Uribe Notes

Uribe Civil Law Review (Succession and Property)
Azys Notes 1
Day 7: Succession

Quiz
A legatee is a person called to the succession either by the provision of a
will or by operation of law. False. A legatee inherits by will and not by
operation of law.
The validity of a will depends upon the observance of the law in force at
the time of death of the testator. False. Not absolutely true. Intrinsic
validity is governed by the law at the time of death of the testator but
formal requirements are governed by the laws at the time of execution of
the will.
Capacity to succeed is governed by the law of the nation of the decedent.
True. Capacity to succeed is governed by decedents national law. This is
by provision of Art. 1039 (not Art. 16
1
).
In order to make a will it is essential that the testator be of sound mind at
the time of its probate. False. In most cases, the probate of a will is done
post mortem. How could the testator be of sound mind if he is already
dead? What is essential is that the testator be of sound mind at the time of
execution of the will. Sound mind in testamentary succession
means that the testator knew (1) the nature of his estate to be
disposed of; (2) the proper subjects of his bounty; and (3) the
character of the testamentary act.
Succession is a mode of acquisition by virtue of which the property, rights
and obligations to the extent of the value of the inheritance, of a person
are transmitted to another or others either by his will or by operation of
law. False. This is an incomplete definition. Death is required for the
transmission to happen.
Legatees and devisees are persons to whom gifts of real and personal
property are respectively given by virtue of a will. False. It is the other
way around.
2

Legitime is that part of the testators property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore,
called legal heirs. False. Legitime is reserved for compulsory heirs.
Every will must be acknowledged before a notary public by the testator
and the witnesses, in the presence of each other. False. Acknowledgment
does not have to be done at the same time.

1
Art. 16 states that (1) the order of succession; (2) amount of hereditary rights; and (3) intrinsic validity of
testamentary succession are governed by the national law of the decedent.
2
LP , DR
If the testator be deaf, or a deaf-mute, the will shall be read to him twice;
otherwise, he shall designate two persons to read it and communicate to
him, in some practicable manner, the contents thereof. False. For obvious
reasons. It would be pointless to have someone read the will to him twice,
thrice or even a hundred times. Deaf and deaf-mutes must personally read
the will. If this is not possible, he shall designate two persons (who need
not be one of the subscribing witnesses or the notary public) to read it and
communicate to him, in some practicable manner, the contents thereof.
The rule that the will must be read to him twice (once by a subscribing
witness and again by the notary public) is applicable to blind testators.
Full blood relationship is that existing between persons who have
legitimate relations. False. It is possible to have only a half blood
relationship with a legitimate brother. Full blood relationship is that
existing between persons who have the same father and the same mother.
Half blood relationship is that existing between persons who have the
same father, but not the same mother, or the same mother, but not the
same father.
A was one of the three witnesses in the execution of the will of X. In the
will, X gave a car to A. Which of the following is correct? (a) legacy is
void (b) will is void (c) cannot be considered as a competent witness. A.
Interested witnesses are not prohibited from being witnesses to
a will but the devise or legacy, so far only as concerns him, his
spouse, parent or child, or anyone claiming under any of them
shall be void unless there are three other competent witnesses
to the will.
The rights to the succession are transmitted from the moment of the
death of the decedent. What are its implications?
o A will is an act mortis causa.
o In Bonilla, The moment of death is the determining factor when
the heirs acquire a definite right to the inheritance whether such
right be pure or contingent. The right of the heirs to the property of
the deceased vests in them even before judicial declaration of their
being heirs in the testate or intestate proceedings.
o In Uson, the NCC was not given retroactive effect so that the
illegitimate children of the deceased may inherit from him. The
Court held that, There shall be retroactive effect only when the new
rights do not prejudice any vested or acquired right of the same
origin. The right of ownership of Maria Uson over the lands in
question became vested in 1945 upon the death of her late husband
and this is so because of the imperative provision of the law which

Azys Notes 2
commands that the rights to succession are transmitted from the
moment of death. The new right recognized by the new Civil Code
in favor of the illegitimate children of the deceased cannot,
therefore, be asserted to the impairment of the vested right of Maria
Uson over the lands in dispute.
The intrinsic validity of testamentary dispositions shall be governed by the
national law of the decedent. Art. 16 par. 2
X, a citizen of France but a permanent resident of Canada, suffered a
heart attack and died in Japan while attending a conference. He was
survived by his wife, an American citizen, his parents, a sister and two
children who are both Filipino citizens. He left properties in the
Philippines and in France. He left a will which he executed in London.
The capacity of his children to succeed shall be governed by what law?
French law. Under Art. 1039, the national law of the testator governs
capacity to succeed.

Recit
Reserva minima is more consistent with the philosophy of socialization of
ownership.
3

Succession is a mode of acquisition but not necessarily acquisition of
ownership. E.g. what is transmitted only is the right of a usufructuary over
a thing.
Philippine laws on succession has a basis in property law (e.g. devises and
legacees) as well as in the law on family relations (e.g. legitime).
X, a resident of California, died with children A (legitimate) and B
(illegitimate). Can B inherit from X? Depends. The problem does not
mention the nationality of X. In succession, Art. 1039 provides that the
national law of the decedent determines the capacity of heirs to succeed.
Will was executed by a French national in the Philippines. Which law
should the will have conformed to in order to be probated in the
Philippines? Either French or Philippine law. Generally, probation only
looks at the compliance of the execution of the will with respect to the
formal requirements of the law. Under Philippine law, formal
requirements of a will may follow the laws of any of the following: (1) laws

3
Recall that in reserva troncal, the subject property must have been received by the reservista by operation of
law. In reserva maxima, all of the properties which the descendant had previously acquired by gratuitious title
from an ascendant, brother or sister must be considered as passing to the ascendant-reservista insofar as his
legitime can contain. In reserva minima, subject property must be considered as passing to the ascendant-
reservista partly by operation of law and partly by force of the descendants will.
of the place of nationality of the testator; (2) laws of the place of residence
of the testator; (3) laws of the place of domicile of the testator; (4) laws of
the place of execution of the will; or (5) laws of the Philippines.
A Filipino executed will in Kuwait but not in accordance with the law
Kuwait. May the will be probated in the Philippines? Depends. Said
Filipino may execute his will according to the laws of his nationality
(Philippines), laws of place of residence, or the NCC. (Art. 816 by analogy)
A certain property was given by Y to Z. What law should govern in
deciding the validity of this disposition? Capacity to succeed is governed
by the law of the nation of the decedent. (Art. 1039)
A will was executed abroad. Is there a need to probate said will in this
country? Yes if there are properties in the Philippines that were disposed
of through the will.
If the will above has not yet been probated abroad, can it be probated in
the Philippines? Yes. There is no law requiring probate abroad before it
may be probated in the Philippines. However, there there is jurisprudence
ruling on the matter. In Palaganas, the Court held that our laws do not
prohibit the probate of wills executed by foreigners abroad
although the same have not as yet been probated and allowed in
the countries of their execution.
What is the Doctrine of Processual Presumption? Foreign law, whenever
applicable, should be proved as facts. Otherwise, it is to be presumed that
it is the same as the law of the forum.
Bellis case: Art. 17 is no longer an exception to Art. 16. Thus, even if the
national law of the testator does not provide for legitimes, said national
law must still prevail.

No Notes for Days 8 and 9

Day 10: Succession

Recit
Every will must be in writing and in a language or dialect known to the
testator.
Holographic will must be written, signed and dated entirely by the hand
of the testator.

Azys Notes 3
Notarial wills must be/contain
4
: (1) Subscribed by the testators and at
least three instrumental witnesses; (2) Attested by at least three
instrumental witnesses; (3) Marginal signatures on every page except the
last by the testator and at least three instrumental witnesses
5
; (4)
Paginated with numbers correlatively in letters on the upper part
6
; (5)
Attestation clause containing facts certifying that the will has been
executed before the witnesses in accordance with the formalities
prescribed by law
7
; and (6) Acknowledged before a notary public by the
testator and witnesses
8
.
Objects of Formalities: (1) Close the door against bad faith and fraud; (2)
Avoid substitution of wills; and (3) Guarantee the truth and authenticity of
wills. The doctrine of substantial compliance may be applied if it does not
run counter to these objectives.
In re Enrique Lopez: When the attestation clause fails to indicate number
of pages of will or the facts required to be indicated regarding signing the
will, substantial compliance may be invoked if these facts can be
ascertained without the need of presentation of evidence alliunde.
Icasiano v Icasiano: One of the pages of the will was not signed. However,
the Court said that this was mere inadvertence on the part of the witness
and the testatrix should not be penalized for this.
Garcia v Vasquez: Rules on blind testators apply to persons who are
essentially blind (e.g. advanced stage of glaucoma)
Notary public signed the will not in the presence of the testator and the
witnesses. Does this invalidate the will? What if the Notary public failed
to sign? Neither will affect the validity of the will. What is required is
that the notary acknowledge the will, not sign it.

