wills case doctrines.doc

7/29/2019 Wills Case Doctrines.doc

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Wills Case Doctrines

Art. 774

Estate of K. H. Hemady v. Luzon Surety (1956) [6]

The responsibility of the heirs for the debts of their decedent cannot exceed thevalue of the inheritance they receive from him. Heirs succeed not only to the rightsof the deceased but also to his obligations.

General rule: a partys contractual rights and obligations are transmissible to thesuccessors.

Exceptions under Art. 1311:

1) Nature of the obligation

2) Intransmissibility by stipulation of the parties

3) Obligation is not transmissible by operation of law

Art. 777

Unson v. Del Rosario (1953) [12]

The law in force at the time of the decedents death will determine who the heirsshould be.

Art. 2253 provides that rights which are declared for the first time by the new CivilCode shall have retroactive effect even though the event which gave rise to themmay have occurred under the former legislation, but this is so only when the newrights do not prejudice any vested or acquired right of the same origin. In instantcase, Ms right of ownership over the lands became vested in 1945 upon the deathof her husband. The new right in favor of the illegitimate children by the deceasedcannot be asserted to the impairment of the vested right of M over the lands indispute.

De Borja v. Vda de Borja (1972) [14]

Ownership passes to the heir at the very moment of death, who therefore, from thatmoment acquires the right to dispose of his share

Hereditary share in a decedents estate is transmitted or vested immediately fromthe moment of the death of such causante or predecessor in interest. Thus, there isno legal bar to a successor (with requisite contracting capacity) disposing hishereditary share immediately after such death, even if the actual extent of suchshare is not determined until the subsequent liquidation of the estate.


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Bonilla v. Barcena (1976) [16]

The heirs have the right to be substituted for the deceased as party on an actionthat survives.

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.

The moment of death is the determining factor when the heirs acquire a definiteright to the inheritance whether such right be pure or contingent. Thus, when Fdied, her claim or right to the parcel s of land in litigation was not extinguished byher death but was transmitted to her heirs upon her death. Her heirs have thusacquired interest in the properties in litigation and became parties-in-interest in thecase.

The question as to whether an action survives or not depends on the nature of theaction and the damage sued for.

1) Survive: wrong complained of affects primarily and principally property and

property rights, the injuries to the person being merely incidental

2) Not survive: injury complained of is to the person, the property and rights ofproperty affected being incidental.

In instant case, an action to quiet title over land in litigation affects primarily andprincipally property and property rights, and therefore is one that survives evenafter Fs death.

Art. 804

Suroza v. Honrado (1981) [41]

Art. 804 provisions are mandatory. Consequently, failure to comply with the tworequirements nullifies the will.

The will on its face is void because it is written in English, a language not known tothe illiterate testatrix, and which is probably a forged will because she and theattesting witnesses did not appear before the notary as admitted by the notaryhimself.

A judge who admits to probate such a will should face disciplinary action. In theabsence of opposition, the judge should have personally conducted the hearing onthe probate of the will so that he could have ascertained whether the will wasvalidly executed.

Abangan v. Abangan (1919) [46]

It may sometimes be presumed that the testator knew the language in which thewill was written.


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The circumstance appearing in the will itself that the same was executed in Cebuand in the dialect of this locality where the testatrix was a neighbor [sic] is enough,in the absence of any proof to the contrary, to presume that she knew this dialect inwhich the will was written.

RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases itseems that, in order for the presumption to apply, the following must appear:

1) The will must be in language or dialect generally spoken in the place ofexecution; and

2) The testator must be a native or resident of said locality

Art. 806

Payad v. Tolentino (1936) [49]

Thumb mark as signature.

Testatrix, assisted by counsel, placed her thumb mark on each and every page ofthe questioned will and that said counsel merely wrote her name to indicate theplace where she placed said thumb mark. In other words, counsel did not sign forthe testatrix. She signed by placing her thumb mark on each and every pagethereof. A statute requiring a will to be signed is satisfied if the signature is madeby the testators mark. It is clear, therefore, that it was not necessary that theattestation clause in question should state that the testatrix requested her counselto sign her name inasmuch as the testatrix signed the will in question in accordancewith law.

Matias v. Salud (1958) [50]

The legal requisite that the will should be signed by testator is satisfied by athumbprint or other mark affixed by him; and that where such mark is affixed bythe decedent, it is unnecessary to state in the attestation clause that anotherperson wrote the testators name at his request.

In the instant case, it was shown that the herpes zoster that afflicted the right armand shoulder of the testatrix made writing a difficult and painful act, to the extentthat, after writing one signature on the second page, she dropped the pen becauseof an attack of pain that lasted many minutes, and evidently discouraged attemptsto sign.

It is to be conceded that where a testator employs an unfamiliar way of signing,and both the attestation clause and the will are silent on the matter, such silence isa factor to be considered against the authenticity of the testament; but the failureto describe the unusual signature by itself alone is not sufficient to refuse probate


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when the evidence for the proponent fully satisfies the court that the will wasexecuted and witnessed as required by law.

Garcia v. Lacuesta (1951) [54]

A cross as signature.

It is not here presented that the cross appearing on the will is the usual signatureof the testator or even one of the ways by which he signed his name. The mere singof a cross cannot be likened to a thumbmark, because the cross cannot and doesnot have the trustworthiness of a thumbmark.

Barut v. Cabacungan (1912) [56]

When agent must write.

