ELMER AT RANDOM

Anything from mundane to ethereal; from puerile to polemical.

Thursday, June 19, 2008
Wills Case Doctrines
Art. 774
Estate of K. H. Hemady v. Luzon Surety (1956) [6]
· The responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance
they receive from him. Heirs succeed not only to the rights of the deceased but also to his obligations.
· General rule: a party’s contractual rights and obligations are transmissible to the successors.
· Exceptions under Art. 1311:
1) Nature of the obligation
2) Intransmissibility by stipulation of the parties
3) Obligation is not transmissible by operation of law

Art. 777
Unson v. Del Rosario (1953) [12]
The law in force at the time of the decedent’s death will determine who the heirs should be.
· Art. 2253 provides that rights which are declared for the first time by the new Civil Code shall have
retroactive effect even though the event which gave rise to them may have occurred under the former
legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the
same origin. In instant case, M’s right of ownership over the lands became vested in 1945 upon the death
of her husband. The new right in favor of the illegitimate children by the deceased cannot be asserted to
the impairment of the vested right of M over the lands in dispute.

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

Ownership passes to the heir at the very moment of death, who therefore, from that moment acquires the
right to dispose of his share
· Hereditary share in a decedent’s estate is transmitted or vested immediately from the moment of the
death of such causante or predecessor in interest. Thus, there is no legal bar to a successor (with requisite
contracting capacity) disposing his hereditary share immediately after such death, even if the actual extent
of such share is not determined until the subsequent liquidation of the estate.

Bonilla v. Barcena (1976) [16]

The heirs have the right to be substituted for the deceased as party on an action that survives.
· While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion.
· The moment of death is the determining factor when the heirs acquire a definite right to the inheritance
whether such right be pure or contingent. Thus, when F died, her claim or right to the parcel s of land in
litigation was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs
have thus acquired interest in the properties in litigation and became parties-in-interest in the case.
· The question as to whether an action survives or not depends on the nature of the action and the damage
sued for.
1) Survive: wrong complained of affects primarily and principally property and property rights, the
injuries to the person being merely incidental
2) Not survive: injury complained of is to the person, the property and rights of property affected being
incidental.
· In instant case, an action to quiet title over land in litigation affects primarily and principally property
and property rights, and therefore is one that survives even after F’s death.

Art. 804
Suroza v. Honrado (1981) [41]
Art. 804 provisions are mandatory. Consequently, failure to comply with the two requirements nullifies
the will.
· The will on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself.
· A judge who admits to probate such a will should face disciplinary action. In the absence of opposition,
the judge should have personally conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.

Abangan v. Abangan (1919) [46]

It may sometimes be presumed that the testator knew the language in which the will was written.
· The circumstance appearing in the will itself that the same was executed in Cebu and in the dialect of
this locality where the testatrix was a neighbor [sic] is enough, in the absence of any proof to the contrary,
to presume that she knew this dialect in which the will was written.

RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases it seems that, in order for
the presumption to apply, the following must appear:
1) The will must be in language or dialect generally spoken in the place of execution; and
2) The testator must be a native or resident of said locality

Art. 806
Payad v. Tolentino (1936) [49]
Thumb mark as signature.
· Testatrix, assisted by counsel, placed her thumb mark on each and every page of the questioned will and
that said counsel merely wrote her name to indicate the place where she placed said thumb mark. In other
words, counsel did not sign for the testatrix. She signed by placing her thumb mark on each and every
page thereof. “A statute requiring a will to be ‘signed’ is satisfied if the signature is made by the testator’s
mark.” It is clear, therefore, that it was not necessary that the attestation clause in question should state
that the testatrix requested her counsel to sign her name inasmuch as the testatrix signed the will in
question in accordance with law.