4
SAM-PAA
5
That the marginal signatures be on the left margin is merely directory; Inadvertence of one of the witnesses
in failing to sign every page should not prejudice the testator
6
What is mandatory is that the will be paginated
7
Facts that must be indicated:
(1) Number of pages used in making the will
(2) That the testator signed the will and every page thereof in the presence of the witnesses or if the
testator did not sign it himself, that he caused some other person to write his name under his
express direction and in the presence of the witnesses
(3) That the witnesses signed the will and every page thereof in the presence of the testator and of each
other
8
The notarial will remains valid even if the notary public failed to sign the will. What is required is that the will
be acknowledged before the notary public. Note also that the acknowledgment need not be done on the same
day as the execution of the will.
Gonzales v CA: Credible as used in NCC 805 should not be given the
same meaning it has under the Naturalization Law. The witnesses required
under the latter law are character witnesses, while the witnesses under the
former merely attest to the due execution of a will and affirm the
formalities attendant thereto. To be a witness, what is necessary
only is that he is qualified under Art. 820 of the NCC
9
and not
disqualified under Art. 821 of the NCC.
10

Note that the following may be credible witnesses but not competent to be
a witness to a will: (1) below the age of 18; (2) blind, deaf or dumb; (3) not
able to read and write; (4) not domiciled in the Phil.
The following persons are neither credible nor competent: those who have
been convicted of falsification of a document, perjury or false testimony.
The law presumes credibility.
Kalaw v Relova: Mere authentication of an insertion to a will will
not suffice. The law expressly requires authentication by the full
signature of testatrix.
Roxas v De Jesus: When the law requires the will to be dated, the law
means that the testator must indicate the day, month and year of
execution. However, an exception is made under the doctrine of
substantial compliance when there is no showing of bad faith, undue
influence and pressure, and the authenticity of the will is established.

9
Qualifications of Witnesses to Wills:
(1) sound mind
(2) at least 18 years old
(3) Not blind, deaf or dumb
(4) Able to read and write
10
Disqualifications of Witnesses to Wills:
(1) Not domiciled in the Philippines
(2) Convicted of falsification of a document, perjury or false testimony

Azys Notes 4
Incorporation v Codicil v New Will
Incorporation Codicil New Will
A document
incorporated in a will to
clarify the provisions
Adds to, explains or
alters a provision in a
previous will
Makes an independent
disposition

Document is
incorporated at the
time of execution.
Made after the
execution of the
previous will.
Made after the
execution of the
previous will.
Testamentary
dispositions not
allowed.
A codicil may add or
annul testamentary
dispositions, and
republish or revoke
previous wills.
A new will may add or
annull testamentary
dispositions, and
republish or revoke
previous wills.
Must be referred to in
the will indicating the
number of pages of the
document incorporated.
It must also be signed
by the testator and the
witnesses on each and
every page, except if
voluminous.
May be attested or
holographic. It does not
have to follow the form
of the previous will.
May be attested or
holographic. It does not
have to follow the form
of the previous will.
Ex. Sketches,
Inventories, Books of
accounts
Ex. In previous will,
testator bequeather a
car to A. The legacy is
made more particular
by specifying which car
through a codicil.
Ex. The document
makes a testamentary
disposition in favor of
someone who was not
included in the previous
will.
In the incorporation of document by reference, do the witnesses referred
to in Art. 827(1) have to be the same set of witnesses as in the will? Yes,
precisely because they are incorporated in the same will to be attested,
they are also executed at the same time.
How are will republished? Depends on what the reason for nullity is. If it is
void as to its form, it is necessary to republish by reproducing the
testamentary dispositions in the previous will. If the nullity however is for
other reasons, the will may be republished through a codicil which will
refer to the previous will.
There are three modes of revocation
11
. Bear this in mind. Even if the
will was not destroyed, the will or certain provisions of the will may be

11
Three Modes of Revocation
(1) by operation of law
(2) by a codicil or a new will
(3) by physically destroying the will with intention to destroy the same
revoked by implication of law (e.g. heir committed an act of unworthiness
or became incapacitated to inherit).
There need not be any reason for making revocations. However, if a cause
is provided and the said cause happened to false or illegal, the revocation
is null and void.
Difference of the effects of an express and implied revocation: If after
making a will, the testator makes a second will expressly revoking the first,
the revocation of the second does not revive the first. If the second will
only impliedly revoked the first will, the first will is automatically revived
with the revocation of the second will.
A revocation made in a subsequent will shall take effect, even if the new
will should become inoperative because the heirs, legatees or devisees
renounce or become incapacitated will not revive the first will. However,
in Molo v Molo, the Court held that under the Doctrine of Dependent
Relative Revocation, where the act of destruction is connected with the
making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force.
The finality of the allowance of a will has the following effects: (1)
conclusive as to the formal validity of the will; (2) not subject to collateral
attack; and (3) conclusive to the whole world. Thus, the issue as to the
voluntariness of its execution may not be raised anymore. In fact, a
criminal action against the forger of a will which had been duly admitted
to probate by a court of competent jurisdiction is barred after the finality
of the allowance of the will.
In Rodelas, the Court held that unlike notarial wills, holographic wills
may not be proved by testimonial evidence when lost or destroyed.
The general rule is that the original of the holographic will must be
presented during its probate. However, a photostatic copy may also be
admitted since a comparison with the handwriting of the testator may still
be made.
In Codoy, the Court ruled that Art. 811 is mandatory. At least one witness
who shall testify that the testamentary dispositions and the signature are
in the handwriting of the testator. If, however, the will is contested, at least

**Examples of (1): Incapacity; Legal Separation; Preterition; Judicial suit against the debtor in a legacy of credit
or remission

Azys Notes 5
three such witnesses must be presented. In both cases, expert witnesses
may be resorted to.

Day 11: Succession
12

Recit
Who may inherit from the adopted child? RJs position is that, because
the legal ties between the adopted child and his biological parents are
already severed and that, for purposes of the law, the adopted child shall
be considered a legitimate child of his/her adopter/s, only the adopter/s
should inherit from the adopted child. However, Professor Uribe believes
otherwise and argues that it should be 50-50
Preterition is the omission in the will of one, some or all of his compulsory
heirs in the direct line. Its effect is to annul the institution of heirs.
However, devises and legacies remain valid insofar as they are not
inofficious.
Omission of the spouse in the will is not preterition because she
is not a compulsory heir in the direct line. There is also no
preterition if the compulsory heir received inheritance by way
of (1) devise or legacy; (2) donation inter vivos; or (3) intestate
succession. In all these cases, the heirs instituted are not annulled. The
remedy of the affected heir/s is for the completion of their legitime.
There is also no preterition when the compulsory heir omitted in the will is
a disinherited compulsory heir. A disinherited heir may be deprived of his
legitime.
Can brothers and sisters be validly disinherited? Note that the law only
provides grounds for disinheritance of ascendants, descendants and
spouse. Yes, brothers and sisters may be disinherited. The law does
not provide the grounds with respect to siblings which implies that
disinheritance may be for any ground. Unlike the compulsory heirs, the
law did not deem it necessary to limit the grouds for their disinheritance.
May a disinherited heir inherit more than his legitime such as if the free
portion was given to disinherited heir by intestate succession? No.
According to sir, to do so would be contrary to the intention of the testator
to disinherit or deprive the heir of his legitime.
What if the will containing a disinheritance of an heir on a ground which is
one of those provided by law is declared void? Will the disinheritance be
valid? Not necessarily. Consider the ground for disinheritance. Some of
them may be an act of unworthiness which does not require that the same
be written on the will.

12
Notes for 2
nd
half of Day 11 only

Azys Notes 6
Incapacity is legal disinheritance or disinheritance by operation of law.
13

Disinheritance, on the other hand, must be in writing and conform to the
requirements of Art. 918.
Incapacity under Art. 1027 (1) to (5) and under Art. 1028 refers
only to testamentary dispositions. They may still inherit through
intestacy. Incapacity based on unworthiness disqualifies a compulsory heir
from succeeding even to his legitime.