As regards the validity of the will, it is unimportant whether the person who writesthe name of the testatrix signs his own or not. The important thing is that it clearlyappears that the name of the testatrix was signed at her express direction in thepresence of the three witnesses and that they attested and subscribed it in herpresence and in the presence of each other.

It may be wise, as a practical matter that the one who signs the testators namesigns also hi own; but that is not essential to the validity of the will.

Nera v. Raymundo (1911) [61]

Signing in the presence of witnesses

Jaboneta v. Gustilo: The true test of presence of the testator and the witnesses inthe execution of a will is not whether they actually saw each other sign, but whetherthey might have seen each other sign, had they chosen to do so, considering theirmental and physical position with relation to each other at the moment ofinscription of each signature.

The position of the parties with relation to each other at the moment of thesubscription of each signature must be such that they may see each other sign ifthey choose to do so. Jaboneta doctrine: the question whether the testator and thesubscribing 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 castupon the paper at the moment of its subscription by each of them, but that at thatmoment existing conditions and their position with relation to each other were suchthat by merely casting their eyes in the proper direction they could have seen eachother sign.

Icasiano v. Icasiano (1964) [64]


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The inadvertent failure of one witness to affix his signature to one page of atestament, due to the simultaneous lifting of two pages in the course of signing, isnot per se sufficient to justify denial of probate. That the failure of the witness tosign page three was entirely through pure oversight is shown by his own testimonyas well as by the duplicate copy of the will, which bears a complete set ofsignatures in every page.

RFB: The Icasiano holding cannot, and should not, be taken as a departure from therule that the will should be signed by the witnesses on every page. The carbonduplicate was regular in all aspects. A cavalier disregard of the formal requirementsof wills in reliance on Icasiano is not recommended.

Cagro v. Cagro (1953) [68]

The signatures of the witnesses must be at the bottom of the attestation clause.

Fact: signature of the three witnesses do not appear on the bottom of the

attestation clause, but the page containing the clause is signed by the witnesses onthe left-hand margin.

The attestation clause is a memorandum of the facts attending the execution ofthe will required by law to be made by the attesting witnesses, and it mustnecessarily bear their signature. An unsigned attestation clause cannot beconsidered as an act of the witnesses, since the omission of their signature at thebottom thereof negatives their participation.

The signatures on the left-hand margin cannot be deemed as their signature to theclause because said signatures are in compliance with the legal mandate that thewill be signed on the left-hand margin of all its pages. If an attestation clause not

signed by the witnesses at the bottom thereof, be admitted as sufficient, it would beeasy to add such clause to a will on a subsequent occasion and in the absence ofthe testator and any or all of the witnesses.

Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) theuncontradicted testimony of the witnesses that the clause was already written inthe will when the same was signed obviates fear of the majority that the clause mayhave been only added on a subsequent occasion and not at the signing of the will.

Javellana v. Ledesma (1955) [70]

Acknowledgement before a notary public.

Fact: Codicil signed by testatrix and witnesses at the hospital; the notary publicbrought the codicil to his office, and signed and sealed it there.

Whether or not the notary signed the certification of acknowledgement in thepresence of the testatrix and the witnesses does not affect the validity of thecodicil. The Civil Code does not require that the signing of the testator, witnessesand notary should be accomplished in one single act.


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The subsequent signing and sealing by the notary of his certification that thetestament was duly acknowledged by the participants therein is not part of theacknowledgement itself nor of the testamentary act.

RFB: (a) ratio: The certification of acknowledgement need not be signed in thepresence of the testator and the witnesses; (b) obiter: Art. 806 does not require that

the testator and the witnesses must acknowledge on the same day that it wasexecuted.

Cruz v. Villasor (1973) [72]

The notary public cannot be counted as one of the attesting witnesses.

The notary public before whom the will was acknowledged cannot be consideredas the third instrumental witness since he cannot acknowledge before himself hishaving signed the will. If the third witness were the notary public himself, he wouldhave to avow, assent, or admit his having signed the will in front of himself. This

cannot be done because he cannot split his personality into two so that one willappear before the other to acknowledge his participation in the making of the will.

Furthermore, the function of the notary public is, among others, to guard againstany illegal or immoral arrangement. That function would be defeated if the notarypublic were one of the attesting or instrumental witnesses. For then he would beinterested in sustaining the validity of his own act.

To allow the notary public to act as third witness, or one of the attesting andacknowledging witnesses, would have the effect of having only two attestingwitnesses to the will which would be in contravention of the Article 805 requiring atleast 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 notarypublic to acknowledge the will.

Art. 808

Garcia v. Vasquez (1970) [75]

Provision of Article 808 mandatory.

Fact: testatrixs vision was mainly for viewing distant objects and not for readingprint.

For all intents and purposes of the rules on probate, the testatrix was not unlike ablind testator, and the due execution of her will would have required observance ofArticle 808. The rationale behind the requirement of reading the will to the testatorif he is blind or incapable of reading the will himself (as when he is illiterate) , is tomake the provisions thereof known to him, so that he may be able to object if theyare not in accordance with his wishes.


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Alvarado v. Gaviola (1993) [80]

The requirement has been liberally applied, the SC declaring substantial complianceto be sufficient.

Facts: The lawyer who drafted the will and subsequent codicil read them aloud in

the presence of the testator, the three instrumental witnesses and the notarypublic. The latter four followed the reading with their own respective copiespreviously furnished them.

