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ART. 836. The execution of a codicil referring to a b. Executed in a language or dialect known to
previous will has the effect of republishing testator
the will as modified by the codicil. c. Subscribed by the testator or his agent in his
If the testator wishes to republish a will that is void presence and by his express direction at the
as to form, the only way to republish it is to end thereof, in the presence of the witnesses
execute a subsequent will and reproduce [copy d. Attested and subscribed by at least 3 credible
out] the dispositions of the original will. Mere witnesses in presence of the testator & of one
reference to the prior will in the subsequent will is another
not enough.
e. Testator, or his agent, must sign every page,
A will is void as to form if it does not comply with except the last, on the left margin in the
the requirements of Arts804-818; 810-814; 818- presence of the witnesses
819. f. The witnesses must sign every page, except
the last, on the left margin in the presence of
the testator and of one another.
g. All pages numbered correlatively in letters on
the upper part of each page.
h. Attestation clause, stating:
a) Number of pages of the will
b) Fact that the testator or his agent under
his express direction signed the will and
every page thereof, in the presence of
the witnesses
c) Fact that the witnesses witnessed and
signed the will and every page thereof in
the presence of the testator and of one
another.
i. Acknowledgement before a notary public by
the testator and the witnesses.
j. Handicapped Testator
a) Deaf or deaf-mute – personally read the
will if able to do so, otherwise designate
2 persons to read and communicate it to
him.
b) Blind – read to him twice, once by a
subscribing witness and another time by
the notary before whom it is
acknowledged.
k. Defects and imperfections in form of
attestation and language used shall not make
the will invalid if there is substantial
compliance with requirements of Art805.
l. Law to be followed
a. Filipino abroad
b. Alien abroad
c. Alien in the Philippines
m. Prohibition on joint wills, especially by
Filipinos even if executed in foreign country
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allowing joint wills.
n. Witnesses must possess all the qualifications
in Art820 and none of the disqualifications in
nd
RE-CAP OF FORMAL REQUIREMENTS 4 That the revocatory effect of the 2 will is
immediate.
OF A WILL
4 However, such theory is inconsistent with the
principle that wills take effect mortis causa.
2. HOLOGRAPHIC WILL 4 Furthermore, to be effective for the purpose
a. Must be entirely written of revoking the first will, the second will must
b. Executed in a language or dialect known to be probated. But it has already been revoked
testator by the third will. A revoked will now has to be
c. Dated by the testator submitted to probate?
d. Signed by the hand of the testator himself
e. Witnesses required Article applies only when the revocation of the
a) Knows the handwriting and signature first will by the second will is EXPRESS. If the
of the testator revocation by the second will is implied due to
b) Explicitly declares that the will and incompatible provisions, the article will not apply
the signature are in the handwriting and the effect will be that the first will is revived.
of the testator 4 However, when will 3 is itself inconsistent
f. Dispositions below testator’s signature with will 1, there is still revocation.
must also be dated and signed. 4 Also keep in mind Article 831 – Implied
g. When several additional dispositions are Revocations only annul such dispositions in
signed but not dated, the last disposition the prior wills as are inconsistent with or
must be signed and dated to validate the contrary to those contained in the latter wills.
dispositions preceding it.
h. Any insertion, cancellation, erasure or EXCEPTION – when the second will is holographic
alteration must be authenticated by the and it is revoked by physical destruction, because
testator’s full signature, otherwise it shall then the possibility of its probate is foreclosed,
be deemed as not made. unless of course a copy survives.
i. Prohibition on joint wills, especially by
Filipinos even if executed in a foreign
country where joint wills are allowed. Subsection 8 – Allowance and Disallowance of Wills
ART. 838. No will shall pass either real or personal
If the testator wishes to Republish a will that is property unless it is proved and allowed
either: in accordance with the Rules of Court.
1. VOID for a reason other than a formal
defect, or The testator himself may, during his
2. Previously REVOKED lifetime, petition the court having
4 The only thing necessary to republish it is for jurisdiction for the allowance of his will. In
the testator to execute a subsequent will or such case, the pertinent provisions of the
codicil referring to the previous will. There is Rules of Court for the allowance of wills
no need to reproduce the provisions of the after the testator’s death shall govern.
prior will in the subsequent instrument. The Supreme Court shall formulate such
additional Rules of Court as may be
Why the difference on the rules between nullity as necessary for the allowance of wills on
to form and nullity based on other grounds? Prof. petition of the testator.
Balane says because Art835 is from Argentine Law
whole Art836 is from California Law. Go figure. Subject to the right of appeal, the
allowance of the will, either during the
ART. 837. If after making a will, the testator makes a lifetime of the testator or after his death,
second will expressly revoking the first, shall be conclusive as to its due execution.
the revocation of the second will does not
derive the first will, which can be revived Probate of a will is MANDATORY.
only by another will or codicil. TWO KINDS OF PROBATE
Illustration 1. POST MORTEM – after the testator’s death
In 1985, X executed will 1 2. ANTE MORTEM – during his lifetime,
In 1987, X executed will 2 and expressly features:
revoked will 1 • Easier for the courts to determine
In 1990, X executed will 3, revoking will 2 mental condition of a testator
- When will 3 revoked will 2, it did not revive will • Fraud, intimidation and undue influence
1. are minimized
• Easier correction of formal defects in the
This article is based on the theory of INSTANT will
REVOCATION
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• Once a will is probated ante mortem, the ART.839. The will shall be disallowed in any of the
only questions that may remain for the following cases:
courts to decide after the testator’s
(1) If the formalities required by law have not
death will refer to the intrinsic validity of
been complied with;
the testamentary dispositions.
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
Rules on Probate for both post and ante mortem
time of its execution;
are found in Rule 76 of the Rules of Court.
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
Finality of a Probate Decree
(4) If it was procured by undue and improper
4 Once a decree of probate becomes final in
pressure and influence, on the part of the
accordance with the rules of procedure, it is
beneficiary or of some other person;
res judicata.
(5) If the signature of the testator was
procured by fraud;
Scope of a Final Decree of Probate
(6) If the testator acted by mistake or did not
4 A final decree of probate is conclusive as to
intent that the instrument he signed
the due execution of the will, i.e. as to the
should be his will at the time of affixing
will’s extrinsic and formal validity only.
his signature thereto.