13
Who are incapacitated to succeed?
Art. 1027
(1) The priest who heard the confession of the testator during his last illness, or the minister of the
gospel who extended spiritual aid to him during the same period
(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order,
chapter, community, organization, or institution to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the
final accounts of the guardianship have been approved, even if the testator should die after the
approval thereof; nevertheless, any provision made by the ward in favor of the guardian when
the latter is his ascendants, descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one
claiming under such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his
last illness;
(6) Individuals, associations and corporations not permitted by law to inherit.
Art 1028 in relation to 739
(1) Those made between persons who were guilty of adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration
thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
Art. 1032: Causes of unworthiness
(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtues;
(2) Any person who has been convicted of an attempt against the life of the testator, his or her
spouse, descendants or ascendants;
(3) Any person who has accused the testator of a crime for which the law prescribes imprisonment
for six years or more, if the accusation has been found to be groundless;
(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to
report it to an officer of the law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein, according to law, there is no obligation
to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator
to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will, or from revoking one
already made, or who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the decedent.
Only reconciliation is necessary to reverse disinheritance
whereas it is necessary that there be something in writing to
overcome incapacity through acts of unworthiness.
If there is no will, reconciliation will bar the offended person from later on
disinheriting the offending person. If disinheritance has been made, such
disinheritance is set aside.
If testator knew of the cause of the unworthiness at the time of making the
will, the cause of unworthiness shall be without effect. If he should find
out after the execution of the will, the testator may condone them in
writing.
If the ground for disinheritance also happens to be a ground for
unworthiness
14
, reconciliation will have the effect of
condonation if the decedent actually disinherited the unworthy
heir. If no disinheritance was effected, a written pardon is still
necessary.
Why is there a need to still disinherit when the ground is already a
ground for unworthiness? Filipinos easily forget. If it is written on the
will, the executor will be reminded of the act of unworthiness.
Will all cases involving loss of parental authority be a ground for the the
disinheritance of said parent? No. The loss of parental authority may be
due to emancipation or adoption.
The wife had an illicit relationship with her ex-boyfriend. The husband
filed for legal separation. However, husband died before the issuance of
the decree of legal separation. Will the wife inherit from the husband?
Not if the husband validly disinherited the wife. The ground for
disinheritance only requires that the spouse has given cause for legal
separation. It is not necessary that there be a final judgment granting the
petition for legal separation. If, on the other hand, the petition for legal
separation has already been granted by the court, a will disinheriting the
guility spouse is no longer necessary. The guilty spouse becomes
incapacitated to inherit by intestate succession by operation of law.

14
What grounds are common in disinheritance and unworthiness? Art. 1032 except (4), (7) and (8). With
respect to the cause attempt on the life of the testator, his or her spouse or any of his descendants or
ascendants, if a descendant is the one being disinherited, a finding of guilit by final judgment is necessary. For
all other persons, a conviction of an attempt on the life is enough to disinherit as well as make a person
unworthy to inherit.

Azys Notes 7
Legitimes and Intestate Succession
15

Amount of
Legitime
Intestate
Succession
Legitimate Child
Surviving Spouse

Legitimate Children
Surviving Spouse

same as 1 LC
Equal shares for
all heirs
Legitimate Child
Illegitimate Children
Surviving Spouse

of 1 LC
a

same as SS
of 1 LC
same as 1 LC
b

Legitimate Children
Surviving Spouse

of 1 LC
a

same as 1 LC
same as SS
of LC
same as LC
Legitimate Children

of 1 LC
a
Twice an IC
of 1 LC
b

Surviving Spouse

Legitimate Parents Entire Estate
Legitimate Parents

Legitimate Parents
Surviving Spouse

Legitimate Parents

15
Legitimes and Intestate Succession
a. The legitime of an illegitimate child is not necessarily of a legitimate child if the estate is not enough.
The illegitimate children will share amongst themselves whatever is left of the estate after deducting the
legitimes of the legitimate children and of the surviving spouse.
b. Similar to the preceding rule, ensure that the legitimes of the legitimate children and of the surviving
spouse are not impaired. To illustrate, the value of the estate is P200K. There are 2 legitimate children
and 5 illegitimate children. Following Art. 983 literally will give us P50K for each legitimate child and P25K
for each illegitimate child. However, this would be more than the value of the estate. Thus, the share of
the illegitimate children are adjusted to P20K each.
c. Illegitimate parents are excluded by children of any class
d. 1/3 share for the surviving spouse if (1) the marriage was celebrated in articulo mortis; (2) the other
spouse dies within three months; (3) the spouse who dies is the person who was contemplating death at
the time of the marriage; and (4) they have not lived together for five years.
e. Share of a full-blood is twice the share of a half-blood
f. Collateral Relatives
No distinction between half-blood and full-blood
Nearer excludes the remote
No representation
Up to the 5
th
degree only
g. State
Personal property city/municipality of residence; if non-resident, where it may be found
Real property city/municipality where it may be found
Surviving Spouse
Illegitimate Children Entire Estate
Illegitimate Parents
c
Entire Estate
Illegitimate Parents
Surviving Spouse

Surviving Spouse
Brothers and Sisters,
Nephews and Nieces
e

or
d

None

Brothers and Sisters,
Nephews and Nieces
e

None Entire Estate
Other collateral relatives
f
None Entire Estate
State
g
None Entire Estate

Limitations to Legitimes of Compulsory Heirs
o Reserva Troncal Its purpose is to prevent people outside the
family to receive property, by chance or accident, property which
otherwise would have remained with the said family.
o Disinheritance Art. 918
16
provides the requisites of a valid
disinheritance. Art. 919-921 provides for the grounds for the
disinheritance of compulsory heirs. The compulsory heir may be
deprived of his legitime as a consequence of the disinheritance. He,
however, may still inherit through intestate succession.
o Reserva Adoptiva In Teotico v del Val, the Court held that
under our law, the relationship established by adoption is limited
solely to the adopter and the adopted and does not extend to the
relatives of the adopting parents or of the adopted child except only
as expressly provided for by law. Hence, no relationship is created
between the adopted and the collaterals of the adopting parents. As
a consequence, the adopted is an heir of the adopter but not of the
relatives of the adopter.
Reserva Troncal
o Transfer of the Properties

16
Requisites of a valid disinheritance:
a. It must be done in a valid will;
b. It must be express;
c. There must be a true cause;
d. The cause must be existing;
e. It must be total and complete;
f. The cause must be stated in the will;
g. The heir disinherited must be identified;
h. The will must not have been revoked.

Azys Notes 8
(1) Ascendant, brother or sister who transfers subject
property by gratuitous title to the Descendant of the
Reservista (a.k.a. Mediate source)
(2) Descendant of the Reservista (a.k.a. Prepositus)
(3) Reservista who inherits from the Descendant by
intestate succession
(4) Relatives who are within the third degree and who
belong to the line from which said property came (a.k.a.
Reservatorios)
o The three degrees is counted from the prepositus
o It is not required that a reservatorio be alive at the time of death
of the prepositus. What is important is that he is alive to inherit
at the time of death of the reservista.
o If there are no reservatorios at the time of death of the
reservista, the property subject of reserva troncal forms part of
the estate of the reservista
o Apply the rules on intestate succession:
Nearer excludes the more remote
Representation in favor of the children of predeceased
siblings (nephews and nieces) of the prepositus
A full-blood is entitled to a share double that of a half-
blood
COLLATION PROBLEM: X died intestate in 1985 leaving 3 legitimate
children (A, B and C) and 2 illegitimate children (D and E). He donated
P30K to F, a friend, in 1970; to A, P40K in 1975, and to D P50K in 1980.
He left an estate amounting to P100K with debts in the amount of P40K.
o Who will inherit from the estate? What are their respective shares?
(1) Deduct the debts of the estate from the Gross Estate to find the
value of the Net Hereditary Estate
P100K P40K = P60K
(2) Add the value of the properties donated
17
unless such donation
is not subject to collation
18
to find the value of the Distrubutable

17
Use values at the time of donation
18
What donations are not subject to collation?
Donations made by a person who does not have compulsory heirs. Collation is done so as not to
impair the legitime. Here, there is no such legitime that may be impaired.
When in a donation to a compulsory heir, the testator provided that said donation shall not be
subject to collation.**
When a donee who is also a compulsory heir repudiates the inheritance, those donations that he
received will not be subject to collation.**
Estate; The Distributable Estate is the basis for the calculation
of legitimes
P60K + P120K = P180K
(3) Determination of the Legitimes
Legitimate children = P30K each
Illegitimate child = P15K each
(4) Determination of the Free Portion
P180K (P30K x 3) (P15K x 2) = P60K
(5) Charging
If the donee is a compulsory heir, the donation is to be
charged to his legitime unless the donor provided
otherwise
A P30K to the legitime
D P15K to the legitime
If the donation to the compulsory heir is greater than his
or her legitime, charge the excess to the free portion
A P10K
D P35K
If the donee is not a compulsory heir, the donation is to
be charged to the freely disposable portion
F P30K
o In the problem above, it appears that there is P15K worth of
inofficious donation. Who will suffer the reduction?
Reduction of devises and legacies pro-rata.
Reduce the donations. Follow the later-in-time rule (Last
in, First out) but be careful not to impair the legitime. In
this case, the donation to D must be reduced by P15K.
What if the FP is not enough to provide for the legacies and devices? Art.
911 provides a rule. However, Art. 950 also provides for a pecking order.