Substantial compliance is acceptable where the purpose of the law has beensatisfied, because the solemnities surrounding the execution of wills are intended toprotect the testator from all kinds of fraud and trickery but are never intended to beso rigid and inflexible as to destroy testamentary privilege.

It was not only the lawyer who read the documents. The notary public and thethree instrumental witnesses likewise read the will and codicil, albeit silently. Withfour persons following the reading word with their own copies, it can be safelyconcluded that the testator was reasonably assured that what was read to him(those which he affirmed were in accordance with his instructions), were the termsactually appearing in the typewritten documents.

Art. 809

Caneda v. CA (1993) [87]

Fact: petitioners aver that the attestation clause is fatally defective since it fails tospecifically state that the instrumental witnesses to the will witnessed the testatorsigning the will in their presence and that they also signed the will and all the pages

thereof in the presence of the testator and of one another. SC agrees with petitioners. The absence of a statement that the witnesses signedthe will and every page thereof in the presence of the testator and of one another isa fatal defect which must necessarily result in the disallowance of the will. Suchdefect in the attestation clause cannot be characterized as merely involving form ofthe will or the language used therein which would warrant the application of thesubstantial compliance rule contemplated in Art. 809. The defect is not only in theform or the language of the attestation clause but the total absence of a specificelement required by Art. 805 to be specifically stated in the attestation clause.

Proper interpretation of the substantial compliance rule in Art. 809: Omissionwhich can be supplied by an examination of the will itself, without the need of

resorting to extrinsic evidence, will not be fatal and, correspondingly, would notobstruct the allowance to probate of the will being assailed. However, thoseomissions which cannot be supplied except by evidence aliunde (from anothersource, from elsewhere, from outside source) would result in the invalidation of theattestation clause and ultimately, of the will itself.


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Art. 810

Roxas v. De Jesus (1985) [103]

Issue: whether FEB./61 appearing in the holographic will is a valid compliancewith Art. 810.

A complete date is required to provide against such contingencies as that of twocompeting wills executed on the same day, or of a testator becoming insane on theday on which a will was executed. There is no contingency in this case.

As a general rule, the date in a holographic will should include the day, month,and year of its execution. However, when, as in the case at bar, there is noappearance of fraud, bad faith, undue influence and pressure and the authenticityof the will is established and the only issue is whether or not the date FEB./91 is avalid compliance with Art. 810, probate of the holographic will should be allowedunder the principle of substantial compliance.

Labrador v. CA (1990) [105]

Fact: date appears in the body of the holographic will.

The law does not specify a particular location where the date should be placed inthe will. The only requirements are that the date be in the will itself and executed inthe hand of the testator. Both requirements are present in the subject will.

Art. 811

Azaola v. Singson (1960) [110]

The three-witness provision in case of contested holographic wills is directory, notmandatory.

Since the authenticity of the will was not contested, proponent was not required toproduce more than one witness; but even if the genuineness of the holographic willwere contested, Art. 811 cannot be interpreted as to require the compulsorypresentation of three witnesses to identify the handwriting of the testator, underthe penalty of having the probate denied.

Since no witness may have been present at the execution of a holographic will,none being required by law, it becomes obvious that the existence of witnessespossessing the requisite qualifications is a matter beyond the control of theproponent.

Art. 811 foresees the possibility that no qualified witness may be found (or whatamounts to the same thing, that no competent witness may be willing to testify tothe authenticity of the will, and provides for resort to expert evidence to supply thedeficiency. Such resort to expert evidence is conditioned by if the Court deem it


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necessary, which reveal that what the law deems essential is that the Court shouldbe convinced of the wills authenticity. Since the law leaves it to the trial court todecide if experts are still needed, no unfavorable inference can be drawn from apartys failure to offer expert evidence, until and unless the court expressesdissatisfaction with the testimony of the lay witnesses.

SCs conclusion: the rule of Art. 811, par. 1, is merely directory and is notmandatory.

Codoy v.Calugay (1999)

Fact: holographic will challenged for forgery. 6 witnesses of proponent did notcategorically state that they know the handwriting and signature of the testatrix;whereas, 2 did so.

Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate ofcontested holographic will at least three witnesses explicitly declare the signature in

the will is the genuine signature of the testator.

SC (Pardo): We are convinced, based on the language used, that Article 811ismandatory. We have ruled that shall in a statute commonly denotes an imperativeobligation and is inconsistent with the idea of discretion and that the presumption isthat the word shall when used in a statute is mandatory. Case remanded becausethe Court found that the testimony of the aforesaid 2 witnesses was not convincing.

Query: has this ruling reversed Azaola, supra.?

1) Azaola is not on all fours with this case. Here, the will was contested (ground:forgery), in Azaola the will was not contested.

2) RFBs personal view: No, because the basis of the remandthat the Court did notfind the testimony of the 2 witnesses satisfactoryis perfectly consistent withAzaola that quality of the testimony, not the quantity of the witnesses, is thecriterion. Thus, SCs statement that three-witness rule is mandatory is an obiter. Wecan read Azaola and Godoy together.

Gan v. Yap (1958) [114]

In the probate of a holographic will, the document itself must be produced.Therefore, a lost holographic will cannot be probated.

When the will itself is not submitted, the means of opposition and of assessing theevidence, are not available. And then, the only guaranty of authenticitythetestators handwritinghas disappeared.

