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SUMMARY OF DOCTRINES

CIVIL CODE

WHEN SUCCESSION TAKES PLACE

Article 771

The principle of transmission as of the time of the predecessor's death is basic in our Civil
Code, and is supported by other related articles. Thus, the capacity of the heir is
determined as of the time the decedent died (Art. 1034); the legitime is to be computed as
of the same moment (Art. 908), and so is the in officiousness of the donation inter vivas.
(Parulan V Garcia G.R. No. 184148 June 9, 2014)

Article 774

"If a right should be declared for the first time in this Code, it shall be effective at once,
even though the act or event which gives rise thereto may have been done or may have
occurred under the prior legislation, provided said new right does not prejudice or impair
any vested or acquired right, of the same origin." (Uson V. Del Rosario 92 Phil. 530 [1953])

The title of the property owned by a person who dies intestate passes at once to his
heirs. Such transmission is subject to the claims of administration and the property may
be taken from the heirs for the purpose of paying debts and expenses, but this does not
prevent an immediate passage of the title, upon the death of the intestate, from himself
to his heirs. (Alfonso v. Andres, G.R. no. 166236, 29 July 2010)

The Court held that under the rules of succession, the heirs instantaneously became co-
owners of the Marcos properties upon the death of the President. The property rights and
obligations to the extent of the value of the inheritance of a person are transmitted to
another through the decedent's death. In this concept, nothing prevents the heirs from
exercising their right to transfer or dispose of the properties that constitute their legitimes,
even absent their declaration or absent the partition or the distribution of the estate.
(Republic v. Marcos-Manotoc, GR 171701, 8 February 2012)

Article 777

Hereditary share in a decedent's estate is transmitted or vested immediately from the


moment of the death of such causante or predecessor in interest there is no legal bar to a
successor disposing of her or his hereditary share immediately after such death, even if
the actual extent of such share is not determined until the subsequent liquidation of the
estate. (De Borja Vs.De Borja G.R. No. L-28040 / L-28568 August 18, 1972)

The principle contained in Article 777 of the Civil Code to the effect that the rights to the
succession are transmitted from the moment of death of the decedent. The heirs in this
case agreed to settle the estate in accordance with the terms and condition of the will in
the following manner, that the land remains undivided for community ownership but
respecting conditions imposed therein in the will. In relation to Article 493 of the Civil
Code spells out the rights of co-owners over a co-owned property. Pursuant to said
Article, a co-owner shall have full ownership of his part and of the fruits and benefits
pertaining thereto. He has the right to alienate, assign or mortgage it, and even substitute
another person in its enjoyment. As a mere part owner, he cannot alienate the shares of
the other co-owners. The prohibition is premised on the elementary rule that no one can
give what he does not have. (Nufable v Nufable 309 SCRA 692 [1999])

While it is true that a person who is dead cannot sue in court, yet he can be substituted
by his heirs in pursuing the case up to its completion. (Bonilla v Barcena 71 SCRA 491
[1976])

Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights thereto except by
the methods provided for by law. 3 The moment of death is the determining factor when
the heirs acquire a definite right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the deceased vests in them even
before judicial declaration of their being heirs in the testate or intestate proceedings.
(Bonilla v Barcena 71 SCRA 491 [1976])

The question as to whether an action survives or not depends on the nature of the action
and the damage sued for. 6 In the causes of action which survive the wrong complained
affects primarily and principally property and property rights, the injuries to the person
being merely incidental, while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property affected being
incidental. (Bonilla v Barcena 71 SCRA 491 [1976])
LEGITIMES

Article 886

Children’s right to their parents’ properties is merely inchoate and vests only upon their
parents’ death. While still living, the parents of petitioners are free to dispose of their
properties. (Sps. Joaquin v. CA, 416 SCRA 263 [2003])