Donations given by ascendants to the children of the compulsory heir in the descending line (e.g.
Grandfather of A donated property to A. As grandfather died with As father as one of the surviving
compulsory heirs. As father is not obliged to bring into collation the donated property)
Property donated to the spouse of a child (but if the property was donated to the spouses jointly,
the childs share will be subject to collation)
Expenses for support, education, medical attendance, apprenticeship, ordinary equipment or
customary gifts.
Expenses incurred by the parents in giving their children a career unless they impair the legitime If
the legitime is impaired, the sum which the child would have spent if he had lived in the house of his
parents are not included in the collation.
Wedding gifts to ascendants that do not exceed 1/10 of the free portion
**The general rule is that a donation to a compulsory heir is collated (imputed or charged) to his legitime.

Azys Notes 9
Apply Art. 950 if the scenario is purely among legatees and devisees.
Otherwise, apply Art. 911.
If a donation is void, it will not be a subject of collection. Instead it will be
part of the gross estate.
Principles Affecting the Freely Disposable Portion: (1) Institution of Heirs;
(2) Substitution; and (3) Legacies and Devises
May there be a valid institution of heir pertaining to the entire estate?
Yes, if there are no compulsory heirs or the instituted heirs are also the
compulsory heirs.
May a will be valid even though there are no heirs instituted? Yes, there
may be legacies and devises.
The following are presumptions in the institution of heirs: (1) presumption
of equality; (2) presumption of individuality; and (3) presumption of
simultaneity.
o If the instituted heirs are brothers but one is of the half-blood while
the other is of the full-blood, the presumption is that their shares
are equal.
19
(Presumption of equality)
o I hereby institute A, B and the 10 children of C as my heirs.
Interpret this that their share in the estate is to be divided into 12
shares. (Presumption of individuality)
o In testatmentary succession, if a parent and his children are
instituted, the parent and his children will inherit simultaneously.
Rule on proximity does not apply. (Presumption of simultaneity)
Kinds of Institution:
(1) Simple (I hereby give my car to A
(2) Conditional (I hereby give my car to A upon As passing the bar exam)
(3) Modal (I hereby give you a piece of land but with the obligation to
deliver 10 cavans of rice to my spouse)
If the condition happens, its effect will retroact to the date of the
death of the testator. However, the heir must have capacity to
succeed at the time of the happening of the suspensive
condition.
Generally, conditions not to marry are prohibited in testamentary
dispositions. However, the prohibition does not apply when the condition
is imposed on the surviving spouse by the deceased spouse or by the
latters ascendants or descendants.

19
Contrast this with intestate succession where the 2:1 proportion applies
If condition is impossible, condition is considered not written. This is the
same rule in donations inter vivos. Contrast these two to impossible
conditions in onerous obligations. Under Art. 1183, the obligation which
depends upon the condition are annulled. In the first and second, it is the
condition that is nullified.
An heir subject to a suspensive term has vested rights over the inheritance.
However, the inheritance is not demandable until the happening of the
term.
A mode does not suspend but obligates unlike a condition which
does not obligate but suspends. For this reason, the law requires a
caucion muciana or 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.
To be construed as a mode, it must be a clear obligation and not just a
wish on the part of the testator.
The definition of substitution under 859 does not contemplate
fideicommissary substitution. This is so because in a fideicommissary
substitution both the original heir and the substitute inherit from the
testator (hence the requirement that both must be living at the time of the
death of the testator). But if you read 859, it presupposes that substitution
only happens if the original heir should die, repudiate, or be incapacitated
to accept the inheritance. This is not the case in a fideicommissary
substitution.
A simple substitution, without a statement of the cases to which it refers,
shall comprise the three possible causes for substitution: (1) predecease;
(2) repudiation; and (3) incapacity.
20

In fideicommissary substitution, the 2
nd
heir must be one degree away
from the 1
st
heir. They must both be living and qualified at the time of
death of the testator. The 1
st
heir has the obligation to preserve the
property inherited and transmit the same to the heir either at a given time
or upon his death. In the event that the 2
nd
heir dies before the
transmission, his successors may succeed by representation. This is
because from the moment of death of the testator, the rights of the 1
st
and
2
nd
heirs are vested.
21

Capacity to succeed of the substitute would be in relation to the
testator and not the heir to be substituted.

20
RIP
21
Dont confuse this with reserva troncal where the death of the reservatorios will result in the property going
to the estate of the reservista

Azys Notes 10
X has two children A and B. His net estate is P1M. In his will, he instituted
A and B as his sole heirs. However, there was a provision in the will
obliging B to give to Y P25K per month for 1 year. How much will Y get?
P25K x 12 months = P300K but this will impair Bs legitime. Therefore, Y
may only receive a maximum of P250K so that Bs legitime of P250K will
not be impaired.
What are the rules with respect to legacies and devisees when they are
bequeathed by the testator even though he did not own the same?
o If testator did not know that he did not know it, legacy or
devise is void. (Art. 930, vitiated by mistake)
o If testator knew, Art. 931 applies whether or not there was an
order to buy the devise or legacy in the will. It is to be presumed
that the estate is ordered to do so to fulfill the obligation
imposed by the testamentary disposition.
What if the legacy or devise is already owned by the legatee or devisee at
the time of execution of the will? This is an ineffective legacy or
devise.
What if the legacy or devise was acquired by the legatee or devisee after
the execution of the will? Depends if the acquisition was gratuitous or
onerous. If onerous, the legatee or devisee will be reimbursed.
Who will reimburse the legatee or devisee in the problem above? If it is a
sub-legacy or a mode (e.g. I will give to you of my estate if you give B a
car), it is the heir who must make the reimbursement. Otherwise, it is the
estate.
Is there any situation where the reimbursement need not be made
eventhough the legatee or devisee acquired after the execution the legacy
or devise by gratuitous title? Yes, if the legatee or devisee acquired the
same from the testator.
What if the legacy or devise has been pledged or mortgaged? It is
immaterial whether the pledge or mortgage of the thing was done before
or after the execution of the will. The debt must be paid to release the
thing from the debt or mortgage.
What is a legacy of credit? It is a legacy wherein the testator bequeths to
another a credit against a third person. E.g. I give to B all the debts A
owes me.
What is a legacy of remission? It is a testamentary disposition of a debt in
favor of the debtor. E.g. I give to A everything as legacy his debt to me.
Note however that the legacy of credit or remission will only cover
those debts incurred prior to the execution of the will. Thus, even
if the will states that testator will pay his credit of P1M to the legatee, if at
the time of death only P50K remains of the P1M loan, only the P50K will
be paid out as legacy.
Moreover, a judicial suit against the debtor in a legacy of credit or
remission essentially revokes the legacy of credit or remission.
What are the rules with respect to generic devises and indeterminate
devises? A generic legacy is valid eventhough there is nothing of
the same kind which exists in the estate. The estate will have to buy
it. The rule is different with respect to indeterminate devises. There must
exist immovables of the same kind for the devise to be valid.
A legacy for education lasts until the legatee is of age in order that the
legatee may finish his professional, vocational or general course.
A legacy for support lasts for the lifetime of the legatee. The amount, if not
indicated by the testator, will be presumed to be the same as the amount
given by the testator to the legatee when the testator was still living.
Circumstances such as the social standing and the needs of the legatee as
well as the value of the estate will also be taken into consideration in the
determination of the amount of the legacy of support.
The 2:1 Proportion Rule with respect to half-bloods and full-
bloods does not apply (1) in testamentary succession; (2) in
reserva troncal; and (3) when collateral relatives inherit by
intestate succession.