4 Gallanosa v. Arcangel enumerates what are
covered by the term Formal Validity and
An Exclusive Enumeration of the grounds for
therefore conclusively settled by a final
disallowance of a will.
decree of probate –
These are matters involved in formal validity. Once
a) That the testator was of sound and
a probate decree is final, such decree forecloses
disposing mind
any subsequent challenge on any of the matters
b) That his consent was not vitiated
enumerated in this article.
c) That the will was signed by the
If any of these grounds for disallowance are
required number of witnesses, and
proven, the will shall be set aside as VOID.
Ø That all the formal requirements
4 A will is either valid or void. If none of the
of the law have been complied
defects enumerated in this article are present,
with.
it is valid; if any one of these defects is
d) That the will is genuine.
present, the will is void. The issue of formal
4 Another way of defining the scope of a final
validity or nullity is precisely what the probate
decree of probate is to refer to art839. Any
proceedings will determine.
action based on any of the grounds for
4 There is no such thing as a Voidable Will.
disallowance of a will enumerated in Article
839 can no longer be pursued once there is a
GROUNDS FOR DISALLOWANCE OF A WILL
final decree of probate.
1. FORMALITIES
• Those referred to in Articles 804-818,
GENERAL RULE – A decree of probate, therefore
818-819 and 829-821
does not concern itself with the question of
INTRINSIC validity and the probate court should
2. TESTATOR INSANE OR MENTALLY INCAPABLE
not pass upon that issue.
AT TIME OF EXECUTION
• Articles 798 – 801 on testamentary
EXCEPTION - When the probate of a will might
capacity and intent
become an idle ceremony if on its face it appears
to be intrinsically void. Where practical
3. FORCE, DURESS, INFLUENCE OF
considerations demand that the intrinsic validity of
FEAR OR THREATS
the will be passed upon, even before it is
• Force or Violence – when in order to
probated, the court should meet the issue.
wrest consent, serious or irresistible
force is employed.
On the authority of Nepomuceno v. Ca, a probate
court may pass upon the issue of intrinsic validity if • Duress or Intimidation – when one of the
on the face of the will, its intrinsic nullity is patent. contracting parties is compelled by a
reasonable and well-grounded fear of
imminent and grave evil upon his person
or property, or upon the person or
property of his spouse, descendants or
ascendants, to give his consent. Age, sex
and condition of the person are borne in
mind. Threat to enforce a just or legal
claim through competent authority does
not vitiate consent.
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4. UNDUE & IMPROPER PRESSURE AND One who has compulsory heirs may
INFLUENCE dispose of his estate provided he does not
• Undue Influence – when a person takes contravene the provisions of this Code
improper advantage of his power over with regard to the legitime of said heirs.
the will of another, depriving the latter
Even if the will does not contain any testamentary
of a reasonable freedom of choice.
disposition, it will be formally valid provided it
Circumstances such as the following shall
complies with all the formal requisites. This is in
be considered: confidential, family,
keeping with the character of wills as dispositive of
spiritual and other relations between
property under Art783.
parties, or fact that person unduly
influenced was suffering from mental
HOW MUCH CAN BE DISPOSED OF BY WILL?
weakness or ignorant or in financial
1. No Compulsory Heirs – Entire hereditary
distress.
estate
2. There are Compulsory Heirs – the
5. SIGNATURE PROCURED THROUGH FRAUD
disposable portion or the net hereditary
• Fraud – when through insidious words or estate minus the legitimes.
machinations of one of the contracting
parties, the other is induced to enter into
4 The amount of the legitimes depends on the
a contract which, without them, he
kinds and number of compulsory heirs.
would not have agreed to. Various combinations are possible and so the
amount of disposable portion is also variable.
6. MISTAKE OR TESTATOR DID NOT INTENT
INSTRUMENT TO BE HIS WILL WHEN HE
If the testator disposes by will of LESS than he is
AFFIXED HIS SIGNATURE THERETO
allowed to, there will be MIXED succession –
• Mistake – must refer to substance of the 4 Testamentary succession as to the part
thing which is the object of the contract, disposed of by will, and
or to those conditions which have 4 Intestate succession as to the part not
principally moved one or both parties to disposed of by the will.
enter into the contract. Mistake as to 4 The legitimes, of course, pass by strict
identity or qualifications only vitiates operation of law.
consent when such were the principal
cause of the contract. A simple mistake ART. 843. The testator shall designate the heir by his
of account gives rise to correction. name and surname, and when there are
two persons having the same names, he
SECTION 2 – INSTITUTION OF HEIR shall indicate some circumstance by which
the instituted heir may be known.
ART. 840. Institution of heir is an act by virtue of
which a testator designates in his will the Even though the testator may have
person or person who are to succeed him omitted the name of the heir, should he
in his property and transmissible rights designate him in such manner that there
and obligations. can be no doubt as to who has been
instituted, the institution shall be valid.
Rules on institution of heir set forth in this section
apply as well to institution of Devisees and ART. 844. An error in the name, surname, or
Legatees. circumstances of the heir shall not vitiate
the institution when it is possible, in any
ART. 841. A will shall be valid even though it should other manner, to know with certainty the
not contain an institution of an heir, or person instituted.
such institution should not comprise the If among the persons having the same
entire estate, and even though the person names and surnames, there is a similarity
so instituted should not accept the of circumstances in such a way that, even
inheritance or should be incapacitated to with the use of the other proof, the
succeed. person instituted cannot be identified,
In such cases the testamentary none of them shall be an heir.
dispositions made in accordance with law
shall be complied with and the remainder REQUIREMENT FOR DESIGNATION OF HEIR
of the estate shall pass to the legal heirs. 4 The heir, legatee or devisee must be
ART. 842. One who has no compulsory heirs may identified in the will with sufficient clarity to
dispose by will of all his estate or any part leave no doubt as to the testator’s intention.
of it in favor of any person having capacity
to succeed.
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4 The basic rule in testamentary succession and B have been designated their shares,
always is respect for and compliance with the therefore Art846 applied to C and D.
testator’s wishes.
The designation of name and surname is ART. 847. When the testator institutes some heirs
DIRECTORY. What is required is that the identity individually and others collectively as
of the designated successor be sufficiently when he says, “I designate as my heirs A
established. This is usually done by giving the and B, and the children of C,” those
name and surname, but there are other ways as collectively designated shall be
can be gleaned from Art843 par2, such as to one’s considered as individually instituted,
‘eldest first cousin’. unless it clearly appears that the intention
of the testator was otherwise.