The execution and the contents of a lost or destroyed holographic will may not beproved by the bare testimony of witnesses who have seen and/or read such will.


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Ordinary vs. holographic wills. The difference lies in the nature of wills. Inholographic wills, the only guarantee of authenticity is the handwriting itself; inordinary wills, the testimony of the subscribing or instrumental witnesses and of thenotary. The loss of the holographic will entails the loss of the only medium of proof;if the ordinary will is lost, the subscribing witnesses are available to authenticate.

Rodelas v. Aranza (1982) [122]

Exception to the Gan ruling.

Issue: whether a lost holographic will can be proved by means of a photostaticcopy.

Evidently, the photostatic or xerox copy of the lost or destroyed holographic willmay be admitted because the authenticity of the handwriting of the deceased canbe determined by the probate court (i.e., comparison can be made with thestandard writings of the testator.

Art. 814

Kalaw v. Relova (1984) [125]

Effect of non-compliance.

Issue: whether the original unaltered text after subsequent alterations andinsertions were voided by the Trial Court for lack of authentication by full signatureof the testatrix, should be probated or not.

Velasco v. Lopez: when a number of erasures, corrections, and interlineationsmade by the testator in a holographic will have not been noted under his signature,the will is not thereby invalidated as a whole, but at most only as respects theparticular words, erased, or interlined.

However, when as in this case, the holographic will in dispute had only onesubstantial provision, which was altered by substituting the original heir withanother, but which alteration did not carry the requisite of full authentication by thefull signature of the testator, the effect must be that the entire will is voided orrevoked for the simple reason that nothing remains in the will after that which couldremain valid. To state that the will as first written should be given efficacy is todisregard the seeming change of mind of the testatrix. But that change of mind can

neither be given effect because she failed to authenticate it in the manner requiredby lay by affixing her full signature.

Velasco ruling must be held confined to such insertions, cancellations, erasures oralterations in a holographic will, which affect only the efficacy of the altered wordsthemselves but not the essence and validity of the will itself.


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Subsection 4-Witnesses to Wills

Article 821

Gonzales vs. CA

Under the law, there is no mandatory requirement that the witness testify initially orat any time during the trial as to his good standing in the community, his reputationfor trustworthiness and reliableness, his honesty and uprightness in order that histestimony may be believed and accepted by the trial court. It is enough that thequalifications enumerated in Article 820 of the Civil Code are complied with, suchthat the soundness of his mind can be shown by or deduced from his answers to thequestions propounded to him, that his age (18 years or more) is shown from hisappearance, testimony, or competently proved otherwise, as well as the fact that heis not blind, deaf or dumb and that he is able to read and write to the satisfaction of

the Court, and that he has none of the disqualifications under Article 821 of the CivilCode. The attributes of the good standing of the witness in the community, hisreputation for trustworthiness and reliableness, his honesty and uprightness arepresumed of the witness unless the contrary is proved otherwise by the opposingparty.

In probate proceedings, the instrumental witnesses are not character witnesses forthey merely attest the execution of a will or testament and affirm the formalitiesattendant to said execution.

Credible witnesses' mean competent witnesses and not those who testify to factsfrom or upon hearsay.

Subsection 6

Article 830

Maloto vs. CA

It is clear that the physical act of destruction of a will, like burning in this case, doesnot per se constitute an effective revocation, unless the destruction is coupled withanimus revocandi on the part of the testator. It is not imperative that the physicaldestruction be done by the testator himself. It may be performed by another personbut under the express direction and in the presence of the testator. Of course, itgoes without saying that the document destroyed must be the will itself."Animusrevocandi is only one of the necessary elements for the effective revocation of a


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last will and testament. The intention to revoke must be accompanied by the overtphysical act of burning, tearing, obliterating, or cancelling the will carried out by thetestator or by another person in his presence and under his express direction.

Gago vs. Mamuyac

The law does not require any evidence of the revocation or cancellation of the willto be preserved. It therefore becomes difficult at times to prove the cancellation orrevocation of wills. The fact that such cancellation or revocation has taken placemust either remain unproved or be inferred from evidence showing that after duesearch the original will cannot be found. Where a will which cannot be found isshown to have been in the possession of the testator, when last seen, thepresumption is in the absence of other competent evidence, that the same wascancelled or destroyed. The same presumption arises where it is shown that thetestator had ready access to the will and it cannot be found after his death. It willnot be presumed that such will has been destroyed by any other person without theknowledge or authority of the testator.

Subsection 8- Allowance and Disallowance of Wills

Article 838

Guevara vs. Guevara

The proceeding for the probate of a will is one in rem, with notice by publication tothe whole world and with personal notice to each of the known heirs, legatees, anddevisees of the testator. Although not contested, the due execution of the will andthe fact that the testator at the time of its execution was of sound and disposingmind and not acting under duress, menace, and undue influence or fraud, must beproved to the satisfaction of the court, and only then may the will be legalized andgiven effect by means of a certificate of its allowance, signed by the judge andattested by the seal of the court; and when the will devises real property, attested


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copies thereof and of the certificate of allowance must be recorded in the register ofdeeds of the province in which the land lies. It will readily be seen from the aboveprovisions of the law that the presentation of a will to the court for probate ismandatory and its allowance by the court is essential and indispensable to itsefficacy.