Azys Notes 11
Day 12: Succession and Property Relations
22

Lecture on Succession
What is the proximity rule? The relative nearest in degree excludes the
more distant ones. Each generation forms a degree.
What are the exceptions to the proximity rule?
1. Right of representation
2. Direct line preferred over collateral line
3. Nephews and nieces exclude uncles and aunts even though they may be
of the same degree
4. Full blood preferred over half-blood
5. Legitimate children is preferred over illegitimate children
6. Iron curtain bar
Whether in testamentary or intestate succession, there is never
a right of representation in the ascending line; only in the
descending line.
There is no right of representation in the collateral line except
in intestate succession with respect to the children of brothers
and sisters.
In the right of representation, the person representing inherits directly
from the deceased and not from the person being represented. This is
most relevant in cases of incapacity (e.g. grandson committed an act of
unworthiness against his father, grandson can still inherit from his
grandfather through right of representation.)
Exceptions to the equal distribution principle
1. Right of representation
2. In the ascending line only equal between maternal and paternal lines
Accretion takes place only if there is no substitution (testate) or no
representation (testate and intestate).
Accretion is the presumed will but a substitution is an express will.
Between a presumed will and an express will, the one expressed prevails.
In testamentary succession, accretion takes place if there are two or more
persons called to the same inheritance, the share of the heir who dies,
renounces or becomes incapacitated accrue to the other heirs. (e.g. Car is
bequethed to A and B. A dies. The car goes to B alone.)
In testamentary succession, follow this order:

22
Notes for 2
nd
half of Day 12 only
o If the institution of heirs fails (predecease, incapacitated or
renounce), substitution occurs.
o If there is no substitution, the right of representation
applies in the direct descending line to the legitime if
the vacancy is caused by predecease, incapacity or
disinheritance.
o The right of accretion applies to the free portion if two or
more persons are called to the same inheritance and one or
some (but not all) of the said heirs predecease, renounce or be
incapacitated.
In intestacy, accretion always takes place when inheritance is
renounced because there is no representation in repudiation.
There is no representation in repudiation. This is regardless of whether the
inheritance repudiated was by will or by law.
There is also no right of representation in favor of an
illegitimate child with respect to his legitimate parents. On the
other hand, an illegitimate child of an illegitimate parent may represent
such illegetimate parent in their grandparents estate.
A disinherited heir may be representated when he is a
compulsory heir but only up to the value of his legitime. A
disinherited heir may not be represented under any other circumstance.
A disinherited heir may also inherit through intestate succession but only
to the value of his legitime.
Should the part repudiated be the legitime, the other co-heirs shall
succeed to in their own right, and not by the right of accretion. Although
the effect is tially the same.
Bars to accretion: (1) express provision; (2) substitution; (3)
representation; (4) when the shares have been designated and such
sharing are not equal
23

Partition may be done (1) thru a will; (2) by asking a third
person to take charge of the partition; or (3) by agreement
among all the heirs through an extrajudicial settlement when
there is no will and no creditors.
Before the partition of the land, one of the heirs sold his share. May the
other heirs redeem the property? Yes, within 30 days from written notice
or from actual notice.

23
If the sharing, by will, is not equal, the portion of the person who predecease or who is incapacitated will
not go to the other testate heir, but will be distributed to the legal heirs instead.

Azys Notes 12
Quiz
An action filed by a co-owner against another will not prosper. False A
co-owner may file an action against another co-owner. E.g. Action for
partition; Action for ejectment when the co-owner takes exclusive
possession and asserts exclusive ownership over the co-owned property
(De Guia)
Possession constitutes the foundation of a prescriptive right. False. The
possession should be adverse possession. In Bogo-Medellin Milling, the
Court held that for possession to constitute the foundation of a
prescriptive right, it must be under claim of title or adverse. It
must be coupled with the element of hostility towards the true owner.
An easement is non-apparent if it is used at intervals and depends on the
act of man, like the easement of right of way. False. An easement is
discontinuous if it is used at intervals and deoends on the act of man (e.g.
road v. drainage). It is the presence of physical signs indicating their
existence that makes an easement apparent (asphalt road v. unpaved
road). The determination of whether an easement is continuous or
discontinuous or whether it is apparent or non-apparent is relevant in
determining whether the easement may be acquired by prescription. Only
continuous and apparent easements may be acquired by
prescription of 10 years. All other easements are acquired by virtue of
a title.
An easement or servitude is a personal right, constituted on the corporeal
movable property of another, by virtue of which the owner has to refrain
from doing, or must allow someoene to do something on his property, for
the benefit of another thing or person. False. An easement must be
constituted on an immovable property.
Donations of an immovable property must be in writing to be valid.
False. The law further requires that donation be on a public
instrument specifying therein the property donated and the
value of the charges, if any.
24

The non-registration of a deed of donation does not affect its validity.
True. The registration of a donation does not affect its validity. However,
it must be registered in order to affect third persons.

24
If movable property is donated
Oral donation with simultaneous delivery of the thing to be donated or the document representing
the right donated
Both donation and acceptance must be in writing if the value of the movable exceeds P5K
The lease of a property for more than one year is considered not merely
an act of administration but an act of strict dominion or ownerhsip.
False. This should be lease of real property.
In case of double sale of real property which is registered under the
Torrens system, mere registration is not enough to give such registrar a
better right over the property. True. The registration should have been
done in good faith.
A builder in good faith cannot be compelled to pay rentals during the
period of retention nor be disturbed in his possession by ordering him to
vacate. True. In Nuguid, the Court held that the right of retention is
considered as one of the measures devised by the law for the protection of
builders in good faith. Its object is to guarantee full and prompt
reimbursement of necessary and useful expenses
The owner of the land has the right to offset or compensate the necessary
and useful expenses incurred by the builder-possesor in good faith with
the fruits received by the latter. False. See Nuguid case cited above.
Builder possessor in good faith has to be reimbursed.
Legal easements are those established by the will of the owners. False.
Legal easements are established by law. Voluntary easements are those
established by the will of the owners.
A person, as a buyer or mortgagee, is not required to go beyond what
appears on the face of the covering title itself. False. When the OCT/TCT
is in the name of the seller when the land is sold, the buyer has a right to
rely on what appears on the face of the document. If there is nothing that
indicates any irregularity, he is not expected to make further
investigations or inquiries. However, the rule above does not apply to
banks since a higher degree of diligence is expected of them.
Where the party has knowledge of a prior existing interest which is
unregistered at the time he acquired a right to the same land, his
knowledge of that prior unregistered interest has the efect of registration
as to him. True.
Ordinary acquisitive prescription requires possession of things in good
faith and with just title for a period of thirty years. FALSE. Only ten years
is required for acquisitive prescription if the possession is in good faith
and with just title. It is in extraordinary acquisitive prescription that thirty
years of open, continuous, exclusive and notorious possession is required.
The statutory period of prescription starts when a person who has
neither title nor good faith, secures tax declaration in his name and may,
therefore, be said to have adversely claimed the ownership of the lot.

Azys Notes 13
False. The statement is only accurate if the person who acquired the tax
declaration is in actual possession of the land.
Ownership is one of the attributes of possession. False. Its the other way
around.
Those who occupy the land of another at the latters tolerance without
any contract between them, are necessarily bound by an implied promise
that the occupants will vacate the property upon demand. True.
A co-owner of an undivided parcel of land is an owner of the whole, and
over the whole he exercises the right of dominion. True.
There is still co-ownership even if the different portions owned by
different people have already been concretely determined and separately
identified if they have not yet been technically described. False. There is
no co-ownership if the property has been partitioned.
An action to demand partition is imprescriptible and not subject to
laches. True. A co-owner may demand partition anytime except (1) if there
is an agreeement to keep the thing undivided
25
; (1) if the donor or testator
prohibited partition
26
; or (3) if it is prohibited by law.

Sample Bar Exam Questions

Manila Petroleum Co. owned and operated a petroleum operation facility
off the coast of Manila. The facility was located on a floating platform
made of wood and metal, upon which was permanently attached the
heavy equipment of the petroleum operations and living quarters of the
crew. The floating platform likewise contained a garden area, where
trees, plants and flowers were planted. The platform was tethered to a
ship, the MV 101, which was anchored to seabed.

(1) Is the platform movable or immovable property?

Immovable under par. 9 of Art. 415 if it can be shown that it was
intended to remain fixed on the sea.

(2) Are the equipment and living quarters movable or immovable
property?

25
said agreement cannot indicate more than 10 years but this period may be extended by a new agreement
26
the prohibition cannot be for more than 30 years
Immovable under par. 5 of Art. 415 if it can be shown that they are
being used for the industry, and that they were permanently attached
to the immovable property by the owner of said immovable property.

(3) Are the trees, plants and flowers immovable or immovable property?

