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BATINO, MARY ALELIE D.

In order to operate as a republication of the will, it is sufficient if the codicil refers to the
will in such a way as to leave no doubt as to the identity of that instrument. A reference to the will
in the codicil constitutes a sufficient identification of the will.

Stated generally, the doctrine is that a will, duly executed and witnessed according to
statutory requirements, may incorporate into itself by an appropriate reference a written paper or
document which is in existence at the time of the execution of the will, irrespective of whether
such document is one executed by the testator or a third person, whether it is in and of itself a valid
instrument, provided the document referred to is identified by clear and satisfactory proof. So
incorporated, the extrinsic paper takes effect as part of the will and is admitted to probate as such.

Under our Code, it is declared that “a will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void.” Upon being revoked, the will or the
testamentary disposition intended to be revoked, ceases to exist, and is as inoperative as if it has
never been written.

It is evident from the provisions of Art. 829 that the only time when the testator may revoke
his will either in accordance with the law of the place where the will was made or in accordance
with the law of the place in which he had his domicile at the time is when he is not domiciled in
the Philippines.

The rule of revocation by implication of law recognizes that a will may be revoked by the
occurrence of certain circumstances not specifically mentioned in the statutes which prescribe the
methods of revocation. The doctrine is that the revocation of a will is to be implied from certain
changes in the family or domestic relations of the testator, or in his property, or involving the
beneficiaries of his will, from which the law infers or presumes that he intended a change, either
total or partial, in the disposition of his property.

Under Art. 834, the revocation of the will where an illegitimate child is acknowledged by
the testator as his natural child will not affect the validity of the recognition or acknowledgment.
This rule is of course logical considering the fact that even if the will is revoked, the instrument
still constitutes an authentic instrument within the meaning of Art. 278 of the Civil Code, which
states that recognition of natural children shall be made in the record of birth, or in a will, or in a
statement before a court of record, or in an authentic writing.

Republication, as applied to wills, may be defined as “an act of the testator whereby he
reproduces in a subsequent will the dispositions contained in a previous will which is void as to its
form or executes a codicil to his will.” It may be either express or constructive.3 It is express if the
testator reproduces in a subsequent will the dispositions contained in a previous one which is void
as to its form. This is the republication which is referred to in Art. 835 of the Code.

Revival is the restoration to validity of a previously revoked will by operation of law. It


differs from republication in that it takes place by operation of law, while the latter takes place by
the act of the testator. It seems that under our law, the only way by which a previously revoked
will may be revived is through another will or codicil.

The probate of a will may be defined as a special proceeding for establishing the validity
of the will. It may also be defined as a special proceeding for the purpose of proving that the
instrument offered for probate is the last will and testament of the testator, that it has been executed
in accordance with the formalities prescribed by law, and that the testator had the necessary
testamentary capacity at the time of the execution of the will.

The fundamental basis of the law of testamentary succession is the doctrine that the will of
the testator, freely expressed in his last will and testament, is, as a general rule, the supreme law
which governs the succession. Undoubtedly, in order that such will shall have any effect, it must
be manifested in a manner which is clear and precise. Consequently, all legislations have always
imposed upon the testator the duty to designate his heirs in such a manner as to leave no doubt
with regard to his intent.

Under Art. 764 of the Spanish Civil Code, from which Art. 841 of our Code is derived, the
rule is that a will shall be valid although it may not contain an institution of heir. The same is true
in case of a partial institution or in case of a vacancy in the inheritance due to repudiation or
incapacity. The effect in all of these cases is that the testamentary dispositions which are made in
accordance with law shall be complied, while the remainder shall pass to the legal heirs in
accordance with the law of intestate succession. In other words, there is what is known as mixed
succession.

Art. 842 of the Code is a general provision which defines or delineates the testator’s
freedom of disposition depending upon whether or not he has compulsory heirs.

The reason for the precept contained in the first paragraph of Art. 843 can easily be inferred
from the fact that, under Art. 845 of the Code, dispositions in favor of an unknown person shall be
void, unless by some event or circumstance his identity becomes certain. Therefore, in order to
avoid such nullity, the law recommends that the designation should be made in the form indicated
in the first paragraph of Art. 843. This form, however, is not mandatory. The designation may be
made in any other form, so long as there will be no doubt as to the identity of the heir or heirs
instituted.

The express or presumed will of the testator is the law which governs the succession. This
principle which pervades the entire law of succession is reflected in the precept which is enunciated
in Art. 846. If several heirs are instituted without designation of shares, the law presumes that the
intention or wish of the testator is that they shall all inherit in equal shares.

In the absence of a more specific designation, the law presumes that those who are
collectively designated shall be considered as individually instituted in accordance with the
presumed will of the testator.

Under Art. 770 of the old Civil Code, each of the brothers and sisters of the full blood were
given twice as much as each of those of the half blood, while under Art. 848 of the present Civil
Code, there is no discrimination whatsoever. In case of intestate succession, however, should
brothers and sisters of the full blood survive together with brothers and sisters of the half blood,
the former shall be entitled to a share double that of the latter.
Whenever the testator institutes as his heirs a certain person and his children, such
institution must be interpreted to mean that they are all called to the succession simultaneously and
not successively.