If there is any AMBIGUITY in the designation, it
Equality and Individuality of Designation
should be resolved in light of Art789 – by the
This article follows the basic rule of equality in the
context of the will and any extrinsic evidence
previous article. In addition, it established the
available, except the testator’s oral declarations.
PRESUMPTION that the heirs collectively referred
4 If it is not possible to resolve the ambiguity,
to are designated per capita along with those
the testator’s intent becomes indeterminable
separately designated.
and therefore intestacy as to that portion will
If the testator intends a block designation, he
result.
should so specify.
ART. 845. Every disposition in favor of an unknown
ART. 848. If the testator should institute his
person shall be void, unless by some even
brothers and sisters, and he has some of
or circumstance his identity becomes
full blood and others of half blood, the
certain. However, a disposition in favor of
inheritance shall be distributed equally
a definite class or group of persons shall
unless a different intention appears.
be valid.
Once again, this article follows the general rule of
Unknown Person
equality laid down in Art846.
This article refers to a successor whose identity
Also, if the testator intends an unequal
cannot be determined because the designation in
apportionment, he should so specify.
the will is so unclear or so ambiguous as to be
incapable of resolution.
DIFFERENT RULE IN INTESTACY
This does not refer to one with whom the testator
4 Art848 only applies to testamentary
is not personally acquainted. The testator may
succession, wherein siblings, regardless of
institute somebody who is a perfect stranger to
whether full or half blood, get equal shares
him, provided the identity is clearly designated in
except if a different intention of the testator
the will
appears.
4 In INTESTACY, the rule is different. The
ART. 846. Heirs instituted without designation of
applicable provision is Art 1006 which
shares shall inherit in equal parts.
establishes a proportion of 2:1 between full
GENERAL PRESUMPTION and half blood brothers and sisters, but
4 Equality in cases of collective designation. without prejudice to the rule prohibiting
4 If the testator intends an unequal succession ab intestato between legitimate
apportionment, he should so specify. and illegitimate siblings. [Art992]
The article applies only in testamentary succession,
and only among testamentary heirs or devisees or Art. 1006. Should brother and sisters of
legatees. the full blood survive together with brothers
4 It will NOT APPLY to an heir who is both a and sisters of the half blood, the former shall
compulsory and a testamentary heir, for in be entitled to a share double that of the
that case the heir will get his legitime and his latter.
testamentary portion.
Not explicitly covered by this article is an instance Art. 992. An illegitimate child has no
where the shares of some of the heirs are right to inherit ab intestate from the
designated and those of others are not. legitimate children and relatives of his father
4 Example – “I institute to ¼ of my estate A, B, C or mother; nor shall such children or relatives
and D, of which A will get 1/3 and B is to get inherit in the same manner from the
¼.” The shares of C and D are unspecified. Are illegitimate child.
they to divide equally the remaining portion
of the ¼ of the estate, after deducting A’s and RE-CAP
B’s portions [The remainder is 5/12 of ¼?] 4 Testamentary Succession – equality in shares
4 YES, because the article talks about heirs of full and half blood brothers and sisters
instituted without designation of shares. A
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unless the testator provides otherwise There may after all be compulsory heirs whose
[Art848] legitimes will therefore cover part of the estate,
4 Intestacy – Proportion of 2:1 between full and the and the legitimes do not pass by legal or
half blood brothers and sisters [Art1006], and intestate succession.
only if the disqualification in Art992 does not
apply. Suggested Rewording –
Art. 851. If the testator has instituted only
Question – Does Art848 apply even to illegitimate one heir, and the institution is limited to an aliquot
brothers and sisters, in cases where the testator is part of the inheritance, less than the entire
of legitimate status and vice versa? YES. Art848 disposable portion, legal succession takes place
does not distinguish. with respect to the remainder of the estate.
The same rule applies if the testator has
ART. 849. When the testator calls to the succession instituted several heirs, each being limited to an
a person and his children they are all aliquot part, and all the parts do not cover the
deemed to have been instituted whole inheritance.
simultaneously and not successively.
Moreover, this article states exactly the same rule
Article lays down the same rule as Arts. 846 and
laid down in Art841. there is absolutely no need
847.
for the redundancy.
Equality and Individuality of institution are
presumed.
ART. 852. If it was the intention of the testator that
If the testator desires a different mode of
the instituted heirs should become sole
apportionment, he should so specify.
heirs to the whole estate, or the whole
free portion, as the case may be, and each
ART. 850. The statement of a false cause for the
of them has been instituted to an aliquot
institution of an heir shall be considered
part of the inheritance and their aliquot
as not written, unless it appears from the
parts together do not cover the whole
will that the testator would not have
inheritance, or the whole free portion,
made such institution if he had known the
each part shall be increased
falsity of such cause.
proportionally.
ART. 853. If each of the instituted heirs has been
GENERAL RULE – the falsity of the stated cause for
given an aliquot part of the inheritance,
the testamentary institution DOES NOT AFFECT
and the parts together exceed the whole
the validity or efficacy of the institution.
inheritance, or the whole free portion, as
4 Reason – testamentary disposition is
the case may be, each part shall be
ultimately based on liberality.
reduced proportionally.
EXCEPTION – the falsity of the stated cause for In both articles –
institution will set aside the institution if the 1. There are more than 1 instituted heir
following factors are present: 2. Testator intended them to get the whole
1. Cause for institution is stated in the will estate or the whole disposable portion
2. Cause must be shown to be false 3. Testator designated a definite portion for
3. It appears on the face of the will that if each.
the testator had known of the falsity of
such cause, he would not have instituted ART. 852 – the total of all the portions is less than
the heir. the whole estate or the whole disposable portion.
Therefore, a proportionate increase is necessary.
ART. 851. If the testator has instituted only one heir, 4 The difference cannot pass by intestacy
and the institution is limited to an aliquot because the testator’s intention is clear to
part of the inheritance, legal succession give the instituted heirs the entire amount.
takes place with respect to the remainder
of the estate. ART. 853 – the reverse occurs, the total exceeds
the whole estate or the whole disposable portion.
The same rule applies if the testator has
Thus a proportionate reduction must be made.
instituted several heirs, each being limited
to an aliquot part, and all the parts do not
cover the whole inheritance. FORMULA FOR PROPORTIONATE INCREASE OR DECREASE
P HEIR’S SHARE = X .
The wording of the article, according to Prof. P TOTAL DISPOSED P TOTAL ESTATE DISPOSABLE
Balane, is erroneous because legal succession does
not take place with respect to the remainder of the
estate but to the remainder of the disposable
portion.