Yes. Under par. 2 of Art. 415, trees, plants and growing fruits are
immovable while they are attached to another immovable property.
Flowers, although not expressly included in the enumeration, can fall
under growing fruits.

Salvador, a timber concessionare, built on his lot a warehouse where he
processes and stores his timber for shipment. Adjoing the warehouse is a
furniture factory owned by NARRAMIX of which Salvador is a majority
stockholder. NARRAMIX leased space in the warehouse where it placed
its furniture-making machinery.

(1) How would you classify the furniture-making machinery as property
under the Civil Code?

Movable. It was not attached to the land by the owner of the land but
only by the lessee. Except in cases where the Court applies the doctrine
of piercing the veil of corporate fiction, Salvador, although a majority
stockholder of Narramix, is a separate entity from the corporation.

(2) Suppose the lease contract between Salvador and NARRAMIX
stipulates that at the end of the lease the machinery shall become the
property of the lessor, will your answer be the same?

My answer would be different. In Davao Saw Mill, the Court ruled that
the lessee was acting as an agent of the lessor of the premises.
Therefore, the machinery attached by lessee Narramix was, by fiction
of law, attached by owner Salvador.

The following things are property of public dominion, except:
(1) Ports and bridges constructed by the State Art. 420
(2) Vehicles and weapons of the AFP for public service
(3) Rivers Art. 420
(4) Lands reclaimed by the state from the sea ANSWER; This is
patrimonial property of the State that may be alienated.

Azys Notes 14

Which of the following statements is worng?
(1) Patrimonial property of the state, when no longer intended for public
use or for public service, shall become property of public dominion
(2) All property of the State, which is not of public dominion, is
patrimonial property
(3) The property of provinces, cities and municipalities is divided into
property for public use and patrimonial property
(4) Property is either of public dominion or of private ownerhship

Answer: (1) because it is the other way around ANSWER; It is the
other way around. Property of public dominion, when no longer
intended for public use or for public service, shall become patrimonial
property of the state.

(2) is true. Property owned by the State which is not intended for
public use or public service is patrimonial.

(3) is true. Property of provinces, cities and municipalities is divided
into property for public use and patrimonial property. Property for
public use in these LGUs consist of the provincial roads, city streets,
municipal streets, the squares, fountains, public waters, promenades,
and public works for publc service paid for by the concerned LGUs. All
others are patrimonial property.

(4) Property is either of public dominion or of private ownership.

The relevance of distinguishing public properties from private ones is
that the former are exempt from execution because of their necessity
for governmental functions. For the same reason, properties of the
public domain are not within the commerce of men.

Distinguish occupation from possession
(1) Both are modes of acquiring ownership
(2) Occupation is a way of acquiring things that are appropriable by
nature which are without an owner such as animals, hidden
treasure and abandoned movables. It is, however, not a mode for
acquiring a piece of land.
(3) On the other hand, possession is a mode for acquiring both
movables and immovables. In the case of immovables, such
possession must be adverse in character.

Anthony bought a piece of untitled agricultural land from Bert. Bert, in
turn, acquired the property by forging Carlos signature in a deed of sale
over the property. Carlo had been in possession of the property for 8
years, declared it for tax purposes, and religiously paid all taxes due on
the property. Anthony is not aware of the defect in Berts title, but has
been in actual physical possession of the property from the time he
bought it from Bert, who had never been in possession. Anthony has since
then been in possession of the property for one year.

(1) Can Anthony acquire the property through acquisitive prescription?

Yes. He can acquire the property through acquisitive prescription
because the subject land is unregistered property.

(2) How many years does Anthony need?

1 year because Anthony is a possessor in good faith. Thus, the 8 years
of possession by Carlo can be continued by Anthony to acquire the real
property through ordinary acquisitive prescription.

(3) If Carlo is able to legally recover his property, can he require Anthony
to account for all the fruits he has harvested from the property while
in possession?

No. The general rule is that the fruits pertain to the owner. There are
exceptions to this rule such as: (1) when possessor of the land receives
the fruits in good faith; (2) in antichresis where the creditor gets the
fruits; (3) in usufructuary where the possesor has the right to enjoy the
fruits; and (4) in a lease agreement where the lessee gets the natural
and industrial fruits.
27

(4) If there are standing crops on the property when Carlo recovers
possession, can Carlo appropriate them?

27
PAUL

Azys Notes 15
Yes. Art. 448 applies since both parties acted in good faith. Carlo, as
owner of the land, has the following options:
a. Appropriate the fruits
b. Compel Bert, who is a sower in good faith, to rent the land

Marcelino, a treasure hunter as just a hobby, has found a map which
appears to indicate the location of hidden treasure. He has an idea of the
land where the treasure might possibly be found. Upon inquiry,
Marcelino learns that the owner of the land, Leopoldo, is a permanent
resident of Canada. Nobody, however, could give him Leopoldo's exact
address. Ultimately, anyway, he enters the land and conducts a search.
He succeeds. Leopoldo, learning of Marcelino find", seeks to recover the
treasure from Marcelino but the latter is not willing to part with it.
Falling to reach an agreement, Leopoldo sues Marcelino for the recovery
of the property, Marcelino contests the action. How would you decide the
case?

(1) Is this still by chance since he found a map and used it to find the
hidden treasure?

No. It is by chance if it is by good luck. In this case, Marcelino used a
map to find it.

(2) Is Leopoldo entitled to a share?

Yes. The owner of the land is the owner of its surface and everything
under it. Assuming arguendo that Marcelino found the subject
property by chance and that the find is therefore hidden treasure,
Leopoldo is still entitled to ownership of the subject property. Under
Art. 438, hidden treasure belongs to the owner of the land, building or
other property on which it is found. Marcelino would have been
entitled to a 50% share except that he was a trespasser.

Adam, a building contractor, was engaged by Blas to construct a house
on a lot which he (Blas) owns. While digging on the lot in order to lay
down the foudation of the house, Adam hit a very hard object. It turned
out to be the vault of the old Banco de las Islas Filipinas. Using a
detonation device, Adam was able to open the vault containing old notes
and coins which were in circulation during the Spanish era. While the
notes and coins are no longer legal tender, they were valued at P100
million because of their historical value and the coins silver nickel
content. The following filed legal claims over the notes and coins:

(1) Adam, as finder;
(2) Blas, as owner of the property where they were found;
(3) Bank of the Philippine Islands, as successor-in-interest of the owner of
the vault; and
(4) The Philippine Government because of their historical value.

Who owns the notes and coins?

From RJ: It depends on how you argue:

a. It can belong to BPI if you argue that the vault containing the notes and
coins are not hidden treasure (because the ownership of which is
apparent), but simply a lost movable; hence the finder has the duty to
return (but the finder will get 1/10 as finder's share) (see 439, 720)

b. It can belong to Adam, as finder, and Blas, as owner if you argue that it
is a res nullius (owned by no one) because of the length of time and
therefore, a hidden treasure.

Assuming that either or both Adam and Blas are adjudged as owners,
will the notes and coins be deemed part of their absolute community or
conjugal partnership of gains with their respective spouses?

From RJ: As for the question whether or not it will form part of the
community property or conjugal property, the answer is yes. It forms part
of community property because it is property that is acquired during the
marriage. It forms part of conjugal property by express provision of law
117 (4).

Demetrio knew that a piece of land bordering the beach belonged to
Ernesto. However, since the latter was studying in Europe and no one
was taking care of the land Demetrio occupied the same and constructed
thereon nipa sheds with tables and benches which he rented out to people
who want to have a picnic by the beach. When Ernesto returned, he
demanded the return of the land. Demetrio agreed to do so after he has
removed the nipa sheds. Ernesto refused to let Demetrio remove the nipa

Azys Notes 16
sheds on the ground that these already belonged to him by right of
accession. Who is correct?

Ernesto is correct. Demetrio built the nipa huts with the knowledge that
Ernesto owned the lot and without the consent of Ernesto. He was therefor
a builder in bad faith. In cases where the landowner acted in good faith
while the builder acted in bad faith, Art. 449 applies. Thus, the builder,
planter or sower loses what is built, planted or sown, and the landowner
becomes the owner of the same.

As an alternative, Ernesto may demand the demolition of the nipa hut at
the expense of Demetrio in order to restore the land to its former
condition.

Another option available to Ernesto is to compel Demetrio to buy the land
regardless if the value of the land is considerably more than the nipa hut.

In all three cases, the landowner is entitled to damages and the builder,
planter or sower has a right to be reimbursed for necessary expenses for
the preservation of the land.