Matias v. Salud (1958) [50]

· The legal requisite that the will should be signed by testator is satisfied by a thumbprint or other mark
affixed by him; and that where such mark is affixed by the decedent, it is unnecessary to state in the
attestation clause that another person wrote the testator’s name at his request.
· In the instant case, it was shown that the herpes zoster that afflicted the right arm and shoulder of the
testatrix made writing a difficult and painful act, to the extent that, after writing one signature on the
second page, she dropped the pen because of an attack of pain that lasted many minutes, and evidently
discouraged attempts to sign.
· It is to be conceded that where a testator employs an unfamiliar way of signing, and both the attestation
clause and the will are silent on the matter, such silence is a factor to be considered against the
authenticity of the testament; but the failure to describe the unusual signature by itself alone is not
sufficient to refuse probate when the evidence for the proponent fully satisfies the court that the will was
executed and witnessed as required by law.
Garcia v. Lacuesta (1951) [54]
A cross as signature.
· It is not here presented that the cross appearing on the will is the usual signature of the testator or even
one of the ways by which he signed his name. The mere sing of a cross cannot be likened to a
thumbmark, because the cross cannot and does not have the trustworthiness of a thumbmark.

Barut v. Cabacungan (1912) [56]

When agent must write.
· As regards the validity of the will, it is unimportant whether the person who writes the name of the
testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix
was signed at her express direction in the presence of the three witnesses and that they attested and
subscribed it in her presence and in the presence of each other.
· It may be wise, as a practical matter that the one who signs the testator’s name signs also hi own; but
that is not essential to the validity of the will.

Nera v. Raymundo (1911) [61]

Signing in the presence of witnesses
· Jaboneta v. Gustilo: “The true test of presence of the testator and the witnesses in the execution of a will
is not whether they actually saw each other sign, but whether they might have seen each other sign, had
they chosen to do so, considering their mental and physical position with relation to each other at the
moment of inscription of each signature.”
· The position of the parties with relation to each other at the moment of the subscription of each
signature must be such that they may see each other sign if they choose to do so. Jaboneta doctrine: the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but that at that moment existing conditions and
their position with relation to each other were such that by merely casting their eyes in the proper
direction they could have seen each other sign.

Icasiano v. Icasiano (1964) [64]

· The inadvertent failure of one witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of
probate. That the failure of the witness to sign page three was entirely through pure oversight is shown by
his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in
every page.
RFB: The Icasiano holding cannot, and should not, be taken as a departure from the rule that the will
should be signed by the witnesses on every page. The carbon duplicate was regular in all aspects. A
cavalier disregard of the formal requirements of wills in reliance on Icasiano is not recommended.

Cagro v. Cagro (1953) [68]

The signatures of the witnesses must be at the bottom of the attestation clause.
· Fact: signature of the three witnesses do not appear on the bottom of the attestation clause, but the page
containing the clause is signed by the witnesses on the left-hand margin.
· The attestation clause is “a memorandum of the facts attending the execution of the will” required by
law to be made by the attesting witnesses, and it must necessarily bear their signature. An unsigned
attestation clause cannot be considered as an act of the witnesses, since the omission of their signature at
the bottom thereof negatives their participation.
· The signatures on the left-hand margin cannot be deemed as their signature to the clause because said
signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all
its pages. If an attestation clause not signed by the witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
· Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) the uncontradicted testimony of
the witnesses that the clause was already written in the will when the same was signed obviates fear of the
majority that the clause may have been only added on a subsequent occasion and not at the signing of the
will.

Javellana v. Ledesma (1955) [70]

Acknowledgement before a notary public.
· Fact: Codicil signed by testatrix and witnesses at the hospital; the notary public brought the codicil to
his office, and signed and sealed it there.
· Whether or not the notary signed the certification of acknowledgement in the presence of the testatrix
and the witnesses does not affect the validity of the codicil. The Civil Code does not require that the
signing of the testator, witnesses and notary should be accomplished in one single act.
· The subsequent signing and sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is not part of the acknowledgement itself nor of the testamentary
act.
RFB: (a) ratio: The certification of acknowledgement need not be signed in the presence of the testator
and the witnesses; (b) obiter: Art. 806 does not require that the testator and the witnesses must
acknowledge on the same day that it was executed.

Cruz v. Villasor (1973) [72]

The notary public cannot be counted as one of the attesting witnesses.
· The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. If the third
witness were the notary public himself, he would have to avow, assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation in the making of the will.
· Furthermore, the function of the notary public is, among others, to guard against any illegal or immoral
arrangement. That function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For then he would be interested in sustaining the validity of his own act.
· To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in contravention
of the Article 805 requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before the notary public to
acknowledge the will.

