thing and then


by reason of that transformation, the thing no longer
retains the form or the denomination it had. For
example, I hereby give to A a gold ring. It should be
specific because if it is just generic it cannot be
transformed. The generic thing will not revoke the
legacy or devise. And then subsequently, ang gold
ring gihimo nimong earrings, what happens to the
legacy of that gold ring? The law says, there is
revocation if there is transformation. What kind of
transformation? Nawala ang iyang original form. Ang
original form is ang ring karon kay nahimong earring.
And either the form or the denomination or ang
pangalan ascribed to it. Before it was a ring now it is
an earring.

What happens if the legatee or devisee cannot accept the


inheritance for what reason maybe he predeceased the
testator or maybe he becomes incapacitated to inherit from
the testator or he repudiated his legacy or devise. What will
happen to the property given as a legacy or devise? Art 956
shows us the order of priority, as much as possible give these
properties to the one to whom it is intended. To the instituted
heir, legatee or devisee. If he cannot accept then determine if
he has a substitute, if no substitute give to the representative.
In this case, there is no right to representation in the Free
Portion, so dili pwede ang representation. Next, determine if
accretion is possible. Meaning, this land is given to A and B
and then A cannot receive in accretion the share of A will be
given to B as long as the requisites of Accretion are present. If
accretion is not possible like earmarking, the vacant portion
will go by intestacy. That is the last order of priority.
We have the acronym ISRAI. Institution, Substitution,
Representation, Accretion, Intestacy.
Art. 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed
in such a manner that it does not retain either the
form or the denomination it had;
(2) If the testator by any title or for any cause
alienates the thing bequeathed or any part thereof, it
being understood that in the latter case the legacy or
devise shall be without effect only with respect to the
part thus alienated. If after the alienation the thing
should again belong to the testator, even if it be by
reason of nullity of the contract, the legacy or devise
shall not thereafter be valid, unless the reacquisition
shall have been effected by virtue of the exercise of
the right of repurchase;
(3) If the thing bequeathed is totally lost during the
lifetime of the testator, or after his death without the
heir's fault. Nevertheless, the person obliged to pay
the legacy or devise shall be liable for eviction if the

thing bequeathed should not have been determinate


as to its kind, in accordance with the provisions of
Article 928. (869a)

(2) Alienation by any title or by any cause, so it


can be Alienation, Donate, Dispose. For
example, the testator devise to A his land in Calinan,
Davao City. After he devise the land, the will was
made in 2000. Gi-devise nya kay A in year 2000. In
year 2002, the testator sold that very same land to
X, what happens to the devise? It is revoked by
operation of law. What if in 2003, nabalik kay
testator ang land kay void diay ang sale kay X
because it was a simulated sale no consideration.
And then, the testator died in 2005. Can the devisee
claim the land as his devise? If after the alienation,
the thing should belong to the testator even if it be
by reason of the nullity of the contract the legacy or
devise shall not thereafter be valid. So ang legacy
and devise revoked ghpn sya. It was sold or
alienated by the testator after the last will and
testament. Bisan pa ang land kay nabalik pa sa
testator kay void diay ang sale. What if testator
executed last will and testament in year 2000 and
devising to A a specific land. In year 2002, he sold
the land to X in year 2003 the land was returned to
the estate of the testator because the sale was
annulled due to vitiated consent. The testator died in
year 2005 can the devisee A claim the land as his
devise, was there revocation, take note for the
alienation to amount to revocation the sale made or
the alienation made by the testator should be
voluntary and intelligent. If the consent of the
testator was vitiated. There was involuntariness in
the alienation. Therefore, we cannot presume

Ad Majorem Dei Gloriam

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
revocation here because it is not voluntary, the
alienation contemplated under Art 957 should be
voluntary and intelligent ang reason. It should not be
involuntary. If the reacquisition has been effected by
virtue of the exercise of the right of repurchase.
Again, after we made a will here in 2000 the testator
sold the land to X. It is a pacto de retro sale and he
really was able to repurchase the land in 2004 and
thereafter he died. SO can the devisee claim the
land? YES. The law says, unless the reacquisition has
been effected by virtue of the exercise of Right of
Repurchase. In that case, the testator acquired the
land because of the exercise of the Right of
Repurchase. The law sees the reservation of the right
of repurchase of the testator as an intention to really
honor the legacy or devise. He really intended to give
effect. So here, there is no revocation. Halimbawa
wala gi-repurchase sa testator? Revoke gihapon kay
wala man ang property napalit na man sa uban.
What if after he made the will in 2000 the testator
sold the land in 2002 under the deed of absolute sale
and no right of repurchase. In 2004, nakadaog og
lotto si testator, he offer to buyout the land from X
the previous buyer and X also agreed to sell the land
back to the testator. The testator died in 2005, is the
devise to A valid? Can A claim the land? It was
repurchase in 2004, can he argue that? NO. Because,
the repurchase made by the testator was not by
reason of the exercise of the right of repurchase.
Kato lang reacquisition by the exercise of the Right of
Repurchase, again the law presumes when you
reserve the right to repurchase, you did that to honor
the legacy or devise.
(3) Lost during the lifetime of the testator or after
his death without the heirs fault. You remember
the legal definition of lost, when the thing perishes,
goes out of commerce, or disappears in such a way
that its existence is unknown or cannot be recovered.
Total Loss here. Again, take note that all the things
referred to in Art 957 are legacies and devises of
specific things. It should be, without anybodys fault.
We apply here the rule that if the loss by reason of
fortuitous event not due to the fault of the heir who
is obliged to deliver, the obligation to deliver is
extinguished. Kung nawala sya due to the fault of the
heir in charge to deliver-bayaran nya. The obligation
is not extinguished.
Now the last paragraph: Nevertheless, the person obliged
to pay the legacy or devise shall be liable for eviction if
the thing bequeathed should not have been determinate
as to its kind, in accordance with the provisions of Article
928.
We already discussed this, if the thing is already
indeterminate, the heir who has been charged with the
obligation to deliver the legacy or devise is liable for
eviction because when the thing is indeterminate it is
within his control what to deliver. If he chose to deliver a
property within the estate which is problematic that is

why the legatee or devisee is eventually evicted. Then, he


shall replace that with another one.
Art. 958. A mistake as to the name of the thing bequeathed
or devised, is of no consequence, if it is possible to identify
the thing which the testator intended to bequeath or devise.
(n)
So description of the thing. We already discussed before the
rules on the interpretation of the wills and how to resolve the
ambiguity in the will whether intrinsic or extrinsic. The mistake
if it can be cured as long as the thing can be identified the
legacy or devise will be effective.
Art. 959. A disposition made in general terms in favor of the
testator's relatives shall be understood to be in favor of those
nearest in degree. (751)
So, here the testator gave his properties in favor of his
relatives. How do we interpret the term relative? I hereby
give my 1M to my relatives.

Kinsa man ning relatives? Just remember, in testamentary


succession we have compulsory heirs. And then, legal
succession we have legal heirs.

The legal heirs are not limited to the compulsory heirs, the
legitimate children, descendants, spouse etc. Kung legal
succession aside from that we have brothers and sisters,
nephews and nieces, uncles and aunts.
So collateral relatives, when we say relatives under the law on
legal succession those who are related by consanguinity
(blood) to the decedent within the 5th degree. We are talking
here of the collateral relatives within the 5th degree.
In the direct line there is no limitation because in the direct
line it is impossible na naa pa mag-survive within the 10th
degree.
For you to qualify as a relative, within the 5th degree but the
rule that applies in Art 959 is the rule on proximity. That is infact the rule that applies. Unsa man ng proximity? Ang
pinaka-duol sa testator, the right of representation does not
apply here. For example, the testator has siblings A and B,
under the rule on proximity A and B belong to the same
degree and they are nearer to the testator and they exclude X
and Y, Brothers and sisters, nephews and nieces etc. Under
Art 959, proximity as the only rule that applies mao najud na
sya. Kung patay na si A he will not be represented. B excludes
them. The right of representation does not apply in Art 959.
In legal succession preferred ang descending but in Art 959
there is no preference as long as they are in the same degree.
We also have a rule that those in the direct line are favored
over those in the collateral line wala ghpn na in Art 959. Basta
do not complicate the rule on proximity. If the tenor on the
will is in favor of my relatives if he says I hereby give my
properties to those who are entitled thereto. What is the
interpretation of that? He is obviously referring to his heirs in
legal succession. We follow the rule on proximity with the
right of representation, the relatives in the descending line are

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
favored over those relatives in the ascending line and those
within the direct line are favored over those who are in the
collateral line. That is if he says, those who are entitled
thereto.

a suspensive condition attach to the institution of heir


does not happen, is not fulfilled or if the heir dies before
the testator etc. SO here, the share or portion becomes
vacant. So that would be distributed by legal succession.
Fourth, when the heir instituted becomes incapacitated to
succeed.

So, in one example the testator says I hereby give my


properties to the relatives of my wife. Do we apply Art 959?
NO. Because Art 959 refers to the testators relatives. This is
what we call a Collective Institution.

(3) Except in case of predecease in no. 3 there is a


representative or

CHAPTER 3. LEGAL OR INTESTATE SUCCESSION


SECTION 1. General Provisions

(4) in no. 4 there is also a representative if representation is


proper even in Art 960 we can see that legal succession is
the last priority. Remember ISRAI. Now it is important
that we know who are the legal heirs.

Art. 960. Legal or intestate succession takes place:


(1) If a person dies without a will, or with a void will,
or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or
dispose of all the property belonging to the testator.
In such case, legal succession shall take place only
with respect to the property of which the testator has
not disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not fulfilled,
or if the heir dies before the testator, or repudiates
the inheritance, there being no substitution, and no
right of accretion takes place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this Code.
(912a)
We have a definition of testamentary succession, mixed
succession but actually when it comes to legal succession
there is no direct definition but merely enumeration of the
instances where there will be legal and intestate succession.
So here, the law provides for the distribution of the testate on
the presumption that the will of the testator had he left a will
but presumption lang.
(1) If a person did not left a will obviously a case of legal
succession or he left a will but the will lost its validity. So,
he left a will but the will was revoked or it was not
allowed probate because it was not allowed probate
because it did not comply with the formalities prescribed
by law. The properties will be distributed by legal
succession.
(2) When the will does not institute an heir. First, when can
the will which does not institute an heir? In case of
disinheritance a will containing a disinheritance, there is
no institution of heirs but there is still a disposition of
property. That is an indirect disposition, so here the
property will be distributed in legal succession excluding
the disinherited heir. The will does not dispose of all the
property. So here only portions of the estate is disposed
of in the will. This is a case of mixed succession. Third, if

Art. 961. In default of testamentary heirs, the law vests the


inheritance, in accordance with the rules hereinafter set forth,
in the legitimate and illegitimate relatives of the deceased, in
the surviving spouse, and in the State. (913a)
So, in general Art 961 gives us who are the legal heirs. In
legal succession first we have the compulsory heirs of the will
we have the legal heirs. So the legitimate children and the
descendants we have in default of the legitimate children and
the descendants, legitimate parents and ascendant, the
surviving spouse and then the illegitimate children. Halimbawa
wala na sila we have the legitimate and illegitimate relatives
of the deceased. Again, as I mentioned before collateral
relatives within the 5th degree of consanguinity they are legal
heirs and lastly the STATE if there are no relatives within the
collateral line of 5th degree and no relatives within the
ascending or descending line in the direct line.
Art. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of
representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares,
subject to the provisions of article 1006 with respect to
relatives of the full and half blood, and of Article 987,
paragraph 2, concerning division between the paternal and
maternal lines. (912a)
The first rule in legal succession, the nearest relative exclude
the more distant ones. So this is what we call the rule on
proximity. Let us illustrate, we have the decedent, naa syay
anak si A and B, under the rule on proximity if all of them are
alive A and B are nearest to the decedent they exclude X, Y
and Z. For example, B died ahead of the testator and the right
of representation Z is elevated to the degree and status of B,
who will inherit? A and Z as representative of B. The general
rule is proximity.
The second paragraph gives us the rule that heirs in the same
degree inherit in equal shares. If the estate is 1M and the
heirs are A and B they shall divide the 1M equally. They shall
inherit in equal shares because they are the same degree.
However, there are exemptions mentioned in Art 962. (1) Art
1006 with respect to the relatives of the full and half-blood.
Halimbawa si A and B kay mag-igsoon ni decedent, estate is

Ad Majorem Dei Gloriam

11

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
1M, A is a full blood brother while B is a half-blood brother.
They cannot inherit equally because the law says full-blood
relatives inherit twice as much as half-blood relatives. In other
words, half blood relatives inherit half of the inheritance of the
full blood. How do we divide 2:

brother of his father, four from his first cousin, and so forth.
(918a)

1. Second, concerning the division between the paternal and


maternal line, Halimbawa, si decedent kay naa father and
mother, grandfather and grandmother on both side. We divide
by two between the paternal and maternal line. 500K and
500K pila karon ang distribution? 500K goes to both sides
and will be shared accordingly within that line if no heir dies.
Third exception, between legitimate and illegitimate children
but the legitimate child inherits more that the illegitimate 2:1.
Fourth, when we apply the right of representation, example,
decedent anak nya si A and B, Si A anak nya X and Y, Si B
anak nya si Z, assuming A predeceased the decedent so A will
be represented by X and Y, theoretically by right of
representation X and Y are elevated to the degree and status
of A. Theoretically, X and Y ka-level na sila ni B by right of
representation. How do we distribute the estate in that case?
1M ang estate divided it by 2. To A 500K and to B 500K. Patay
na man si A the representative will divide the share of the
person represented, they shall only get the share of the
person represented. They will divide equally the 500K; 250K
each X and Y, 500K kay B. So those are the four exceptions to
the rule on proximity. Heirs and relatives within the same
degree inherit in equal shares.

Half blood relationship is that existing between persons who


have the same father, but not the same mother, or the same
mother, but not the same father. (920a)

Subsection 1. - Relationship

Art. 963. Proximity of relationship is determined by the


number of generations. Each generation forms a degree.
(915)
Art. 964. A series of degrees forms a line, which may be
either direct or collateral.
A direct line is that constituted by the series of degrees
among ascendants and descendants.
A collateral line is that constituted by the series of degrees
among persons who are not ascendants and descendants, but
who come from a common ancestor. (916a)
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who
descend from him. The latter binds a person with those from
whom he descends. (917)
Art. 966. In the line, as many degrees are counted as there
are generations or persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor.
Thus, the child is one degree removed from the parent, two
from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the
computation is to be made. Thus, a person is two degrees
removed from his brother, three from his uncle, who is the

Art. 967. Full blood relationship is that existing between


persons who have the same father and the same mother.

Art. 968. If there are several relatives of the same degree,


and one or some of them are unwilling or incapacitated to
succeed, his portion shall accrue to the others of the same
degree, save the right of representation when it should take
place. (922)
This Article talks of, one who is unwilling or one who is
incapacitated. First we go to those who are incapacitated. For
example, the decedent, children A and B, his grandchildren
X,Y (A) and Z (B). Assuming A becomes incapacitated, there
are several grounds for incapacity. A becomes incapacitated
what happens to the share of A? Meaning DQ sya. He is
represented by X and Y. Again the 1M will be distributed
between X and Y as rep of A (250K each) and B gets 500K. or
Unwilling, when you say unwilling he repudiates. A and B
survive the decedent A is unwilling to receive his share.
Meaning he renounced or repudiated his share. How do we
distribute the 1M, the share of A shall accrue to B. So that is
the meaning ACCRUE. The right of representation shall not
apply here, remember this basic principle: An heir who
repudiates cannot be represented. IF A repudiates his share,
his share shall accrue to B. The entire 1M shall accrue to B.
Art. 969. If the inheritance should be repudiated by the
nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there be
several, those of the following degree shall inherit in their own
right and cannot represent the person or persons repudiating
the inheritance. (923)
Remember this basic principle: An heir who repudiates cannot
be represented. IF A repudiates his share, his share shall
accrue to B. The entire 1M shall accrue to B.
If both A and B repudiate their share. The grandchildren X, Y
and Z will inherit in their own right. The 1M will be divided by
3. In their own right means equal sharing. By right of
representation means they will inherit per stirpes. Again if
both A and B repudiates, they cannot be represented by X, Y
and Z but still X, Y and Z can inherit but not by representation
but in their own right that is per capita and by representation
by stirpes.
Subsection 2. - Right of Representation

Art. 970. Representation is a right created by fiction of law,


by virtue of which the representative is raised to the place and
the degree of the person represented, and acquires the rights

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
which the latter would have if he were living or if he could
have inherited. (942a)
This art gives us the definition of representation, we already
mentioned this by fiction of law the representative is raised to
the place and the degree of the person represented, and
acquires the rights which the latter would have if he were
living or if he could have inherited. When can there be
representation? When can the right of representation apply?
First, only in vacancies caused by predecease, incapacity or
disinheritance. Predecease, the heir dies ahead of the
decedent. Incapacity, the heir is disqualified by law to inherit.
Disinheritance, the heir is validly disinherited but still he can
be validly represented. In testamentary succession, the right
of representation applies only to legitimes. There is no right of
representation in the Free Portion. In legal succession, it can
apply to the entire estate because we do not have a Free
Portion there. The share can be represented.
Art. 971. The representative is called to the succession by
the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have succeeded.
For example, B predecease the decedent then B would be
represented by Z so Z is the representative. Take note, the
representative inherits from the decedent. He does inherit
from the person represented. So that is another principle that
we have to remember.
Art. 972. The right of representation takes place in the direct
descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full or
half blood.
Take note of this Article. The right of representation takes
place only on the descending line. It does not apply in the
ascending line. The right of representation always goes down.
Take note, that the right of representation in the collateral line
takes place only in the children of brothers or sisters or the
nephews and nieces. Grand nephews and nieces cannot
represent only the nephews and nieces.
Art. 973. In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent. (n)
The representative inherits from the decedent, he should be
capable to succeed the decedent. He should be qualified.
Art. 974. Whenever there is succession by representation,
the division of the estate shall be made per stirpes, in such
manner that the representative or representatives shall not
inherit more than what the person they represent would
inherit, if he were living or could inherit. (926a)

Halimbawa, it is A who predeceased the decedent he is

represented by X and Y. Take note, the representative only


steps into the shoes of the person represented. They cannot
inherit more than the person represented would have
inherited. This is what we call per stirpes.
Art. 975. When children of one or more brothers or sisters of
the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions. (927)
Please remember this Art. Assuming A and B is the brother
and sister of the decedent. X , Y and Z are nephews and
nieces. If A predecease his brother the decedent A can be
represented by X and Y who are the nephews and nieces of
the decedent. Inheritance ni X and Y would be per stirpes.
What if A and B predecease, so X,Y and Z are the only
survivors. The nephews and nieces shall inherit in equal
shares. How do we divide? The 900K shall be divided in equal
portions. Even if it is not by repudiation. Take note because a
different application is applicable to grandchildren.
Art. 976. A person may represent him whose inheritance he
has renounced. (928a)
Art. 977. Heirs who repudiate their share may not be
represented. (929a)
We already discussed before that a person who repudiates
cannot be represented. For example, B died, so mao ghpn ni
nga story, decedent naa syay anak si B, si B nay anak na si Z.
Halimbawa, Z naayanaknasi O. Namatay og una si B. B
predecease, ang heir ni B supposedly si Z iyang anak.
Supposing Z repudiates his inheritance, Z cannot be
represented. Ang estate ni B will go to the other heirs not O
because he cannot represent Z. An heir who repudiates
cannot be represented. It is again Z who repudiates. Now,
namatay si decedent. Iyang anak si A and B. B already died
ahead siAnlngisa. Question can Z represent B? Diba namatay
una si B, si Z repudiated his share in the estate of B because
of that repudiation Z cannot be represented. An heir who
repudiates cannot be represented. Subsequently namatay
napud si decedent. Who are the heirs of the decedent. Can Z
represent B? Yes. An heir who repudiates may still represent
the person whose inheritance he repudiated. But an heir who
repudiates cannot be represented. He can represent but he
cannot be represented.
SECTION 2. Order of Intestate Succession
Subsection 1. - Descending Direct Line

Art. 978. Succession pertains, in the first place, to the


descending direct line. (930)
Those in the direct line are preferred over the person in the
collateral line. Those in the descending line are preferred over
those who are in the ascending line.