In good faith, Pedro constructed a five-door commercial building on the
land of Pablo who was also in good faith. When Pablo discovered the
construction, he opted to appropriate the building by paying Pedro the
cost thereof. However, Pedro insists that he should be paid the current
market value of the building, which was much higher because of
inflation.

(1) Who is correct, Pedro or Pablo?

Pablo is correct. Under Article 448 of the New Civil Code in relation to
Article 546, the builder in good faith is entitled to a refund of the necessary
and useful expenses incurred by him, or the increase in value which the
land may have acquired by reason of the improvement, at the option of the
landowner. The option between the two is determined by the landowner
Pablo.

The case of Pecson v. CA is not applicable to the problem. In the Pecson
case, the builder was the owner of the land who later lost the property at a
public sale due to non-payment of taxes. The Court ruled that Article 448
does not apply to the case where the owner of the land is the builder but
who later lost the land; not being applicable, the indemnity that should be
paid to the buyer must be fair market value of the building and not just the
cost of construction thereof. The Court opined in that case that to do
otherwise would unjustly enrich the new owner of the land.

(2) In the meantime that Pedro is not yet paid, who is entitled to the
rentals of the building, Pedro or Pablo?

Pablo is entitled to the rentals of the building. As the owner of the land,
Pablo is also the owner of the building being an accession thereto.
However, Pedro who is entitled to retain the building is also entitled to
retain the rentals. He, however, shall apply the rentals to the indemnity
payable to him after deducting reasonable cost of repair and maintenance.

For many years, the Rio Grande river deposited soil along its bank,
beside the titled land of Jose. In time, such deposit reached an area of one
thousand square meters. With the permission of Jose, Vicente cultivated
the said area. Ten years later, a big flood occurred in the river and
transferred the 1,000 square meters to the opposite bank, beside the land
of Agustin. The land transferred is now contested by Jose and Agustin as
riparian owners and by Vicente who claims ownership by prescription.
Who should prevail,? Why?

Jose should prevail. The disputed area, which is an alluvion, belongs by
right of accretion to Jose, the riparian owner (Art. 457). When, as given in
the problem, the very same area was "transferred" by flood waters to the
opposite bank, it became an avulsion and ownership thereof is retained
by Jose who has two years to remove it (Art. 459, CC).

Vicente's claim based on prescription is baseless since his possession was
by mere tolerance of Jose and, therefore, did not adversely affect Jose's
possession and ownership (Art. 537, CC). Inasmuch as his possession is
merely that of a holder, he cannot acquire the disputed area by
prescription.

The properties of Jessica and Jenny, who are neighbors, lie along the
banks of the Marikina River. At certain times of the year, the river would
swell and as the water recedes, soil, rocks and other materials are
deposited on Jessica's and Jenny's properties. This pattern of the river

Azys Notes 17
swelling, receding and depositing soil and other materials being
deposited on the neighbors' properties have gone on for many years.
Knowing this pattern, Jessica constructed a concrete barrier about 2
meters from her property line and extending towards the river, so that
when the water recedes, soil and other materials are trapped within this
barrier. After several years, the area between Jessica's property line to
the concrete barrier was completely filled with soil, effectively increasing
Jessica's property by 2 meters. Jenny's property, where no barrier was
constructed, also increased by one meter along the side of the river.

(1) Can Jessica and Jenny legally claim ownership over the additional
2 meters and one meter, respectively, of land deposited along their
properties?

Only Jenny may legally claim ownership over the additional one meter
in her property. Under Art. 457, to the owners of lands adjoining the
banks of rivers belong the accretion which they gradually receive
from the effects of the current of the waters. Deposit should be
gradual and natural without intervention of man. By constructing a
barrier to trap the soil and other materials brought by the water, the
accretion can no longer be said to have been from the effects of the
current of the Marikina River.

(2) If Jessica's and Jenny's properties are registered, will the benefit
of such registration extend to the increased area of their
properties?

No, there is a need to register the accretion. To the owners of land
adjoining banks of rivers belong the accretions it receives from the
gradual effects of the current of the waters. When the accretion was
created, its ownership was passed automatically to Jenny. However,
there is still a need to register the same in order for that portion of the
land to be imprescriptible.

(3) Assume the two properties are on a cliff adjoining the shore of
Laguna Lake. Jessica and Jenny had a hotel built on the
properties. They had the earth and rocks excavated from the
properties dumped on the adjoining shore, giving rise to a new
patch of dry land. Can they validly lay claim to the patch of land?

No. This is reclamation without the authority of the State. As held in
Chavez v PEA, reclaimed land belongs to the State. Since the bed of the
lake is public dominion then everything above it is also part of public
dominion.

Marciano is the owner of a parcel of land through which a river runs out
into the sea. The land had been brought under the Torrens System, and is
cultivated by Ulpiano and his family as farmworkers therein. Over the
years, the river has brought silt and sediment from its sources up in the
mountains and forests so that gradually the land owned by Marciano
increased in area by three hectares. Ulpiano built three huts on this
additional area, where he and his two married children live. On this
same area, Ulpiano and his family planted peanuts, monggo beans and
vegetables. Ulpiano also regularly paid taxes on the land, as shown by
tax declarations, for over thirty years.

When Marciano learned of the increase in the size of the land, he ordered
Ulpiano to demolish the huts, and demanded that he be paid his share in
the proceeds of the harvest. Marciano claims that under the Civil Code,
the alluvium belongs to him as a registered riparian owner to whose land
the accretion attaches, and that his right is enforceable against the whole
world.

Is Marciano correct? Explain.

From RJ: Marciano is correct. As the registered riparian owner of the land,
the alluvium (resulting from effects of the current of the waters) belongs to
him and his right is enforceable against the world.

What rights, if any, does Ulpiano have against Marciano? Explain.

From RJ: Ulpiano, who is a builder and sower in bad faith, has the right to
receive reimbursement for the necessary expenses of preservation of the
land (452) and if Marciano appropriates the harvest, to the expenses in his
production, gathering, and preservation (443).

Alex died without a will, leaving only an undeveloped and untitled lot in
Taguig City. He is survived by his wife and 4 children. His wife told the
children that she is waiving her share in the property, and allowed
Bobby, the eldest son who was about to get married, to construct his

Azys Notes 18
house on of the lot, without however obtaining the consent of his
siblings. After settlement of Alexs estate and partition among the heirs, it
was discovered that Bobbys house was constructed on the portion
allocated to his sister, Cathy. Cathy asked Bobby to demolish his house
and vacate the portion allotted to her. In lieu of demolition, Bobby offered
to purchase from Cathy the lot portion on which his house was
constructed. At that time, the house was valued at P300,000 while the
portion of the lot on which the house was constructed was valued at
P350,000.

a) Can Cathy lawfully ask for demolition of Bobbys house?

Based on the facts, there appears to be no reason to believe that Bobby
knew that the land where he constructed his house was on the lot portion
alloted to Cathy. Thus, in the absence of contrary facts, it is to be
presumed that Bobby acted in good faith. Since Cathy and Bobby both
acted in good faith, the provisions of Art. 448 applies. There are only
three alternatives available to the landowner in Art. 448 and demolition of
the building, planting or sowing is not one of them. Demolition is only
available in cases where the landowner acted in good faith while the
builder, planter or sower acted in bad faith.

b) Can Bobby legally insist on purchasing the land?

No, it is the landowner who has the option between (1) appropriating the
work, planting or sowing for himself or (2) selling the land to the builder
or planter or renting the land to the sower.

Donation Inter Vivos vis--vis Donation Mortis Causa
Donation Inter Vivos Donation Mortis Causa
The act is immediately operative,
even if the actual execution may be
deferred until the death of the donor
Nothing is conveyed to the grantee
and nothing is acquired by the latter,
until the death of the grantor-
testator, the disposition being until
then ambulatory and not final
May be revocable or irrevocable
28
Revocable
The death of the donor irrelevant
after conveyance since the thing
already belongs to the donee upon
donation.
The death of the donee before the
grantor-testator will render the
testamentary disposition in donees
favor inoperative since there is no
right of representation in
testamentary succession except with
respect to legitimes.
**In case of doubt, the conveyance should be deemed donation inter vivos
rather than mortis causa, in order to avoid uncertainty as to the ownership of
the property subject of the deed.