Art. 808
Garcia v. Vasquez (1970) [75]
Provision of Article 808 mandatory.
· Fact: testatrix’s vision was mainly for viewing distant objects and not for reading print.
· For all intents and purposes of the rules on probate, the testatrix was not unlike a blind testator, and the
due execution of her will would have required observance of Article 808. The rationale behind the
requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as
when he is illiterate) , is to make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes.

Alvarado v. Gaviola (1993) [80]

The requirement has been liberally applied, the SC declaring substantial compliance to be sufficient.
· Facts: The lawyer who drafted the will and subsequent codicil read them aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four followed the reading with
their own respective copies previously furnished them.
· Substantial compliance is acceptable where the purpose of the law has been satisfied, because the
solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud
and trickery but are never intended to be so rigid and inflexible as to destroy testamentary privilege.
· It was not only the lawyer who read the documents. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. With four persons following the reading word
with their own copies, it can be safely concluded that the testator was reasonably assured that what was
read to him (those which he affirmed were in accordance with his instructions), were the terms actually
appearing in the typewritten documents.

Art. 809
Caneda v. CA (1993) [87]
· Fact: petitioners aver that the attestation clause is fatally defective since it fails to specifically state that
the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they
also signed the will and all the pages thereof in the presence of the testator and of one another.
· SC agrees with petitioners. The absence of a statement that the witnesses signed the will and every page
thereof in the presence of the testator and of one another is a fatal defect which must necessarily result in
the disallowance of the will. Such defect in the attestation clause cannot be characterized as merely
involving form of the will or the language used therein which would warrant the application of the
substantial compliance rule contemplated in Art. 809. The defect is not only in the form or the language
of the attestation clause but the total absence of a specific element required by Art. 805 to be specifically
stated in the attestation clause.
· Proper interpretation of the substantial compliance rule in Art. 809: Omission which can be supplied by
an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde (“from another source, from elsewhere,
from outside source”) would result in the invalidation of the attestation clause and ultimately, of the will
itself.

Art. 810
Roxas v. De Jesus (1985) [103]
· Issue: whether “FEB./61” appearing in the holographic will is a valid compliance with Art. 810.
· A complete date is required to provide against such contingencies as that of two competing wills
executed on the same day, or of a testator becoming insane on the day on which a will was executed.
There is no contingency in this case.
· As a general rule, the “date” in a holographic will should include the day, month, and year of its
execution. However, when, as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the will is established and the only issue is whether or not
the date “FEB./91” is a valid compliance with Art. 810, probate of the holographic will should be allowed
under the principle of substantial compliance.

Labrador v. CA (1990) [105]

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

Art. 811
Azaola v. Singson (1960) [110]
The three-witness provision in case of contested holographic wills is directory, not mandatory.
· Since the authenticity of the will was not contested, proponent was not required to produce more than
one witness; but even if the genuineness of the holographic will were contested, Art. 811 cannot be
interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the
testator, under the penalty of having the probate denied.
· Since no witness may have been present at the execution of a holographic will, none being required by
law, it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent.
· Art. 811 foresees the possibility that no qualified witness may be found (or what amounts to the same
thing, that no competent witness may be willing to testify to the authenticity of the will, and provides for
resort to expert evidence to supply the deficiency. Such resort to expert evidence is conditioned by “if the
Court deem it necessary,” which reveal that what the law deems essential is that the Court should be
convinced of the will’s authenticity. Since the law leaves it to the trial court to decide if experts are still
needed, no unfavorable inference can be drawn from a party’s failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the testimony of the lay witnesses.
· SC’s conclusion: the rule of Art. 811, par. 1, is merely directory and is not mandatory.

Codoy v.Calugay (1999)

· Fact: holographic will challenged for forgery. 6 witnesses of proponent did not categorically state that
they know the handwriting and signature of the testatrix; whereas, 2 did so.
· Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate of contested holographic will at
least three witnesses explicitly declare the signature in the will is the genuine signature of the testator.
· SC (Pardo): “We are convinced, based on the language used, that Article 811…is mandatory. We have
ruled that ‘shall’ in a statute commonly denotes an imperative obligation and is inconsistent with the idea
of discretion and that the presumption is that the word ‘shall’ when used in a statute is mandatory.” Case
remanded because the Court found that the testimony of the aforesaid 2 witnesses was not convincing.
Query: has this ruling reversed Azaola, supra.?
1) Azaola is not on all fours with this case. Here, the will was contested (ground: forgery), in Azaola the
will was not contested.
2) RFB’s personal view: No, because the basis of the remand—that the Court did not find the testimony
of the 2 witnesses satisfactory—is perfectly consistent with Azaola that quality of the testimony, not the
quantity of the witnesses, is the criterion. Thus, SC’s statement that three-witness rule is mandatory is an
obiter. We can read Azaola and Godoy together.