The heirs may not disregard the provisions of the will unless those provisions arecontrary to law. Neither may they do away with the presentation of the will to thecourt for probate, because such suppression of the will is contrary to law and publicpolicy. The law enjoins the probate of the will and public policy requires it, becauseunless the will is probated and notice thereof given to the whole world, the right of aperson to dispose of his property by will may be rendered nugatory,

De la Cerna vs. Potot

In a case where a joint will between husband and wife was executed and the willwas probated when the husband died before the effectivity of the Civil Code, thefinal decree of probate has conclusive effect as to the last will and testament,despite the fact that even then the Civil Code already decreed the invalidity of jointwills. A final judgment rendered on a petition for the probate of a will is bindingupon the whole world and public policy and sound practice demand that at the riskof occasional errors, judgment of courts should become final at some definite datefixed by law. The probate decree of the will of the husband could only affect theshare of the deceased husband. It could not include the disposition of the share ofthe wife who was then still alive, and over whose interest in the conjugal propertiesthe probate court acquired no jurisdiction, precisely because her estate could notthen be in issue. It follows that the validity of the joint will, in so far as the estate of

the wife was concerned, must be, on her death, reexamined and adjudicated denovo, since a joint will is considered a separate will of each testator. Thus, probateof the wifes will is denied as joint wills are now prohibited by the Civil Code.

Gallanosa vs. Arcangel

A decree of probate is conclusive as to the due execution or formal validity of a will.

That means that the testator was of sound and disposing mind at the time when heexecuted the will and was not acting under duress, menace, fraud, or undueinfluence; that the will was signed by him in the presence of the required number ofwitnesses, and that the will is genuine and is not a forgery. Accordingly, these factscannot again be questioned in a subsequent proceeding, not even in a criminalaction for the forgery of the will. After the finality of the allowance of a will, theissue as to the voluntariness of its execution cannot be raised anymore.


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The following are included in the term formal validity and therefore are conclusivelysettled by a final decree of probate:

i. that the testator was of sound and disposing mind

ii. that his consent was not vitiated

iii. that the will was signed by the requisite number of witnesses

iv. that the will is genuine

Nepomuceno vs. CA

The general rule is that in probate proceedings, the court's area of inquiry is limitedto an examination and resolution of the extrinsic validity of the Will. The rule,however, is not inflexible and absolute. Given exceptional circumstances, theprobate court is not powerless to do what the situation constrains it to do and passupon certain provisions of the Will. The probate of a will might become an idleceremony if on its face it appears intrinsically void. Where practical considerationsdemand that the intrinsic validity of the will be passed upon, even before it isprobated, the court should meet the issue.

SECTION 2- Institution of Heir

Article 850

Austria vs. Reyes

Before the institution of heirs may be annulled under article 850 of the Civil Code,the following requisites must concur: First, the cause for the institution of heirs mustbe stated in the will; second, the cause must be shown to be false; and third, it mustappear from the face of the will that the testator would not have made suchinstitution if he had known the falsity of the cause.


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Article 854

Reyes vs. Barretto-Datu

If there is a compulsory heir in the direct line, such heir is instituted in the will, andthe testamentary disposition given to such heir is less than her legitime, there is nopreterition. There is no total omission, inasmuch as the heir received somethingfrom the inheritance. The remedy is for completion of legitime under Articles 906and 907.

Aznar vs. Duncan

Manresa defines preterition as the omission of the heir in the will, either by notnaming him at all or, while mentioning him as father, son, etc., by not institutinghim as heir without disinheriting him expressly, nor assigning to him some part ofthe properties. In a case where the testator left to one who was a forced heir alegacy worth less than the legitime, but without referring to the legatee as an heiror even as a relative, and willed the rest of the estate to other persons, it was heldthat Article 815 applied, and the heir could not ask that the institution of heirs beannulled entirely, but only that the legitimate be completed.

Acain vs. IAC

An adopted child, if totally omitted in the inheritance, is preterited and can invokeits protection and consequences. Since an adopted child is given by law the samerights as a legitimate child, the adopted child can, in proper cases, invoke Article854 in the same manner a legitimate child can.

Nuguid vs. Nuguid

To 'annul' means to abrogate, to make void. The word annul employed in thestatute (Article 854) means that the universal institution of petitioner to the entireinheritance results in totally abrogating the will. Because, the nullification of suchinstitution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and inclear terms, Article 854 offers no leeway for inferential interpretation. Giving it an


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expansive meaning will tear up by the roots the fabric of the statute. (Note thatwhat was involved here was a universal institution of a sole heir, nothing more.Article 854 annuls his institution, thus no more heirs are left. Hence, the entire willis void.)

SECTION 3-Substitution of Heirs

Article 863

Palacios vs. Ramirez

What is meant by "one degree" from the first heir is explained by Tolentino asfollows:

"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or

transmission. The Supreme Court of Spain has decidedly adopted this construction.From this point of view, there can be only one transmission or substitution, and thesubstitute need not be related to the first heir. Manresa, Morell, and SanchezRoman, however, construe the word 'degree' as generation, and the present Codehas obviously followed this interpretation, by providing that the substitution shallnot go beyond one degree 'from the heir originally instituted.' The Code thus clearlyindicates that the second heir must be related to and be one generation from thefirst heir.

"From this, it follows that the fideicommissary can only be either a child or a parentof the first heir. These are the only relatives who are one generation or degree fromthe fiduciary."