Ownership may be exercised over things and rights. An owner has the
right to enjoy and dispose the thing, as well as the right to file an action
against the holder or possessor to recover it.
29

Possession is the holding of the thing and the enjoyment of a right. It is
acquired by the material occupation of the thing or the exercise of a right,
or by the fact that it is subject to the action of our will or by the proper acts
and legal formalities established for acquiring rights.
Actions to Recover Property:
o If movable, replevin.
o If immovable:
To recover possession
Forcible entry must be filed within 1 year from
dispossession or within 1 year from discovery of
dispossession if stealth was employed by defendant;
dispossession must be due to force, intimidation,
stealth, treaths, or strategy
30

Unlawful detainer must be filed within 1 year from
the time the possession became unlawful
Accion publiciana must be brought within 10 years

28
The specification in a deed of the causes whereby the act may be revoked by the donor indicates that the
donation is inter vivos.
29
RED (recover, enjoy, dispose)
30
FISTS

Azys Notes 19
To claim ownership
Accion reinvindicatoria must be brought within 10
or 30 years, dependng on whether the other party
seeks to obtain ownership over the property through
ordinary or extraordinary prescription
Actual possession under claim of ownership raises disputable
presumption of ownership. The true owner must resort to judicial
process for th recovery of the property. In such actions, the property must
be identified and the plaintiff must rely on the strength of his title and not
the weakness of the defendants claim.
If an entire parcel is possessed under claim of ownership, there is
constructive possession of the entire parcel, unless a portion thereof is
adversely possessed by another.
What are the rules or criteria to be used in case of conflict or dispute
regarding possession?
1. The present possessor should be preferred
2. If both are present possessors, the one longer in possession
3. If the dates or possession are the same, the one who presents a title
4. If all conditions are equal, the thing shall be placed in juducial
deposit pending determination by the court
What are the rules in case of double sale or double donation of an
immovable?
1. First to register in good faith
2. If there is no registration, first to possess in good faith
3. If there was no possession, the person who presents the oldest title,
provided it was acquired in good faith
What is the rule in case of double sale or double donation of a movable?
First possessed in good faith.
Lopez v Orosa: A building is by itself is an immovable property
irrespective of whether or not said structure and the land on which it is
adhered to belong to the same owner.
Davao Saw Mill: Machinery which is movable by nature becomes
immovable only when placed by the owner of the property or plant, but
not when so placed by a usufructuary, a tenant or any person only having
temporary rights, unless such person acted as an agent of the owner.
Extraordinary applications of Art. 448:
o Children were invited by the parents to occupy their lot (Macasaet v
Macasaet)
o The builder, planter or sower was the owner himself who
subsequently lost the land thru public auction (Pecson v CA)


Azys Notes 20

Rules in BPS

Presumption is that landowner built whatever is built, planted or
sown.

Landowner used other persons materials

If landowner and owner of materials both in GF (also applies if both are in
BF)
- landowner must pay for the materials used
- owner of materials has right to remove materials but only if if he
can do so without injury to the work constructed, or without
destroying the plantings, constructions or works

If landowner in BF but owner of materials in GF
- landowner must pay for the materials used
- plus damages
- owner of materials has right to remove materials

If landowner in GF but owner of materials in BF? Maybe same situation as
landowner in GF but BPS in BF

Builder, Planter or Sower on somebody elses land

If landowner and BPS both in GF (also applies if they are both in BF)
- landowner has two options:
o (1) appropriate the works, plantings or sowing upon
reimbursing the BPS of necessary and useful expenses; or
o (2) compel the builder and planter to buy the land if the value of
the land is not considerably more than the value of the works or
planting or compel the sower to rent the land
- BPS has a right of retention in case landowner chooses to appropriate
the building, planting or sowing

If landowner in GF but BPS in BF
- BPS loses what is built, planted or sown without right to indemnity but
is entitled to reimbursement of necessary expenses of preservation of
the land
- Landowner has two options:
o (1) Demolish the works or remove the planting or sowing at the
expense of the BPS
o (2) Compel the BP to buy the land regardless of the
disproportionality in the price of the works, planting or sowing
and of the land or compel the sower to rent the land
- In both cases, the landowner is entitled to indemnity

If landowner in BF but BPS in GF (Note: this is similar to a situation where
the landowner was in BF and used the materials of someone else who acted in
GF)
- Landowner must pay for the value of the materials
- Plus damages
- Owner of materials has right to remove materials


Azys Notes 21
Incapacity and Disinheritance

1. Priest or minister who heart the confession or extended spiritual aid to
testator during testators last illness including his
a. Relatives to the 4
th
civil degree
b. Church or institution to which such priest or minister belongs
2. Guardian but only before the final accounts of the guardianship have
been approved
3. An attesting witness to the will including his
a. Spouse
b. Parents
c. Children
4. Physician, nurse or health officer who took care of the testator during
his last illness
5. Those not permitted by law to inherit

Art 1028 in relation to 739
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants,
by reason of his office.

Art. 1032: Causes of unworthiness
(1) Parents who:
- Abandoned their children or
- induced daughter to lead a corrupt or immoral life or
- attempted against their virtues
(2) Convicted of an attempt against the life of the testator, his or her
spouse, descendants or ascendants;
(3) Accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found to be
groundless
(4) Knew of testators violent death but failed to report the same within 1
month
(5) Convicted of adultery or concubinage with the spouse of the testator;
(6) By fraud, violence, intimidation, or undue influence should cause the
testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a
will, or from revoking one already made, or who supplants, conceals, or alters
the latter's will;
(8) Any person who falsifies or forges a supposed will of the decedent.

What grounds are common in disinheritance and unworthiness? Art. 1032
except (4), (7) and (9).

(4) Fails to report testators violent death within 1 month (Note: Sir said this
is inoperative because there is no such obligation in law)

(7) Prevents testator from making or revoking a will or who conceals or alters
the same

(8) Falsifies or forges a testators supposed will

**With respect to the cause attempt on the life of the testator, his or her
spouse or any of his descendants or ascendants, if a descendant is the one
being disinherited, a finding of guilit by final judgment is necessary. For all
other persons, a conviction of an attempt on the life is enough


Azys Notes 22
Grounds for the ff:

Declaration of marriage null and void
1. Art 35: Essential and formal requisites (Below 18; Authorization of
Solemnizing Officer; No marriage license; Bigamous; Mistake in
Identity; Failure to register partition and distribution)
2. Art. 36: Psychological Incapacity
3. Art. 37: Incestuous (between brothers and sisters; between ascendants
and descendants)
4. Art. 38: Public Policy (Adopting parents, adopted children and their
spouses; Killed own spouse or other persons spouse; Step parents and
step children)
5. Art. 41 when both parties acted in BF

Annullment of marriage
1. 18-21 no parental consent
2. Insanity
3. Force, intimidation or undue influence
4. Concealment of: (1) Crime involving moral turpitude; (2) STD; (3)
Habitual alcoholism; (4) Drug addiction; (5) Homosexuality; or (6)
Pregnant by another man
5. Inability to consummate marriage
6. Serious and incurable STD

Legal separation
1. Repeated physical violence to spouse or any of his or her children
2. Physical abuse or moral influence to compel to change religious or
political affiliations
3. Attempt or connive to induce or corrupt to engage in prostitution
4. Final judgment of imprisonment of more than 6 years
5. Drug addiction or habitual alcoholism
6. Lesbianism or homosexuality
7. Contracting a bigamouse marriage
8. Sexual infidelity or perversion
9. Attempt against the life
10. Abandonment without justifiable cause for more than 1 year

Judicial separation of property
1. Voluntary agreement between the spouses
2. Sentenced to a penalty which carries with it civil interdiction
3. Judicially declared absentee
4. Loss of parental authority
5. Abandoned spouse
6. Spouse granted administration powers in the marriage settlement
abused such power
7. Separated in fact for at least 1 year and reconciliation is improbable

Administration of exclusive property of the other spouse
1. Becomes the guardian of the other spouse
2. Judicially declared absentee
3. Sentenced to a penalty which carries with it civil interdiction
4. Fugitive


Azys Notes 23
Children conceived and born oustide of wedlock will be legitimated by a
subsequent valid marriage between the parents. NOT ALWAYS TRUE. It
may be that the child was conceived at a time when there was a legal
impediment to the marriage of the childs parents.

The action to claim legitimacy ay be brought by the child during his or her
lifetime and shall be transmitted to the heirs who shall have a period of
five years within which to institute the action. THIS ONLY APPLIES TO
MINORS.

Children conceived and born outside a valid marriage are illegitimate.
THERE ARE EXCEPTIONS (e.g. Art. 36).

Children conceived and born during the marriage of the parents are
legitimate. TRUE. The law only requires that the child be conceived or
born. This more than complies with the law.

Under Art. 147, wages and salaries are divided equally. It is with respect to
properties that there is co-ownership.

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Uribe Civil Law Review (Succession and Property)

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