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ART. 854. The preterition or omission of one, some, Art. 907. Testamentary dispositions
or all of the compulsory heirs in the direct that impair or diminish the legitime of
line, whether living at the time of the the compulsory heirs shall be reduced
execution of the will or born after the on petition of the same, insofar as
death of the testator, shall annul the they may be inofficious or excessive.
institution of heir; but the devises and
legacies shall be valid insofar as they are • If the heir is given a legacy or devise, there is
not inofficious. no preterition.
§ Should the value of the legacy or
If the omitted compulsory heirs should die
devise be less than the recipient’s
before the testator, the institution shall
legitime, his remedy is only for
be effectual, without prejudice to the
completion of legitime under Articles
right of representation.
906 and 907.
PRETERITION – means omission, but from what?
The answer to that question is the basic problem • If the heir received a donation inter vivos
in preterition. from the testator – the better view is that
there is no preterition
Manresa’s Definition – “Preterition consists in the § Reason – donation inter vivos is
omission of an heir in the will, either because he is treated as an advance on the legitime
not named, or, although he is named as a father, under Articles 906, 909, 910 and 1062.
son, etc., he is neither instituted as an heir or
expressly disinherited, nor assigned any part of the Art. 909. Donations given to children
estate, thus being tacitly deprived of his right to shall be charged to their legitime.
the legitime. Donations made to strangers shall be
charged to that part of the estate of which
Castan’s Definition – “By preterition is meant the the testator could have disposed by his last
omission in the will of any of the compulsory heirs, will.
without being expressly disinherited. It is thus a Insofar as they may be inofficious or
tacit deprivation of the legitime, as distinguished may exceed the disposable portion, they
from disinheritance, which is an express shall be reduced according to the rules
deprivation.” established by this Code.
OMISSION THAT CONSTITUTES PRETERITION Art. 910. Donations which an
• If the heir in question is instituted in the will illegitimate child may have received during
but the portion given to him by the will is less the lifetime of his father or mother, shall
than his legitime – there is no preterition. be charged to his legitime.
§ In the case of Reyes v. Baretto-Datu: Should they exceed the portion that
1. There was a compulsory heir in can be freely disposed of, they shall be
the direct line reduced in the manner prescribed by this
2. Such heir was instituted in the Code.
will
3. The testamentary disposition Art. 1062. Collation shall not take
given to such heir was less than place among compulsory heirs if the donor
her legitime should have so expressly provided, or if the
donee should repudiate the inheritance,
§ Based on these, the holding was that unless the donation should be reduced as
there was NO PRETERITION. inofficious.
§ The reason was there was no TOTAL • If the heir is not mentioned in the will nor was
OMISSION, inasmuch as the heir a recipient of a donation inter vivos from the
received something from the testator, but not all of the estate is disposed
inheritance. The heir’s remedy is not of by the will – there is no preterition.
found in Art854 but in Arts. 906 and § The omitted heir in this instance would
907 for Completion of Legitime. receive something by intestacy, from
the portion not disposed of by the will
Art. 906. Any compulsory heir to [the vacant portion]. The right of the
whom the testator has left by any title heir, should the vacant portion be less
less than the legitime belonging to him than his legitime, will simply be to
may demand that the same may be demand completion of his legitime,
fully satisfied. under Articles 906 and 907.
descendants collectively and 1/3 for the surviving 4 If death occurred before the effectivity of the
spouse. Family Code, this article will govern –
consequently, should the natural and spurious
Sharing among illegitimate children children concur in the succession, each
1. If the decedent died during the effectivity spurious child will get 4/5 the share of one
of the FAMILY CODE – the sharing will be natural child, and each natural child gets ½ the
equal, inasmuch as the Family Code has share of one legitimate child. Example -
abolished the old distinction between • 5 legitimate children and total estate
natural and illegitimate children other is 1M. ½ of estate [500,000] divided
than natural or spurious [Arts 163, 165 by 5 so 1 Legit child – 100,000
and 178 of FC] • Natural child – 50,000
2. If the decedent died BEFORE the • Spurious child – 40,000
effectivity of the Family Code, the old 4 Should there be no natural children but only
distinctions must be observed. spurious children, each spurious child will get
• The legitime of the spurious child will 2/5 share of one legitimate child.
only be 4/5 that of a natural child, • 1 legit child – 100,000
according to the ratio established in • No natural children
Art895 par2. • Spurious child – 40,000
• This ratio of 5:4 among natural and
spurious children should be observed REDUCTION OF SHARES
in all cases under the Civil Code 4 Depending on the number of legitimate and
where they concur. illegitimate children, the possibility exists that
the total legitimes will exceed the entire
ART. 895. The legitime of each of the acknowledged estate. Reductions, therefore will have to be
natural children and each of the natural made in accordance with the following rules –
children by legal fiction shall consist of 1. The legitimes of the legitimate children
one-half of the legitime of each of the should never be reduced, they are
legitimate children or descendants. PRIMARY and PREFERRED compulsory
heirs
The legitime of an illegitimate child who is 2. The legitime of the surviving spouse
neither an acknowledged natural, nor a should never be reduced, this article
natural child by legal fiction, shall be prohibits this.
equal in every case to four-fifths of the 3. The legitimes of the illegitimate children
legitime of an acknowledged natural will be reduced pro rata and without
child. preference among them.
The legitime of the illegitimate children
shall be taken from the portion of the ART. 896. Illegitimate children who may survive
estate at the free disposal of the testator, with legitimate parents or ascendants of
provided that in no case shall the total the deceased shall be entitled to one-
legitime of such illegitimate children fourth of the hereditary estate to be
exceed that free portion, and that the taken from the portion at the free
legitime of the surviving spouse must first disposal of the testator.
be fully satisfied. ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS
the sharing is ½ for the legitimate parents
This article has been pro tanto amended by collectively and ¼ for the illegitimate children
Articles 163, 165 and 176 of the Family Code. collectively.
to the line from which the property originally degree of the line of the Origin.
came, and to avoid its being dissipated by the
relatives of the inheriting ascendant [the
reservista].
4 Also to avoid the danger that property existing • 2 BASIC RULES
for many years in a family’s patrimony might
pass gratuitously to outsiders through the I. No inquiry is to be made beyond the Origin/
accident of marriage and untimely death. Mediate Source. It does not matter who the
owner of the property was before it was
• PROCESS – 3 Transmissions Involved acquired by the Origin.