Ad Majorem Dei Gloriam

13

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Art. 979. Legitimate children and their descendants succeed
the parents and other ascendants, without distinction as to
sex or age, and even if they should come from different
marriages.
An adopted child succeeds to the property of the adopting
parents in the same manner as a legitimate child. (931a)
Again, we have legitimate children as legal heirs they shall
inherit in equal shares.
Art. 980. The children of the deceased shall always inherit
from him in their own right, dividing the inheritance in equal
shares.
The children shall inherit per capita. The grandchildren shall
inherit per stirpes.

900K, 450K anglegitime. So, share sa illegitimate kay half sa


share sa legitimate child. 225K pero kuhaon ni sya sa Free
Portion. In legal succession there is no Free Portion. We have
to dispose the entire estate. How do we divide 900K A gets
twice as much as B. So 2 plus 1 kay 3.2/3 kay A and 1/3 kay
B. 2:1. 600k A and 300K B. Halimbawa duha ka legitimate
children, use algebra. Let X be the share of the illegitimate
child. 2 X ang share ni legitimate. Estate is 900K. We have
900K divide by 5. A1 360, A2 360K and B 180K. That is how
you compute the shares of the children.
Art. 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Article 895. (n)
Art. 984. In case of the death of an adopted child, leaving no
children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal heirs. (n)

Art. 981. Should children of the deceased and descendants


of other children who are dead, survive, the former shall
inherit in their own right, and the latter by right of
representation.

Subsection 2. Ascending Direct Line

We are referring here grandchildren who concur with the


children of the decedent. A died ahead. The survivors are B
and X, Y inherit by representation and B in his own right.

Art. 985. In default of legitimate children and descendants of


the deceased, his parents and ascendants shall inherit from
him, to the exclusion of collateral relatives. (935a)

Art. 982. The grandchildren and other descendants shall


inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining
to him shall be divided among the latter in equal portions.

When can the parents inherit? Actually, in default of the


legitimate children then the parents shall inherit. So pilaang
share sa parents? Depende kung kinsa iya kauban nagsurvive.
Kung sya lng, they shall get the entire estate. In legal
succession, when a specific class survive he shall get the
entire estate. Wala na may legitimedre. Take note, the
presence of the children whether legitimate or illegitimate we
exclude collateral relatives. Kung naakay illegitimate child di
na pwede mag-inherit sa imo ang brothers and sisters.
Parents also exclude the brothers and sisters of the decedent.
That is in Art 985.

We are talking here of the inheritance of the grandchildren.


The grandchildren here inherit by representation. I want to
point this out. If any one of them should have died, leaving
several heirs the portion pertaining to him shall be divided in
equal portion. Halimbawa, kung namatay si A, si X and Y will
divide in equal portion. Pagnamataysi B, Both A and B
predecease the decedent ang share ni B kay maadto kay Z.
How shall they divide. Both A and B predecease the decedent.
They shall divide by two. SO kang Ana share divide equally
kay X and Y and B kay Z. SO, Z (500K) X and Y (250K each).
Representation ghpn even if the parent predecease. This is
different from Art 975 katong halimbawa si A and B kay dili
anak kay brothers and sisters of the decedent then the
nephews and nieces will inherit in equal shares. If both, A and
B repudiates their share then that will be the time X, Y and Z
will inherit in equal shares per capita. Remember, if nephews
and nieces all their parents are dead they can inherit in equal
shares. If grandchildren and their parents are dead they can
still inherit by representation in equal shares.
Illegitimate children. What is the share of illegitimate child.
The estate is 900K, duha ang survivors. Children of the
decedent, we have A and B. How do we divide the
estate.Illegitimate children inherits of the legitimate child. 1
illegitimate child gets half the share of 1 legitimate child. Sa
testamentary succession we have the legitime, if the estate is

Art. 986. The father and mother, if living, shall inherit in


equal shares.
Should one only of them survive, he or she shall succeed to
the entire estate of the child. (936)
Art. 987. In default of the father and mother, the ascendants
nearest in degree shall inherit.
Should there be more than one of equal degree belonging to
the same line they shall divide the inheritance per capita;
should they be of different lines but of equal degree, one-half
shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita.
We already illustrated before the sharing of the ascending line
in testamentary succession katong per line. Halimbawa
mother and father ang nag-survive, they will inherit in equal
shares, mother side and father side. Take note, there is no
right of representation in the ascending line. In testamentary

Ad Majorem Dei Gloriam

14

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
succession, we limit ourselves to the legitime, to the half.
Now, we cover the entire estate.
Subsection 3. - Illegitimate Children

Art. 988. In the absence of legitimate descendants or


ascendants, the illegitimate children shall succeed to the
entire estate of the deceased. (939a)
We are talking of a situation where there are no legitimate
descendants and ascendants, also, no spouse. The illegitimate
children shall succeed to the entire estate. Now the
illegitimate children concur with the legitimate children or the
legitimate ascendants. Again, the legitimate ascendants will
never concur with the legitimate children. They only succeed
in default of the legitimate children.
Art. 989. If, together with illegitimate children, there should
survive descendants of another illegitimate child who is dead,
the former shall succeed in their own right and the latter by
right of representation. (940a)
There are several illegitimate children then one of them died
ahead of the others. That illegitimate child has his own
children. Just remember, this Art 989, an illegitimate child of
the decedent can be represented. You should remember that.
So, an illegitimate child can be represented.
Oct. 8, 2015 (RJVillacampa)
Article 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be transmitted
upon their death to their descendants, who shall inherit by
right of representation from their deceased grandparent.
We are talking here of the hereditary rights given to
illegitimate children. In Article 990, it is very clear that an
illegitimate child has (1) successional rights; and (2) he can
also transmit his rights upon his death to his descendants.
Q: Who shall inherit by right of representation from the
grandparents? For example: if A is the decedent and has an
illegitimate child M and M has children X who is legitimate and
Y who is illegitimate. Assuming M predeceased the decedent
and he was survived by his children X (legitimate) and Y
(illegitimate), can M be represented?
Yes, he can be represented by his descendants (X and Y) and
the law does not make any distinction whether legitimate or
not.
Article 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking one-half
of the estate, whatever be the number of the ascendants or of
the illegitimate children. (942, 841a)

This talks about illegitimate children surviving with the


legitimate ascendants of the decedent or the parents or
grandparents of the ascendant surviving with the illegitimate
children. As to how should they divide the estate, the law says
to the parents and the other goes to the illegitimate
children.
There is no free portion because this is legal succession. In
legal succession, most of the time, there are two classes of
heirs who survive. In which case, they shall divide the estate
half-half except when the decedent have legitimate and
illegitimate children because in the latter case, the illegitimate
child is entitled to of the share of one legitimate child.
Article 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his
father or mother; nor shall such children or relatives inherit in
the same manner from the illegitimate child. (943a)
This is a very important provision also. This is the IRON BAR
RULE between the legitimate family and illegitimate family.
Here, an illegitimate child has no right to inherit ab intestate
(meaning by legal succession) from the legitimate children
and legitimate relatives of his father or mother. In the same
manner, such children or relatives cannot inherit in from the
illegitimate child.
For example, A is a legitimate child of the decedent and Y is
an illegitimate child, so they are half-brothers. Y can inherit
from their common father but he cannot inherit from his halfbrother A and the same thing, A cannot inherit from his halfbrother Y.
Another example is when a decedent has 2 children M
(Legitimate) and N (Illegitimate). Also, M has 2 children- X
who is the legitimate child and Y who is the illegitimate. On
the other hand, N has 2 children-S who is the legitimate child
and T who is the illegitimate child.
Like what we have discussed in Article 990, an illegitimate
child transmits his rights to his own descendants who can
inherit by right of representation from their grandparents. In
Article 990, if N (illegitimate) predeceased the decedent, he
can be represented by both S and T as Article 990 in
designating the descendants does not make any distinction.
Assuming M (legitimate) predeceased the decedent, X
(legitimate) can represent M but Y (illegitimate) cannot
represent M since Article 992 bars illegitimate children to
inherit ab intastato from the legitimate relatives his father or
mother. The decedent here is a legitimate relative of his
father M (legitimate).
If you will ask why S (legitimate child of an illegitimate) can
represent when if fact Article 992 provides for vice versa
prohibition such that the legitimate children and relatives
cannot also inherit from the illegitimate children?
1.

S can inherit be reason of Article 990 because the


rights of an illegitimate are passed on to his heirs
who can represent him.

Ad Majorem Dei Gloriam

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
2.

Article 992 does not apply here because this is not a


case of a legitimate child inheriting from the
illegitimate child of his father or mother. In this case,
S is legitimate and his parent is illegitimate and also,
his grandparent is also illegitimate. Thus, there is no
application.

What is the purpose of the iron bar rule? As discussed by


Manresa, an illegitimate child is gracefully looked down upon
by the legitimate family and the legitimate family is in turn
hated by the illegitimate child. The latter considers the
privilege condition of the former and the resources of which it
is hereby deprived. The former in turn see the illegitimate
child as nothing but the product of sin, palpable evidence of a
blemish broken in life. The law does no more but recognize
this truth by avoiding other grounds of resentment.
It is resorted to in order to avoid further damage as
historically, they are not in good terms.
DIAZ vs IAC
On the issue of the appropriate law to be applied, the Court
ruled that it must be Article 992 of the NCC since the
hereditary conflict refers solely to the intestate estate of the
legitimate mother (Simona) of a legitimate child (Pablo).
On the standing of the oppositors, they are barred with
succession by Article 992 (Iron Bar rule) since they are
illegitimate children of the legitimate son (Pablo).
In this case, Pablo died ahead of Simona that is why the
illegitimate children sought to represent him. However, the
decedent here was the legitimate mother of the father of the
petitioner-oppositors who are illegitimate that is why they are
covered by the iron bar rule.
Assuming Pablo was an illegitimate child of Simona, the
petitioner-oppositors (illegitimate) can represent him because
of Article 990 because again, an illegitimate child can be
represented.
Assuming Simona dies ahead and Pablo who is Simonas only
son, dies thereafter, the petitioner-oppositors (illegitimate)
can get the properties left by Simona to Pablo and Article
992 is not applicable since it is not a case of illegitimate child
inheriting from a legitimate children or relatives of the
decedent. In this example, they are inheriting not from
Simona but from Pablo and the petitioner is inheriting from
their father.
Assuming Pablo dies ahead of Simona, the petitioners
(illegitimate) cannot inherit because of Article 992. Take note
that it matters who dies first.
SUNTAY vs SUNTAY
On the issue of the non-applicability of the Article 992 to
Emilio III. The court ruled that the underlying philosophy of
our law on intestate succession is to give preference to the
wishes and presumed will of the decedent, absent a valid
and effective will; The basis for Art. 992 of the Civil Code,
referred to as the iron curtain bar rule is quite the opposite

scenario in the facts obtaining herein for the actual


relationship between Federico and Cristina on one hand, and
Emilio III, on the other, was akin to the normal relationship
of legitimate relatives.
Emilio III was reared from infancy by decedent, Cristina, and
her husband Federico, who both acknowledged him as their
grandchild; Federico claimed half of the properties included
in the estate of the decedent, Cristina, as forming part of
their conjugal partnership and gains during the subsistence
of their marriage; Cristina's properties forming part of her
estate are still commingled with that of her husband
Federico, because her share in the conjugal partnership,
albeit terminated upon her death, remains undetermined and
unliquidated; and Emilio III is a legally adopted child of
Federico, entitled to share in the distribution of the latter's
estate as a direct heir, on degree from Federico, not simply,
representing his deceased illegitimate father, Emilio I.
From the foregoing, it is patently clear that the CA erred in
excluding Emilio III from the administration of the decedent's
estate. As Federico's adopted son, Emilio III's interest in the
estate of Cristina is as much apparent to this Court as the
interest therein of respondent, considering that the CA even
declared that under the law, [ Federico], being the surviving
spouse, would have right of succession over a portion of the
exclusive property of the decedent, aside from his share in
the conjugal partnership. Thus, we are puzzled why the CA
restored to a strained legal reasoning Emilio III's
nomination was subject to a suspensive condition and
rendered inoperative by reason of Federico's death wholly
inapplicable to the case at bar.
Thus, the legal presumption of Article 992 does not apply
here because since childhood, Emilio III and her sisters were
treated like their own by their grandparents as there was no
discrimination whatsoever. The animosity between the
legitimate family and the illegitimate children does not exist
in this case.
Aside from that when Federico sought to be appointed as
administrator in the estate of Cristina, subsequently he
adopted Emilio III and with that, Emilio III became the
legitimate child of Federico. When Federico died, Emilio III
was an heir and he inherits not only the estate of Federico
but also those received by Federico from Cristina. Therefore,
in the proceeding for the appointment of administrator in the
estate of Cristina, Emilio III had an interest because he was
an heir of Federico who happens to be an heir of Cristina and
he is qualified as an administrator being a person in interest
with the estate.
As to the appointment of being an administrator, it is not
equivalent to inheritance so in cases where the issue is on
the appointment of administrator, Article 992 does not apply.
What is barred by Article 992 is the inheritance by legal
succession and not the appointment for administration.

Article 993. If an illegitimate child should die without issue,


either legitimate or illegitimate, his father or mother shall

Ad Majorem Dei Gloriam

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
succeed to his entire estate; and if the child's filiation is duly
proved as to both parents, who are both living, they shall
inherit from him share and share alike. (944a)

If there are two or more children, in testamentary succession,


is the legitime of the legitimate children and they will divide
the said inheritance among themselves and the spouse gets
the same share as 1 legitimate child from the free portion.

So this is a case where an illegitimate child is survived by his


parents. In such case, his parents will succeed to his entire
estate if they are the only survivors. The parents shall share
the estate half-half.

If there are two or more children and surviving spouse, in


legal succession, the law says the surviving spouse gets the
same share as that of each of the children. If the decedent
has 2 children, the estate will just be divided into 3.

Article 994. In default of the father or mother, an illegitimate


child shall be succeeded by his or her surviving spouse who
shall be entitled to the entire estate.

Article 997. When the widow or widower survives with


legitimate parents or ascendants, the surviving spouse shall
be entitled to one-half of the estate, and the legitimate
parents or ascendants to the other half.

If the widow or widower should survive with brothers and


sisters, nephews and nieces, she or he shall inherit one-half of
the estate, and the latter the other half. (945a)
It talks about the estate of an illegitimate decedent. If the
spouse is the only survivor, she gets the entire estate. If
survived by the brothers and sisters and the spouse, half-half.

Here, there are no legitimate children, instead there are


legitimate parents or ascendants of the decedent surviving
with the spouse. The spouse gets and the legitimate parent
gets .

Subsection 4. Surviving Spouse

It is different from testamentary succession since, the division


is to the legitimate parents or ascendants and to the
spouse and the other is the free portion. Here in legal
succession, since there is no free portion, the entire estate is
hereby disposed.

Article 995. In the absence of legitimate descendants and


ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall
inherit the entire estate, without prejudice to the rights of
brothers and sisters, nephews and nieces, should there be
any, under article 1001. (946a)

Article 998. If a widow or widower survives with illegitimate


children, such widow or widower shall be entitled to one-half
of the inheritance, and the illegitimate children or their
descendants, whether legitimate or illegitimate, to the other
half. (n)

Here, if the spouse is the only survivor, he gets the entire


estate. Take note that there is no other variation as to the
share of the surviving spouse who survives alone unlike in
testamentary succession. Here, if she survives alone, she gets
the entire estate. In legal succession, there is no consideration
as to marrying in Articulo Mortis, etc, etc. because the
purpose in testamentary succession is to prevent the spouse
for marrying for money.
Also, it must have no prejudice to the rights of brothers and
sisters, nephews and nieces, should there be any. If the
spouse survives with the brothers and sisters of the decedent,
then, the brothers and sisters get half and she gets the other
half. So the surviving spouse does not exclude the brothers
and sisters, nephews and nieces of the deceased spouse as
she concurs with them.
Article 996. If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
The survivors here are the spouse and the legitimate children.
If the decedent is survived by 1 spouse and 1 legitimate child,
the sharing is half to the spouse-half to the child or the same
share. Take note, this is different from testamentary
succession since in that case, the child gets and the spouse
gets .