The Court ruled that the trial court’s declaration that the sale embodied in the Kasulatan
deprived the compulsory heirs of Guevarra of their legitimes to have no factual basis. As
opposed to a disposition inter vivos by lucrative or gratuitous title, a valid sale for
valuable consideration does not diminish the estate of the seller. When the disposition is
for valuable consideration, there is no diminution of the estate but merely a substitution
of values, that is, the property sold is replaced by the equivalent monetary consideration.
(Manongsong vs. Estimo G. R. No. 136773 June 25, 2003)

RIGHT OF ADOPTED TO INHERIT FROM BIOLOGICAL PARENTS / RELATIVES

Obiter: Art 189(3) of FC, RA 8552, Secs. 16, 17 & 18

There is no law prohibiting an illegitimate child adopted by her natural father to use, as
middle name her mother’s surname, the Court find no reason why she should not be
allowed to do so. The underlying intent of adoption is in favor of the adopted child. Being
a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the
rights provided by law to a legitimate child without discrimination of any kind,
including the right to bear surname of her father and her mother. Stephanie’s continued
use of her mother’s surname as her middle name will maintain her maternal lineage.
The Domestic Adoption Act and the Family Code provide that the adoptee remains
an intestate heir of his/her biological parent. Hence, Stephanie can assert her
hereditary rights from her natural mother in the future. (In the Matter of the Adoption of
Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005)
KINDS OF WILLS

Article 799

It must be noted that despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their locations. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. As we have stated earlier, the omission of some relatives from the will
did not affect its formal validity. There being no showing of fraud in its execution, intent
in its disposition becomes irrelevant. (Ortega vs. Valmonte 478 SCRA 247 [2005])

Article 804

In this case, respondent judge, on perusing the will and noting that it was written in
English and was thumbmarked by an obviously illiterate testatrix, could have readily
perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was stated
that the will was read to the testatrix "and translated into Filipino language". (p. 16,
Record of testate case). That could only mean that the will was written in a language not
known to the illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed in a language
or dialect known to the testator. Thus, a will written in English, which was not known to
the Igorot testator, is void and was disallowed. (Suroza v Honrado 110 SCRA 388 [1981])

Article 805

It is, of course, not possible to lay down a general rule, rigid and inflexible, which would
be applicable to all cases. More than anything else, the facts and circumstances of record
are to be considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the will, and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the inclination should, in
the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission
to probate, although the document may suffer from some imperfection of language, or
other non-essential defect.

An attestation clause is made for the purpose of preserving, in permanent form, a record
of the facts attending the execution of the will, so that in case of failure of the memory of
the subscribing witnesses, or other casualty, they may still be proved. A will, therefore,
should not be rejected where its attestation clause serves the purpose of the law. (Noble
Vs. Abaja Gr No. 147145 January 31, 2005)

While in some of these cases the signing by mark was described in the will of in the
attestation clause, it does not appear that the court ever held that the absence of such
description is a fatal defect. (Matias V. Salud L – 10751, 23 June 1958)

Attestation is the act of senses, while subscription is the act of the hand. The attestation
clause, therefore, provide strong legal guaranties for the due execution of a will and to
insure the authenticity thereof.

the defects in the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not expressed
in the attestation clause or from which it may necessarily be gleaned or clearly inferred
that the acts not stated in the omitted textual requirements were actually complied within
the execution of the will. An ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition.

It is made for the purpose of preserving in a permanent form a record of the facts that
attended the execution of a particular will, so that in case of failure of the memory of the
attesting witnesses, or other casualty, such facts may still be proved. (Caneda v. CA, 222
SCRA 781 [1993])

Article 805 and 806

Donation mortis causa must comply with the formalities prescribed by law for the
validity of wills, "otherwise, the donation is void and would produce no effect." The
requirements of attestation and acknowledgment embodied in two separate provisions
of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates
two distinct acts that serve different purposes. An acknowledgment is made by one
executing a deed, declaring before a competent officer or court that the deed or act is his
own. On the other hand, the attestation of a will refers to the act of the instrumental
witnesses themselves who certify to the execution of the instrument before them and to
the manner of its execution. (Echavez vs. Dozen Construction and Development Corp.
G.R. No. 192916 October 11, 2010)

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator.
(Labrador vs. Court of Appeals 184 SCRA 170 1990)
It is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other
sign if they choose to do so.