1. First Transfer – by gratuitous title, from a
person to his descendant, brother or sister. II. All the relationships among the parties must
2. Second Transfer – by operation of law, from be legitimate. The provisions of Art891 only
the transferee in the first transfer apply to legitimate relatives.
[prepositus] to another ascendant
[reservista]. It is this second transfer that
creates the reserva.
SUCCESSION Balane Reviewer Page 56 of 116
• 4 PARTIES TO THE RESERVA TRONCAL
1. ORIGIN OR THE MEDIATE SOURCE o Should the Origin/Mediate Source and the
o He is either the ascendant or a brother or Reservista belong to Different Lines?
sister of the Prepositus. - Example: A receives by donation a
o Ascendant from any degree of ascent. parcel of land from his paternal
o Brother/Sister – 2 Schools of Thought grandfather X. Upon A’s death, the
a) Relationship must be of HALF parcel passes by intestacy to his father
BLOOD – because otherwise the Y [X’s son]. The property never left the
property would not change lines. line, is Y obliged to reserve?
This means that if the relationship is - One View – NO, because another
Full Blood, there is no reserve ascendant is one belonging to a line
because then it would not be other than that of the reservista.
possible to identify the line of origin. - Another View – YES, because [1] the
b) It does not matter whether the law makes no distinction, and [2] the
fraternal relationship is of the full or purpose of the reserve is not only
half-blood. In either case, a reserve curative but also preventive, i.e. to
may arise. Since the law makes no prevent the property from leaving the
distinction, we should not make line.
one.
4. RESERVATARIOS [RESERVEES]
2. PREPOSITUS o The reserva is in favor of a class,
o He is either the descendant or a brother/ collectively referred to as the Reservatarios
sister of the Origin who receives the [reservees].
property from the Origin by gratuitous
title. Thus, in the scheme of the reserva o REQUIREMENTS TO BE A RESERVATARIO:
rd
troncal, he is the FIRST transferee of the 1) He must be within the 3 degree of
property. consanguinity from the Prepositus.
o While the property is still with the
Prepositus, there is yet NO RESERVA. The 2) He must belong to the line from
reserva arises only upon the second which the property came. This is
transfer. determined by the Origin/Mediate
o Consequently, while the property is owned Source.
by the Prepositus, he has all the rights of
ownership over it and may exercise such - If an ascendant, the Mediate
rights in order to prevent a reserva from Source is either of the paternal or
arising. He can do this by – maternal line.
a) Substituting or alienating the - If a half-brother or half-sister, the
property same is true.
b) Bequeathing or devising it either to - If however, it is a brother or sister
rd
the potential reservista or to 3 of the full blood, it would not be
persons [subject to constraints of possible to distinguish the lines.
the legitime] - To those who hold the opinion
c) Partitioning in such a way as to that a reserva would not exist in
assign the property to parties other such case of full blood siblings,
than the potential reservista [again Manresa’s comment should be
subject to the constraints of the the norm: “that the question of
legitime]. line would be indifferent.”
o In this sense, the Prepositus is deemed the o Question – must the Reservatario also be
Arbiter of the Reserva Troncal. related to the Mediate Source?
- Manresa says NO, the article speaks
3. RESERVISTA [RESERVOR] solely of 2 lines, the paternal and the
o He is an ascendant of the Prepositus, of maternal of the descendant, without
whatever degree. The Reservista must be regard to subdivisions.
an ascendant other than the Origin/ - Sanchez Roman says YES, otherwise
Mediate Source [if the latter is also an results would arise completely
ascendant]. contrary to the purpose of this
o The law is clear - it refers to the Origin/ reserva, which is to prevent the
Mediate Source as another ascendant. If property from passing to persons not
these two parties are the same person, of the line of origin.
there would be no reserva troncal.
SUCCESSION Balane Reviewer Page 57 of 116
o Reserva in favor of reservatarios as a CLASS the law does not recognize them as
- to be qualified as a reservatario, is it such.
necessary that one must already be LIVING - Nevertheless, there is a right of
when the prepositus dies? representation on the part of the
rd
- NO, because the reserva is established reservatarios who are within the 3
in favor of a GROUP or CLASS, the degree mentioned by law, as in the
rd
relatives within the 3 degree, and not case of nephews of the deceased
in favor of specific individuals. person from whom the reservable
- As long, therefore, as the reservatario property came. These reservatarios
is alive at the time of the reservarista’s have the right to represent their
death, he qualifies as such, even if he ascendants [fathers and mothers] who
was conceived and born after the are the brothers of the said deceased
rd
Prepositus’ death. person and relatives within the 3
degree in accordance with Art811.
o Preference Among the Reservatarios [Florentino v. Florentino]
- Upon death of the ascendant - Actually, there will only be 1 instance
reservista, the reservable property of representation among the
should pass, not to all the reservatarios, which is in case of the
reservatorios as a class, but only to Prepositus being survived by
those NEAREST in degree to the brothers/sisters and children of a
descendant [prepositus], excluding predeceased or incapacitated brother
those reservatarios of more remote or sister.
degree. [Padura v. Baldovino]
- In other words, the reserve troncal • Juridical Nature of Reserva Troncal
merely determines the group of 4 The juridical nature of the reserve troncal may
relatives [reservatarios] to whom the be viewed from 2 aspects – from that of the
property should be returned; but reservista and that of the reservatarios.
within that group, the individual right
to the property should be decided by 1. Juridical Nature from the viewpoint of
the applicable rules of ordinary the RESERVISTA
intestate succession, since Art891 does - Manresa says that “the ascendant is in
not specify otherwise. the first place a USUFRUCTUARY who
- Thus, according to the Padura ruling, should use and enjoy the things
which subjects the choice of according to their nature, in the
reservatarios to the rules of intestate manner and form already set forth in
succession, those reservatarios nearer the Code referring to use and
in degree of relationship to the usufruct.”