Here, the spouse is surviving with the illegitimate children and


there are no legitimate children so the division is half-half.
Article 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
In this case, the spouse is survived with the legitimate
children and illegitimate children. The division of the estate is
that the widow or widower shall have the same share as that
of a legitimate child and illegitimate child has of the share
of one legitimate child.
Assuming there are 2 legitimate children- M and N, spouse-O
and one illegitimate child-A and the estate is 1.4 Million. How
do we divide the estate? The surviving spouse has the same
share as one legitimate child.
Formula:

Total Estate: 1,400,000

Let X =1 illegitimate child

1,400,000 equal to x=200,000

2x=legitimate child (times 2)

7x

2x=spouse
Total: 7x

A-Illegitimate child-200,000

Ad Majorem Dei Gloriam

17

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
M-Legitimate children-400,000
N-Legitimate children-400,000
O-Spouse-400,000

Even if legal succession, it must be noted that even with the


use of the above computation, the shares of the legitimate
children should not go below their shares in testamentary
succession. Again, in testamentary succession, using the
above facts, each legitimate child should get 350,000, so it is
still proper. The problem is for example, there are 8
illegitimate children.
Formula:

Total Estate: 1,400,000

Let X =1 illegitimate child (times


8)

1,400,000 equal to x=100,000


14x

2x=legitimate child
2x=spouse
Total: 14x

Illegitimate child-100,000
(All-800,000)

each

Legitimate children-200,000
Spouse-200,000

If there are 8 illegitimate children, the legitimate child gets a


share lower than his legitime. So, in such case, the above
used formula should not be followed and the formula in
testamentary succession will apply. In testamentary
succession, if decedent is survived by legitimate children,
spouse and illegitimate children, it will be:
Total Estate: 1,400,000
Share:
Legitimate children- of the estate
Spouse- same share with 1 legitimate child
Illegitimate children- share of 1 legitimate child

Thus:
Legitimate children-700,000 (350,000 each)
Spouse-350,000
Illegitimate children- still 350,000 (divided by 8)
Instead of 175,000 in order to dispose all

Only that portion shall be given to the illegitimate children. So


after computing, there must be an evaluation if the legitimes
are still intact, if not, the division in testamentary succession
must prevail because the entire estate can still be disposed.
Article 1000. If legitimate ascendants, the surviving spouse,
and illegitimate children are left, the ascendants shall be
entitled to one-half of the inheritance, and the other half shall

be divided between the surviving spouse and the illegitimate


children so that such widow or widower shall have one-fourth
of the estate, and the illegitimate children the other fourth.
(841a)
Here, the legitimate ascendants, the surviving spouse, and
illegitimate children are the survivors. It is divided in a manner
that the legitimate parents or ascendants get , the
illegitimate children get and the surviving spouse gets .
It is different from testamentary succession since in
testamentary succession (unholy provision), in the same set of
survivors, the legitimate ascendants receive , the
illegitimate children get and the surviving spouse gets 1/8
and the other 1/8 is the free portion.
In instances of mixed succession where there is intestacy, for
example, the testator left a legacy in his will worth 200,000 to
X and that is the only provision in his will. However, he left an
estate worth 2 Million and the survivors are legitimate
parents, spouse and illegitimate child. There is still allowance
that even if there is deduction, the legitime of spouse is not
impaired.
In this case, the legacy will be deducted from the heir who
gets more in legal succession than in testamentary succession.
For example, in testamentary succession, the legitimate
parents receive , the illegitimate children get and the
surviving spouse gets 1/8. Thus, it is the spouse who gets
more in legal succession than in testamentary succession and
so, it will be deducted from the spouse. The spouse still has
the allowance where the legacy can be deducted without the
impairment of her legitime since her legitime is only 1/8 so
there can be deduction without prejudice to her legitime. It
cannot be deducted from the others (legitimate parents and
illegitimate children) since there share in legal succession is
the same in testamentary succession.
Even there is a will, the 200,000 will not be first to be
deducted in such a way the , , and will be deducted
from the remaining 1.8 Million. Even in legal succession,
legitime must always be preserved. The 200,000 will not be
deducted as it impairs the legitime of the heirs.
Therefore, in legal succession, of 2 Million is 1 Million will
be given to the legitimate parents; of 2 Million is 500,000
will be given each to illegitimate child. The 1 Million and
500,000 is the legitime of legitimate parents and illegitimate
children and in testamentary succession, the spouse has only
1/8 as legitime, thus even if the legacy of 200,000 will be
deducted from the spouse, her legitime is not impaired. The
remaining 300,000 will remain to the spouse and in this
sense, there is no impairment.
Article 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be entitled
to one-half of the inheritance and the brothers and sisters or
their children to the other half. (953, 837a)
It was discussed already. The spouse survives with brothers
and sisters. The division will be half-half. If there are brothers

Ad Majorem Dei Gloriam

18

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
and sisters who predeceased and they are represented by
their children or the nephews and nieces of the decedent with
the same share, to the spouse and to the nephews and
nieces.
Article 1002. In case of a legal separation, if the surviving
spouse gave cause for the separation, he or she shall not
have any of the rights granted in the preceding articles. (n)
It was discussed before in disinheritance that when there is
already a decree of legal separation, the guilty spouse is
disqualified by operation of law to inherit from the offended
spouse. In that case, if the guilty spouse is the survivor, he or
she will receive nothing but if the innocent or offended spouse
is the survivor, then, the articles which we discussed will
apply.
If there has been no decree of legal separation, the guilty
spouse is still an heir unless he has been disinherited. Without
disinheritance, even if he gave the cause for legal separation
and there is no decree, the guilty spouse can still inherit.
Subsection 5. Collateral Relatives

Article 1003. If there are no descendants, ascendants,


illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased in
accordance with the following articles. (946a)
Article 1003 speaks of a situation where the collateral relatives
are the only survivors. Take note, the collateral relatives are
excluded by the children whether legitimate or illegitimate and
by ascendants but they are not excluded by the surviving
spouse. They actually concur with the surviving spouse.
Obviously, if they are the only survivors, they succeed to the
whole estate.
The rules to be followed here are:
1.

The nearer relatives exclude those far.

2.

Those in the descending line are favored than those


in the ascending line.

3.

Collaterals only covered those up to the 5th degree of


consanguinity.

4.

The right of representation in the collateral line


extends only up to nephews and nieces.

Article 1004. Should the only survivors be brothers and


sisters of the full blood, they shall inherit in equal shares.
Article 1005. Should brothers and sisters survive together
with nephews and nieces, who are the children of the
descendant's brothers and sisters of the full blood, the former
shall inherit per capita, and the latter per stirpes.

It was already illustrated before. For example, A, B, C and D


are the brothers and sisters of the decedent. If A predeceased
the decedent and the estate is 2 Million, the 2 Million will still
be divided into 4 so each will receive 500,000. Since A
predeceased, his share will go to M and N (As children) by
right of representation and they inherit per stirpes. It is
different if, for example, all of them predeceased the
decedent. In such case, the nephews and nieces will divide in
equal shares.
If B predeceased, so A, C and D are still alive and O who is Bs
child also predeceased but O left another child S. Here, only
A, C and D can inherit since the right of representation can
only be extended in the collateral line only up to nephews and
nieces. It cannot be extended to S.
Article 1006. Should brother and sisters of the full blood
survive together with brothers and sisters of the half blood,
the former shall be entitled to a share double that of the
latter. (949)
Here, the survivors are brothers and sisters in the full blood
and brothers and sisters of the half blood. The law says the
brothers and sisters in full blood shall inherit twice as much as
brothers and sisters in half-blood, in short, 2 is to 1. It is very
easy. There is no need for illustration. The division is the
same in the division used for the share of legitimate and
illegitimate children.
Formula:
Let x = share of half brothers and sisters
2x = share of brothers and sisters in full blood

Here, the law presumed that the affection of the decedent of


the full blood siblings is more than the affection to the half
blood siblings. However, in testamentary succession, if the
testator instituted his brothers and sisters in full blood, and
brothers and sisters in half blood, they are presumed
instituted equally. There is no 2 is to 1 since the law provides
they are equal and here, there is a will and while making it he
has the opportunity to specify the shares of his siblings. In the
absences of specification, the law presumes equal affection.
However, in Article 1006, there is no will.
Article 1007. In case brothers and sisters of the half blood,
some on the father's and some on the mother's side, are the
only survivors, all shall inherit in equal shares without
distinction as to the origin of the property. (950)
Just read it. However, take note that there are instances all
half blood brothers and sisters but they have different parents
(Viuda or viudo, then, remarry etc). They are all illegitimate
but half brothers and sisters. Yet, it does not matter since all
shall inherit in equal shares without distinction as to the origin
of the property.
Article 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in accordance

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19

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
with the rules laid down for brothers and sisters of the full
blood. (915)

municipalities or cities. The court shall distribute the estate as


the respective needs of each beneficiary may warrant.

Just read it.

The court, at the instance of an interested party, or on its own


motion, may order the establishment of a permanent trust, so
that only the income from the property shall be used. (956a)

Article 1009. Should there be neither brothers nor sisters


nor children of brothers or sisters, the other collateral relatives
shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)
Here, it talks about the other collateral relatives. As discussed,
the right of representation only extends only up to nephews
and nieces. Beyond it, the rule of proximity applies. The
nearer relatives exclude those far without distinction of lines
whether in the maternal or paternal line and whether full or
half.
Article 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the collateral
line. (955a)
This only applies to the collateral line. If it is in the direct line,
ascending or descending, there is no limitation.
Subsection 6. The State

Article 1011. In default of persons entitled to succeed in


accordance with the provisions of the preceding Sections, the
State shall inherit the whole estate. (956a)
For example, the decedent died intestate and has no collateral
relatives within the 5th degree and no more relatives in the
direct line, ascending or descending, the entire estate shall go
to the state. The right of the state to take the property of the
decedent, who died intestate but have no legal heirs, is called
the fiduciary right of the state and the procedure for taking of
the property is escheat under Rule 91 of the Rules of Court.
Article 1012. In order that the State may take possession of
the property mentioned in the preceding article, the pertinent
provisions of the Rules of Court must be observed.
Article 1013. After the payment of debts and charges, the
personal property shall be assigned to the municipality or city
where the deceased last resided in the Philippines, and the
real estate to the municipalities or cities, respectively, in which
the same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such

The procedure for the distribution of the property called


escheat proceedings. Of course, the estate should pay the
debts and charges. If the decedent is a resident of a city or
municipality, the personal property shall be assigned to the
municipality or city where the deceased last resided, and the
real estate to the municipalities or cities, respectively, in which
the same is situated since it cannot be detached.
If the deceased not a resident of the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located. The beneficiaries are public
schools, and public charitable institutions and centers, in such
municipalities or cities and the court shall order the
distribution.
Article 1014. If a person legally entitled to the estate of the
deceased appears and files a claim thereto with the court
within five years from the date the property was delivered to
the State, such person shall be entitled to the possession of
the same, or if sold, the municipality or city shall be
accountable to him for such part of the proceeds as may not
have been lawfully spent. (n)
Assuming the properties are already escheated in favor of the
government and subsequently a person, who is a legal heir,
appears. He can file a claim in order to acquire the property
within 5 years from the date the property was delivered to the
State. If it is proven that he is really a legal heir, then, he
shall be given the possession of the property or if the
[property is sold, part of the proceeds which has not been
lawfully spent by the state.
In a case, the decedent died and her properties are
escheated. Then, her friend who attended into her needs
during her lifetime, intervened in the proceedings and claimed
that the properties are donated to her by the decedent.
However, she was not able to present the deed of donation so
the properties are escheated to the state. But after how many
years, she found the deed of donation so she filed a petition
to recover the properties covered by the deed of donation.
The state claimed that the 5 years has already lapsed from
the date of distribution but the friend said that the property is
in the first place, not part of the estate because they are
donated to her so when the decedent died, her estate does
not include those which are donated. However, the SC said
that she has 5 years from the date of distribution within which
to recover the property regardless of whether or not the
donation is valid. And because she filed the petition to recover
the properties beyond 5 years, then, the action is already
lapsed.
October 15, 2015 (EAEscovilla)

Ad Majorem Dei Gloriam

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
CHAPTER 4. PROVISIONS COMMON TO TESTATE AND
INTESTATE SUCCESSIONS
SECTION 1. Right of Accretion
So now we go to the provisions common to testate and
intestate succession.
These concepts, we all apply whether it is testamentary
succession or legal succession. First we have Article 1015.
Art. 1015. Accretion is a right by virtue of which, when two
or more persons are called to the same inheritance, devise or
legacy, the part assigned to the one who renounces or cannot
receive his share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees, or colegatees. (n)
Based on the definition under Article 1015, we have two or
more persons, instituted to the same or called to the same
inheritance, legacy or device, and one of them cannot receive
his share. So that share becomes vacant. To whom shall that
share go? Shall it go to the legal heirs? The law says it shall
accrue to his co-heirs upon succession. Again, this is pursuant
to what we have discussed before: that in the order of
priority,
1.

Institution

2.

Substitution

3.

Representation

4.

Accretion

5.

Intestacy.

If theres a way that the share of the heir who cannot receive
can go to the others, then we should avail of that first before
we go to legal succession. But of course, before we can give
to the other co-heirs, all the requisites for accretion should be
present. There are requisites.
Based on Article 1015, we have:
1. Unity of object.
When we say unity of object, theres only one
inheritance, legacy or device.
I hereby give to A and B this house. So theres one
inheritance. There can be accretion in that case
because there is unity of object, as long as all the
other requisites are present.
2. Plurality of subjects.

repudiation, incapacity, or predeceased. So there is a


vacant portion. Lets go to Article 1016.
Art. 1016. In order that the right of accretion may take place
in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro
indiviso; and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be
incapacitated to receive it. (928a)
Article 1016 merely reflects what we discussed before. The
requisites, there should be, aside from unity of object, there
should be plurality of subject and a vacant portion, which is
the one mentioned in 1016.
Now we go to 1017. How do we know if there is still unity of
object? For example, theres no problem if the testator says,
I hereby give to A and B this house. So we have the house.
What if he says, I hereby give to A of the house, to be,
of the house. Is there unity? There is still unity of object in
that case. That is in Article 1017.
Art. 1017. The words "one-half for each" or "in equal
shares" or any others which, though designating an aliquot
part, do not identify it by such description as shall make each
heir the exclusive owner of determinate property, shall not
exclude the right of accretion.
In case of money or fungible goods, if the share of each heir
is not earmarked, there shall be a right of accretion. (983a)
The law says there is still unity of object even if the words
to each, to A, to B. Why? Because here, there is no
designation of specific shares. You cannot say that if you give
to A, A is already the exclusive owner of a specific portion
of the property. If you say to A, that means for every inch,
for every square meter of the property, for every unit of
measurement of the property. A is owner. He cannot
specifically point out that this is my share. That is why
accretion is still possible.
If for example there is already a marking. I hereby give to A
my cash in Metrobank, to B my cash in BPI, to C my cash in
BDO. So here the money is already earmarked. In case A
dies, shall the money allocated to A accrue to B and C? No.
Because there is no unity of object. They are not called to the
same inheritance or legacy. Even if they are called to the
same kind of property, cash, but the property, the money has
already been earmarked.

3. There is a vacant portion, of course.

Or, for example, I hereby give to A and B this house. The


first floor is for A, the second floor is for B. Would accretion
be possible in that case if for example A predeceases the
testator? No, because there is earmarking. First floor to A,
second floor to B. A can say definitely, this is my share, the
first floor.

Meaning, we have one heir who is called to the


succession cannot receive maybe because of

Or To A, the southern part of the property; to B, the northern


part of the property. Can there be accretion there in case A

Meaning, there should be at least two or more heirs


called to the same inheritance, legacy or device. Two
or more.

Ad Majorem Dei Gloriam

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
predeceases the testator? No, because again, there is
earmarking. There is already designation to A, the southern
part, to B the northern portion.
Art. 1018. In legal succession the share of the person who
repudiates the inheritance shall always accrue to his coheirs. (981)
Here, were talking about legal succession. In case of
repudiation, the law says there shall be accretion. So
repudiation in legal succession can give rise to accretion.
Remember, because there are some vacancies which cannot
give rise to accretion. We will just summarize that.
Art. 1019. The heirs to whom the portion goes by the right
of accretion take it in the same proportion that they
inherit. (n)
Theres no problem if there are only two heirs. So if A
repudiates for example his share, then his share shall go to B.
So no computation needed. What if there are three heirs?
A
B
C
And for example, C repudiates. Therefore he cannot receive
his share. How much should be the shares of each?
- 600,000
- 300,000
So the vacant portion here is the share of C, which is 300,000.
BY accretion, the share of C will go to A and B. How much
shall each of A and B receive? Do we give to A and to B?
No, because kulangsiya. It will not amount to 1. So how do
we divide? In the same portion they inherit. So we base it
here.
600,000+300,000 = 900,000
600,000/900,000 or 2/3 of 900,000 shall go to A. That would
be 200,000.
300,000/900,000 or 1/3 of 900,000, goes to B. Or 100,000.
So in the same portion that they inherit.
Art. 1020. The heirs to whom the inheritance accrues shall
succeed to all the rights and obligations which the heir who
renounced or could not receive it would have had. (984)
They shall succeed to the same rights and obligations imposed
on the heir who could not or who did not receive his share.
Thats the general rule. Unless of course the testator would
say na if there is accretion, then the heirs to whom the shares
will accrue are not bound by the obligation imposed by the
heir to whom the share is originally given.
Art. 1021. Among the compulsory heirs the right of accretion

shall take place only when the free portion is left to two or
more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs
shall succeed to it in their own right, and not by the right of
accretion. (985)
If testamentary succession, Article 1021 says, the right of
accretion takes place only where, in what portion? In the free
portion. Remember, in testamentary succession, we do not
have accretion in the legitime. So what if one of them cannot
receive? Like three children and one of them cannot receive
either by repudiation, predecease or incapacity. His share, to
whom shall his share go?
We have again A, B and C, all legitimate children. As to their
legitime, for example if As share become vacant, his share
will also go to B and C, just like in accretion. But it is not
accretion. His share shall go to B and C in their own right.
Technically, the same effect, but technically also, not termed
as accretion but in their own right.
So if it is the free portion, the law says accretion would be
possible. The same effect, but its called accretion.
Art. 1022. In testamentary succession, when the right of
accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall
pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations. (986)
When the right of accretion does not take place, then the
vacant portion shall go to the other heirs. This is just an
illustration again of what we have discussed before, the order
of priority. ISRAI.