The question whether the testator and the subscribing witnesses to an alleged will sign
the instrument in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its subscription by each
of them, but that at that moment existing conditions and their position with relation to
each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the
possibility of all manner of fraud, substitution, and the like, and would defeat .the
purpose for which this particular condition is prescribed in the code as one of
the requisites in the execution of a will. (Nera Vs. Rimando G.R. No. L-5971 February
27, 1911)

No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or effect the same, unless it be in writing and signed by the
testator, or by the testator’s name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator.

From this provision it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or
not. The important thing is that it clearly appears that the name of the testatrix was signed
at her express direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other. That is all the statute
requires. (Barut vs. Cabacungan, G.R. No. L-6285, February 15, 1912)

The attestation clause is 'a memorandum of the facts attending the execution of the will'
required by law to be made by the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.

If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses. (Cagro V. Cagro
92:1032)
In notarial wills, Article 805 of the NCC provides that: “Subscribed at the end thereof by
the testator himself or by the testator’s name written by some other person in his presence
and by his express direction”. The subscription by fingerprint is allowed as long as it is
voluntarily made as pronounced in the Matias v. Salud, G.R. No. L-10751 case. It was not
necessary that the attestation clause in question should state that the testatrix requested
Attorney Almario to sign her name inasmuch as the testatrix signed the will in question
in accordance with law. A statute requiring a will to be 'signed' is satisfied if the signature
is made by the testator's mark. (Payad vs. Tolentino, G.R. No. L-42258, January 15, 1936)

Article 806

To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three
credible witnesses to act as such and of Article 806 which requires that the testator and
the required number of witnesses must appear before the notary public to acknowledge
the will. The result would be, as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances, the law would not be duly in
observed. (Cruz v. Villasor G.R. No. L-32213 November 26, 1973)

Article 807

Rule 75 Production of Will. Allowance of Will Necessary.


Due execution of the will or its extrinsic validity pertains to whether the testator, being
of sound mind (Art. 799), freely executed the will in accordance with the formalities
prescribed by law. These formalities are enshrined in Articles 805 and 806 of the New
Civil Code, to wit:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other person
to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the Office of the Clerk of Court.

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (Baltazar V. Laxa 669 Scra 249 [2012])

Article 808

A notary public's commission is the grant of authority in his favor to perform notarial
acts. It is issued "within and for" a particular territorial jurisdiction and the notary public's
authority is co-extensive with it. In other words, a notary public is authorized to perform
notarial acts, including the taking of acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is bereft of power to perform any notarial
act; he is not a notary public. Any notarial act outside the limits of his jurisdiction has no
force and effect. Since Atty. Directo was not a commissioned notary public for and in
Quezon City, he lacked the authority to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the testatrix and her witnesses could not have
validly acknowledged the will before him. Thus, Felisa Tamio de Buenaventura's last will
and testament was, in effect, not acknowledged as required by law. An acknowledgment
taken outside the territorial limits of the officer's jurisdiction is void as if the person taking
it ware wholly without official character. (Guerrero V. Bihis G.R. No. 174144. April 17,
2007)

“Article 808 applies not only to blind testators but also to those who, for one reason or
another, are "incapable of reading their will(s)." Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution
due to his "poor," "defective," or "blurred" vision, there can be no other course for us but
to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used
in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether
or not the lawyer who drafted the will and codicil did so confortably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential that
we ascertain whether Art. 808 had been complied with.” (Alvarado vs. Gaviola, GR
74695, September 14, 1993)

If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.
(Garcia V. Vasquez 32 Scra 489)

Article 809

The Court ruled that error in the number of pages of the will as stated in the attestation
clause is not material to invalidate the subject will. Further, a picture which showed that
the testator was in a good mood and smiling with the other witnesses while executing
the subject will is evidence that no pressure nor undue influence was exerted on the
testator to execute the subject will. (Celada v. Abena, 556 SCRA 569 [2008])

