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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.
1.
2.
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.
siya.
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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
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.
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
1.
2.
3.
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
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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
SUCCESSION TSN
From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
2.
3.
4.
5.
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.
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.
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.
2.
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.
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
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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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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)
Subsection 1. - Relationship
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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)
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.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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succession, we limit ourselves to the legitime, to the half.
Now, we cover the entire estate.
Subsection 3. - Illegitimate Children
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
Ateneo de Davao College of Law | Tres Manresa 2015
2.
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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)
7x
2x=spouse
Total: 7x
A-Illegitimate child-200,000
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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
2x=legitimate child
2x=spouse
Total: 14x
Illegitimate child-100,000
(All-800,000)
each
Legitimate children-200,000
Spouse-200,000
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
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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
2.
3.
4.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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with the rules laid down for brothers and sisters of the full
blood. (915)
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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.
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From the lectures of Atty. Lielanie Yangyang-Espejo, CPA
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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.
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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.
1.
2.
Incapacity? Yes.
3.
4.
5.
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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.
Absolute incapacity
2.
Relative incapacity
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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.
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(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)
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
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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?
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.
gihapon siya.
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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
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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
Order of succession
2.
3.
4.
Capacity to succeed
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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.
2.
b.
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2.
b.
b.
2.
4.
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.
b.
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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
2.
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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.
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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
2.
Collation as an imputation
Donations intervivos made to compulsory heirs are
considered as advances to their legitimes
3.
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2.
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
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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.
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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
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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.
2.
3.
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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.
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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.
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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?
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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
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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
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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)
b)
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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
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