Diba we discussed that in testamentary succession, there is no

accretion in the legitime. Accretion can only happen in the


free portion. But for example, even despite the fact that there
is a vacant portionwere talking of the free portion
accretion would still not be possible because assuming not all
the requisites are present, then to whom shall the share go?
The law says now to the legal heirs by intestacy, which is the
last resort. The legal heirs of the testator. ISRAI.
Remember, in testamentary succession, as we have just
discussed, accretion is not possible in the legitime, it is only in
the free portion. We already discussed the right of
representation before. In testamentary succession also, please
remember, the right of representation applies only to the
legitime. It does not apply to the free portion. So baliktad sila
sa accretion no? Accretion sa free portion lang, walay labot
ang legitime. Representation legitime lang, walay labot sa free
portion.
Art. 1023. Accretion shall also take place among devisees,
legatees and usufructuaries under the same conditions
established for heirs. (987a)
The same concept would apply in legacy, device or
inheritance. There is no distinction. The same principles that

Ad Majorem Dei Gloriam

22

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
we apply, that we have discussed, apply regardless of
whether or not it is an inheritance, a legacy or a devise. As
long as all the requisites are present. Unity of object, plurality
of subjects and vacant portion.

vacant, his share will go to B and C, but not by accretion but


in their own right. That would be for accretion.
SECTION 2. Capacity to Succeed by Will of by
Intestacy

So in summary, as to the kind of vacancy, in testamentary


succession, when can accretion happen? What kind of vacancy
can give rise to accretion?

We now go to incapacity. We have Article 1024.

1.

Predeceased? Yes. Again, we are talking only of the free


portion. Predeceased, yes.

The general rule in succession.

2.

Incapacity? Yes.

3.

Repudiation? According to Article 1018, the share always


accrues to the others, so yes. Accretion is possible.

Art. 1024. Persons not incapacitated by law may succeed by


will or ab intestato.

4.

Non-fulfillment of a suspensive condition? Like A, B and C


are instituted as heirs to this property, specific. But As
institution is subject to the condition that he will pass the
bar exam. He did not pass the bar exam, so he will not
receive his share. To whom shall the share go? The other
heirs by accretion.

5.

And lastly failure to identify one particular heir. So A, B


and C have been designated as heirs, but upon looking
for B, you dont know who is B. Theres confusion, and
even after suing all the rules in interpretation and
construction, thus the rules on latent ambiguity, patent
ambiguity, extrinsic evidence, wa gyud ka nakabalo kinsa
na si B. So we cannot give, to whom shall that share go?
If accretion will be possible then to the other heirs. If not,
last would be intestacy.

In legal succession, what kind of vacancy shall give rise to


accretion? Where is accretion possible?
First, if it is repudiation, if the vacancy is by repudiation, the
vacant share always accrues to the other heirs. So accretion is
possible.
Second would be incapacity, if one of the heirs cannot receive
because he is incapacitated, his share shall go to the others
by accretion. But this is subject to the right of representation.
Because, in legal succession, the right of representation
covers the entire share, unlike in testamentary succession, the
right of representation again covers only the legitime, so we
cannotthere is no way in testamentary succession that
pwede magabot ang accretion ug representation. Again, ang
representation sa legitime, free portion lang sa accretion. But
in legal succession, there is a possibility na dili pa pwede ang
accretion because representation would be possible.
Like again, if incapacity, if one of the heirs like A predeceased
the decedent, his share can accrue to the others. But if he has
a representative, then his share will not accrue to the others
but will go to the representative.
How about if predeceased? Take note, in legal succession, in
case of predeceased, there will be no accretion because the
shares of the heirs who predeceased the testator, if they have
no representative, will go to the others in their own right. So
although again the effect would be the same as in accretion,
like if A dies ahead of the testator, so his share becomes

The provisions relating to incapacity by will are equally


applicable to intestate succession. (744, 914)
Here the rules on incapacity are also applicable both to
testamentary succession and legal succession. When you say
incapacity, that means the heir is disqualified to receive from
the decedent. There is no need to disinherit him. By law, he is
disqualified. Hes excluded.
The general rule however is capacity. That is why Article 1024
says persons not incapacitated by law may succeed by will or
ab intestato. As long as you are not incapacitated or
disqualified by law, you have the capacity to succeed. Now
when you say capacity to succeed, who are capacitated, what
kinds of persons have capacity to succeed? Natural persons,
juridical persons? We have to make a distinction.

In testamentary succession, of course natural persons can


succeed, how about juridical persons? Yes, as long as they are
allowed by their charter to succeed.
How about in legal succession? Yes, natural persons can
succeed. Juridical persons cannot succeed. They are not legal
heirs, except of course the state. The state is a legal heir, as
we have discussed before. Of course, for natural persons,
what is required, we discussed already under Articles 40 and
41.
For a natural person to become capacitated, he should attain
juridical capacity, legal personality. So we have to distinguish
that from capacity to act. Diba, capacity to act is the capacity
to act with legal effects, like you cannot enter into a contract
if you are not yet 18 years old. You need to be of majority;
you need to be emancipated before you can have capacity to
act. But, do you have juridical capacity even before youre 18?
Yes. You already have juridical capacity. You have the
capacity to be the subject of legal relations. That is why even
a one-year-old child can receive a relation or can be an heir.
How about if the baby or the fetus is still in the womb? Can
that fetus receive a donation? Can it be an heir, a legatee or
devisee? Again, as we have discussed, we need to comply
with the conditions in Articles 40 and 41. Again, what are
those conditions?
If the fetus had an intrauterine life of less than 7 months, he
has to live for at least 24 hours after complete delivery.

Ad Majorem Dei Gloriam

23

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
If the fetus had an intrauterine life of at least 7 months, as
long as he is born alive, it doesnt matter if he dies one
minute after as long as he is born alive.
Thats Article 1025.
Art. 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is
proper.
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)
So again, at least there is juridical capacity. And the heir must
be living, or at least conceived at the time of death of the
decedent. As discussed in the case of
Rigor vs. Rigor
That case where the testator said his nearest male relative
who would enter priesthood. Kinsa man na sila? Pwede ba na
at the time of death niya nawala pa ang relative? And then
later on naa nay magpari sa ilaha? The Supreme Court said at
least that relative should be living or at least conceived at the
time of death of the testator. It cannot be just any relative
who would study in the future even if at the time of death he
was not yet born. Because it was a condition that for one to
inherit that he must be living or at least conceived at the time
when the succession opens.

Art. 1026. A testamentary disposition may be made to the


State, provinces, municipal corporations, private corporations,
organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed under a will,
unless there is a provision to the contrary in their charter or
the laws of their creation, and always subject to the
same. (746a)
So again, as I mentioned, in testamentary successions, there
is a will. Juridical persons may be instituted or designated. So
under Article 1026, it can be done; it can be given to the
state, promises, etc. Corporations as long as they are allowed
by the law or the charter of their creation.
Before we go to 1027Article 1027 starts the provisions
relating to incapacity to succeed. There are actually two kinds
of incapacity. We have:
1.

Absolute incapacity

2.

Relative incapacity

So when you say incapacity, you are disqualified to succeed.


Absolute incapacity meaning the person cannot inherit from
anybody under any circumstance. So wala gyud siyay lusot.
Bisan unsa dili gyud siya makadawat. Like for example we
have Article 1026.

In 1026 diba it says: all other corporations or entities may


succeed under a will, unless there is a provision to the
contrary in their charter or the laws of their creation, and
always subject to the same.
So if their charter of creation would absolutely prohibit them
from succeeding, then theres absolute incapacity.
Or, another would be Article 1027 no. 6: individuals or
associations not prohibited by law to inherit.
And no. 3, those who lack juridical personality like the
abortive infants. They cannot inherit under any circumstances.
Relative incapacity here, the person cannot inherit but only
from certain persons or certain properties but he can inherit
from other persons and he can inherit other properties. So
relative incapacity.
Under the New Civil Code, we have 3 classes of relative
incapacity:

Article 1027, 1-5 thats incapacity by reason of


possible undue influence

Then we have Article 1028, incapacity by reason of


public policy and morality

And 1032, incapacity by reason of unworthiness.


These are the classes of relative incapacity.

Art. 1027. The following are incapable of succeeding:


In Article 1027, these persons are disqualified by reason of
possible undue influence. Take note under this Article the
presumption that there is undue influence is actually a
conclusive
presumption.
When
we
say
conclusive
presumption, you cannot present evidence to the contrary
unlike when it is a rebuttable or disputable presumption. So
you cannot present na, actually wala gud ni gisulsulan or

gihadlok sa pari kadtong tigulang na manghatag sa simbahan.


Voluntary gyud to! You cannot present evidence to that. It is
conclusively presumed that there was undue influence.

(1) The priest who heard the confession of the testator


during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same
period;

Kita ninyo sa law? Even our priest or congress do not really


believe na tanang pari buotan. Nakabutang gani diri because

of possible undue influence and conclusively presumed pa


gyud. What is the reason? To safeguard the rights of the heirs
who may be defrauded by the sinisterso evil gyud ha,
sinisterand undue influence which may be exercised by
some priest and minister over a dying man.
Here we contemplate a situation na nay himalatyon na kaayo,
dying. Of course when youre dying, your concern is the
afterlife. Diba, unsaon man na nimo imong billions, di man na
nimo madala. So because of that, you really want to go to
heaven. And when you confess, for example after you
confess, siguro niana si Father, Siguro kung magdonate ka sa
imuhang kayamanan mabawas-bawasan imong mga sala so

Ad Majorem Dei Gloriam

24

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

mas mugaan gaan imong mga sala. Murag makaadto kag


heaven. And because of that, wala may mawala sa iyaha,
naghatag siya, so that will be the possible scenario. That is
why here, take note, the will must be made during the last
illness of the testator.

What is that last illness? It is the illness which is proximate to


the death of the testator. It might be the illness of which the
testator died. Or again, the illness which was existing at the
time of his death, although he did not die of that illness. Naa
siyay cancer, so naa siyay taning. Mga one week nalang ka.
So nagkumpisal siya. Gihatag niya iyang properties. Pero
naligsan siya pagpauli. So wala siya namatay sa cancer.
Namatay siya sa hit-and-run. But still that is his last illness.
And as to the gravity of the illness, there must be a grave
possibility of death. Like again, kanang mga terminal na
cases, so kung gisipon lang siyadiba illness man pud na
dibaand he died during that time, it was the illness na
existing at the time of his death, no it will not apply. We will
not think of dying when we have sipon unless ingana nalang

gyud ka kapraning no.

And then the will must be made after the confession.


Nagconfess ka because it is again presumed that the undue
influence was executed during the confession. If the will was
made before the confession, then this disqualification will not
set in. After the confession. So the priest must hear the
confession. Kung nagpakalawat lang siya, its not applicable.
That is in paragraph one.
(2) The relatives of such priest or minister of the gospel
within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
How about the relatives of the priest? Yes, the law says the
relatives, thats in number two, within the fourth degree. It
does not even say consanguinity, so it would cover affinity
within the fourth degree, his church, order, chapter etc.
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the
testator should die after the approval thereof;
nevertheless, any provision made by the ward in
favor of the guardian when the latter is his
ascendant, descendant, brother, sister, or spouse,
shall be valid;

Number three, the guardian. A person can be constituted as a


guardian over the property, a guardian over the person, we
also have a guardian both over the property and the person.
All of these kinds of guardians are covered under this Article.
The prohibition lies when the testamentary disposition is given
or made during the subsistence of the guardianship. When do
you say that the guardianship still subsists? When the
guardian has rendered a final account and the account has
not yet been approve by the court. Because when you are a
guardian, you are required by the court to render an
accounting. So kung magterminate naka ug guardianship,

magsubmi tpud ka ug final accounting. To say nga wala gyud


nimo gihilabtan or giwaldas ang property sa ward. Before that
is approved naa lang gihapoy relationship of ward and
guardian. Kung maapprove na siya sa court, thats when the
guardianship is terminated. So during the time nawala pa
naterminate ang guardianship, any disposition made in favor
of the guardian by the ward is not valid. The guardian is
disqualified by reason of possible undue influence.

Now take note, unlike the priest, sa priest diba the prohibition
extends to his relatives within the fourth degree, in a
guardian, its not the same. The law says if the guardian is the
ascendant, descendant, brother, sister or spouse of the ward,
valid siya. The guardian is qualified to accept or receive the
inheritance, legacy or device. So dili mag-apply ang
disqualification because it is presumed na because of his
relationship, ang reason for the grant is not because of the
undue influence but love, affection. Pero again lahi gihapon
kay kung pari ka. Basta dili the same ang qualifications.
Going back to the priest, diba as we said even if the priest is
the son of the testator, the disqualification is still applicable.
But we know that the son is entitled to his legitime. Is the son
disqualified to receive his legitime because he heard the last
confession of the testator during his last illness? The
disqualification here would cover only the free portion.
Because the legitime is mandated by law. We cannot say that
the testator gave this legitime because he was unduly
influenced by the priest, no, because hes the son and he is
mandated by law. Only to the portion over and above the
legitime ang disqualification.
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming
under such witness, spouse, parents, or children;
Number four, any attesting witness. We already discussed this
before in witnesses diba. If a person is a witness at the same
time an heir, legatee or devisee, is the will valid? Yes, the will
is valid but there is a consequence. The person who is a
witness is disqualified to receive the legacy, inheritance or
device. Why? To prevent conflict of interest. Because if you
are a witness, and you are also an heir, naturally you would
really testify in favor of the will, otherwise you will not really
receive your inheritance.
So disqualified by reason of conflict of interest. But again, if
this witness who is also an heir, is also a compulsory heir, is
he disqualified to receive his inheritance? As we have
discussed, the disqualification also would cover only the free
portion. The legitime would still be given.
But we also discussed in witnesses that if there are four or
more witnessesso more than threeif you are an heir at the
same time a witness, and there are four of you, you will
receive your inheritance, legacy or device. Why? Because this
time, your presence as a witness is no longer needed for the
validity of the will, unlike if there are only three witnesses.
Youre one of them, and youre also an heir, your presence as
a witness is really necessary for the validity of the will. And to
prevent conflict of interest, again, you will not receive your
inheritance.

Ad Majorem Dei Gloriam

25

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
Number five, any physician, surgeon, nurse, druggist, health
officer who took care of the testator during his last illness.
These persons are also disqualified. Doctor, surgeon, nurse,
druggist, mura siyag pharmacist, dili ni siya pusher.
Lahipudnasiyana level. Who took care. Remember the word
took care, which contemplates a continuous care. Its not just
an isolated check-up where muadto ka didto, tagaon ka sa
doctor, its not disqualified, because it will not be considered
as taking care of. It should be continuous ang pagtake care.
Again, the same principle if the doctor, nurse, etc. is also a
compulsory heir. His disqualification will not extend to the
legitime, only to the portion over and above the legitime.
(6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
Number six, of course, as we ae discussed, if the individual or
association has not been permitted by law then it cannot
inherit.
Remember also, even if were talking of principles applicable
to both testamentary and legal succession, actually Article
1027 is applicable only to testamentary succession. This will
not apply to legal succession. Because in the first place in
legal succession, you are allowed to inherit because of the law
not because of the will of the testator. So bisan unsa pa nimo
pag influence sa testator, kung wala siyay will, ang law ang
magbuot kung matagaan baka or dili. Thats Article 1027.
Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to testamentary
provisions. (n)

Art. 739. The following donations shall be void:


(1) Those made between persons who were guilty of adultery
or concubinage at the time of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descedants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of
nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action. (n)
These are the grounds for incapacity by reason of public
policy and morality. So here, when applied to succession,
Article 739, these would be the prohibitions, the
disqualifications. If the testator and recipient would be guilty
of adultery and concubinage, so the recipient is disqualified to
inherit.

So number two, when the testator and the recipient are guilty
of the same criminal offense, in consideration thereof. The
testator ordered X to kill his wife for example, and as a price
or reward he instituted X as heir. So X is disqualified because
thats in consideration of the same criminal offense. Theyre
both guilty of murder or parricide.
Number 3, those made by a testator to a public officer, or his
wife, descendant and ascendant by reason of his office. Here,
to prevent bribery or extortion, you cannot institute a public
officer by reason of his office. Take note of the caveat, by
reason of his office. Gitagaan nimo, gipamanahan nimo si
judge kay gipadaog ka niya sa kaso. So kana siya disqualified.
Pero kung gipamanahan nimo si judge kay best friend nimo
siya since kinder, or relative nimo siya, distant, whatever, it
cannot be presumed na by reason of his office because of the
relationship or affection.
Art. 1029. Should the testator dispose of the whole or part of
his property for prayers and pious works for the benefit of his
soul, in general terms and without specifying its application,
the executor, with the court's approval shall deliver one-half
thereof or its proceeds to the church or denomination to
which the testator may belong, to be used for such prayers
and pious works, and the other half to the State, for the
purposes mentioned in Article 1013.
Here, the testator made some dispositions for prayers and
pious works for the benefit of his soul. Para sure gyud siya no

namalangit siya, mag ibilin gyud siyag kwarta para iampo sa


iyaha. Nagbilinkag 1 milllion para magampokasaakoa.
Institution of the soul, this is usually called the institution of
the soul. Asa man ni siya maadto? Kinsa maggunit sa kwarta?
The law says shall go to the church or denomination to
which the testator may belong, to be used for prayers and
pious works; and that the half is for the state for the purposes
mentioned in Article 1033, charitable institutions, so didto siya
mahatag. That is disposition of the property. Kung halimbawa
the disposition is in general terms, ingon lang siya for prayers
and pious works. That is the disposition.
Art. 1030. Testamentary provisions in favor of the poor in
general, without designation of particular persons or of any
community, shall be deemed limited to the poor living in the
domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as
poor and the distribution of the property shall be made by the
person appointed by the testator for the purpose; in default of
such person, by the executor, and should there be no
executor, by the justice of the peace, the mayor, and the
municipal treasurer, who shall decide by a majority of votes all
questions that may arise. In all these cases, the approval of
the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite
locality. (749a)

Ad Majorem Dei Gloriam

26

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
In 1030 we also have the institution of the poor. A disposition
in favor of the poor. Take note, in general. Wala
nakadesignate kung kinsa ni na mga persons or asaninamga
poor. Kinsa man ning mga poor? The law has given us the
standards, otherwise kung wala ni siya, daghan kayo
magclaim, poor ko, poor ko, apil ko diha. Kinsa man ning
poor?