Gan v. Yap (1958) [114]

In the probate of a holographic will, the document itself must be produced. Therefore, a lost holographic
will cannot be probated.
· When the will itself is not submitted, the means of opposition and of assessing the evidence, are not
available. And then, the only guaranty of authenticity—the testator’s handwriting—has disappeared.
· The execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
· Ordinary vs. holographic wills. The difference lies in the nature of wills. In holographic wills, the only
guarantee of authenticity is the handwriting itself; in ordinary wills, the testimony of the subscribing or
instrumental witnesses and of the notary. The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.

Rodelas v. Aranza (1982) [122]

Exception to the Gan ruling.
· Issue: whether a lost holographic will can be proved by means of a photostatic copy.
· Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted
because the authenticity of the handwriting of the deceased can be determined by the probate court (i.e.,
comparison can be made with the standard writings of the testator.

Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
· Issue: whether the original unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by full signature of the testatrix, should be probated or not.
· Velasco v. Lopez: when a number of erasures, corrections, and interlineations made by the testator in a
holographic will have not been noted under his signature, the will is not thereby invalidated as a whole,
but at most only as respects the particular words, erased, or interlined.
· However, when as in this case, the holographic will in dispute had only one substantial provision, which
was altered by substituting the original heir with another, but which alteration did not carry the requisite
of full authentication by the full signature of the testator, the effect must be that the entire will is voided
or revoked for the simple reason that nothing remains in the will after that which could remain valid. To
state that the will as first written should be given efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in
the manner required by lay by affixing her full signature.
· Velasco ruling must be held confined to such insertions, cancellations, erasures or alterations in a
holographic will, which affect only the efficacy of the altered words themselves but not the essence and
validity of the will itself.

Subsection 4-Witnesses to Wills

Article 821

Gonzales vs. CA

Under the law, there is no mandatory requirement that the witness testify initially or at any time during
the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that
the soundness of his mind can be shown by or deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code.
The attributes of the good standing of the witness in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness are presumed of the witness unless the contrary is proved
otherwise by the opposing party.
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution.
‘Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.

Subsection 6
Article 830

Maloto vs. CA

It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.
It is not imperative that the physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will itself."Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to revoke must
be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction.

Gago vs. Mamuyac

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

Subsection 8- Allowance and Disallowance of Wills

Article 838

Guevara vs. Guevara

The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and
with personal notice to each of the known heirs, legatees, and devisees of the testator. Although not
contested, the due execution of the will and the fact that the testator at the time of its execution was of
sound and disposing mind and not acting under duress, menace, and undue influence or fraud, must be
proved to the satisfaction of the court, and only then may the will be legalized and given effect by means
of a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the
will devises real property, attested copies thereof and of the certificate of allowance must be recorded in
the register of deeds of the province in which the land lies. It will readily be seen from the above
provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance
by the court is essential and indispensable to its efficacy.
The heirs may not disregard the provisions of the will unless those provisions are contrary to law. Neither
may they do away with the presentation of the will to the court for probate, because such suppression of
the will is contrary to law and public policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by will may be rendered nugatory,

De la Cerna vs. Potot

In a case where a joint will between husband and wife was executed and the will was probated when the
husband died before the effectivity of the Civil Code, the final decree of probate has conclusive effect as
to the last will and testament, despite the fact that even then the Civil Code already decreed the invalidity
of joint wills. A final judgment rendered on a petition for the probate of a will is binding upon the whole
world and public policy and sound practice demand that at the risk of occasional errors, judgment of
courts should become final at some definite date fixed by law. The probate decree of the will of the
husband could only affect the share of the deceased husband. It could not include the disposition of the
share of the wife who was then still alive, and over whose interest in the conjugal properties the probate
court acquired no jurisdiction, precisely because her estate could not then be in issue. It follows that the
validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus,
probate of the wife’s will is denied as joint wills are now prohibited by the Civil Code.