Prepositus will exclude those more - But since in addition to being the
remotely related. usufructuary, he is, even though
CONDITIONALLY, the owner in fee
o Representation Among the Reservatarios simple of property, he CAN DISPOSE of
- As in intestate succession, the rule of it in the manner provided in Articles
preference of degree among 974 and 976 of the Code.
reservatarios is qualified by the rule of - The conclusion is that the person
representation. required by Art811 to reserve the right
- The right of representation cannot be has, beyond any doubt at all, the rights
alleged when the one claiming the of use and usufruct. He has, moreover,
same as a reservatario of the the LEGAL TITLE and DOMINION,
reservable property is not among the although under a CONDITION
rd
relatives within the 3 degree subsequent [whether or not there
belonging to the line from which such exist at the time of his death relatives
rd
property came, inasmuch as the right within the 3 degree of the
granted by the Civil Code in Art811 is descendant from whom they inherit in
in the highest degree personal and for the line whence the property
the exclusive benefit of designated proceeds].
persons who are the relatives withint - Clearly, he has, under an express
rd
the 3 degree of the person from whm provision of law, the right to dispose
the reservable property came. of the property reserved, and to
th
Therefore, relatives of the 4 degree dispose of is to alienate, although
and the succeeding degrees can never under a condition. He has the right to
be considered as reservatarios since recover it, because he is the one who
possesses or should possess it and
SUCCESSION Balane Reviewer Page 58 of 116
have title to it, although a limited and the vendee only if an when the reserve
revocable one. In a word, the legal title survives the person obliged to reserve.
and dominion, even though under a [Sienes v. Esparcia]
condition, reside in him while he lives.
After the right required by law to be 4 From Sienes, the following may be derived:
reserved has been assured, he can do A. The reservatarios have a right of
anything that a genuine owner can do. expectancy over the property.
[Edroso v Sablan] B. The right is subject to a SUSPENSIVE
CONDITION, i.e. the expectancy ripens
4 From Edroso, the following may be derived: into ownership if the reservatarios
A. The reservista’s right over the reserved survive the reservista.
property is one of ownership. C. The right is alienable, but subject to the
B. The ownership is subject to a same suspensive condition.
RESOLUTORY CONDITION, i.e. the D. The right is registerable.
existence of reservatorias at the time of
the reservista’s death. 4 Florentino v. Florentino also held that the
C. The right of ownership is alienable, but reservista has NO POWER to appoint, by will,
subject to the same resolutory condition. which specific individual of the reservatarios
D. The reservista’s right of ownership is were to get the reserved property. [As also held
registerable. in Gonzales v. CFI].
2. Juridical Nature from the viewpoint of the 4 The reservees do not inherit from the reservoir
RESERVATARIOS but from the PREPOSITUS, of whom the
- The nature of the reservatarios’ right reservees are the heirs mortis causa subject to
is, Manresa says, that “during the the condition that they must survive the
whole period between the reservor. [Padura v. Baldovino as cited in
constitution in legal form of the right Gonzales v. CFI]
required by law to be reserved and the
extinction thereof, the relatives within 4 The rule in this jurisdiction, therefore, is that
rd
the 3 degree, after the right that in upon the reservista’s death, the property
their turn may pertain to them has passes by strict operation of law [according to
been assured, have only an the rules of intestate succession, as held in
EXPECTATION and therefore they do Padura], to the proper reservatarios. Thus, the
not even have the capacity to transmit selection of which reservatarios will get the
that expectation to their heirs.” property is made by law and not by the
rd
- The relatives within the 3 degree in reservista.
whose favor the right is reserved
cannot dispose of the property, first • The Property Reserved
because it is in no way, either actually, 4 Any kind of property is reservable. A sugar
constructively or formally, in their quota allotment, as incorporeal property, was
possession; and, moreover, because held to be reservable in Rodriguez v. Rodriguez.
they have no title of ownership or of
fee simple which they can transmit to 4 Effect of Substitution
another, on the hypothesis that only o The very same property must go through
when the person who must reserve the process of transmissions, in order for
the right should die before them will the reserva to arise. Thus, the same
they take their place in the succession property must come from the Mediate
of the descendant of whom they are Source, to the Prepositus by gratuitous
rd
relatives within the 3 degree, that is title, and to the reservista by operation of
to say, a second contingent place in law.
said legitimate succession in the o If the prepositus substitutes the property
fashion of aspirants to a possible by selling, bartering or exchanging it, the
future legacy. [Edroso v. Sablan] substitute cannot be reserved.
- The reserva instituted by law o Note that while the property is with the
instituted by law in favor of the heirs Prepositus, there is yet no reserva, which
rd
within the 3 degree belonging to the commences when the property id received
line from which the reservable by the reservista.
property came, constitutes a REAL o Consequently, the Prepositus has, over the
RIGHT which the reserve may alienate property, plenary powers of ownership,
and dispose of, albeit conditionally, and he may exercise these powers to
the CONDITION being that the thwart the potential reserva. The
alienation shall transfer ownership to Prepositus is the arbiter of the reserva.
SUCCESSION Balane Reviewer Page 59 of 116
- Reserva Maxima – as much of the
4 QUESTION – would there be a reserva if the potentially reservable property as
Prepositus sold the property under pacto de possible must be deemed included in
retro and then redeemed it? the part that passes by operation of
law. This “maximizes” the scope of the
4 Reserved Property Does Not Form Part of the reserva.
Reservista’s Estate Upon his Death - Reserva Minima – every single
o The contention that an intestacy property in the Prepositus’ estate
proceeding is still necessary rests upon the must be deemed to pass, partly by will
assumption that the reservatario will and partly by operation of law, in the
succeed in, or inherit, the reservable same proportion that the part given by
property from the reservista. This is not will bears to the part not so given.
true. The reservatario is not the o Reserva Minima is more widely accepted.
reservista’s successor mortis causa nor is
the reservable property part of the • Rights and Obligations
reservista’s estate; the reservatario 4 There are no specific implementing articles on
receives the property as a conditional heir the reserva troncal.
of the Prepositus, said property merely 4 Under the Old Code, the provisions viudal were
reverting to the line of origin from which it extended to the troncal, thus the rights of the
had temporarily and accidentally strayed reservatarios and the corresponding obligations
during the reservista’s lifetime. of the reservista were:
o It is a consequence of these principles that a. To inventory the reserved properties
upon the death of the reservista, the b. To annotate the reservable character [if
reservatario nearest to the prepositus registered immovables] in the Registry of
becomes, automatically and by operation Property within 90 days from acceptance
of law, the owner of the reservable by the reservista.
property. As already stated, that property c. To appraise the immovables
is no part of the estate of the reservista, d. To secure by means of mortgage: [i] the
and does not even answer for the debts of indemnity for any deterioration of or
the latter. Hence, its acquisition by the damage to the property occasioned by
reservatario may be entered in the the reservista’s fault or negligence, and
property records without necessity of [ii] the payment of the value of such
estate proceedings, since the basic reserved movables as may have been
requisites therefor appear of record. [Cano alienated by the reservista onerously or
v. Director] gratuitously.
o Of course, where the registration decree 4 The abolition of the reserva viudal has caused
merely specifies the reservable character some uncertainty whether these requirements
of the property, without determining the still apply.
identity of the reservatario or where
several reservatarios dispute the property 4 It was held in Sumaya v. IAC that the
among themselves, further proceedings requirement of annotation remains, despite the
are unavoidable. abolition of reserva viudal, as based on Sec51
of PD1529 providing for conveyance and other
o As a consequence of the rule laid down in dealings by registered owners.