(7) Any person who by the same means prevents


another from making a will, or from revoking one
already made, or who supplants, conceals, or alters
the latter's will;

The law says the poor living in the domicile of the testator at
the time of his death. So kungtagadidtoka, possible. Unless
there is a different provision. And then kinsa man magingonna
kana sila poor gyud? So here the law says who are these
persons who shall decide. Just take note of article 1030.

We have incapacity by reason of unworthiness, that is Article


1032. Here the disqualified heir has committed an offense
against the decedent or the testator. This applies to legal
succession as well as testamentary succession. The law deems
the heir to be unworthy and therefore the heir is disqualified.

So we have article 1029, the institution of the soul, that is not


a natural person diba? Institution of the poor, thats also not a
natural person, thats a class.

You have to take note that some of the grounds for


unworthiness or incapacity by reason of unworthiness are also
grounds for disinheritance. You can say that these grounds
which are common, some of the grounds, even if the heir was
not disinherited, still he is disqualified. So there is actually no
need to disinherit the heir who committed some of the
grounds which are also the same grounds for disinheritance,
because by operation of law, they are already disqualified.

Art. 1031. A testamentary provision in favor of a disqualified


person, even though made under the guise of an onerous
contract, or made through an intermediary, shall be
void. (755)
For example, ang imuhang mistress si A. Of course you know
na you are disqualified to give and A is also disqualified to
receive from you. So gicourse through nimo sa inyuhang
common friend, with the instruction nasi common friend
ihatag pud niya kay mistress. That disposition in favor of the
common friend is also void; otherwise it would also be easy to
circumvent the disqualifications provided for by law. Thats
under Article 1031.
Art. 1032. The following are incapable of succeeding by
reason of unworthiness:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral
life, or attempted against their virtue;

(8) Any person who falsifies or forges a supposed will of


the decedent. (756, 673, 674a)

Like number one, that is a ground for disinheritance which we


already discussed. So even without disinheriting actually the
heir, he is disqualified by law.
Number two, the same thing. Any person who has been
convicted of an attempt against the life of the testator, his or
her spouse, ascendants or descendants. You have to
remember all these common grounds, because if you only
know the grounds for disinheritance, and then you have a
client who consults you, Actually attorney, gipagtangkaan
kog patay sa akong anak, na convict siya. Diba ground siya
for disinheritance? But kadtong client namatay nalang wala
niya nadisinherit ang heir and then ang mga anak niya uban,
can you say na, Ay sorry, walataymabuhat kay wala man
gidisinherit sa inyong papa ang inyong igsoon, so makainherit

gihapon siya.

(2) Any person who has been convicted of an attempt


against the life of the testator, his or her spouse,
descendants, or ascendants;

Maybe wala namo ni abot sa disqualifications nagstudy, didto


lang mo niabot sa disinheritance. So, kulang. You have to
know.

(3) Any person who has accused the testator of a crime


for which the law prescribes imprisonment for six
years or more, if the accusation has been found
groundless;

Here, remember the common grounds.

(4) Any heir of full age who, having knowledge of the


violent death of the testator, should fail to report it
to an officer of the law within a month, unless the
authorities have already taken action; this
prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or concubinage
with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a
will or to change one already made;

Number two, convicted of an attempt against the life of the


testator, his or her spouse, descendants or ascendants. So
what if for example the heir attempted to kill an ascendant of
the testator? Diba convicted of an attempt not only against
the life of the testator; he has the spouse, descendant or
ascendant. So we now have na heir, and then the testator
died. After sa death ni testator, kadtong iyang isa ka heir,
iyahang gipatay or iyahang gi attempt ug patay ang papa ni
testator, and he was convicted of that crime. Is that heir
disqualified under number two of 1032? Because he has been
convicted of an attempt against the life of the testators
ascendant. Is he disqualified?
Again the basic principle of succession diba, succession opens
at the moment of death. So your qualification we discussed
before, the intrinsic validity of the will for example shall be
governed by the law in force at the time of death. Thats the

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
same thing with capacity to succeed which we will discuss
under Article 1039.
Aside from the fact na its governed by national law from the
viewpoint of time, from the viewpoint of place of country,
from the viewpoint of time its governed by the law in force at
the time of death. So thats why as an heir also, your
qualification to succeed is measured by your qualifications at
that time when you are about to receive the properties. Thats
also the time of death. So when at the time of death wala pa
kay offense na nabuhat, then you are qualified. When you
committed an offense after the death that is no longer
covered. Because after the death, before there was already
transmission. The offense should happen before there is to be
transfer of property, before death.
Number three, the same ground for disinheritance.
Number four, the law says an heir of full age. Take note when
you say full age, we are not only referring to the age of
majority. Majority is 18. When you say full age, the law says
its 21. So you should be 21 at least and having knowledge of
the violent death of the testator. The violent death
contemplated here is one caused by a crime. And should fail
to report to the officer of the law within a month. But take
note the last paragraph says, this prohibition shall not apply
wherein according to law, theres no obligation to make an
accusation. There should be a law which obliges or compels to
accuse. When you say to make an accusation, whether you
report, you file a case. Under our present state of laws wala
pa tay law which compels anyone to make an accusation or to
file cases. Because of that, number four is not yet applicable,
wala pa siya maaply in our jurisdiction.
Number five, any person convicted of adultery or concubinage
with the spouse of the testator. Take note ha, the disqualified
person is the other guy or the other woman who is convicted
of adultery or concubinage with the spouse of the testator,
not the spouse himself or herself but the other person.
How about the spouse? For example imong asawa nay kabit,
niya ang iyang kabit kay heir pud diay nimo, so he is
disqualified if there is conviction. How about the spouse? Is
the spouse disqualified? Theres no disqualification mentioned
under the law. That can be a ground to disinherit the spouse,
because that is a cause for legal separation. But kung wala
nimo gidisinherit, the spouse is not disqualified unless you file
also a case for legal separation and the spouse is found guilty.
By operation of law, that spouse is disqualified. But without a
degree of legal separation, and without disinheriting that
spouse, the spouse is qualified. She is not disqualified.
Number six, seven and eight. Vitiated the consent of the
testator when he made the will, because by fraud, violence,
intimidation, undue influence, caused the testator to make a
will or change one already made or prevents him from
revoking a will or etc. these are the persons who are
disqualified by law to inherit from the testator or the
decedent, both in legal and testamentary succession.
Art. 1033. The cause of unworthiness shall be without effect
if the testator had knowledge thereof at the time he made the

will, or if, having known of them subsequently, he should


condone them in writing.
Article 1033 talks about condonation. We have express
condonation and implied condonation. The law says the
causes of unworthiness shall be without effect if the testator
had knowledge thereof at the time he made the will, or if he
having known them subsequently, he should condone them in
writing.
Example:
The testator already knew about the ground, lets just say this
person has committed an act which is a ground for incapacity
by reason of unworthiness but despite knowing that the
testator made a will and in that will he still instituted or
designated that person as an heir. What is the meaning of
that? Meaning he has already condoned the offense. There
has to be a designation or institution of that person as an heir
for there to be an implied condonation. Once he makes that
will, then the person can already receive. We cannot anymore
allege later on that he was disqualified because against there
was already implied condonation. Or he expressly condoned
the act in writing having known of them already.
Example:
The testator already made a will. He gave his estate to A,B, C
and D. And then he committed an act which is a round for
disqualification, by reason of unworthiness. So D by operation
of law is now disqualified. What if the testator would really
want D to receive the share given to him, what should he do?
He should condone the act in writing. So magsulat siya I
forgive D even if he attempted against my life, he already
suffered for it for 10 years in prison so I forgive him. So that
now erases the disqualification. That is an express
condonation.
If you remember in disinheritance when there is already
reconciliation between the heir and the testator, the testator
can no longer disinherit the heir, or if he already disinherited
the heir, that disinheritance is already erased. Wala na siyay
effect. Reconciliation presuppose a mutual restitution or
resumption of feelings and relationship between the testator
and disinherited heir. Kung pardon lang, dilli siya sufficient in
disinheritance. But in capacity, dili pud pwede na
reconciliation lang. There has to be condonation in writing.
That is the law. What if the ground for incapacity is also made
as a ground for disinheritance?
Again attempt against the life of the testator is a ground for
disinheritance. Its also a ground for incapacity. So even if you
did not disinherit your son who attempted against your life, by
operation of law he is unworthy and therefore disqualified. So
suko man gyud kayo ka, bisan pa kabalo naka na disqualified
na siya under the law, nagbuhat gyud kag will expressly
disinheriting that son. Gidisinherit gyud nimo siya. And then
subsequently nagreconcile mo duha. Would that reconciliation
be sufficient to restore the son to his capacity? Or based on
what we just discussed, there has to be a condonation in
writing kay subsequent naman siya, kay naa namay will.
Should there be condonation in writing?

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
The rule here is that if a ground for incapacity by reason of
unworthiness is also made a ground for disinheritance, mere
reconciliation would be sufficient because by disinheriting the
child or the heir, you are not covered by the law on
disinheritance. So if there is reconciliation, then restored na
ang heir to his capacity. No need to condone the act in
writing.
What if gicondone lang nimo ang act in writing? Walay
reconciliation. The same thing. As I said the law on
disinheritance will govern. There has to be reconciliation, not
just a mere condonation in writing.
OCTOBER 20, 2015 (GGarcia)
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of the death
of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall
be necessary to wait until final judgment is rendered, and in
the case falling under No. 4, the expiration of the month
allowed for the report.
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be
considered. (758a)
GR: As we already mentioned, transmission happens upon
death so the qualification or the capacity of the heir shall be
governed or measured based on its existence or non-existence
at the time of death of the decedent. But again, just take
note, it is necessary there is a final judgment in cases falling
under 2, 3, or 5 of Article 1032.
If the institution is subject to condition, we also have to
consider the time of fulfillment of the condition in order to
determine whether or not the heir is capacitated. Because, if
the institution is conditional, it shall not be effective also until
the condition is fulfilled. So those are the 2 points of time to
remember if the institution is subject to a condition.
(1) Time of fulfillment of the condition, and of course;
(2) Time of the testators death.
Art. 1035. If the person excluded from the inheritance by
reason of incapacity should be a child or descendant of the
decedent and should have children or descendants, the latter
shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his children.
A disqualified heir can still be represented. But again, the
disqualified heir cannot administer the property of his child if
that child represents him because of his incapacity. Its the
same as what weve discussed in disinheritance.
Art. 1036. Alienations of hereditary property, and acts of
administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall have a right to

recover damages from the disqualified heir. (n)


What happens if prior to the disqualification or the declaration
of disqualification (since incapacity is not automatic, there has
to be a declaration which may be requested by the affected
parties), he made some alienation of the properties? As long
as 3rd parties who deal with that property is not aware of any
defect in the title, he is considered an innocent purchaser for
value. So, the law says it is valid as to 3rd persons who acted
in good faith. If he has notice or knowledge of the defect in
the title who sold, then he cannot avail of this provision. So if
the 3rd party is in good faith, innocent purchaser for value, the
remedy of the co-heirs is against the heir who sold the
property.
Art. 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and
to enforce such credits as he may have against the estate.
(n)
Expenses for the preservation. These expenses will really have
to be incurred, whether they are incurred by the disqualified
heir or the estate, these have to be incurred. The disqualified
heir, even if he is disqualified, has the right for the
reimbursement or indemnification for these expenses.
Art. 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall
be obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have
received, or could have received through the exercise of due
diligence. (760a)
Just take not of the obligations of the disqualified heir under
1038.
Art. 1039. Capacity to succeed is governed by the law of
the nation of the decedent. (n)
Remember 1039 in conjunction with Article 16 of the Civil
Code. Under Article 16, the order of succession, the amount of
successional rights, the intrinsic validity of the testamentary
dispositions, are governed by the national law of the
decedent. Number four would be capacity to succeed under
1039. This is a usual bar exam question. So remember the 4
matters governed by the national law of the decedent: (take
note: not the heir, but the decedent)
1.

Order of succession

2.

The amount of successional rights

3.

Intrinsic validity of testamentary dispositions

4.

Capacity to succeed

Art. 1040. The action for a declaration of incapacity and for

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
the recovery of the inheritance, devise or legacy shall be
brought within five years from the time the disqualified
person took possession thereof. It may be brought by any
one who may have an interest in the succession. (762a)
Action for declaration of incapacity and action for recovery of
inheritance.
We have to file these within 5 years from the time the
disqualified heir took possession of the property because even
if there is an heir who is disqualified and he is given
something in the will, but then again after the will was
executed, he committed an offense against the decedent, so
he is disqualified, so there is no need to disinherit him. There
is also no pardon by the testator. But as long as he does not
take possession of the property, then the right to bring an
action for the declaration of his disqualification will not
commence to run, there is no adverse possession. It is
supposed to be from the time he took adverse possession.
Only interested parties can bring an action. So, one who will
be directly benefited by the avails of the suit. It can be the
heirs, other heirs, or creditors.

SECTION 3. Acceptance and


Repudiation of the Inheritance
Like in Donations, there is a need of acceptance in succession.
No one is compelled to accept the generosity of others. He
can refuse. You can also repudiate. So what are the law
governing acceptance and repudiation.
Art. 1041. The acceptance or repudiation of the inheritance
is an act which is purely voluntary and free.
Take note, you cannot force to accept. If you are forced to
repudiate, such repudiation is not valid. So, repudiation or
acceptance should be voluntary and free.
Art. 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent.
There is a retroactive effect. Even if you have accepted on
month after the death of the decedent, you have deemed to
accept it at the time of the death of the decedent. Any
increase of income from the property before your acceptance
will also to you, because your right will go back to the time of
the death of the decedent.
How about repudiation? It also retroacts to the moment of
death of decedent. So the heir who repudiates is never
deemed to have possessed the inheritance. Therefore, if it is a
real repudiation, he should return all properties and effects of
the estate. It is because by virtue of the repudiation, he is
deemed to have never accepted.
Art. 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the person

from whom he is to inherit, and of his right to the


inheritance. (991)
There are the REQUISITES BEFORE THE ACCEPTANCE
OR REPUDIATION WILL BE VALID. Of course, you cannot
repudiate without knowing the death of the decedent. It is
different if you know of his death because if he is dead
already, you right is vested, you are sure to receive. If he did
not die yet or you did not know, you can repudiate. But it is
not a well-informed repudiation. This is not valid. You have
nothing to lose because you do not know that the person is
dead. He should also know his right to the inheritance. You
must know that you have bee instituted. So, the repudiation
prior to the knowledge that you have been instituted is not
valid.
1.

Knowledge of the death of the testator, and

2.

Knowledge of the right to the inheritance.

Art. 1044. Any person having the free disposal of his


property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may
be accepted by their parents or guardians. Parents or
guardians may repudiate the inheritance left to their wards
only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, or in
their default, to those mentioned in Article 1030. (992a)
General requirement other than knowing the death of the
decedent, knowing ones right to the inheritance, of course,
when you accept or repudiate, you have the free disposal of
the property. In short, you must have a capacity to act. You
must be of age, and must not be suffering from any restriction
in the capacity to act. You might not be minor or suffering
mental incapacity, but you are suffering the incapacity under
civil interdiction, you cannot accept or repudiate. Take note:
acceptance or repudiation is a disposal of a property. If you
are incapacitated by civil interdiction, you can only dispose of
your property mortis causa
Take note that in the succeeding articles that we will discuss,
who are the heirs who can accept on their behalf and who can
repudiate on their behalf.
1.

Minors As mentioned, one must have a free disposal of


the property. Remember, for one to be capacitated to
inherit, the only requirement that he need is juridical or
civil personality, you must be born alive. But as to
repudiation or acceptance of that inheritance, we need
capacity to act. For minors, they may:
a.

ACCEPT Thru their parents or guardians.

b.

REPUDIATE Thru their parents, or guardians,


plus court authorization or judicial authorization.

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
2.

The poor, who can accept or repudiate?


a.

ACCEPT person or persons designated by the


testator to determine the beneficiaries, or in
default, the order made in 1030.

b.

REPUDIATE nothing is mentioned. Meaning, an


institution for the poor can only be accepted and
cannot be repudiated. Obviously, because
theyre poor. Poor na gani ka (like Von Lao),

mag repudiate pa judka!??? Jomvisyosa.

Art. 1045. The lawful representatives of corporations,


associations, institutions and entities qualified to acquire
property may accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court shall be
necessary. (993a)
3.

The heirs here are the corporations, associations,


institutions and entities qualified to acquire property, so
who may accept or repudiate?
a.

ACCEPT their lawful representatives. If it is a


corporation, there must be a board resolution
authorizing the person or rep to accept.

b.

REPUDIATE The lawful representative but with


court approval.

Art. 1049. Acceptance may be express or tacit.


An express acceptance must be made in a public or private
document.
A tacit acceptance is one resulting from acts by which the
intention to accept is necessarily implied, or which one would
have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such
acts, the title or capacity of an heir has not been assumed.
We have 2 kinds of acceptance:
1.

Express Acceptance in a public or private document.


Public document that is one acknowledged before a
notary public. Private document, one that is handwritten,
computerized, signed by the person who accepted.

2.

Tacit Acceptance It results from acts by which the


intention to accept is necessarily implied or which one
would not do except in his capacity as an heir. One which
is inconsistent with repudiation. For example, there is an
inheritance given in your favor, and then, you executed a
deed of donation without expressly saying you accepted
the property, it implies that you accepted because how
can you donate if you are not the owner.