Gallanosa vs. Arcangel

A decree of probate is conclusive as to the due execution or formal validity of a will. That means that the
testator was of sound and disposing mind at the time when he executed the will and was not acting under
duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required
number of witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts cannot
again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will.
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore.
The following are included in the term formal validity and therefore are conclusively settled by a final
decree of probate:
i. that the testator was of sound and disposing mind
ii. that his consent was not vitiated
iii. that the will was signed by the requisite number of witnesses
iv. that the will is genuine

Nepomuceno vs. CA

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

SECTION 2- Institution of Heir

Article 850

Austria vs. Reyes

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

Article 854
Reyes vs. Barretto-Datu

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

Aznar vs. Duncan

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

Acain vs. IAC

An adopted child, if totally omitted in the inheritance, is preterited and can invoke its protection and
consequences. Since an adopted child is given by law the same rights as a legitimate child, the adopted
child can, in proper cases, invoke Article 854 in the same manner a legitimate child can.

Nuguid vs. Nuguid

To 'annul' means to abrogate, to make void. The word annul employed in the statute (Article 854) means
that the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir — without any other testamentary
disposition in the will — amounts to a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning
will tear up by the roots the fabric of the statute. (Note that what was involved here was a universal
institution of a sole heir, nothing more. Article 854 annuls his institution, thus no more heirs are left.
Hence, the entire will is void.)

SECTION 3-Substitution of Heirs

Article 863

Palacios vs. Ramirez

What is meant by "one degree" from the first heir is explained by Tolentino as follows:
"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be
only one transmission or substitution, and the substitute need not be related to the first heir. Manresa,
Morell, and Sanchez Roman, however, construe the word 'degree' as generation, and the present Code has
obviously followed this interpretation, by providing that the substitution shall not go beyond one degree
'from the heir originally instituted.' The Code thus clearly indicates that the second heir must be related to
and be one generation from the first heir.
"From this, it follows that the fideicommissary can only be either a child or a parent of the first heir.
These are the only relatives who are one generation or degree from the fiduciary."

PCI Bank vs. Escolin

If there is no absolute obligation imposed upon the first heir to preserve the property and transmit it to a
second heir, there is no fideicomisaria. The institution is not necessarily void; it may be valid as some
other disposition, but it is not a fideicomisaria.

SECTION 5- Legitime
Article 887

Rosales vs. Rosales

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

Lapuz vs. Eufemio

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

Niñal vs. Badayog

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his
death? Petitions for the declaration of the voidability of a marriage can only be brought during the
lifetime of the parties and not after the death of either. A void marriage, on the other hand, can be brought
even after the death of either party. The Code is silent as to who can file a petition for declaration of
nullity of marriage. Any proper interested party (heirs of the deceased husband) may attack a void
marriage.

Baritua vs. CA

Legitimate ascendants (parents of the deceased) succeed only when the descendant dies without a
legitimate ascendant. The surviving spouse concurs with all classes of heirs. Thus, where an obligation
has been paid to the spouse and descendants, the obligation is extinguished and the legitimate ascendants
have no right to claim upon the obligation.

Article 891

Solivio vs. CA

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

Padura vs. Baldovino

The reserva troncal is a special rule designed primarily to assure the return of the reservable property to
the third degree relatives belonging to the line from which the property originally came, and avoid its
being dissipated into and by the relatives of the inheriting ascendant.
The reserva merely determines the group of relatives to whom the property should be returned; but within
that group the individual right to the property should be decided by the applicable rules of ordinary
intestate succession, since Article 891 does not specify otherwise. (RFB: Those reservatarios nearer in
degree to the prepositus will exclude the more remotely related.)

Florentino vs. Florentino

I Any ascendant who inherits from his descendant any property, while there are living, within the third
degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property
received. He is, however, the legitimate owner of his own property which is not reservable property and
which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the
relatives, within the third degree, of the descendant (from whom came the reservable property) die or
disappear, the said property becomes free property, by operation of law, and is thereby converted into the
legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary
heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the
relatives, called reservatarios, who belonged within the third degree to the line from which such property
came.
The right of representation cannot be alleged when the one claming same as a reservatario of the
reservable property is not among the relatives within the third degree belonging to the line from which
such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree
personal and for the exclusive benefit of designated persons who are the relatives, within the third degree,
of the person from whom the reservable property came. Therefore, relatives of the fourth and the
succeeding degrees can never be considered as reservatarios, since the law does not recognize them as
such.
(RFB: Actually there will be only one instance of representation among the reservatarios, i.e., a case of
the Prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother or
sister.)

