SECTION 4. - Conditional Testamentary Dispositions and Testamentary Dispositions With a Term Art. 871.

The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)

There is no need of institution in the case of legitime because regardless of the intention of the testator, the compulsory heirs are entitled to their legitimes Institution refers to the free portion

4 Kinds of Institution: 1. Simple or Pure Institution It is an institution that takes immediately after the death of the testator. It is absolute and not subject to any condition, charge or burden. Conditional Institution It is an institution which is subject to a condition. There are different kinds of condition, e.g. as to cause, as to effect, as to mode. Conditional institution can be found in Articles 871-877 and Articles 883-884 Institution with a Term It is an institution that which is subject to a term which must necessarily come, although not known when. An example is when the testator institutes A as an heir but A will only receive the inheritance 5 years after the death of the testator. It is sure that A will receive the inheritance but only upon the death of the testator. Modal Institution It is an institution that which for a certain purpose or cause or that which is provided under (Art. 871, 882 and 883). This is a modal institution. Example: T gives A the inheritance of land to be used for charitable purposes only.

2.

3.

CONDITION in Obligations and Contracts is a future or uncertain event or a past event unknown to the parties CONDITION in Succession is a future or uncertain event or a past event unknown to the parties upon which the acquisition or extinguishment of a right under a testamentary disposition is made subject The condition must be express

A TERM is a day or time which necessarily comes although it may not be known when

Kinds of Condition: 1. As to Cause a. b. c. 2. Potestative Condition - the fulfillment depends exclusively upon the will of the heir, devisee or legatee. Casual Condition - depends upon chance or the will of a third person Mixed Condition - depends partly upon the will of the heir and partly upon chance or the will of a third person.

As to Effect a. b. Suspensive Condition - the happening of which gives rise to the inheritance Resolutory Condition - the happening of which extinguishes the right to the inheritance.

3.

As to Mode a. b. Positive Condition - to do something that would happen. Negative Condition - to do something that will not happen or that should not be done.

4.

As to Form a. Express Condition b. Implied Condition

Note: Testator can only imposed these conditions in the free portion. (ART 904)

If the inheritance given is NOT written or interpreted as a CONDITION but as an ORDER, condition is not presumed. The condition must be expressly stated in the will, otherwise, it will not be presumed. The heir would get the inheritance., (Morente vs. De la Santa, 9 Phil. 387)

Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) NO CHARGE, CONDITION OR SUBSTITUTION ON THE LEGITIME. General limitation: The testator cannot impair the legitime. Why? Because. the testamentary disposition is based on the power to dispose mortis causa. Legitimes, on the other hand, are passed by operation of law. This is repeated in Art. 904.

Effect: The same shall be considered as not imposed. EXCEPTION TO THE RULE: Art. 1083 (NCC) Prohibition against partition of the legitime for a period not exceeding 20 years. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for ompelling reasons that division should be ordered, upon petition of one of the co-heirs. Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a) WHAT IS IMPOSSIBLE CONDITION? Impossible conditions include those w/c are illegal, against public order and public policy. Effect: It nullifies the condition. The condition is deemed as not imposed. The testamentary disposition becomes pure, absolute and unconditional. Compare with donations (Art. 727.) and onerous obligations (Art. 1183.) Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed. Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid. Nullifies the Condition a. Testamentary dispositions b. Donations. Nullifies the Obligation a. Onerous obligations

Why the difference? Testamentary dispositions and donations are acts of liberality. The moving factor is liberality. If you take away the impossible condition, the moving factor still exists, the liberality.

While in onerous donations, the condition is an element of cause. If the condition is impossible, there is a failure of cause. This results in a void obligation. Example: "I sell you my car if you swim across the Pacific Ocean and if you pay me P5,000." Since there is an impossible condition, there is a failure of cause. Since there is no cause, then the obligation is void. 2. Condition Prohibiting Marriage.

Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a) CONDITIONS NOT TO MARRY: A) ABSOLUTE - void. Contrary to morality and public policy. B) RELATIVE PROHIBITION - valid unless onerous or burdensome. Don not marry a girl. Or for 60 years.) Distinquish: 1. If the condition is on the first marriage.-- The condition is considered as not imposed. (The heir will receive the inheritance as if there is no condition) Example: "I give 1/3 of my estate to A if she does not get married." The condition is considered as not imposed. 2. If the condition is imposed on the second marriage. General rule: (Effect) The condition is deemed as not imposed. (The heir will receive the inheritance) Exception: Valid if imposed by: (a) spouse; (b) ascendants of spouse; (c) descendants of spouse. Example: General rule: "I give 1/3 of my estate to Mr. A on the condition that if he should be widowed, he will not get married." The condition is deemed as not imposed here. Exception: "I give the entire free portion of my estate to my husband A on the condition that if I predecease him, he will not get married." The condition is valid in this case. Other Situations: 1. What about a condition to contract marriage? Valid because it is not prohibited and by contrary implication. 2. What about a condition to enter into religious life? Valid. 3. What about a condition to renounce a religion? Not valid. 4. What if the condition is to marry a particular person OR AT PARTICULAR PLACE OR TIME VALID unless impossible. The second paragraph relaxes the rule to go around the prohibition of the first par. Example: ., "I give A a pension of P10,000 during the entire time she is single." This is a valid condition. Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a) DISPOSITION CAPTATORIA: Making a disposition in the will as a contractual act. Not the condition but the disposition. "I give 1/3 of my estate to A provided he makes a will instituting me (or B) as heir." The disposition is void. Why? a. It is against public policy because it impairs the voluntariness of wills; b. It is against revocability: If you can alter your will after receiving, then it is a breach of good faith. But if the testator is not allowed to alter the will, the condition is against revocability. Either option is unacceptable. Consider (the article) restrictively.-- Limit it to cases where the beneficiary is to make a will instituting the testator or a third person.

Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a) Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796) Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a) Article 878 talks about suspensive term A term is a day certain which must necessarily come although it may not be known when When the disposition is subject to a suspensive term, it means that the heir is sure to inherit but the demandability of the inheritance is just suspended. The heir is not prevented from acquiring his right when the institution is subject to a suspensive term. The right of the instituted heir becomes vested from the moment of the death of the testator, although the enjoyment of the property is just suspended. What is suspended is just the demandability of the inheritance but his right to demand becomes vested upon the moment of death. In a suspensive condition, unless the condition is fulfilled, the instituted heir acquires no right to the inheritance. In TERM, the rights will pass In CONDITION, until after the condition is fulfilled, then the heir instituted has no right to demand. When institution is subject to a condition, the acquisition of rights must be determined AT THE TIME OF THE FULFILLMENT OF THE CONDITION. So, at the time of the fulfillment of the condition when the heir is already dead then, there is no right to speak of. The testator can institute can heir subject to a resolutory term because the law does not prohibit it

A suspensive term is one that merely suspends the demandability of a right. It is sure to happen. Example: If Peter dies A suspensive condition suspends not merely the demandability but even the acquisition itself of the right. If Peter dies of cancer. The condition may or may not happen. EFFECT OF DISPOSITION WHEN A SUSPENSIVE TERM: It does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. EXAMPLE: T institutes A as his heir upon the death of B. T dies in 1990. The effect of the institution will have to wait for the death of B. Nevetheless, even before the actual death of B, A has already acquired some rights over the inheritance. Heir A can already transmit to his heirs his rights even before the arrival of the term because the suspensive term is sure to happen. Thus, A can in his own WILL or by intestate succession already give the property to his own heirs he inherited from T. Art. 878 only talks about SUSPENSIVE TERM and not SUSPENSIVE CONDITION in the latter, if the testator dies before the condition is fulfilled, the instituted heir does not transmit any right to his own heirs insofar as the estate is concerned for he never inherited the property because he was already dead at the time the condition is fulfilled, granting that it is fulfilled. In the first example, if the condition is suspensive condition such as B should pass the bar and A predeceases B, A does not transmit his rights to his own heir because A was already dead at the time the condition is fulfilled, granting that the condition is fulfilled. Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a) Article 879 talks of NEGATIVE POTESTATIVE CONDITION, a condition that is purely dependent upon the will of the heir, devisee or legatee which consists of not doing or not giving something.

