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TESTATE AND INTESTATE ROMAN LAW

Under Roman Law, an heir inherits both assets and liabilities of the decedent.
This is referred to as acquisition per universitatem, or acquisition of ownership of the
estate in its entirety. Consequently, should the decedents estate be insufficient to
cover his liabilities, the heir becomes liable to pay the remainder thereof. The law of
succession was regarded then as part of the law on property, since it was treated as a
mode of acquiring ownership such as sale. Hence, intestacy was regarded as an
unusual event , if not unknown. But legacies were abused by some testators, in that
the willful testator could "exhaust his entire estate by legacies." This ultimately gave
rise to the Lex Falcidia, by which it was enacted that no more than three-fourths of
an estate could be bequeathed; and therefore it was necessary to the heir to have a
fourth part of the same.

Upon the other hand, in intestate succession, the proper heirs are called to the
inheritance at the death of a person. The proper heirs are the family heirs. They are
called proper heirs because they are called family heirs, and even during the lifetime
of their parent are to a certain extent, considered to be joint owners of the estate,
and therefore where anyone dies intestate, the first right of succession belongs to his
children, whether they are willing or unwilling, they become heirs in case of
intestacy, as well as under the will. However, they are permitted to relinquish the
succession, in order that the estate of their father may be sold for the payment of
debts. In order that "no one may die without leaving a successor," it is determined not
only those who should come into possession, but also those of more remote degrees of
relationship.1

CIVIL CODE OF SPAIN vis CIVIL CODE OF THE PHILIPPINES

The general provisions on intestacy under the Spanish Civil Code was comprised only
of three articles, which are

General provisions

Article 912. Intestate succession shall occur:


1. Where a person dies without having made a will, or his will is null and void or has
subsequently become invalid.

2. Where the will does not contain the appointment of an heir for the whole or part
of the property, or does not dispose of the testators entire property. In this

1
E. David Griffith, Peeling the Onion of History: Ancient Laws of Succession - Part III, 20 Colo. Law. (1991)
event, intestate succession shall only take place in respect of the property which
has not been disposed of.

3. In the event of non-fulfilment of a condition imposed on the appointment of the


heir, or if the latter should die before the testator, or should reject the
inheritance and have no substitute, and there is no right of accretion.

4. Where the appointed heir is incapable of succeeding.

Article 913. In the absence of testamentary heirs, the law passes the estate on to
the deceaseds relatives, the widower or widow and to the State.

Article 914. The provisions relating to incapacity to succeed pursuant to will shall
likewise apply to intestate succession.

The current Civil Code, upon the other hand, contained similar provisions but
the last one. As it now stands, the general provisions of intestacy under our present
code provides

Art. 960. Legal or intestate succession takes place:


(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only with
respect to the property of which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not
happen or is not fulfilled, or if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases


provided in this Code. (912a)

Art. 961. In default of testamentary heirs, the law vests the inheritance, in
accordance with the rules hereinafter set forth, in the legitimate and illegitimate
relatives of the deceased, in the surviving spouse, and in the State. (913a)

Art. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions
of article 1006 with respect to relatives of the full and half blood, and of Article
987, paragraph 2, concerning division between the paternal and maternal lines.
Quite noticeable is the similarity of these provisions with each other, this is
because our civil code is literally lifted from the Spanish Civil Code. Interestingly,
Article 914 has been omitted under our new code and found no counterpart in the
other parts of our new civil code.

It may also be noted that the third provision under the general provisions on
intestacy under the new code is not a new provision but was lifted only from Article
921 of the old code. This article provides the general rule in case of intestacy, that is,
the rule on proximity. It also provides exceptions to this rule, which are the right of
representation, inheritance of full and half blood siblings concurring with each other
and the division in the ascending line.

While there is a listing of the specific grounds which would result to intestacy,
this listing is not an exclusive one, as there are other parts found in the civil code,
which even if not stated herein, would also result to intestacy. Among these is the
happening of the resolutory condition, which sets aside the institution of the heir or
legatee or devisee and thus gives rise to intestate succession.2

Intestate succession also takes place upon the expiration of the term or period
of the institution, when the heir or devisee is instituted up until a day certain. 3
Another cause is the noncompliance or impossibility of complying with the will of the
testator.4

2
Article 880, New Civil Code
3
Article 885, New Civil Code
4
Arturo M. Tolentino, , Commentaries and Jurisprudence on the Civil Code of the Philippines, Volume Three. 2003