Article 809 in relation to 805. Forms of Wills

The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But
the total number of pages, and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings. (Lopez v. Lopez, G.R. no. 189984, 12
November 2012)

A will whose attestation clause does not contain the number of pages on which the will
is written is fatally defective. A will whose attestation clause is not signed by the
instrumental witnesses is fatally defective. And perhaps most importantly, a will which
does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate. (Azuela V. Ca 487 Scra 119 [2006])

The attestation clause is fatally defective for failing to state that Mercado directed Javier
to write the testator’s name under his express direction. Petitioner’s argument that such
recital is unnecessary because the testator signed the will himself using a cross mark
which should be considered the same as a thumb-mark (which has been held sufficient
in past cases) is not acceptable. A cross mark is not the same as a thumb mark; because
the cross mark does not have the same trustworthiness of a thumb mark. (Garcia v.
Lacuesta, 90 P 489)

REQUIREMENT OF PROBATE

Article 811

The execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce no effect. The law regards the document
itself as material proof of authenticity. (Fausto E. Gan V. Ildefonsoyap, G.R. No. L-12190,
August 30, 1958)

"In the probate of a holographic will" says the New Civil Code (Art. 811), "it shall be
necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting) and if the court
deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand. However, the oppositor may present other
witnesses who also know the testator's handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own visual sense,
and decide in the face of the document, whether the will submitted to it has indeed been
written by the testator. (Fausto E. Gan V. Ildefonsoyap, G.R. No. L-12190, August 30,
1958)

Obviously, when the will itself is not submitted, these means of opposition, and of assessing
the evidence are not available. And then the only guaranty of authenticity3 — the testator's
handwriting — has disappeared. (Fausto E. Gan V. Ildefonsoyap, G.R. No. L-12190,
August 30, 1958)
Article 811 of the Civil Code provides that “in the probate of a holographic will, it shall
be necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and signature are in the handwriting of the testator.
If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony may be resorted to.

Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of
the will by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested at least one identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or destroyed and
no other copy is available, the will can not be probated because the best and only evidence
is the handwriting of the testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. (Rodelas vs. Aranza,
G.R. No.L-58509 December 7, 1982)

Article 811 of our present Civil Code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator if the will is
not contested. Where the will is holographic, no witness need be present (Art. 10), and
the rule requiring production of three witnesses must be deemed merely permissive if
absurd results are to be avoided. Hence, the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory. (Azaola vs. Singsong G.R. No.
L-14003 August 5, 1960)

More evidence is required to prove that a will has been forged. (Codoy V Calugay G.R.
No. 123486 August 12, 1999)

Article 838

The presentation of a will to the court for probate is mandatory and its allowance by the
court is essential and indispensable to its efficacy. If the decedent left a will and no debts
and the heirs and legatees desire to make an extrajudicial partition of the estate, they must
first present that will to the court for probate and divide the estate in accordance with the
will. They may not disregard the provisions of the will unless those provisions are
contrary to law. Neither may they so away with the presentation of the will to the court
for probate, because such suppression of the will is contrary to law and public policy. The
law enjoins the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory. (Guevara v. Guevara, 74:479 [1943])

Considering that the questioned document is Segundo’s holographic will, and that the
law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article
838 of the Civil Code provides that no will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the
will is probated, the right of a person to dispose of his property may be rendered
nugatory. (Seangio vs Reyes G.R. Nos. 140371-72 November 27, 2006)

Once a decree of probate becomes final in accordance with the rules of procedure, it is res
judicata. The final decree of probate entered in 1939 in the CFI of Cebu is conclusive as to
the last will of Bernabe despite the fact that even then the Civil Code already decreed the
invalidity of joint wills. Nevertheless, the probate in 1939 only affected the share of
Bernabe and could not include the disposition of the share of his wife which was still
alive then; her properties were still not within the jurisdiction of the court. Hence, the
validity of the will with respect to her, must be on her death, be reexamined and
adjudicated de novo -- since a joint will is considered a separate will of each testator. (De
la Cerna vs. Potot, G.R. No. L-20234, December 23, 1964)