PCI Bank vs. Escolin

If there is no absolute obligation imposed upon the first heir to preserve theproperty and transmit it to a second heir, there is no fideicomisaria. The institution


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is not necessarily void; it may be valid as some other disposition, but it is not afideicomisaria.

SECTION 5- Legitime

Article 887

Rosales vs. Rosales

The surviving spouse referred to in Article 887 who is entitled to the legitime, is thespouse of the decedent and not the spouse of a child who has predeceased thedecedent.

Lapuz vs. Eufemio

An action for legal separation which involves nothing more than the bed-and-boardseparation of the spouses (there being no absolute divorce in this jurisdiction) ispurely personal. Being personal in character, it follows that the death of one partyto the action causes the death of the action itself actio personalis moritur cumpersona. Thus, death of either party during the pendency of a petition for legalseparation results in the dismissal of the case.

Nial vs. Badayog

May the heirs of a deceased person file a petition for the declaration of nullity of hismarriage after his death? Petitions for the declaration of the voidability of amarriage can only be brought during the lifetime of the parties and not after the

death of either. A void marriage, on the other hand, can be brought even after thedeath of either party. The Code is silent as to who can file a petition for declarationof nullity of marriage. Any proper interested party (heirs of the deceased husband)may attack a void marriage.

Baritua vs. CA


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Legitimate ascendants (parents of the deceased) succeed only when thedescendant dies without a legitimate ascendant. The surviving spouse concurs withall classes of heirs. Thus, where an obligation has been paid to the spouse anddescendants, the obligation is extinguished and the legitimate ascendants have noright to claim upon the obligation.

Article 891

Solivio vs. CA

The reserva troncal only applies to properties inherited by an ascendant or abrother or sister. It does not apply to property inherited by a descendant from hisascendant, the reverse of the situation covered by Article 891.

Padura vs. Baldovino

The reserva troncal is a special rule designed primarily to assure the return of thereservable property to the third degree relatives belonging to the line from whichthe property originally came, and avoid its being dissipated into and by the relativesof the inheriting ascendant.

The reserva merely determines the group of relatives to whom the property should

be returned; but within that group the individual right to the property should bedecided by the applicable rules of ordinary intestate succession, since Article 891does not specify otherwise. (RFB: Those reservatarios nearer in degree to theprepositus will exclude the more remotely related.)

Florentino vs. Florentino

I Any ascendant who inherits from his descendant any property, while there areliving, within the third degree, relatives of the latter, is nothing but a life

usufructuary or a fiduciary of the reservable property received. He is, however, thelegitimate owner of his own property which is not reservable property and whichconstitutes his legitime, according to article 809 of the Civil Code. But if, afterwards,all of the relatives, within the third degree, of the descendant (from whom came thereservable property) die or disappear, the said property becomes free property, byoperation of law, and is thereby converted into the legitime of the ascendant heirwho can transmit it at his death to his legitimate successors or testamentary heirs.

This property has now lost its nature of reservable property, pertaining thereto at


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the death of the relatives, called reservatarios, who belonged within the thirddegree to the line from which such property came.

The right of representation cannot be alleged when the one claming same as areservatario of the reservable property is not among the relatives within the thirddegree belonging to the line from which such property came, inasmuch as the right

granted by the Civil Code in article 811 is in the highest degree personal and for theexclusive benefit of designated persons who are the relatives, within the thirddegree, of the person from whom the reservable property came. Therefore,relatives of the fourth and the succeeding degrees can never be considered asreservatarios, since the law does not recognize them as such.

(RFB: Actually there will be only one instance of representation among thereservatarios, i.e., a case of the Prepositus being survived by brothers/sisters andchildren of a predeceased or incapacitated brother or sister.)

Edroso vs. Sablan

1. The reservistas right over the reserved property is one of ownership.

2. The ownership is subject to a resolutory condition, i.e. the existence ofreservatarios at the time of the reservistas death.

3. The right of ownership is alienable, but subject to the same resolutory condition.

4. The reservistas right of ownership is registrable.

The conclusion is that the person required by article 811 to reserve the right has,beyond any doubt at all, the rights of use and usufruct. He has, moreover, for thereasons set forth, the legal title and dominion, although under a conditionsubsequent. Clearly he has, under an express provision of the law, the right todispose of the property reserved, and to dispose of is to alienate, although under acondition. He has the right to recover it, because he is the one who possesses orshould possess it and have title to it, although a limited and revocable one. In aword, the legal title and dominion, even though under a condition, reside in himwhile he lives. After the right required by law to be reserved has been assured, hecan do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor the right isreserved cannot dispose of the property, first because it is no way, either actually,constructively or formally, in their possession; and, moreover, because they have notitle of ownership or of fee simple which they can transmit to another, on thehypothesis that only when the person who must reserve the right should die beforethem will they acquire it, thus creating a fee simple, and only then will they taketheir place in the succession of the descendant of whom they are relatives withinthe third degree, that is to say, a second contingent place in said legitimatesuccession in the fashion of aspirants to a possible future legacy.


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Sienes vs. Esparcia

1. The reservatarios have a right of expectancy over the property.

2. The right is subject to a suspensive condition, i.e. the expectancy ripens intoownership if the reservatarios survive the reservista.

3. The right is alienable, but subject to the same suspensive condition.

4. The right is registrable.

(Query: Edroso case says reservatarios right is not alienable, Sienes says it is.Resolve. Personally, I think Sienes is right.)