If in the will there is statement of a false cause for the institution of an heir, such statement
shall be considered as not written, unless it appears from the will that the testator would not have
instituted such heir if he had known of the falsity of such cause.

Arts. 851 and 852 refer to those institutions where the testator has instituted one or more
persons as heirs to inherit in aliquot parts, but such parts are not sufficient to cover the entire
inheritance, or the entire free portion while Art. 853 refers to those institutions where the testator
has instituted several persons as heirs to inherit in aliquot parts, but such parts taken together
exceed the entire inheritance, or the entire free portion, as the case may be.

Preterition or pretermission of heirs may be defined as the omission in the testator’s will
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.

The testator may not only designate the heirs, devisees or legatees whom he desires to enter
into the enjoyment of the inheritance after his death, but he is also permitted by law to make a
second or subsequent designation in case the heirs, devisees or legatees originally appointed should
die before him or should not want or cannot accept the inheritance.

Simple or common substitution is defined as the designation made by the testator of one or
more persons to substitute the heir or heirs instituted in case such heir or heirs should die before
him, or should not wish, or should be incapacitated to accept the inheritance.

The Code does not expressly state what is the nature of the right of the first heir or fiduciary
over the property or inheritance pending its transmission or delivery to the second heir or
fideicommissary. Undoubtedly, he cannot be a mere agent of the fideicomitente or a mere
administrator of the property. He is the “first heir,” although charged with the obligation “to
preserve and to transmit” the property to a second heir.

It must be noted that according to Art. 786 of the Code, the testator may entrust to a third
person the distribution of specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons, institutions or establishments
to which such property or sums of money are to be given or applied.

The provision of Art. 871 is a restatement of the testator’s freedom of disposition. Although
the article speaks only of institution of heirs, there is no reason why the provision cannot be applied
to any kind of testamentary disposition. Consequently, whether the testamentary disposition is an
institution of heir, or a devise or legacy, under this article, the testator is free to impose any
condition, or mode, or term.
The rule stated in Art. 872 merely reiterates the principle of the untouchability of the
legitime of compulsory heirs. There is only one instance under our law where the testator is
allowed to impose a charge upon the legitime of compulsory heirs and that is when the testator
declares that the hereditary estate shall not be partitioned for a period which shall not exceed
twenty years.

If the condition is impossible in the sense that it is not possible of realization because it is
contrary to either, physical, juridical or moral laws, it shall be considered as not imposed. However,
the institution of heir or the devise or legacy is not affected. There is a presumption in this case
that the condition is due to a mistake or oversight, or merely a whim or caprice of the testator.
Consequently, it must be disregarded as a matter of justice to the instituted heirs, devisees or
legatees.

The absolute condition not to contract marriage when validly imposed is resolutory in
character. Art. 874 is concerned with heirs, devisees or legatees, who are entitled to the inheritance,
devise or legacy upon the death of the testator, but lose their right thereto upon the fulfillment of
the condition if validly imposed.

The condition that the heir shall make some provision in his will in favor of the testator or
of any other person is what is known as a condition captatoria. Hence, if the testator makes a
testamentary disposition in his will subject to such a condition, it is known as disposicion
captatoria.

As regards the cause upon which their fulfillment depends, conditions may be purely
potestative, casual or mixed. A purely potestative condition is one whose fulfillment depends
exclusively upon the will of the heir, devisee or legatee.

As regards their effects, a condition may be either suspensive or resolutory. A suspensive


condition may be defined as a condition upon the fulfillment of which successional rights arising
from an institution of heir or from a devise or legacy are acquired. A resolutory condition, on the
other hand, may be defined as a condition upon the fulfillment of which rights already acquired by
virtue of an institution of heir or of a devise or legacy are extinguished or lost.

A mode may be defined as the statement of the object of the institution, or the application
of the property left by the testator, or the charge imposed by him. Consequently, if the testator
attaches to an institution of heir, or to a devise or legacy a statement of (1) the object of the
institution of heir or of the devise or legacy, or (2) the application of the inheritance, devise or
legacy, or a charge upon the heir, devisee or legatee, the institution or the devise or legacy is modal,
not conditional, in character.

The provision of Art. 883 as arranged is defective. Apparently, the first paragraph is
applicable only to instituciones sub modo, while the second paragraph is applicable only to
conditional testamentary dispositions. It is, however, submitted that both paragraphs are applicable
whether the institution of heirs, devise or legacy is modal or conditional in character.
Testamentary dispositions with a term or period are those demandability or extinguishment
are subject to the expiration of a term or period. Consequently, a term or period, as applied to
testamentary dis-positions, may be defined as an interval of time, which, exerting an influence
upon a testamentary disposition as a consequence of a juridical act, either suspends its
demandability or produces its extinguishment.