A final judgment on probated will, albeit erroneous, is binding on the whole world.
(Dorotheo Vs. Ca 320 Scra 12 [1999])

However, contrary to the ruling of the MTCC and RTC, the purported last will and
testament of Isabel Cuntapay could not properly be relied upon to establish petitioners’
right to possess the subject lot because, without having been probated, the said last will
and testament could not be the source of any right. (Heirs of Lasam v Umengan 510 SCRA
496 [2006])

Article 839

A careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that the testatrix and her
instrumental witnesses attested and subscribed to the Will in the presence of the testator
and of one another. In fact, even the petitioners acceded that the signature of Paciencia in
the Will may be authentic although they question of her state of mind when she signed
the same as well as the voluntary nature of said act. (Baltazar vs. Laxa, G.R. No. 174489,
April 11, 2012)

That means that the testator was of sound and disposing mind at the time he executed
the will and was not acting under duress, menace, fraud, or undue influence; that the will
was signed by him in the presence of the required number of witnesses, and that the will
is genuine. (Gallanosa V. Arcangel 83 Scra 675)

SUBSTITUTIONS

Article 857

There is no vulgar substitution because there is no provision for either (1) predecease of
the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859; and neither is there a fideicommissary substitution
therein because no obligation is imposed thereby upon Hodges to preserve the estate or
any part thereof for anyone else. But from these premises, it is not correct to jump to the
conclusion, as PCIB does, that the testamentary dispositions in question are therefore
inoperative and invalid. Substitution occurs only when another heir is appointed in a will
"so that he may enter into inheritance in default of the heir originally instituted," (PCIB
vs. Escolin G.R. Nos. L-27860 And L-27896 March 29, 1974)

Article 863

Some commentators of the Civil Code have expressed the opinion that a fideicommissary
substitution is in fact a disguised case of successive institutions. This is because both the
first and the second heirs inherit from the testator and not from one another. The
beneficial use and possession of the inheritance are first given to the first heir for a lifetime
at most, and thereafter transferred to the second heir. The law requires that the first and
second heirs must be “one degree apart” from each other. This limitation became the
objective of two divergent views. One view holds that the “one degree” apart rule refers
to one transfer. Ramirez settled the controversy by holding the more restrictive view.

In an obiter, the Court opined that the constitutional prohibition against alien ownership
of land does not permit an alien to acquire the same by testamentary succession. Would
such a ruling apply to a case where the foreign beneficiary is both a testamentary and a
compulsory heir? (Palacios V. Ramirez 111 Scra 704 [1982])
PRETERIATION

Article 854. Annulment of the Institution of an heir

It is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that
intention. It is only when the intention of the testator is contrary to law, morals, or public
policy that it cannot be given effect. (Seangio V. Reyes 508 Scra 177)

The Garcias were, in fact, pretended from SOLANO's Last' Will and Testament; and that
as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null
and void. (Solano v. CA, G.R. no. L-41971, 29 November 1983)

“On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat,
"shall annul the institution of heir". This annulment is in toto, unless in the will there are,
in addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other.” (Naguid vs. Naguid, GR L-23445, June 23, 1966)

It has been said that it is premature if not irrelevant to speak of preterition prior to the
death of Don Julian in the absence of a will depriving a legal heir of his legitime. (JLT
Agro Inc. v. Balansag, 453 SCRA 211 [2005])

Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.

Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she
does not ascend or descend from the testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in the direct line. (Acain v. IAC, 155
SCRA 100 [1987])

RESERVA TRONCAL

Article 890

The Court held that the reservista has the legal title and dominion to the reservable
property but subject to a resolutory condition; that he is like a life usufructuary of the
reservable property; that he may alienate the same but subject to reservation, said
alienation transmitting only the revocable and conditional ownership of the reservists,
the rights acquired by the transferee being revoked or resolved by the survival of
reservatarios at the time of the death of the reservista. (Sienes v. Esparcia G.R. No. L-
12957, March 24, 1961)

Article 891

“Art. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the line from which
said property came.”