Art. 1046. Public official establishments can neither accept


nor repudiate an inheritance without the approval of the
government. (994)

Acts of mere preservation or provisional administration do not


imply an acceptance of the inheritance. If for instance, you
just cleaned the property, that is not an act of ownership, only
act of preservation.

4.

We also have the concept of PRESUMED ACCEPTANCE


under article 1057.

Public official establishments may accept or repudiate


with the approval of the government.

Art. 1047. A married woman of age may repudiate an


inheritance without the consent of her husband. (995a)
5.

Married woman she may accept or repudiate on


her own without the consent of the husband. The
husband may also accept or repudiate, there is no
need to write it here because their right is always
recognized.

Art. 1048. Deaf-mutes who can read and write may accept
or repudiate the inheritance personally or through an agent.
Should they not be able to read and write, the inheritance
shall be accepted by their guardians. These guardians may
repudiate the same with judicial approval. (996a)

Art. 1057. Within thirty days after the court has issued an
order for the distribution of the estate in accordance with the
Rules of Court, the heirs, devisees and legatees shall signify
to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance. (n)
Under this Article, there is no acceptance or repudiation made
by the heir, but by his action (or inaction), he is deemed to
have accepted the inheritance. In case of doubt, it is to be
presumed that it is accepted. It is usual to accept that to
reject.
Art. 1050. An inheritance is deemed accepted: xxx

6.
7.

Deaf-Mute who can read and write may accept or


repudiate personally or thru an agent.
Deaf-Mute who cannot read or write.
a.

ACCEPTANCE - must be thru a guardian as they


do not have juridical personality.

b.

REPUDIATION must be thru their guardian


with court approval.

The instances mentioned under 1050 are actually examples of


tacit acceptance. Okay, so an heir sells, donates or assigns his
right to a stranger, co-heir, or to any of them but not to all.
For example,
(1) If the heirs sells, donates, or assigns his right to a

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
stranger, or to his co-heirs, or to any of them;
Under no. 1, the heirs are A, B, C, and D. A sold or donated
his share to B, or to C, or to any of them but not to all. Here,
there is tacit acceptance because in real repudiation, you
cannot choose to whom shall you repudiate, it has to be
indiscriminately in favor of the other co-heirs. If you sell, you
assume that it is accepted. You cannot sell if youre not the
owner. There is acceptance and you cannot say there is
repudiation.
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of his co-heirs;
Under no. 2, There is no sale or donation, you just repudiate
but your repudiation, you chose someone to whom you shall
repudiate, but to some of the co-heirs not to all. If you
repudiate to all, then there really is repudiation. If you
renounce, you do not have control to whom shall you
repudiated share will go and you will not receive anything in
exchange for it. In this case, you discriminately chose the one
who will receive your share, so there is tacit acceptance.
(3) If he renounces it for a price in favor of all his co-heirs
indiscriminately; but if this renunciation should be gratuitous,
and the co-heirs in whose favor it is made are those upon
whom the portion renounced should devolve by virtue of
accretion, the inheritance shall not be deemed as accepted.
Under no. 3, here, he renounced in favor of all
indiscriminately for a price. You cannot repudiate and accept
something in return. When you repudiate, you deemed to
have never benefited at all from the estate, if you have
received a price, then you have benefited, so you receive
something, that is not repudiation.
The law says in the last sentence, but if this renunciation

should be gratuitous, and the co-heirs in whose favor it is


made are those upon whom the portion renounced should
devolve by virtue of accretion, the inheritance shall not be
deemed as accepted.
This is repudiation in a real sense.
Art. 1051. The repudiation of an inheritance shall be made
in a public or authentic instrument, or by petition presented
to the court having jurisdiction over the testamentary or
intestate proceedings.
Lets go to the mode or manner allowed by law for
repudiation. Based on 1051, there are only two ways:
1.

If it is made in a public or authentic document


It is written, and then acknowledged before a notary
public, so that is a public document. If it is authentic,
does not have to be notarized, it only needs to be
handwritten as long as it is genuine and signed by the
one who repudiated.

2.

By petition presented to the court having


jurisdiction over the testamentary or intestate
proceedings
This is not practical.
IMPERIAL VS. CA

An act of moving for execution of the compromise judgment


cannot be considered an act of renunciation of his legitime.
There is no such thing as implied, tacit, or presumed
repudiation. The law only allows repudiation made in a public
or authentic document or by petition presented to the court.
Remember this very basic principle.

Art. 1052. If the heir repudiates the inheritance to the


prejudice of his own creditors, the latter may petition the
court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it may
belong. (1001)
Here, there is an heir, he is given an inheritance and he has
several creditors and he has no other means or properties to
pay the creditors. But here, the heir repudiates the
inheritance, so what is the remedy of the creditors? The law
mentions about prejudice of his own creditors. We have to
limit this to those creditors who cannot collect at all from the
creditor except on the property which he renounced, because
even if an heir renounces if he has other properties which the
creditors can go against, this article will not apply. So,
prejudiced creditors, they can accept. They may file a petition
before the court that they may accept in the name of the
debtor heir.
Here, the law say to an extent sufficient to cover the amount
of their credits. The inheritance is 1 million and the debt is
only 200K, the creditor may only accept only to the extent of
200k. This is also a reflection of the other principle in
repudiation that rights may be waived provided that the
waiver is not contrary to morals, customs, public order or
policy or prejudicial to 3rd persons with a right recognized by
law.
LEVISTE VS. CA
In relation to 1052. I assigned this under probate,
personality to participate in probate proceedings. Again to
recall, what happened here was that Atty. Leviste was hired
by Del Rosario to be his lawyer in the petition for the probate
of the last will and testament, in that last will and testament,
Del Rosario was instituted as an heir, he was given a legacy,
so a voluntary heir. Their agreement with Atty. Leviste is
that, upon the successful probate of the will, Atty. Leviste
would be entitled to 35% as contingent fee. Now, in that
case, later on, Del Rosario terminated the services of Atty.

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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Leviste on the ground that there is a conflict of interest but
Atty. Leviste intervened in the case to protect his fees. Del
Rosario moved to withdraw the petition, but the court did not
allow that. The court denied and dismissed the probate on
the ground that the witnesses required by law were not
complied with (only 2 witnesses). Atty. Leviste appealed on
the disallowance of such will. The question is, can he appeal?
He anchored his appeal on his argument that he is a creditor,
that he can accept the inheritance in behalf of the heir. Is he
an interested party? SC said NO! He cannot rely under Art.
1052, their agreement was on a contingent basis. That
contingency did not occur; there is nothing for him to accept.
Second, the law presupposes that the creditor accepts in
behalf of an an heir. Here, Del Rosario was not an heir, his
inheritance was anchored on a will but the will was denied
probate because of the failure to comply with the requisites.
So, he did not become and heir.

Art. 1053. If the heir should die without having accepted or


repudiated the inheritance his right shall be transmitted to
his heirs. (1006)
Self-explanatory.
Art. 1054. Should there be several heirs called to the
inheritance, some of them may accept and the others may
repudiate it. (1007a)
There is no obligation for all of them to accept. Some of them
may accept or reject. So here, in 1054, if there is repudiation
on the part of some, and acceptance on the part of some,
what happens to the share of the heir who repudiates? So we
follow
the
order,
(ISRAI)
institution,
substitution,
representation, accretion, intestacy.
Art. 1055. If a person, who is called to the same inheritance
as an heir by will and ab intestato, repudiates the inheritance
in his capacity as a testamentary heir, he is understood to
have repudiated it in both capacities. x x x
Here, an heir is both a legal heir and a testamentary heir,
meaning given an inheritance by virtue of the will. So what is
the rule, take note if he repudiates the inheritance in his
capacity as a testamentary heir, he is understood to have
repudiated it in both capacity. Take note: called to the same
inheritance as an heir by will. If he repudiates his inheritance
as a testamentary heir, it carries with it the repudiation with
his inheritance as a legal heir. Why? Because in testamentary
succession, you institution is the express wish of the testator,
and knowing that you still want to repudiate, the law
presumes that you also repudiate your inheritance as a legal
heir because legal succession is not even the express desire of
the testator it is just a presumption of law. If you do not
accept the express wishes of the testator, with more reason
that you do not want to accept that which is presumed by
law. That is the logic.

x x x Should he repudiate it as an intestate heir, without


knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
In the second paragraph, you repudiated as a legal heir
without the knowledge of being a testamentary heir, he may
still accept in his capacity as a testamentary heir because
here, when you repudiated he did not know about the express
wishes of the testator. It would have been different if he knew
of the express wishes of the testator, he might want to accept
such express wishes.
Take note, however, that it is done without knowledge. If the
repudiation is with knowledge, you cannot later on accept the
inheritance as a testamentary heir.
Art. 1056. The acceptance or repudiation of an inheritance,
once made, is irrevocable, and cannot be impugned, except
when it was made through any of the causes that vitiate
consent, or when an unknown will appears. (997)
Irrevocable. Once you accept, you cannot change your mind.
Once you reject, you cannot change it. An exception to that is
when there is fraud, force, undue influence. Or when there is
another will, where you have been instituted, you can still
accept or repudiate.
We already discussed 1057.
Art. 1057. Within thirty days after the court has issued an
order for the distribution of the estate in accordance with the
Rules of Court, the heirs, devisees and legatees shall signify
to the court having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance. (n)

SECTION 4. Executors and Administrators

Art. 1058. All matters relating to the appointment, powers


and duties of executors and administrators and concerning
the administration of estates of deceased persons shall be
governed by the Rules of Court. (n)
This will be discussed more in Special Proceedings. :D But as
an overview, when you say executors or administrators, they
are the persons in charge of the preservation and
administration of the estate pending the liquidation, partition,
and delivery of the shares to the heirs. When there is already
partition, then the administration ceases because the heirs
already owns specific portions of the property. Administration
refers only to an undivided estate.
A person is called an executor or executrix if he has been
appointed in the will to administer the property. If, for

Ad Majorem Dei Gloriam

33

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
example, there is a will but it does not mention that a person
who will take charge prior to the distribution, an administrator
may still be appointed. That is an administrator or
administratrix with a will annexed. (?) If there is no will, that
is intestacy, again if the heirs have not yet agreed as to how
will the estate be partitioned, and there is a need for the
appointment of the one who will take charge, then the court
will appoint an administrator or administratrix. If you want to
be appointed as an executor, you have to be named in a will
as an executor and you file a petition before a court aside
from the petition for probate of the will, petition for the
issuance of letters of administration. Again, you will learn that
more on SpecPro.
Art. 1059. If the assets of the estate of a decedent which
can be applied to the payment of debts are not sufficient for
that purpose, the provisions of Articles 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in Article 2244, No. 8, shall be those
involved in the administration of the decedent's estate. (n)
The estate is insufficient to pay the debts. Here, we dont
have residual shares. The entire estate will be used to pay the
debt. We have an insolvent estate. There are assets but there
are more liabilities, so what will happen? We will follow the
rule on preference of credits as to who are entitled first ahead
of the other, and who will concur and be given proportionate
shares.
Art. 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward. (n)
It talks of a corporation or association authorized to conduct
the business of a trust company. That corporation may be
appointed as an executor, administrator, guardian of an
estate, or trustee. We actually have guardian over the person,
over the property, and over the person and property. If it is a
corporation, we can only appoint a guardian over the
property. It cannot be appointed as a guardian over a person
because as a guardian of a ward, there must be close
relationship with a ward.
SECTION 5. Collation

Art. 1061. Every compulsory heir, who succeeds with other


compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the
decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir,
and in the account of the partition. (1035a)

First, what is collation? Actually collation may be understood


in 3 concepts.
1.

Collation as a mathematical process


The imaginary addition or fictitious union of the
property donated by the testator intervivos upon his
death.

2.

Collation as an imputation
Donations intervivos made to compulsory heirs are
considered as advances to their legitimes

3.

Actual reduction or abatement


It is the actual reduction or bringing back of the
property donated by the testator during his lifetime form
his estate, when the donations are found to be
inofficious.

Assuming during his lifetime left some donations, to A, P200K,


to B, P300K. At the time of his death, he left properties
amounting to P1.5 Million.
First, collation as a mathematical process, that is the
adding back of the value of the donations inter vivos to the
value existing at the time of death, we just add back. At the
time of death, the estate is P1.5 M, and then we add back the
P200K and the P300K, so the imaginary addition because we
do not get the property actually. So, the hereditary estate,
assuming that there are no debts is P2million.
Second, imputation.Meaning, we charge these donations
received during the lifetime of the testator or decedent, we
consider these as advances to the legitimes of the compulsory
heirs. The legitime of the children is of P2M. So, P1M. We
have 2 children, so the legitime for each would be P500K.
What will we do to this donation to A made during the lifetime
of the testator? We impute that to his legitime, meaning that
is considered an advance, at the time of the distribution; he is
only entitled to P300K because he already received P200K in
advance. The same with B, he is to receive only P200K
because he already received P300K. So, that is imputation.
Third is actual reduction or abatement. During the lifetime
of the testator, he donated to his son P200K, to another child
P800K. At the time of his death, he left an estate valued at
P1M. By mathematical process we add back the P200K and
the P800k, we still have P2M. So, we determine the legitime.
The legitime of A is P500K, the legitime of B is P500K. Now,
the donation received by A shall be imputed, so he is only
entitled to receive an additional P300K. The donation received
by B will also have to be imputed to his legitime. B will not
receive anything because he received everything (in fact,
more than his legitime). Where do we charge the P300k
(excess)? We charge that to the free portion, the free portion
is P1M, so it can be covered. Assuming that the free portion is
only, (halimbawa lang) P100K nalang? So, can we satisfy the
excess of P300K? So what do we do to satisfy the legitime?
He will have to return his donation will have to be reduced by
returning the property or its value to satisfy the legitime of
the other compulsory heir (if in case the legitime of the other
compulsory heirs are impaired as in this case dili na

Ad Majorem Dei Gloriam

34

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015

mahatagan si A sa kulang na P300K, that is why I reduce ang


P800K ni B para ma accommodate ang legitme ni A).
VDA. DE TUPAS vs. RTC OF NEGROS
All donations are subject to collations. The law does not
make a distinction between the two as to what shall be
subject of collation. You need to make a distinction only as to
what portion of the estate shall you impute upon these
donations. If it is donation to compulsory heirs, charge these
to the legitimes. If it is donation to strangers, charge these
to the free portion.
BUHAY DE ROMA VS. CA
The issue here is WON a donation designated to be
irrevocable is subject to collation? The donation here was
termed as SA PAMAMAGITAN NG PAGBIBIGAY NG DI NA
MABABAWI MULI, this is an indication of being irrevocable
donation.
Does this mean that this not subject to collation? NO.
Irrevocability of a donation is not equivalent to not being
subject to collation. Those are different concepts. In
collation, even if the donation is considered irrevocable, it
will still be subject to collation, why? You can easily defeat
the law on legitime if you just donate the properties via
revocable donation. Still, they are covered, they are subject
to collation. The fact that the donation is irrevocable does
not necessarily exempt the subject from collation. The
intention to exempt from collation shall be expressed plainly
and unequivocally as an exception to the general rule
announced in Article 1062. Are we saying that can the
testator prevent the subject from being collated? Actually,
YES. We will discuss that later.
ARELLANO VS. PASCUAL
What happened in this case? Collation is not required in this
case since there is no compulsory heirs. The heirs here are
only collateral relatives (not entitled to the legitime). We do
collation for purposes of determining the legitime and protect
the legitime of the compulsory heirs. In this case, the
donation to the collateral relative (Amelia) shall be left as is.
The remaining estate shall be partitioned among the
surviving heirs who are private respondents and petitioners
including Amelia. This is the case when there is no
compulsory heirs.

Art. 1062. Collation shall not take place among compulsory


heirs if the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the donation
should be reduced as inofficious. (1036)
This is the one I mentioned. Can the donor provide that this
donation shall not be subject to collation? YES. For example,
during his lifetime, the donor donated properties worth P500K
to A. At the time of his death, he left P1.5 million. He left 2
children A and B. Collation, 1.5 + 500k, P2M. Legitime is

P1M divided by 2 (A and B) so P500K each. Donor said that


this donation is not subject to collation, so what is the
consequence? This donation shall not be imputed to his
legitime. So, it will be charged to the free portion. So that is
the treatment. Or, the law says, if he repudiated. If in this
case, A repudiated his inheritance so, he will no longer receive
his inheritance. How about the donation made during the
lifetime of the testator (P500K)? We charge that to the free
portion.
In 1062, even if the donor provided that collation shall not
take place, collation as a mathematical process is still being
done. Although collation, as an imputation, is not anymore
being done. But if the donation is inofficious, what if it is more
than the free portion? Then still, the heir will have to return.
There is now a reduction or abatement of the portion which
exceeds the free portion.
Art. 1063. Property left by will is not deemed subject to
collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
This merely refers to properties left by will like legacy or
devise; of course they are not subject to collation because in
the first place, they are not given during the lifetime of the
testator. They are just to be given back if the will is to be
probated provided they are not inofficious, otherwise, if they
are inofficious, they will be reduced.
Oct. 26 (ZMontefolca, JCPinili & FJBagundang)
Art. 1064. When the grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been
obliged to bring, even though such grandchildren have not
inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)
Here we are talking of inheritance by a representative
because the person represented cannot inherit. He has to
collate 2:
1.

Those which he received from the decedent himself


and

2.

Those which the person represented also received


from the decedent.