Example: T institutes A on the condition that A should not smoke for one year. He gets the inheritance right away but he must first give a security to guarantee that he would not smoke for one year. In case he violates it, he should return whatever he may have received together with the fruits and interest. (Art. 879) CAUCION MUCIANA applies. Bond or security is required.. Under this article, inheritance is immediately demandable from the moment of death of the testator But, the heir or devisee must give a caucion muciana CAUCION MUCIANA is the security given by an heir who is subject to a potestative condition which is negative or who is subject to the condition which consist in not doing or not giving something If the heir contravenes the condition, the heir will now return what he or she received by way of inheritance and all the fruits and interest When monthly allowance, monthly pension, monthly income, usufruct or personal prestation are given by way of inheritance and the heir is prohibited from doing something, otherwise, he shall forfeit the inheritance, there is no requirement of giving a security. If the heir contravenes the condition, the heir is not obliged to return the fruits and interest because in this example we apply by analogy Article 874 wherein no security is required and the heir is not required to return the fruits and interest. There are Three Kinds of Suspensive Conditions: 1. Purely Potestative.-- The fulfillment of the condition depends solely upon the will of the heir, devisee or legatee. He must perform it personally.. Nobody else must do it for him. -This must be performed after the testators death. Because it is only then that obedience can be indicated. Example: "I give my entire free portion to Victor should he shave his moustache." General rule: The condition must be fulfilled as soon as the heir learns of the testator's death. Exception: If the condition has already been fulfilled and it cannot be fulfilled again, the condition is deemed fulfilled. Constructive compliance is applicable.

2. Casual.-- The fulfillment of the condition depends solely on chance or on the will of a third person. Example: "I give X, 1/3 of my estate should Mayon erupt one year from now." 3. Mixed.-- The fulfillment of the condition depends partly on chance and partly on the will of the heir, devisee, or legatee. Example: "I give one million to A provided he sets up a foundation for the victims of the next eruption of Mayon." Rules for casual and mixed conditions: General rule: The condition may be fulfilled any time, either before or after the testator's death unless the testator provides otherwise. Why? It is not within the heir, devisee or legatee's control. Qualification: If condition is already fulfilled at the time of the execution. a. Testator is unaware-- The condition is deemed complied with or fulfilled. b. Testator is aware.-- (1) If the condition can no longer be fulfilled again, it is deemed fulfilled; (2) If the condition can still be fulfilled, fulfill it again.

Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) Article 880 refers to a situation wherein the institution is subject to a suspensive condition or term

When the institution is subject to a suspensive term or a suspensive condition, the heir instituted will NOT get the inheritance right away. The heir instituted still will have to wait for the arrival of the term or for the happening of the condition. Pending the arrival of the term or the happening of the condition, the property but shall be placed under administration. As to who will be selected as the administrator, the provisions of the Rules of Court in Special Proceedings must be complied with. Those who are preferred in the appointment as administrators are also the legal heirs. The property is also placed under administration if is bond is not furnished If the suspensive condition is not fulfilled, place the estate under administration until: 1. The condition is fulfilled, in which case the estate should be given to the instituted heir; 2. It becomes obvious that it cannot be fulfilled, in which case, the estate should be given to the intestate heirs. EXAMPLE: "I give a car to A when he places first in the bar." Testator dies while A is still taking law. The car is put under administration until: (1) A tops the bar, in w/c case the car should be given to him; or (b) A dies while reviewing in which case, the car should be given to the intestate heirs because the condition has become obviously impossible of being fulfilled. Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a) This article speaks for the appointment of administrator, which are discussed in Special Proceedings Administrator is a person appointed by the court to take care of the properties of the testator who died without a will Executor is the person provided by the testator in his will who will take care of his properties pending settlement of his estate Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a) An example of the same rule on conditions applied both to succession and obligations and contracts is an institution subject to a resolutory condition. Just like in obligations and contracts, the heir immediately enjoys the property. But upon the fulfillment of the resolutory condition the heir ceases to enjoy the property. The happening of the condition gives rise to the extinguishment of the right to the inheritance If there are specific provisions in succession referring to conditions and these conditions are not the same as in obligations and contracts, the provisions in succession shall prevail In succession, an impossible condition shall be considered as not written and so, the institution shall still be given effect. In obligations and contracts, if the obligation is subject to an impossible condition both the condition and the obligation are annulled Rules on conditional obligations will apply suppletorily. Articles 1179 to 1192. Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a)