Consistent with the rule in reserva viudal where the person obliged to reserve (the
widowed spouse) had the obligation to annotate in the Registry of Property the
reservable character of the property, in reserva troncal, the reservor (the ascendant who
inherited from a descendant property which the latter inherited from another
descendant) has the duty to reserve and therefore, the duty to annotate also. This rule is
consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529,
which provides that: "The act of registration shall be the operative act to convey or affect
the land insofar as third persons are concerned . . ." (Sumaya vs. IAC G.R. No. 68843-44
September 2, 1991)

Requisites of Reserva Troncal:

(1)That the property was acquired by a descendant from an ascendant or from a brother
or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the
property is inherited by another ascendant by operation of law; and (4) that there are
relatives within the third degree belonging to the line from which said property came.

An order of the Court for payment of an obligation does not change the gratuitous nature
of transmission of property to the plaintiff. As long as the transmission of the property to
the heirs is free from any condition imposed by the deceased himself and the property is
given out of pure generosity, it is gratuitous. (Chua vs. CFI G.R. No. L-29901 August 31,
1977)
The reserva troncal provision of the Civil Code is found in Article 891 which reads as
follows:
ART. 891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the third degree and
who belong to the line from which said property came.

The persons involved in reserva troncal are:


1. The person obliged to reserve is the reservor (reservista)—the ascendant
who inherits by operation of law property from his descendants.
2. The persons for whom the property is reserved are the reservees
(reservatarios)—relatives within the third degree counted from the
descendant (propositus), and belonging to the line from which the property
came.
3. The propositus—the descendant who received by gratuitous title and
died without issue, making his other ascendant inherit by operation of law.
(Solivio vs CA G.R. No. 83484 February 12, 1990)

Article 891 requires that registration or annotation of the reservees right in the property
being registered under the Torrens System as a lien on the property otherwise the right
is extinguished after the one-year period in so far as innocent third parties are concerned.
(Edroso V Sablan 25:295 [1913])

Article 891 of the Civil Code provides that, “the ascendant who inherits from his
descendant any property which the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve such property as he may
have acquired by operation of law for the benefit of relatives who are within the third
degree and who belong to the line from which the property came.

It is a consequence of these principles that upon the death of the reservista , the
reservatario nearest to the prepositus (the appellee in this case)becomes, automatically
and by operation of law, the owner of the reservable property. As already stated, the
property is no part of the estate of the reservista, and does not even answer for the debts
of the latter. Hence, its acquisition by the reservatario may be entered in the property
records without necessity of estate proceedings, since the basic requisites therefor appear
of record. It is equally settled that the reservable property cannot be transmitted by a
reservista to her or his own successors mortis causa (like appellants herein) so long as a
reservatario within the third degree from the prepositus and belonging to the line where
the property came, is in existence when the reservista dies. (Cano vs. Director of Lands,
et.al G.R. No. L-10701, January 16, 1959)

The trial court said that the disputed properties lost their reservable character due to the
non-existence of third-degree relatives of Filomena Legarda at the time of the death of
the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree
relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the
absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death,
there were (and still are) reservees belonging to the second and third degrees, the
disputed properties did not lose their reservable character. The disposition of the said
properties should be made in accordance with article 891 or the rule on reserva troncal
and not in accordance with the reservor's holographic will. The said properties did not
form part of Mrs. Legarda's estate. (Gonzalez v CFI 104 SCRA 479 [1981])

There is no call for applying Art. 891 any longer; The stated purpose of the reserva is
accomplished once property has devolved to the specified relatives of the line of
origin. But from this time on, there is no further occasion for its application. In the
relations between one reservatario and another of the same degree, wherefore, the
respective share of each in the reversionary property should be governed by the ordinary
rules of intestate succession. (Padura v Baldovino GR No. 11960 27 December 1958)

REPRESENTATION

Article 943

Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession
between legitimate and illegitimate relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.