Cano, since the reserved property is not
computed as part of the reservista’s 4 Sumaya is however, silent on 2 points:
estate, it is not taken into account in 1. Within what period must the annotation
determining the legitimes of the be made, and
reservista’s compulsory heirs. 2. Whether the other requirements of the
old viudal also remain.
4 RESERVA MAXIMA – RESERVA MINIMA
o Problem: if 2 circumstances occur • Extinguishment of the Reserva Troncal
- The prepositus makes a will instituting 4 The reserve troncal is extinguished by:
the ascendant-reservista to the whole 1. Death of the Reservista
or a part of the free portion, and 2. Death of ALL the Reservatarios
- There is left in the Prepositus’ estate, 3. Renunciation by ALL the Reservatarios,
upon his death, in addition to the provided that no other reservatario is
reserved property, property not born subsequently
reservable. 4. Total fortuitous loss of the reserved
property
o 2 Theories have been Advanced
SUCCESSION Balane Reviewer Page 60 of 116
5. Confusion or merger of rights, as when beneficiary, and the heirs cannot partition
the reservatarios acquire the reservista’s the same unless the court finds compelling
right by a contract inter vivos reasons therefor. This rule shall apply
6. Prescription or adverse possession regardless of whoever owns the property or
constituted the family home.”
Art. 904. The testator cannot deprive his
compulsory heirs of their legitime, except B. The Reserva Troncal
in cases expressly specified by law.
Art. 905. Every renunciation or compromise as
Neither can he impose upon the same any
regards a future legitime between the
burden, encumbrance, condition, or
person owing it and his compulsory heirs
substitution of any kind whatsoever.
is void, and the latter may claim the same
• As already laid down in Art886, the legitime is not upon the death of the former; but they
within the testator’s control. It passes to the must bring to collation whatever they
compulsory heirs by strict operation of law. may have received by virtue of the
renunciation or compromise.
• Testator Devoid of Power to Deprive Compulsory
• Reason for the Rule
Heirs of Legitime
4 Before the predecessor’s death, the heir’s right
4 It is the law, not the testator, which determines
is simply inchoate.
the transmission of the legitimes.
Consequently, it is not within the testator’s
• Duty to Collate
power to deprive the compulsory heirs of their
4 Any property which the compulsory heir may
legitime.
have gratuitously received from his
4 EXCEPTION – the only instance in which the law
predecessor by virtue of the renunciation or
allows the testator to deprive the compulsory
compromise will be considered an advance on
heirs of their legitimes is DISINHERITANCE
his legitime and must be duly credited.
under Arts915-923, the grounds being set forth
under Arts919-921.
• Scope of Prohibition
4 This article applies only to transactions of
• Testator Devoid of Power to Impose Burdens on
compromise or renunciation between the
Legitime
predecessor and the prospective compulsory
4 As also reiterated in Art872, the testator cannot
heir.
impair the legitime, as a consequence of the
principle that the legitime passes by strict
• QUESTION – Is a transaction between the
operation of law.
prospective compulsory heir and another
prospective compulsory heir, or between a
• EXCEPTIONS – When the Law grants the Testator
prospective compulsory heir and a stranger,
Some Power over the Legitime
interdicted?
1. Article 1080 par2 –
4 YES under Article 1347 par2: “No contract may
“A parent who, in the interest of his or
be entered into upon future inheritance except
her family, desires to keep any agricultural,
in cases expressly provided by law.”
industrial, or manufacturing enterprise
intact, may avail himself of the right granted
Art. 906. Any compulsory heir to whom the
him in this article, by ordering that the
testator has left by any title less than the
legitime of the other children to whom the
legitime belonging to him may demand
property is not assigned, be paid in cash.”
that the same be fully satisfied.
2. Article 1083 par1 – • RIGHT OF COMPLETION OF LEGITIME
“Every co-heir has a right to demand the 4 This rule applies only to transmissions by
division of the estate unless the testator gratuitous title.
should have expressly forbidden its partition, • Cross-References, related articles
in which case the period of indivision shall 4 Art855 – if the title by which the testator
not exceed 20 years as provided in article transmitted property is intestate succession
494. This power of the testator to prohibit Art. 855. The share of a child or
division applies to the legitime.” descendant omitted in a will must first be taken
from the part of the estate not disposed of by
• Restrictions on Legitime Imposed by Law the will, if any; if that is not sufficient, so much
A. Article 159, Family Code as may be necessary must be taken
“The Family Home shall continue despite proportionally from the shares of the other
the death of one or both spouses or of the compulsory heirs.
unmarried head of the family for a period of 4 In relation to Arts909 and 910
10 years or for as long as there is a minor
SUCCESSION Balane Reviewer Page 61 of 116
• The principle underlying this rule on completion of MANNER OF COMPUTING THE
legitime is that anything that a compulsory heir HEREDITARY ESTATE
receives by gratuitous title from the predecessor is
considered an advance on legitime and is deducted 1. Inventory all the Existing Assets
therefrom a) This will involve appraisal/valuation of the
4 EXCEPTIONS existing assets at the time of the
1. Art1062 – if the predecessor gave the decedent’s death
compulsory heir a donation inter vivos b) These assets include only those properties
and provided that it was not to be that survive the decedent, i.e. those
charged against the legitime. which are not extinguished by his death
2. Art1063 – testamentary dispositions made [in relation to articles 774 and 777].
by the predecessor to the compulsory c) The value determined by this inventory
heir, unless the testator provides that it will constitute the GROSS ASSETS.
should be considered part of the
legitime. 2. Deduct Unpaid Debts and Charges
a) All unpaid obligations of the decedent
Art. 907. Testamentary dispositions that impair or should be deducted from the gross assets.
diminish the legitime of the compulsory b) Only those obligations with monetary
heirs shall be reduced on petition of the value which are not extinguished by death
same, insofar as they may be inofficious are considered. Thus, those obligations
or excessive. which are purely personal are not taken
• Based on the same principle as art904. If the into account.
testamentary dispositions exceed the disposable c) The difference between the gross assets
portion, the compulsory heirs may demand their and the unpaid obligations will be the
reduction to the extent hat the legitimes have been AVAILABLE ASSETS.
impaired. To allow the testator to make
testamentary dispositions that impair the legitime 3. Add the Value of Donations Inter Vivos
would in effect allow him to deprive the compulsory a) To the available assets should be added
heirs of part of their legitime – an act which is all the inter vivos donations made by the
prohibited by Art904. decedent.