Gonzales vs. CFI

Can a reservista convey by will, reservable property to relervatarios in the thirddegree and by-pass those in the second? NO. Article 891 clearly indicates that thereservable properties should be inherited by all the nearest relatives within the thirddegree from the prepositus. She could not select the reservees to whom thereservable property should be given and deprive the other reservees of their sharetherein.

The reservable property does not form part of the reservistas estate and should begiven to all the seven reservatarios or nearest relatives of the prepositus within thethird degree. While it is true that by giving the reservable property to only onereservatario, it did not pass into the hands of strangers, nevertheless, it is likewisetrue that the reservista was only one of the reservatarios and there is no reasonfounded upon law and justice why the other reservatarios should be deprived oftheir shares in the reservable property. The property passes by strict operation oflaw.

Cano vs. Director

Upon the death of the reservista, the reservatario nearest to the prepositusbecomes, automatically and by operation of law, the owner of the reservableproperty. That property is no part of the estate of the reservista, and does not evenanswer for the debts of the latter. Hence, its acquisition by the reservatario may beentered in the property records without necessity of estate proceedings, since thebasic requisites therefor appear of record. It is equally well settled that the


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reservable property cannot be transmitted by a reservista to her or his ownsuccessors mortis causa, so long as a reservatario within the third degree from theprepositus and belonging to the line whence the property came, is in existencewhen the reservista dies.

Chapter 3 Legal or Intestate Succession

Article 977

Section 1 General Provisions

Subsection 2 Right of Representation

Teotico vs. Del Val

The relationship established by adoption is limited solely to the adopter and theadopted does not extend to the relatives of the adopting parents or of the adoptedchild except only as expressly provided for by law. Hence, no relationship is createdbetween 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. Thus,an adopted can neither represent nor be represented.

Section 2 Order of Intestate Sucession

Subsection 1 Descending Direct Line

Article 979

Sayson vs. CA

The philosophy underlying this article is that a person's love descends first to hischildren and grandchildren before it ascends to his parents and thereafter spreadsamong his collateral relatives. It is also supposed that one of his purposes inacquiring properties is to leave them eventually to his children as a token of his lovefor them and as a provision for their continued care even after he is gone from thisearth.

There is no question that a legitimate daughter of a person who predeceased hisparents, and thus their granddaughter, has a right to represent her deceased fatherin the distribution of the intestate estate of her grandparents. Under Article 981, she


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is entitled to the share her father would have directly inherited had he survived,which shall be equal to the shares of her grandparents' other children.

But a different conclusion must be reached for persons to whom the grandparentswere total strangers. While it is true that the adopted child shall be deemed to be alegitimate child and have the same right as the latter, these rights do not include

the right of representation. The relationship created by the adoption is betweenonly the adopting parents and the adopted child and does not extend to the bloodrelatives of either party.

Subsection 3 Illegitimate Children

Article 992

Corpus vs. Administrator

There is a successional barrier between the legitimate and illegitimate relatives ofthe deceased. The rule in article 943 is now found in article 992 of the Civil Codewhich provides that "an illegitimate child has no right to inherit ab intestato fromthe legitimate children and relatives of his father or mother; nor shall such childrenor relatives inherit in the same manner from the illegitimate child".

That rule is based on the theory that the illegitimate child is disgracefully lookedupon by the legitimate family while the legitimate family is, in turn, hated by theillegitimate child. The law does not recognize the blood tie and seeks to avoidfurther grounds of resentment

Leonardo vs. CA

An illegitimate cannot, by right of representation, claim a share of the estate left bythe legitimate relatives left by his father considering that, as found again by theCourt of Appeals, he was born outside wedlock as shown by the fact that when hewas born on September 13, 1938, his alleged putative father and mother were notyet married, and what is more, his alleged father's first marriage was stillsubsisting. At most, petitioner would be an illegitimate child who has no right toinherit ab intestato from the legitimate children and relatives of his father.

Diaz vs. CA


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Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibitsabsolutely a succession ab intestato between the illegitimate child and thelegitimate 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 thepurposes of Art. 992. Between the legitimate family and the illegitimate family thereis presumed to be an intervening antagonism and incompatibility. The illegitimate

child is disgracefully looked down upon by the legitimate family; the family is inturn, hated by the illegitimate child; the latter considers the privileged condition ofthe former, and the resources of which it is thereby deprived; the former, in turn,sees in the illegitimate child nothing but the product of sin, palpable evidence of ablemish broken in life; the law does no more than recognize this truth, by avoidingfurther grounds of resentment. So that while Art, 992 prevents the illegitimate issueof a legitimate child from representing him in the intestate succession of thegrandparent, the illegitimates of an illegitimate child can now do so.

Diaz vs. CA

The right of representation is not available to illegitimate descendants of legitimatechildren in the inheritance of a legitimate grandparent. It may be argued, as doneby petitioners, that the illegitimate descendant of a legitimate child is entitled torepresent by virtue of the provisions of Article 982, which provides that "thegrandchildren and other descendants shall inherit by right of representation." Sucha conclusion is erroneous. It would allow intestate succession by an illegitimatechild to the legitimate parent of his father or mother, a situation which would set atnaught the provisions of Article 992. Article 982 is inapplicable to instant casebecause Article 992 prohibits absolutely a succession ab intestato between theillegitimate child and the legitimate children and relatives of the father or mother. Itmay not be amiss to state that Article 982 is the general rule and Article 992 theexception.