The rule in article 943 is now found in article 992 of the Civil Code which provides that
"an illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child" (Corpus v Corpus G.R. No. L-22469 October 23, 1978)

Article 971

The relationship established by adoption is limited solely to the adopter and the adopted
and does not extend to the relatives of the adopting parents or of the adopted child except
only as expressly provided for by law. Hence, no relationship is created between the
adopted and the collaterals of the adopting parents. As a consequence, the adopted is an
heir of the adopter but not of the relatives of the adopter. (Vicente B. Teotico vs. Ana Del
Val, Etc. G.R. No. L-18753 March 26, 1965)

While it is true that the adopted child shall be deemed to be a legitimate child and have
the same rights as the latter, these rights do not include the right of representation.
(Sayson V. Ca 205 Scra 321)

INTESTACY

Article 975

Under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato
so long as nephews and nieces of the decedent survive and are willing and qualified to
succeed.

An aunt of the deceased she is as far distant as the nephews from the decedent (three
degrees) since in the collateral line to which both kinds of relatives belong degrees are
counted by first ascending to the common ancestor and then descending to the heir (Civil
Code, Art. 966). (Bacayo v Borromeo 145 SCRA 986 [1986])

Article 992

Article 992 of the Civil Code provides that “an illegitimate child has no right to inherit ab
intestate from the legitimate children and relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate child.

Article 992, a basic postulate, enunciates what is commonly referred to the rules on
succession as the “principle of absolute separation between the legitimate family and the
illegitimate family.” The doctrine rejects succession ab intestato in the collateral line
between legitimate relatives, on the one hand, and illegitimate relatives, on other hand,
although it does not totally disavow such succession in the direct line. Since the rule is
predicated on the presumed will of the decedent, it has no application, however, on
testamentary dispositions. (Manuel vs. Ferrer G.R.No. 117246 august 21, 1995)

Article 992 of the NCC prohibits absolutely a succession ab intestate between illegitimate
child and the legitimate children and relatives of the father or mother of said legitimate
child.. They may have a natural tie of blood, but this is not recognized by law for the
purposes of Article 992. Between the legitimate family and the illegitimate family there is
presumed to be intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the legitimate family is in turn,
hated by the illegitimate child; the latter considers the privileged condition of the former,
and the resources of which it is hereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish broken
in life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. (Diaz v. Intermediate Appellate Court; De la Puerta v. Court of Appeals)

The word "relatives" is a general term and when used in a statute it embraces not only
collateral relatives but also all the kindred of the person spoken of, unless the context
indicates that it was used in a more restrictive or limited sense. That until Article 992 is
suppressed or at least amended to clarify the term "relatives" there is no other alternative
but to apply the law literally. (Diaz v IAC 150 SCRA 654 [1987])

Article 996

“Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession;
whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being
the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his
father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888
thereof, the legitime of children in testate succession. While it may indicate the intent of
the law with respect to the ideal shares that a child and a spouse should get when they
concur with each other, it does not fix the amount of shares that such child and spouse
are entitled to when intestacy occurs. Because if the latter happens, the pertinent
provision on intestate succession shall apply, i.e., Art. 996.” (Santillon vs. Miranda, GR
L-19281, June 30, 1965)

Article 1001

The conjugal property of Teodorico and Marietta, no evidence having been adduced to
indicate another property regime between the spouses, pertains to them in common.
Upon its dissolution with the death of Teodorico, the property should rightly be divided
in two equal portions — one portion going to the surviving spouse and the other portion
to the estate of the deceased spouse. The successional right in intestacy of a surviving
spouse over the net estate 11 of the deceased, concurring with legitimate brothers and
sisters or nephews and nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces, being entitled to the other
half. Nephews and nieces, however, can only succeed by right of representation in the
presence of uncles and aunts; alone, upon the other hand, nephews and nieces can
succeed in their own right which is to say that brothers or sisters exclude nephews and
nieces except only in representation by the latter of their parents who predecease or are
incapacitated to succeed. The appellate court has thus erred in granting, in paragraph (c)
of the dispositive portion of its judgment, successional rights, to petitioner's children,
along with their own mother Antonia who herself is invoking successional rights over
the estate of her deceased brother. (Armas v Calisterio 330 SCRA 201 [2000])