Example:
We have the decedent and the children of the decedent are A
B C and D and then A predeceased the decedent and he is
represented by X (child of A). X as representative of A has to
contend with two kinds of collation. Whatever donation inter
vivos received by his father during the lifetime of the
decedent he will have to collate. Also whatever donations inter
vivos he received from the decedent he will also have to

Ad Majorem Dei Gloriam

35

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
collate meaning charge to his share or if we are talking of
testamentary succession charge to his legitime.
Art. 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have
been donated by the latter to their children. (1039)
But in case for example (in the same example) during his
lifetime, B donated to A, B also donated to X but A did not
predecease so he inherited from B. B is obliged to collate
whatever donations he received from the decedent during the
decedents lifetime but the donation made to X that is not
subject to collation because here X is not an heir of the the
decedent. He is excluded by the presence of A. so how about
the share given to X? How shall we consider that? It would be
charged in the free portion the donation made to X. it will still
be added back to the estate. Will it be charged to the legitime
of A? no because X by the presence of A is not an heir of the
decedent. Again his donation shall be charged to the free
portion.
Art. 1066. Neither shall donations to the spouse of the child
be brought to collation; but if they have been given by the
parent to the spouses jointly, the child shall be obliged to
bring to collation one-half of the thing donated. (1040)
Example: So A is the father of X and then X is married to Y. if
A donated to Y, that donation to Y shall not be charged to the
legitime of X. that is considered as donation xxx because Y is
not an heir of A in my example.
But if they have been given jointly by A to X and Y, of the
value of the donation is to Y and of the value is to X so X
will have to collate only , that portion which pertain to the
donation made to the heir by the parent.
Art. 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)
When the law says in 1067 that these are not subject to
collation, they are not subject to collation at all. So the values
of these expenses are not added back to the estate. They are
not charged or considered as advances to the legitime
because they are considered as obligation of the parents to
incur these expenses. These are not gratuitous grants but
these are obligations; they are not donations.
Take note of the last sentence, customary gifts these are not
also subject to collation. So how do we know if the gift is
customary? Then customary mo naga regalo ug car sa isatisa. Is that subject to collation? It really depends on the status
of the family.
So kung ordinary lang that is not just customary. There is
another provision here that deals with this.
Art. 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless
they impair the legitime; but when their collation is required,

the sum which the child would have spent if he had lived in
the house and company of his parents shall be deducted
therefrom. (1042a)
Again, article 1068 mentions of professional, vocational or
other career but 1067 mentions about support and education.
So education being referred in 1067 shall only mean up to
high school. 1068 refers to college at least na equivalent siya
to professional, vocational or other career. So meaning it shall
not be brought to collation unless the parents so provide
unless they impair the legitime. This is what we call optional
collation.
As a general rule, they are not subject to collation so they
shall not be added or considered advances to the legitime
unless the parents to provide.
So here if the parents would provide that your education
expenses in law school shall be subject to collation and
considered as advances to your legitime then that can be
done. So you cannot say that it is unfair. You studied for more
than ten years how can that be unfair? So it is subject to
collation
Or even if the parents did not so provide but it will impair the
legitime. So nahurot na ang resources sa inyong family kay
tungod sa law school so unfair pud sa imong mga igsuon kay
tanang kayamanan ninyo naadto nalang didto. So that will be
subject to collation and thus considered as advances to your
legitime.
But the law says whenever collation is required, whatever
amount that your parents would nevertheless spend if you did
not study law school so you just stay home nag puyo raka
didto makagasto man gihapon sila sa imo kay pakanon man
ka, hatagan kag clothing, mugamit kag kuryente, so kana siya
pwede na siya ibawas or I collate sa imuha. So thats the
meaning to 1068.
Art. 1069. Any sums paid by a parent in satisfaction of the
debts of his children, election expenses, fines, and similar
expenses shall be brought to collation. (1043a)
So expenses paid for the debts of the children or any amount,
naa kay utang gibayaran nila, or nag election na unya nag
campaign ka nag contribute sila sa imong election campaign
so subject to collation. Or fine like na preso ka nag bail ka
subject na to collation so considered as advances to your
legitime.
Art. 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be reduced
as inofficious except insofar as they may exceed one-tenth of
the sum which is disposable by will. (1044)
Another provision dealing on gifts. We discussed before that
customary gifts are not subject to collation. When you receive
wedding gifts, jewelry, clothing and outfit, the law says these
shall not be subject to collation these shall not be reduced as
inofficious except insofar as they may exceed one-tenth of the
sum which is disposable by will.

Ad Majorem Dei Gloriam

36

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
So are they subject to collation xxx as a mathematical
computation? Yes their value shall be added back to the
estate. And then shall they be charged to the legitime of the
heir who received these gifts? The law says except only if they
exceed one-tenth of the free portion.
So in the computation, for example the free portion is 2
million and the wedding gift is 10,000 consisting of these
items. What is 1/10 of 2m? 200,000. So definitely that gift
does not exceed 200 so that cannot be charged to the
legitime. But if it exceeds 10% so halimbawa 300K worth of
wedding gown so the excess only which is 100K in the
example shall be charged to the legitime of the compulsory
heir who received those gifts.
How about gifts not jewelry clothing and outfit? How about a
house and lot? Is it covered by this article? This article says
jewelry clothing and outfit. Is it also customary? If the family
is just middle class, that cannot be considered as customary.
That will be in the category of a donation which is subject to
collation. That would be added to the estate and fully charged
to the legitime meaning considered as advance to the legitime
of the heir who received this gift.
Again, kung Millions ang value and even sa birthday sa imong
friend mag hatag ug house and lot, definitely that is not
customary so it depends of the value of the estate and the
status of the family. But how do we know whats the status?
It also depends on the value of the estate.
Art. 1071. The same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation, even though their just value may not then have
been assessed.
Their subsequent increase or deterioration and even their total
loss or destruction, be it accidental or culpable, shall be for
the benefit or account and risk of the donee. (1045a)
Collation as a mathematical computation. All donations inter
vivos shall be brought back meaning added back to the value
existing at the time of death. How much is the value of the
donation? The value at the time of death? Or value at the
time the donation was made? The law says, their value at the
time of donation. So that is the basis of the computation, how
about the deterioration or improvement of the value when if
the value decreased or increased it does not matter because
we are talking here of the value at the time of the donation.
The law says it shall be for the benefit if it is improvement,
benefit of the donee, if deterioration at the risk of the donee.
Art. 1072. In the collation of a donation made by both
parents, one-half shall be brought to the inheritance of the
father, and the other half, to that of the mother. That given
by one alone shall be brought to collation in his or her
inheritance. (1046a)
So the mother and father donated a land to the son. The
value of the land was 1M. so that was jointly made by the
parents. On the death of the father, of the donation shall
be collated to his estate. Mao lang to siya ang portion na mu

adto sa estate sa father. If the mothers dies then the other


half shall be brought back to the estate.
Art. 1073. The donee's share of the estate shall be reduced
by an amount equal to that already received by him; and his
co-heirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality. (1047)
Were talking here of a done who is also a compulsory heir
therefore the donation received by him shall be considered as
advance to his legitime. So if he received a land worth 500K
and his legitime is 1.5M so he will just receive an additional of
1M. so if he received land for the purpose of equality, the
other heirs should also be given lands sam kind as much as
possible same nature, class and quality.
Art. 1074. Should the provisions of the preceding article be
impracticable, if the property donated was immovable, the coheirs shall be entitled to receive its equivalent in cash or
securities, at the rate of quotation; and should there be
neither cash or marketable securities in the estate, so much of
the other property as may be necessary shall be sold at public
auction.
If the property donated was movable, the co-heirs shall only
have a right to select an equivalent of other personal property
of the inheritance at its just price. (1048)
So if the provision of 1073 are impracticable, because you
cannot give the other heirs something which is of the same
class nature and quality as given to the other one received in
advance, the law says if the property donated was an
immovable, what are the rights of the other heirs?
Their right I also to receive an immovable. But if that is not
practicable then its equivalent to cash and securities. Kung
walay cash and securities sa estate properties of the estate
can be sold to generate cash and securities.
But if the property donated to the other heir was a movable,
the other heirs have no right to demand cash or security
although again as a general rule and as a first priority they
should receive the same class nature and quality like that
received by the other heir. If not then they have the right to
select an equivalent other personal property at its just price.
Art. 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on
which the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the standard
of assessment. (1049)
So question, for example there is collation, is the done obliged
to return the fruits and interest of the property? First that
question would not be relevant if there is no reduction or
abatement of the donation because he retains the property
donated. But if he has to return? How about the fruits and
interest? The answer is only the fruits and interest at the time
of death of the decedent. At the time when succession opens
which is the time of death.

Ad Majorem Dei Gloriam

37

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
But the fruits and interest at the time they received the
donation until death but starting from the time of death
because theoretically that is the time when he is supposed to
return that portion which is inofficious then he has to account
for the fruits and interest if that is the whole property that is
to be returned then the fruits and interest corresponding the
whole property if he only has to return a portion of the
property then the fruits and interest only corresponding to
that portion to be returned so that is insofar as the fruits and
interest are concerned.
Art. 1076. The co-heirs are bound to reimburse to the donee
the necessary expenses which he has incurred for the
preservation of the property donated to him, though they may
not have augmented its value.
The donee who collates in kind an immovable which has been
given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property,
and which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; he has,
however, the right to remove them, if he can do so without
injuring the estate. (n)
So what expenses should be reimbursed to the donee? This
question would only arise if there is a need to return the
property donated so collation by way of reduction or
abatement. There are three expenses mentioned.
1.

Expenses for preservation should be reimbursed


regardless of whether or not they increase the value
of the property because these are necessary.

2.

Improvements which have increased the value of the


property. He shall be reimbursed and only if the
improvements exist at the time the partition is
effected. The distribution of properties among the
heirs.

3.

As to expenses made on the esttae for mere pleasure


of the donee, no reimbursement is due however he
has the right of removal provided that the estate
would not be injured upon such removal.

Art. 1077. Should any question arise among the co-heirs


upon the obligation to bring to collation or as to the things
which are subject to collation, the distribution of the estate
shall not be interrupted for this reason, provided adequate
security is given. (1050)
Again, issues can arise as to whether or not certain things are
to be collated or not to be collated. The law says these shall
not be allowed to delay the distribution. The heirs can still
distribute whatever properties are present in the estate
pending determination of the propriety of collation but
according to the law provided adequate securities are given.
So the heir can still partition or distribute even if there are
pending issues in collation as long as there is a security given
which is intended to protect other heirs assuming that the heir
that is bound to collate cannot do so. So the security will
answer for that.

So that would be for collation. So for every article we


discussed in collation, just know if under this article are we
talking only of mathematical computation? Is this also an
imputation to the legitime? Is this also a reduction or
abatement? When you say not subject to collation are we
referring to collation as a mathematical process? Or collation
as a way of imputation? Remember, based on the articles we
discussed as a general rule, if there are compulsory heirs,
collation as a mathematical process is always present. And
then even naay compulsory heirs imputation or considered as
advances to legitime. As a general rule, these donations are
considered as advances to the legitime of the compulsory heir
unless the testator provides otherwise. How about reduction
or abatement? That can only happen if the donations are
proven to be inofficious. That would be for donation.
The only articles here wherein collation as a mathematical
process is not done we have article 1063 because legacies
and devices are not even added back to the estate because
they are always given during the distribution. Article 1067 this
is not subject to collation even as a mathematical process
because these are obligations. Those are the only provisions
when collation as a mathematical process is not done.
SECTION 6. Partition and Distribution of the Estate
Subsection 1. - Partition
Again this will happen whether it is testamentary or intestate
succession. if it is testamentary succession this would happen
after the will is allowed and the court will now distribute the
property in accordance with the will of the testator. in case of
intestate succession, it depends. It can be an extrajudicial
partition so the heirs themselves without going to court they
can partition and distribute the estate by themselves. They
execute what we call an extra judicial settlement or extra
judicial partition. You will discuss that in your special
proceedings.
If there is only one heir, he can execute an affidavit of self
adjudication so that can be done extra judicially. If there are
several heirs, and they cannot agree how to partition then
they can resort to a judicial partition so they would have to
file a petition in court for the settlement of the intestate estate
of the decedents.
Usually if the estate is large and you take time to liquidate
and partition the estate usually an administrator is appointed
although again this is not always mandatory but in that
situation an administrator is usually appointed.
Art. 1078. Where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of the
deceased. (n)
There is what we call co-ownership in this case who are coheirs. So heirs own in common an estate. So when you say
own in common we mean they are the spiritual, ideal, aliquot
portion of the estate they cannot point to any specific portion
of the estate as being owned by them or any one of them
exclusively so everything in common.

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
So if there are two heirs and there is no designation of their
shares so and so equal shares. So every portion of the
property. Before partition an heir cannot sell a specific portion
of the estate. If he does that, the sale is void because he does
not own any specific portion. He can sell his share but he
cannot sell a specific portion so the sale is void. But assuming
after the sale, that same portion adjudicated to the heir for
example heir number 1, the same portion which he sold
earlier was really the one adjudicated to him then he cannot
dispute that sale as being void because he is now estopped so
that sale shall be respected. That would be the principle
insofar as that sale is concerned before partition.
Art. 1079. Partition, in general, is the separation, division
and assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided, or its
value. (n)
This is the concept of partition, the separation, division or
assignment. Imagine a pizza when you partition. So
everything is divided among the several heirs.
We mentioned before that if the decedent died intestate, his
heirs can just enter an extrajudicial partition of his property.
Actually, if there are several heirs and they all agree this is the
best way to settle the estate because this is the least
expensive, you only have to execute a public document which
is an extrajudicial settlement and publish it and present it to
the ROD. Based on that extrajudicial partition the title of those
property can now be transferred to the heirs. Based on how
they agree to the partition in the Extrajudicial settlement. We
have the case of Heirs of Joaquin Teves v. CA.
Heirs of Joaquin Teves v. CA
In Rule 74, for the validity of the Extrajudicial Settlement the
following requisites must be complied with: (1) The decedent
died without a will, (2) There are no debts and if there are
debts it should have been paid, (3) the heirs are already of
age and if they are minors they should be represented by
legal guardians and (4) the extrajudicial partition settlement
must be made in a public instrument and must be registered
in the Registry of Deeds.
The heirs of CrescencianoTeves questions the validity of the
extrajudicial settlement for failure to comply with the
requirement for Section 1 Rule 74 of ROC. The SC upheld the
validity of the 2 extrajudicial settlement, first, the grounds
alleged by CrescencianoTeves is fraud however the action for
reconveyance must be made within 10 years from the cause
of action, therefore, it is already barred by prescription. On
the second ground, the SC held that the requisites need not
be all complied with if the extrajudicial settlement has no
creditors. In this case, there are no creditors to the testator.
Under the ROC, the will must be in writing. Aside from that it
must be filed with the ROD. These requirement will be
relevant if there are creditors affected. Why? Both for the
protection of heirs and the creditors. Creditors need to be
protected. Creditors have a certain period of time in which

they will file their case. A partition can be in any form. These
requirements are not necessary if there are no creditors.
Art. 1080. Should a person make partition of his estate by an
act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing enterprise
intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to
whom the property is not assigned, be paid in cash. (1056a)
So, a partition can also be done by the testator. The one
which has been mentioned are those done by the heirs
themselves. The testator can also partition, how? The law
says, he can by act intervivos or by will as long as it does not
prejudice the compulsory heirs. How can these act inter-vivos
be done? This is an act by the testator during his lifetime. This
is explained in the case of JLT AGRO v. Balansag.
JLT AGRO v. Balansag
What is the document here that is equivalent to partition
inter-vivos? It was the compromise agreement. A partition
inter-vivos is only an inchoate right or an expectancy. The
character of partition inter-vivos, it is an instrument of special
character, it is sui generis, it is revocable anytime by the
causanteduring his lifetime and does not operate as a
conveyance of his title until his death, it derives its binding
force upon the heirs from the decedent due to the will of the
property limited only by the creditors and the intangibility of
the legitime of the forced heirs. So, it is a special character sui
generis one of its kind. The decedent here could execute this
during his lifetime but could take effect upon his death. It is
revocable at any time during his lifetime. There is no vested
right even to the heirs because all they have is only an
expectancy. The nature of a partition inter-vivos it does not
have a specific formality.

Art. 1081. A person may, by an act inter vivos or mortis


causa, intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or
a person subject to guardianship; but the mandatary, in such
case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees or
devisees. (1057a)
So here, the testator himself did not make the partition. He
entrust the mere power to partition after his death to any
person. This is different from will making because he cannot
entrust the act of will making to another person. Although, in
notarial will he can entrust only the mechanical act of drafting
the will but as to the making a will he cannot do so. As to
partition, he can entrust the mere power to partition to any

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
person even if not an heir. This is another aspect of partition
and it can be done by act inter-vivos or in a will (Mortis
Causa)
Art. 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction. (n)
This highlights the fact that a partition need not be in writing,
it can be any act to put an end to indivision between co-heirs.
Crucilio v. CA
So here even there is no clear document showing a partition
has been made but the acts of the heirs themselves they
already partition the property. Before I mentioned to you a
sale of a portion before a partition is not valid but here there
is already a partition the sale of the portion is already valid.
Remember that principle, it can be seen in the acts of the
heirs themselves; you do not need any instrument, any act
that may show partition.

Art. 1083. Every co-heir has a right to demand the division of


the estate unless the testator should have expressly forbidden
its partition, in which case the period of indivision shall not
exceed twenty years as provided in article 494. This power of
the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs. (1051a)
This is the second burden that can be applied on the legitime.
The first is the concept of Reserva Troncal. So here as a
general rule, every heir has a right to demand the division of
his estate. Because nobody is obliged to stay upon a coownership. In fact, the law frowns upon co-ownership
because it is always burdensome. As much as possible you
should not remain in the co-ownership.
IN RE: PROBATE OF WILL OF BASILIO SANTIAGO
The prohibition to partition can only be valid up to 20 years.
Take note, that even though there is a prohibition by the
testator to partition assuming wala pa naglapseang 20 years
when any of the causes for which partnership is dissolved
takes place. The grounds for the dissolution of the
partnership, there can also be a partition or when the court
finds compelling reason that division should be ordered, upon
petition of one of the co-heirs. Now when can partition be
demanded? Is there a prescriptive period for a partition to be
demanded?
SANTOS v. SANTOS

In this case the possession was merely tolerated. The right to


demand partition does not prescribe and it cannot also be
barred by laches. It is imprescriptible and cannot be barred by
laches. However, if there has been a prior repudiation of the
co-ownership, then acquisitive prescription may set in on the
part of the person repudiated.