Edroso vs. Sablan

1. The reservista’s right over the reserved property is one of ownership.

2. The ownership is subject to a resolutory condition, i.e. the existence of reservatarios at the time of the
reservista’s death.
3. The right of ownership is alienable, but subject to the same resolutory condition.
4. The reservista’s right of ownership is registrable.

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all,
the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion,
although under a condition subsequent. Clearly he has, under an express provision of the law, the right to
dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the
right to recover it, because he is the one who possesses or should possess it and have title to it, although a
limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside
in him while he lives. After the right required by law to be reserved has been assured, he can do anything
that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose
of the property, first because it is no way, either actually, constructively or formally, in their possession;
and, moreover, because they have no title of ownership or of fee simple which they can transmit to
another, on the hypothesis that only when the person who must reserve the right should die before them
will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of
the descendant of whom they are relatives within the third degree, that is to say, a second contingent place
in said legitimate succession in the fashion of aspirants to a possible future legacy.

Sienes vs. Esparcia

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

2. The right is subject to a suspensive condition, i.e. the expectancy ripens into ownership if the
reservatarios survive the reservista.
3. The right is alienable, but subject to the same suspensive condition.
4. The right is registrable.

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

Gonzales vs. CFI

Can a reservista convey by will, reservable property to relervatarios in the third degree and by-pass those
in the second? NO. Article 891 clearly indicates that the reservable properties should be inherited by all
the nearest relatives within the third degree from the prepositus. She could not select the reservees to
whom the reservable property should be given and deprive the other reservees of their share therein.
The reservable property does not form part of the reservista’s estate and should be given to all the seven
reservatarios or nearest relatives of the prepositus within the third degree. While it is true that by giving
the reservable property to only one reservatario, it did not pass into the hands of strangers, nevertheless, it
is likewise true that the reservista was only one of the reservatarios and there is no reason founded upon
law and justice why the other reservatarios should be deprived of their shares in the reservable property.
The property passes by strict operation of law.

Cano vs. Director

Upon the death of the reservista, the reservatario nearest to the prepositus becomes, automatically and by
operation of law, the owner of the reservable property. That property is no part of the estate of the
reservista, and does not even answer for the debts of the latter. Hence, its acquisition by the reservatario
may be entered in the property records without necessity of estate proceedings, since the basic requisites
therefor appear of record. It is equally well settled that the reservable property cannot be transmitted by a
reservista to her or his own successors mortis causa, so long as a reservatario within the third degree from
the prepositus and belonging to the line whence the property came, is in existence when the reservista
dies.

Chapter 3 Legal or Intestate Succession

Article 977
Section 1 General Provisions
Subsection 2 Right of Representation

Teotico vs. Del Val

The relationship established by adoption is limited solely to the adopter and the adopted 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. Thus, an
adopted can neither represent nor be represented.

Section 2 Order of Intestate Sucession

Subsection 1 Descending Direct Line
Article 979

Sayson vs. CA

The philosophy underlying this article is that a person's love descends first to his children and
grandchildren before it ascends to his parents and thereafter spreads among his collateral relatives. It is
also supposed that one of his purposes in acquiring properties is to leave them eventually to his children
as a token of his love for them and as a provision for their continued care even after he is gone from this
earth.
There is no question that a legitimate daughter of a person who predeceased his parents, and thus their
granddaughter, has a right to represent her deceased father in the distribution of the intestate estate of her
grandparents. Under Article 981, she is entitled to the share her father would have directly inherited had
he survived, which shall be equal to the shares of her grandparents' other children.
But a different conclusion must be reached for persons to whom the grandparents were total strangers.
While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as
the latter, these rights do not include the right of representation. The relationship created by the adoption
is between only the adopting parents and the adopted child and does not extend to the blood relatives of
either party.