SURVIVORSHIP AGREEMENT

When the spouses opened savings account, they merely put what rightly belonged to
them in a money-making venture. They did not dispose of it in favor of the other. Since
the wife predeceased her husband, the latter acquired upon her death a vested right over
the amount under the savings account. (Vitug v CA 183 SCRA 755 [1990])

“This court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to
give or do something as an equivalent for that which the other party is to give or do in
case of the occurrence of an event which is uncertain or will happen at an indeterminate
time. As already stated Leonarda was the owner of the house and Juana of the Buick
automobile and most of the furniture. By virtue of Exhibit C, Juana would become the
owner of the house in case Leonarda died first, and Leonarda would become the owner
of the automobile and the furniture if Juana were to die first. In this manner Leonarda
and Juana reciprocally assigned their respective property to one another conditioned
upon who might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract, as any other
contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana the latter thereupon acquired the ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the automobile and of the furniture if
Juana had died first.” (Macam vs. Gatmaitan, G.R. No. L-42619, March 11, 1937)
Furthermore, "it is well established that a bank account may be so created that two
persons shall be joint owners thereof during their mutual lives, and the survivor take the
whole on the death of the other. The right to make such joint deposits has generally been
held not to be done with by statutes abolishing joint tenancy and survivorship generally
as they existed at common law." (7 Am. Jur., 299.)

But although the survivorship agreement is per se not contrary to law, its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud
of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled
upon such grounds. No such vice has been imputed and established against the
agreement involved in the case. (Rivera v People’s Bank 73 Phil 546 [1942])

COLLATION

Article 1061

Article 1061 of the Civil Code speaks of collation. It states: Every compulsory heir, who
succeeds with other compulsory heirs, must bring into the mass of the estate any property
or right which he may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.

Collation is the act by virtue of which descendants or other forced heirs who intervene in
the division of the inheritance of an ascendant bring into the common mass, the property
which they received from him, so that the division may be made according to law and
the will of the testator. Collation is only required of compulsory heirs succeeding with
other compulsory heirs and involves property or rights received by donation or
gratuitous title during the lifetime of the decedent. The purpose for it is presumed that
the intention of the testator or predecessor in interest in making a donation or gratuitous
transfer to a forced heir is to give him something in advance on account of his share in
the estate, and that the predecessors will is to treat all his heirs equally, in the absence of
any expression to the contrary. Collation does not impose any lien on the property or the
subject matter of collationable donation. What is brought to collation is not the property
itself, but rather the value of such property at the time it was donated, the rationale being
that the donation is a real alienation which conveys ownership upon its acceptance, hence
any increase in value or any deterioration or loss thereof is for the account of the heir or
done. (Vizconde vs. CA, G.R. No.118449, February 11, 1998)
Section 5, Rule 86 of the Revised Rules of Court

Section 5. Claims which must be filed under the notice. If not filed barred; exceptions.-
All claims for money against the decedent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses for the
last sickness of the decedent and judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they are barred forever, except that they
may set forth as counterclaims in any action that the executor or administrator may bring
against the claimants. Where an executor or administrator commences an action, or
prosecutes an action already commenced by the deceased in his lifetime, the debtor may
set forth by answer the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may be set off against
each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though
the claim had been presented directly before the court in the administration proceedings.
Claims not yet due, or contingent, may be approved at their present value.

The loan was contracted by the decedent. The creditor of the latter should have thus filed
its money claim with the probate court based on the above mentioned provision.

In testate succession, there can be no valid partition among the heirs until after the will
has been probated. The law enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof is given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory. (Union Bank
vs. Santibañez, G.R. No.149926 February 23, 2005)

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