The word "relative" as used in Article 992 is broad enough to comprehend all thekindred of the person spoken of. The word "relatives" should be construed in itsgeneral acceptation. Amicus curiae Prof. Ruben Balane has this to say:

According to Prof. Balane, to interpret the term relatives in Article 992 in a morerestrictive sense than it is used and intended is not warranted by any rule ofinterpretation. Besides, he further states that when the law intends to use the termin a more restrictive sense, it qualifies the term with the word collateral, as inArticles 1003 and 1009 of the New Civil Code.

Subsection 4 Surviving Spouse

Article 996

Santillon vs. Miranda


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There is a conflict with what the Civil Code provides as legitime of a spouse andwhat he or she may receive by way of intestacy. Art. 892 of the New Civil Code fallsunder the chapter on Testamentary Succession; whereas Art. 996 comes under thechapter on Legal or Intestate Succession. 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 achild and a spouse should get when they concur with each other, it does not fix theamount of shares that such child and spouse are entitled to when intestacy occurs.

Thus, upon intestacy, the provisions of Art. 996 applies.

Chapter 4 Provisions Common to Testate and Intestate Succession

Section 2 Capacity to Succeed by Will or by Intestacy

Article 1025

Parish Priest of Roman Catholic Church vs. Rigor

Where a priest makes a provision in his will that certain legacies shall pass to hisnearest male relative who pursues priesthood, it is said to be limited to those livingat the time of the execution of the will. We hold that the said bequest refers to thetestator's nearest male relative living at the time of his death and not to anyindefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee orlegatee must be living at the moment the succession opens, except in case ofrepresentation, when it is proper" (Art. 1025, Civil Code).

Section 5 Collation

Article 1061

Vizconde vs. CA

Collation is the act by virtue of which descendants or other forced heirs whointervene in the division of the inheritance of an ascendant bring into the commonmass, the property which they received from him, so that the division may be madeaccording to law and the will of the testator. Collation is only required of compulsoryheirs succeeding with other compulsory heirs and involves property or rightsreceived by donation or gratuitous title during the lifetime of the decedent. Thepurpose is to attain equality among the compulsory heirs in so far as possible for itis presumed that the intention of the testator or predecessor in interest in making a


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donation or gratuitous transfer to a forced heir is to give him something in advanceon account of his share in the estate, and that the predecessors will is to treat allhis heirs equally, in the absence of any expression to the contrary. Collation doesnot impose any lien on the property or the subject matter of collationable donation.What is brought to collation is not the property donated itself, but rather the valueof 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 increasein value or any deterioration or loss thereof is for the account of the heir or donee.

Thus, it is an error to require a son-in-law of the decedent to be included in thecollation as he is not a compulsory heir.

Section 6 Partition and Distribution of the Estate

Subsection 1 Partition

Fajardo vs. Fajardo

There are only two ways in which said partition could have been made: By an actinter vivos, or by will. In either case there were formalities which must be followed.If the partition was made by an act inter vivos, it should have been reduced inwriting in a public instrument, because it was a conveyance of real estate. If by lastwill and testament, the legal requisites should have been observed.

Chavez vs. IAC

Art. 1080 of the Civil Code clearly gives a person two options in making a partitionof his estate; either by an act inter vivos or by will. When a person makes a partitionby will, it is imperative that such partition must be executed in accordance with theprovisions of the law on wills; however, when a person makes the partition of hisestate by an act inter vivos, such partition may even be oral or written, and neednot be in the form of a will, provided that the partition does not prejudice thelegitime of compulsory heirs. (RFB: This ruling should not be used as it raiseseyebrows very high. It gives a partition an irrevocable character and allows a

conveyance of the compulsory heirs of their legitimes even during their lifetimes.)

Legasto vs. Verzosa

A testator may, by an act inter vivos, partition his property, but he must first makea will with all the formalities provided for by law. And it could not be otherwise, for


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without a will there can be no testator; when the law, therefore, speaks of thepartition inter vivos made by a testator of his property, it necessarily refers to thatproperty which he has devised to his heirs. A person who disposes of his propertygratis inter vivos is not called a testator, but a donor. In employing the word"testator," the law evidently desired to distinguish between one who freely donateshis property in life and one who disposes of it by will to take effect after his death.

Article 1082

Tuason vs. Tuason Jr.

Where heirs contracted with a third person to develop their co-owned lot, with thestipulation that the co-ownership shall subsist until all the lots have been sold, is not

a violation of Art. 400, and is only a mere incident to the main object of thepartnership, which is to dissolve the co-ownership.

Article 1088

Garcia vs. Calaliman

Written notice is required for the period of onemonth for the other co-heirs toredeem begins to run. Both the letter and spirit of the new Civil Code argue againstany attempt to widen the scope of the notice specified in Article 1088 by includingtherein any other kind of notice, such as verbal or by registration. Written notice isindispensable, actual knowledge of the sale acquired in some other manners by theredemptioner, notwithstanding. He or she is still entitled to written notice, asexacted by the Code, to remove all uncertainty as to the sale, its terms and itsvalidity, and to quiet any doubt that the alienation is not definitive. The law nothaving provided for any alternative, the method of notifications remains exclusive,though the Code does not prescribe any particular form of written notice nor anydistinctive method for written notification of redemption

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