Art. 1084. Voluntary heirs upon whom some condition has


been imposed cannot demand a partition until the condition
has been fulfilled; but the other co-heirs may demand it by
giving sufficient security for the rights which the former may
have in case the condition should be complied with, and until
it is known that the condition has not been fulfilled or can
never be complied with, the partition shall be understood to
be provisional. (1054a)
There are instances when some heirs where their inheritance
is subject to a condition. So until the condition is fulfilled they
cannot say that they are entitled to the inheritance. Is this
now an impediment to the condition? The law says with
respect to that heir upon whom the condition is given he has
to fulfill that condition but as to other co-heirs whom no
condition is imposed they can demand a partition only that
they have to give a security so that in case the condition is
fulfilled then this heir who did not fulfill as of this time can still
get it in the future when he already fulfills the condition.
Art. 1085. In the partition of the estate, equality shall be
observed as far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of the same nature,
quality and kind. (1061)
What if the thing cannot be divided like a car? The best thing
is to sell the car and divide the value.
Art. 1086. Should a thing be indivisible, or would be much
impaired by its being divided, it may be adjudicated to one of
the heirs, provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing
be sold at public auction and that strangers be allowed to bid,
this must be done. (1062)
Art. 1087. In the partition the co-heirs shall reimburse one
another for the income and fruits which each one of them
may have received from any property of the estate, for any
useful and necessary expenses made upon such property, and
for any damage thereto through malice or neglect. (1063)
What if before the partition certain heirs already receive
income of the properties of the estate. They would have to
reimburse one another for the fruits which each of them have
received. The point here is to assure equality among the heirs.
Equal as to the shares receive and as to the income and fruit
received or the shares allocated to them by the testator.
Art. 1088. Should any of the heirs sell his hereditary rights to

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
a stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing
him for the price of the sale, provided they do so within the
period of one month from the time they were notified in
writing of the sale by the vendor. (1067a)
This is the Right of Legal Redemption by the co-heir. This
applies when several heirs are instituted to the same
inheritance. They are co-heirs or co-owners to the property.
Just like unity of object in accretion. This right is exercised
before partition. The purpose here is to prevent the third
person from entering a co-ownership.
The situation in this case is when X,Y and Z is instituted to a
parcel of land 12 Ha. And then prior to partition Z sold his
share to A not heir to his land. A will now be a co-owner with
X and Y. SO here X and Y can extinguish the ownership of A
by reimbursing A for the price of the sale because it is already
burdensome. X and Y will be the co-owners.
The following requisite should be complied with:
(1) They should be co-heirs and
(2) The right must be exercised before partition. The
essence here is to prevent another person to enter
into co-ownership
(3) Sale is made by one of the co-heirs to a stranger not
a co-owner to the same inheritance.
If Z sold to X, there is no right of legal redemption insofar as
Y is concerned because here sila lang ghpn duha ang coowners and (4) the right of legal redemption is exercised
within 30 days from written notification of the sale. The usual
question here is the commencement of the 30 day period,
WON the right of legal redemption has already lapsed. There
are several cases here.
Garcia Case
The SC ruled that the law is clear and unambiguous Art 1088
requires that the notification must be in writing. So a written
notification cannot be substituted by actual knowledge there
must be written notification.
What is the purpose of the written notification? To inform
other co-heirs that the other co-heir is selling the property and
to give them the right to buy the said property.
Why no verbal notification? To remove all uncertainty as to
the sale, its terms and validity and to quiet any doubt and the
law does not provide any alternative, it says written
notification. Written notification is mandatory.
Alonzo v. IAC
Few cases where Actual Knowledge is equivalent to written
notice as in the case of Alonzo v. IAC because the right of
legal redemption was invoked more than 13 years after the
sales were concluded, this is not mere constructive notice but
there was actual knowledge on the part of heir who invoked
the right of legal redemption.

Cabales v. CA
When did the sale, which was the subject of the exercise of
the right of legal redemption, take place? The sale happened
in 1978.
Who sought here the legal redemption? Petitioner Nelson
Cabales.
When did Nelson learned of the sale? 1988.
At the time of the sale in 1978, Nelson was still a minor but
when he was informed of the sale, he was already of legal
age.
When did he seek barangay conciliation process? 1993.
When did he file the complaint for legal redemption? Only two
years after in 1995.
What did the Supreme Court say about that?

From the full text: In the instant case, the right of redemption

was invoked not days but years after the sale was made in
1978. We are not unmindful of the fact that petitioner Nelson
was a minor when the sale was perfected. Nevertheless, the
records show that in 1988, petitioner Nelson, then of majority
age, was informed of the sale of subject property. Moreover,
it was noted by the appellate court that petitioner Nelson was
likewise informed thereof in 1993 and he signified his
intention to redeem subject property during a barangay
conciliation process. But he only filed the complaint for legal
redemption and damages on January 12, 1995, certainly more
than thirty days from learning about the sale. In the face of
the established facts, petitioner Nelson cannot feign ignorance
of the sale of subject property in 1978.
What did the Supreme Court say about the requirement of
written notice?

From the full text: To require strict proof of written notice of


the sale would be to countenance an obvious false claim of
lack of knowledge thereof, thus commending the letter of the
law over its purpose, i.e., the notification of redemptioners.

The Court is satisfied that there was sufficient notice of the


sale to petitioner Nelson. The thirty-day redemption period
commenced in 1993, after petitioner Nelson sought the
barangay conciliation process to redeem his property. By
January 12, 1995, when petitioner Nelson filed a complaint for
legal redemption and damages, it is clear that the thirty-day
period had already expired.
Here, the Supreme Court considered the year 1993, when
Nelson signified his intention to redeem the property during
the barangay conciliation process, as the commencement of
the 30-day period within which he should have redeemed the
property. This is an exceptional case because in all other
cases, there has to be a written notice.
Article 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said
property has been adjudicated. (1065a)

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Article 1090. When the title comprises two or more pieces of
land which have been assigned to two or more co-heirs, or
when it covers one piece of land which has been divided
between two or more co-heirs, the title shall be delivered to
the one having the largest interest, and authentic copies of
the title shall be furnished to the other co-heirs at the expense
of the estate. If the interest of each co-heir should be the
same, the oldest shall have the title. (1066a)
For example, there is co-ownership of a land which was not
segregated into specific portions.The heirs merely have an
aliquot share. The law says to the one having the largest
interest. If they have the same interest, the oldest shall
have the title. He will be the one to hold the title. That is the
meaning of Article 1090.
Now, we go to the effects of partition.
Subsection 2. - Effects of Partition

Article 1091. A partition legally made confers upon each heir


the exclusive ownership of the property adjudicated to him.
(1068)
As we said, before partition, each heir cannot claim a specific
portion of property as owned by him. He is a co-owner of
every portion of the property to the extent of the interest
owned by him. After partition, the heir can now claim a
specific portion of the property as his exclusive property. That
is the effect of partition.
UNION BANK OF THE PHILIPPINES v. SANTIBAEZ
What was the act here done considered as a partition? The
execution of a joint agreement by the heirs of Santibaez.
What was the subject of that joint agreement? The three
tractors to be adjudicated among themselves.
By that act, actually, it was equivalent to a partition because
the two already owned those tractors, but the limitation in
this case is that it should be done while the will is being
probated.

From the full text: The joint agreement executed by Edmund

and Florence, partitioning the tractors among themselves, is


invalid, specially so since at the time of its execution, there
was already a pending proceeding for the probate of their
late fathers holographic will covering the said tractors.
It must be stressed that the probate proceeding had already
acquired jurisdiction over all the properties of the deceased,
including the three (3) tractors. To dispose of them in any
way without the probate courts approval is tantamount to
divesting it with jurisdiction which the Court cannot allow.
Every act intended to put an end to indivision among coheirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a
compromise, or any other transaction. Thus, in executing

any joint agreement which appears to be in the nature of an


extra-judicial partition, as in the case at bar, court approval
is imperative, and the heirs cannot just divest the court of its
jurisdiction over that part of the estate.
If there is a will, again, do not enter into any partition which is
not in accordance with the will.
Article 1092. After the partition has been made, the co-heirs
shall be reciprocally bound to warrant the title to, and the
quality of, each property adjudicated. (1069a)
There is a reciprocal warranty after partition. What are the
warranties? Those are the ones mentioned in the succeeding
articles. Let us proceed first to 1093.
Article 1093. The reciprocal obligation of warranty referred
to in the preceding article shall be proportionate to the
respective hereditary shares of the co-heirs, but if any one of
them should be insolvent, the other co-heirs shall be liable for
his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right of
action against him for reimbursement, should his financial
condition improve. (1071)
Actually, they have reciprocal warranty against insolvency and
warranty against eviction. For example, if the co-heirs have
already divided the property among themselves but one of
them was evicted in his share, so the others must contribute
to compensate him for the loss because it is not due to his
fault that he was evicted. So, for equality, the others must
contribute. That is warranty against eviction.
Another example, one of the co-heirs is assigned a receivable
but it turned out to be uncollectible, so the others, again,
must contribute to compensate him. But what happens if one
of the co-heirs is insolvent? The law says the other co-heirs
shall be liable for his part in the same proportion, deducting
the part corresponding to the one who should be
indemnified. The one insolvent, once his financial condition
has already improved, can also be held to contribute to the
other co-heirs who paid the other co-heir, who was either
evicted or was not able to collect.
Article 1094. An action to enforce the warranty among heirs
must be brought within ten years from the date the right of
action accrues. (n)
When do the right of action accrue? It depends. If it is based
on insolvency, then from the date of the insolvency. If it is
based on eviction, then from the date of eviction.
Article 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the
time the partition is made.

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by, the distributee. But if such debts are not
assigned to a co-heir, and should be collected, in whole or in
part, the amount collected shall be distributed proportionately
among the heirs. (1072a)
Here, we are talking of a credit, which is assigned as a
collectible. So, there is a collectible from A, B, C, D,
respectively, and so on. Then one of the co-heirs was
assigned a receivable which turned out to be uncollectible due
to the insolvency of the debtor. Would the warranty against
insolvency still exist? Should the other heirs contribute to the
one who was not able to collect so that there be equality
among themselves? The law says if the debtor is already
insolvent at the time the partition is made, then the warranty
still subsists. But if the insolvency happened after the
partition, then there is no warranty as to the subsequent
insolvency of the debtor. So, the warranty subsists only for
the debtors insolvency at the time of partition.
As to bad debts, there is no warranty against bad debts if
these are known to and accepted by the distributee.What if
the estate already knew that the same is a bad debt, so they
did not distribute it in the first place, and then subsequently, it
can already be collected? In that case, they will have to
distribute it among the heirs proportionately.
Take note of the time within which to enforce a warranty of
the solvency of the debtoris only five years from the partition.
Article 1096. The obligation of warranty among co-heirs
shall cease in the following cases: xxx
Here, there is no reciprocal warranty among the co-heirs.
(1) When the testator himself has made the partition, unless
it appears, or it may be reasonably presumed, that his
intention was otherwise, but the legitime shall always remain
unimpaired; xxx
When the testator himself has made the partition. This is
because the heirs have no choice but to accept the partition
made by the testator. You cannot have a warranty against the
testator unless all of the heirs decide that there be such
warranty. The exception is if the legatime is already affected.
The legitime should always be unimpaired. So, if he is
deprived of his legitime, then the other co-heirs must
contribute so that the legitimes will still be satisfied;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith; xxx
When it has been so expressly stipulated in the agreement of
partition that there should be no reciprocal warranty unless
there has been bad faith; and

(3) When the eviction is due to a cause subsequent to the


partition, or has been caused by the fault of the distributee
of the property. (1070a)
When the eviction is due to a cause subsequent to the
partition, or has been caused by the fault of the distributee of
the property. Here, there is also no reciprocal warranty
because it is no longer the fault of the heirs that there is a
subsequent eviction. For the warranty to subsist, there must
already be a cause existing at the time of partition although
there be no eviction yet. But if the cause arose after the
partition or it was due to the fault of the distribute, then there
is no warranty.
Now, we go to the last portion of partition.
Subsection 3. - Rescission and Nullity of Partition

Article 1097. A partition may be rescinded or annulled for


the same causes as contracts. (1073a)
We discussed before in obligations and contracts the grounds
for annulment or rescission. Lesion is a ground for rescission.
That would be discussed in the subsequent article. Vitiated
consent is also a ground to annul a contract. Fraud, mistake,
violence, undue influence are the vices of consent.
Article 1098. A partition, judicial or extra-judicial, may also
be rescinded on account of lesion, when any one of the coheirs received things whose value is less, by at least onefourth, than the share to which he is entitled, considering the
value of the things at the time they were adjudicated. (1074a)
You receive a share which isvalued at least less than . For
example, you are entitled to 100,000php but you only
received 75,000php. Lesion is 25,000php which is at least .
The partition can be rescinded.
Article 1099. The partition made by the testator cannot be
impugned on the ground of lesion, except when the legitime
of the compulsory heirs is thereby prejudiced, or when it
appears or may reasonably be presumed, that the intention of
the testator was otherwise. (1075)
Even if there is lesion, as long as the partition was made by
the testator himself, that partition also cannot be impugned.
Again, as long as the legitime of the heir is not prejudiced.
That is the limitation.
Article 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the partition was
made. (1076)
There are actually several prescriptive periods provided in
succession aside from the general rule on prescription.

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SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Article 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those who
have not been prejudiced nor those have not received more
than their just share. (1077a)
What is the consequence if there a rescission due to lesion?
Here, it is either:
a)

You are prejudiced due to lesion, in which case you


will be given the amount which is lacking. You will be
indemnified for the balance; or,

b)

You can have a new partition but those heirs whose


shares is correct or are not prejudiced are no longer
included in the new partition as provided in the last
portion of Article 1101.

Article 1102. An heir who has alienated the whole or a


considerable part of the real property adjudicated to him
cannot maintain an action for rescission on the ground of
lesion, but he shall have a right to be indemnified in cash.
(1078a)
Here, he can no longer return the property adjudicated to him
and he cannot have a new partition, so what he could do is
just to indemnify him in cash the balance of what is supposed
to be due to him.
Article 1103. The omission of one or more objects or
securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall be
completed by the distribution of the objects or securities
which have been omitted. (1079a)
This is what we call preterition of objects in the partition. The
omission of one or more objects in the partition is not a
ground to rescind a partition. Do not make a new partition.
What you need to do is just to partition those objects not
included in the prior partition.
Article 1104. A partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it be proved
that there was bad faith or fraud on the part of the other
persons interested; but the latter shall be proportionately
obliged to pay to the person omitted the share which belongs
to him. (1080)
This talks of preterition of compulsory heirs in the partition. It
is different from article 854, which speaks of preterition in the
will or inheritance. Article 854 presupposes that there should
be a will.

Article 854. The preterition or omission of one, some, or all


of the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual, without prejudice to the right
of representation. (814a)
Article 1104 speaks of preterition not in the will but in the
partition. Here, an heir was not included in the partition. How
does that affect the partition? The law says it will not rescind
the partition as a general rule. So, what will happen if the
partition cannot be rescinded and there is one compulsory heir
who cannot be given his share because he was omitted? The
remedy is to give him his share. There is no new partition.
The exception is when there is bad faith on the part of the
persons interested. In that case, the partition can be
rescinded.
Non v. CA

From the full text: The exclusion of petitioner Delia Viado,


alleged to be a retardate, from the deed of extrajudicial
settlement verily has had the effect of preterition. This kind
of preterition, however, in the absence of proof of fraud and
bad faith, does not justify a collateral attack on Transfer
Certificate of Title No. 373646. The relief, as so correctly
pointed out by the Court of Appeals, instead rests on Article
1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the
partition shall not be rescinded but the preterited heir shall
be paid the value of the share pertaining to her. Again, the
appellate court has thus acted properly in ordering the
remand of the case for further proceedings to make the
proper valuation of the Isarog property and ascertainment
of the amount due petitioner Delia Viado.

That is clear. Just give to the omitted or preterited heir his or


her share that is supposed to be due to her had she been
included in the partition.
Reillo v. Heirs of San Jose

From the full text: A deed of extrajudicial partition executed

without including some of the heirs, who had no knowledge


of and consent to the same, is fraudulent and vicious. The
deed of settlement made by petitioners was invalid because
it excluded respondents who were entitled to equal shares
in the subject property. Under the rule, no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof. Thus, the RTC
correctly annulled the Deed of Extrajudicial Settlement of
Estate Among Heirs with Waiver of Rights dated January 23,
1998 and TCT No. M-94400 in the name of Ma. Teresa S.J.
Fernando issued pursuant to such deed.

Ad Majorem Dei Gloriam

44

SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
Quiterio here made a misrepresentation because when he
made the Deed of Extra-Judicial Partition, they said that they
are the only heirs when in fact they have knowledge that
there are others who are not included in the extra-judicial
settlement. So, there was bad faith. It was annulled in this
case.
Article 1105. A partition which includes a person believed to
be an heir, but who is not, shall be void only with respect to
such person. (1081a)
This is the reverse of Article 1104, wherein a compulsory heir
was not included. Here, there is a person who is not an heir
who was included in the partition. What is the effect of that in
the partition? Will it render void the entire partition? The law
says it shall be void only with respect to such person.
Aznar Brothers Realty v. CA

From the full text: Private respondents claim that not all the

known heirs of Crisanta Maloloy-on participated in the


extrajudicial partition, and that two persons who
participated and were made parties thereto were not heirs
of Crisanta. This claim, even if true, would not warrant
rescission of the deed. Under Article 1104 of the Civil Code,
"[a] partition made with preterition of any of the compulsory
heirs shall not be rescinded, unless it be proved that there
was bad faith or fraud on the part of the persons interested;
but the latter shall be proportionately obliged to pay to the
person omitted the share which belongs to him." In the
present case, no evidence of bad faith or fraud is extant
from the records. As to the two parties to the deed who
were allegedly not heirs, Article 1105 is in point; it provides:
"A partition which includes a person believed to be an heir,
but who is not, shall be void only with respect to such
person." In other words, the participation of non-heirs does
not render the partition void in its entirety but only to the
extent corresponding to them.
Actually, the issue here is also Article 1104. It is not a ground
for rescission unless there is bad faith or fraud. Also, in this
case, only the inclusion of persons who are not heirs shall be
annulled (1105).

COMPLETE COVERAGE FOR THE LAST EXAM.


GOD BLESS US. KJ

Ad Majorem Dei Gloriam

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