• This article should be read together with Art911. b) The donations inter vivos shall be valued
as of the time they were respectively
Art. 908. To determine the legitime, the value of made. Any increase or decrease in value
the property left at the death of the from the time they were made to the
testator shall be considered, deducting all time of the decedent’s death shall be for
debts and charges, which shall not include the account of the donee, since the
those imposed in the will. donation transfers ownership to the
donee.
To the net value of the hereditary estate, c) The sum of the available assets and all the
shall be added the value of all donations donations inter vivos is the NET
by the testator that are subject to HEREDITARY ESTATE.
collation, at the time he made them.
• COLLATION
• The NET HEREDITARY ESTATE
4 Collation is the act by virtue of which
4 Articles 888-903 set forth the legitimes of the
descendants or other forced heirs who
compulsory heirs, either inheriting alone or in
intervene in the division of the inheritance of
various combinations. Those articles gave the
an ascendant bring into the common mass, the
legitimes in the form of fractions, or
property which they received from him, s that
proportions of the decedent’s estate.
the division may be made according to law and
4 This article makes possible the computation of
the will of the testator.
the absolute amounts of the legitimes by laying
4 Collation is only required of compulsory heirs
down the manner of computing the net value
succeeding with other compulsory heirs and
of the estate [the net hereditary estate], on
involves property or rights received by
which the proportions are based.
donation or gratuitous title during the lifetime
of the decedent.
4 The purpose is to attain equality among the
compulsory heirs in so far as possible for it is
presumed that the intention of the testator or
predecessor in interest in making a donation or
gratuitous transfer to a forced heir is to give
him something in advance on account of his
share in the estate, and that the predecessor’s
SUCCESSION Balane Reviewer Page 62 of 116
will is to treat all his heirs equally, in the
absence of any expression to the contrary. Art. 911. After the legitime has been determined in
4 Collation does not impose any lien on the accordance with the three preceding
property or the subject matter of collationable articles, the reduction shall be made as
donation. What is brought to collation is not follows:
the property donated itself, but rather the
(1) Donations shall be respected as long as
value of such property at the time it was
the legitime can be covered, reducing or
donated, the rationale being that the donation
annulling, if necessary, the devises or
is a real alienation which conveys ownership
legacies made in the will;
upon its acceptance, hence any increase in
(2) The reduction of the devises or legacies
value or any deterioration or loss thereof is for
shall be pro rata, without any distinction
the account of the heir or donee. [Vizconde v
whatever.
CA]
If the testator has directed that a certain
devise or legacy be paid in preference to
Art. 909. Donations given to children shall be
others, it shall not suffer any reduction
charged to their legitime.
until the latter have been applied in full to
Donations made to strangers shall be the payment of the legitime.
charged to that part of the estate of which (3) If the devise or legacy consists of a
the testator could have disposed by his usufruct or life annuity, whose value may
last will. be considered greater than that of the
disposable portion, the compulsory heirs
Insofar as they may be inofficious or may
may choose between complying with the
exceed the disposable portion, they shall
testamentary provision and delivering to
be reduced according to the rules
the devisee or legatee the part of the
established by this Code.
inheritance of which the testator could
Art. 910. Donations which an illegitimate child may freely dispose.
have received during the lifetime of his
father or mother, shall be charged to his • This provision implements the principle laid down in
legitime. Articles 872, 886 and 904 - the inviolability of the
legitime.
Should they exceed the portion that can
be freely disposed of, they shall be • Thus, if the legitimes are impaired, the gratuitous
reduced in the manner prescribed by this dispositions of the testator [either inter vivos or
Code. mortis causa] have to be set aside or reduced as
may be required to cover the legitimes.
• Donations Inter Vivos to Compulsory Heirs
4 Donations inter vivos to a compulsory heir shall • Method of Reduction
be imputed to his legitime, i.e. considered as an 4 There is an order of priorities to be observed in
advance on his legitime. the reduction of the testator’s gratuitous
dispositions, thus –
4 Coverage of Rule A. First, reduce pro rata the non-preferred
o Applies to ALL compulsory heirs legacies and devises [Art911 (2)], and the
o Note that these 2 articles omit testamentary dispositions [Art907]. Among
[inadvertently] ascendants who succeed as these legacies, devises and testamentary
compulsory heirs. This rule applies to them dispositions, there is no preference.
as well. B. Second, reduce pro rata the preferred
o For obvious reasons, this rule has no legacies and devises [Art911, last par.]
application to a surviving spouse. C. Third, reduce the donations inter vivos
according to the inverse order of their
4 Exception dates [i.e. the oldest is the most preferred]
o This rule of imputation to the legitime will [Art773].
not apply if the donor provided otherwise
[in relation to Article 1062], in which case 4 These reductions shall be to the extent
the donation will be imputed to the required to complete the legitimes, even if in
disposable portion of the estate. the process the disposition is reduced to
nothing.
• Donations Inter Vivos to Strangers 4 An apparent conflict exists between this
4 A stranger is anyone who does not succeed as a article and Art950, regarding the order of
compulsory heir. preference among legacies and devises, should
4 Donations inter vivos to strangers are reductions be necessary. [See discussions
necessarily imputed to the DISPOSABLE under Art950]
PORTION.
• WHO is Liable in case of EVICTION? Art. 934. If the testator should bequeath or devise
4 General Rule – the Estate something pledged or mortgaged to
4 In case of a subsidiary legacy or devise – the secure a recoverable debt before the
heir, legatee or devisee charged. execution of the will, the estate is obliged
to pay the debt, unless the contrary
Art. 929. If the testator, heir, or legatee owns only intention appears.
a part of, or an interest in the thing The same rule applies when the thing is
bequeathed, the legacy or devise shall be pledged or mortgaged after the execution
understood limited to such part or of the will.
interest, unless the testator expressly
declares that he gives the thing in its Any other charge, perpetual or
entirety. temporary, with which the thing
bequeathed is burdened, passes with it to
the legatee or devisee.