Article 882 refers to MODAL INSTITUTION (2001 Bar Question) MODAL INSTITUTION is the institution wherein the statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. If the heir does not comply with the object or the attestation and the purpose of the institution, the heir forfeits the inheritance If the institution is subject to a mode, the heir immediately enjoys the property The heir is required to furnish a security so that he will do what has been imposed by the testator

If there is doubt as to whether the institution is a mode or condition, it is resolved in favor of a mode because we have to consider that the real reason in the institution is the liberality of the testator According to Paras, if there is a doubt as to whether it is a mode or a suggestion, it is considered as a suggestion because it is less burdensome CONDITION If it refers to other things, you can say that they are conditions.

MODE This refers to: a. the object of the institution; b. the application of the property; and c. charge Heir immediately enjoys the property upon the death of the testator, provided he has furnished security It is obligatory upon the instituted heir and so, he has to comply with the object of the institution or the burden imposed by the testator. The failure to do so would result in the forfeiture of the inheritance EXAMPLES:

Heirs do not enjoy the property after the death of the testator but only upon the fulfillment of the condition It is not obligatory upon the part of the heir because the condition may or may not happen

1. The statement of the object of the institution T gives A the amount of P20,000 for him to finish his college education. 2. The application of the property left by the testator T gives A the amount of P100,000 to be used for the construction of his tomb in the cemetery. 3. The charge imposed by the testator - T gives 1/3 of his estate to A but impose upon him the obligation to pay for his son's education. ALL of these shall NOT be considered as a condition unless it appears that such was his intention. Modal institution is not a condition. (par. 1) but when it is violated, the instituted heir is supposed to forfeit the inheritance, to return indeed anything he may have received together with its fruits and interest, if he should disregard this obligation. (Second par.) In modal institution, the inheritance can be immediately demanded provided security is given. When the institution with suspensive condition, even if the heir wants to give security , he will not be allowed to do so and will not be allowed to get the property in the meantime. INSTEAD, the property will be placed under ADMINISTRATION. (Art 880)

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a) -Article 883 talks about substantial compliance or constructive fulfillment Without the fault of the heir instituted, the obligation cannot be fulfilled by the heir exactly in the manner stated by the testator. But as long as it is substantially in accordance with the obligation imposed then the institution will take effect. Example of substantial compliance is when the heir is obligated to paint a portrait of the testator but the portrait is not an exact resemblance of the testator. Nevertheless, there is substantial compliance. Even if the obligation cannot be fulfilled with, still, it is as if it is fulfilled by constructive fulfillment. The instituted heir should not be prejudiced by the fact that other persons prevented him from fulfilling his obligation. Example of constructive fulfillment is when a third person cuts the hand of the heir so that such heir cannot paint a portrait of the testator anymore.

Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805) INSTITUTION WITH A TERM: 1. Suspensive term or ex die - it begins from a certain day. Beginning 1990 . . .) Example: A has a brother B (only relative) but institutes C as heir 5 years AFTER As death. During the 5 year interval, B is considered called to the succession until the period expires. B cannot enter into possession of the property until after he has given sufficient security. The security must be approved and considered suitable by C, the instituted heir. 2. Resolutory term or ex diem effects cease on a certain day. (Up to 1990) 3. Ex die in diem from certain day to a certain day. (Beginning 1990 until 2000). A caucion muciana is a security to be put up to protect the right of the heirs (who would succeed to the property) in case the condition, term or mode is violated.

Instances wherein the legal heirs or the instituted heirs are to give a security: 1. When the institution is subject to a suspensive term, the legal heirs can enjoy the property pending the arrival of the term provided that the legal heirs shall give security (Article 885); In modal institution, the heir instituted subject to a mode shall give security before the heir can enjoy the property (Article 882); and When the institution is subject to a negative potestative condition or consists in not doing or not giving then the heir instituted must also give a security which is called caucion muciana (Article 879).

2. 3.