Subsection 3 Illegitimate Children

Article 992

Corpus vs. Administrator

There is a successional barrier between the legitimate and illegitimate relatives of the deceased. The rule
in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate child has
no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall
such children or relatives inherit in the same manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate
family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize
the blood tie and seeks to avoid further grounds of resentment

Leonardo vs. CA

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

Diaz vs. CA
Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized
by law for the purposes of Art. 992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully
looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child; the latter
considers the privileged condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. So that while Art, 992 prevents the illegitimate issue of a legitimate child from representing
him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so.

Diaz vs. CA

The right of representation is not available to illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate
descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which
provides that "the grandchildren and other descendants shall inherit by right of representation." Such a
conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate
parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article
982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children and relatives of the father or mother. It may not
be amiss to state that Article 982 is the general rule and Article 992 the exception.
The word "relative" as used in Article 992 is broad enough to comprehend all the kindred of the person
spoken of. The word "relatives" should be construed in its general acceptation. Amicus curiae Prof.
Ruben Balane has this to say:
According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it
is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the
law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral, as in
Articles 1003 and 1009 of the New Civil Code.

Subsection 4 Surviving Spouse

Article 996

Santillon vs. Miranda

There is a conflict with what the Civil Code provides as legitime of a spouse and what he or she may
receive by way of intestacy. Art. 892 of the New Civil Code falls under the chapter on Testamentary
Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Art. 892 merely
fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate
succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a
spouse should get when they concur with each other, it does not fix the amount of shares that such child
and spouse are entitled to when intestacy occurs. Thus, upon intestacy, the provisions of Art. 996 applies.

Chapter 4 Provisions Common to Testate and Intestate Succession

Section 2 Capacity to Succeed by Will or by Intestacy
Article 1025

Parish Priest of Roman Catholic Church vs. Rigor

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

Section 5 Collation
Article 1061

Vizconde vs. CA

Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of
the inheritance of an ascendant bring into the common mass, the property which they received from him,
so that the division may be made according to law and the will of the testator. Collation is only required
of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by
donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the
compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in
interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance
on account of his share in the estate, and that the predecessors will is to treat all his heirs equally, in the
absence of any expression to the contrary. Collation does not impose any lien on the property or the
subject matter of collationable donation. What is brought to collation is not the property donated itself,
but rather the value of such property at the time it was donated, the rationale being that the donation is a
real alienation which conveys ownership upon its acceptance, hence any increase in value or any
deterioration or loss thereof is for the account of the heir or donee.
Thus, it is an error to require a son-in-law of the decedent to be included in the collation as he is not a
compulsory heir.

Section 6 Partition and Distribution of the Estate

Subsection 1 Partition

Fajardo vs. Fajardo

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

Chavez vs. IAC

Art. 1080 of the Civil Code clearly gives a person two options in making a partition of his estate; either
by an act inter vivos or by will. When a person makes a partition by will, it is imperative that such
partition must be executed in accordance with the provisions of the law on wills; however, when a person
makes the partition of his estate by an act inter vivos, such partition may even be oral or written, and need
not be in the form of a will, provided that the partition does not prejudice the legitime of compulsory
heirs. (RFB: This ruling should not be used as it raises eyebrows very high. It gives a partition an
irrevocable character and allows a conveyance of the compulsory heirs of their legitimes even during their
lifetimes.)

Legasto vs. Verzosa

A testator may, by an act inter vivos, partition his property, but he must first make a will with all the
formalities provided for by law. And it could not be otherwise, for without a will there can be no testator;
when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it
necessarily refers to that property which he has devised to his heirs. A person who disposes of his
property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law
evidently desired to distinguish between one who freely donates his property in life and one who disposes
of it by will to take effect after his death.

Article 1082

Tuason vs. Tuason Jr.

Where heirs contracted with a third person to develop their co-owned lot, with the stipulation that the co-
ownership shall subsist until all the lots have been sold, is not a violation of Art. 400, and is only a mere
incident to the main object of the partnership, which is to dissolve the co-ownership.

Article 1088

Garcia vs. Calaliman

Written notice is required for the period of onemonth for the other co-heirs to redeem begins to run. Both
the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration.
Written notice is indispensable, actual knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the Code, to
remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the alienation is
not definitive. The law not having provided for any alternative, the method of notifications remains
exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive
method for written notification of redemption
Posted by Elmer Brabante at 10:24 PM

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