(Art. 997-1001 refer to Annex 1 – Table on
Combination in Intestate Succession)
Art. 1002 – Rules in Case of Legal Separation
 Guilty spouse is disqualified from
succession to the estate of the innocent
spouse
 A reconciliation puts aside the effects of
legal separation.
Subsection 5 – Collateral Relatives
Art. 1003 - Inheritance by Collaterals
 The collaterals referred to in this Article
are intestate, but not compulsory heirs.
 Among said collaterals, the nearer
excludes the farther.
 A sister, even if only a half-sister, in the
absence of other sisters or brothers, or
of children of brothers or sisters,
EXCLUDES all other collateral relatives,
regardless of whether or not the latter
belong to the line from which the
property of the deceased came.
(Art. 1004-1008 refer to Annex 1 for sharing
combination)
Art. 1009 - Inheritance by Other Collateral
Relatives
 Other collaterals should there be
NEITHER brothers nor sisters nor
children of brothers or sisters
 In every inheritance, the relative nearest
in degree excludes the more distant
ones, saving the right of representation
when it properly takes place.
 Children of first cousins are not entitled
to represent. Therefore, if first cousins
(4th degree) concur with children,
ofpredeceased or incapacitated first
cousins, said children do not inherit even
if they belong to the fifth degree. The
nearer (4th degree relatives) excludes
the
 farther (5th degree relatives).
Art. 1010 - Succession Limited to the Fifth
Degree
Subsection 6 – The State
Art. 1011 - Inheritance by the State
 In the absence of any relative within the
fifth degree, State (Republic of the
Philippines) is considered as the last
intestate heir
 Subject to the Rules of Court
Art. 1012 - How the State Inherits
 Rule 91 (Rules of Court)
Art. 1013 - How Estate Inherited by the State is
Distributed
 Always the debts and charges must first
be paid.
 The law distinguishes the disposition of
real and personal properties. Observe
that while the State actually inherits, still
assignment of the properties to the
proper municipalities must be made.
 The law also makes a distinction as to
whether or not the deceased resided in
the Philippines.
Art. 1014 - Rule If Legal Heir Files a Claim
 Reason for the law: It may be that a
relative, like a brother, who has priority
over the estate, appears only after the
proper escheat proceedings have been
made.
 Period within which to fi le a claim —
within 5 years from the date the
property was delivered to the State.
Chapter 4
Provisions Common to Testate and Intestate
Succession
Art. 1015 - Reason for Accretion
Accretion is a right based on the presumed will of
the
deceased that he prefers to give certain
properties to certain individuals, rather than to
his legal heirs.
Elements:
1. Two or more persons are called to the
same inheritance or to the same portion
thereof, pro indiviso.
2. Renunciation, predecease, or incapacity
of one (or more but less than all) of the
instituted heirs.
Example of Accretion
T makes a will giving a particular car to A and B. If A
repudiates his share, the whole car goes to B. [NOTE:
Even if by law, accretion cannot take place, still the
testator is allowed to expressly provide in his will for
accretion, but this would really be a reciprocal
substitution.
Example:
T, in his will, gives the first floor of his house to A, and
the second floor to B. If A repudiates, B ordinarily does
not get the first floor, because here, there has been an
earmarking or specification of determinate property.
(See Art. 1017). However, if T in his will provided that
in case of repudiation
Testamentary : Instances accretion may take
place:
1. Predecease
2. Incapacity
3. Renunciation
4. Non‐fulfillment of suspensive condition
imposed upon instituted heir
5. Ineffective testamentary disposition
Intestate: Instances accretion may take place
1. Predecease of legal heir
2. Incapacity of legal heir
3. Repudiation by legal heir
 Note: Accretion takes place only if there
is no representation.
 In renunciation, there is always
accretion. Reason: No representation
in renunciation.
 In intestacy, apply representation first.
If there is none, then accretion will
apply.
 In testacy, apply substitution first.
 If there is no substitution, then accretion
will apply. However, in testamentary
succession, the inheritance must not
have been earmarked. Accretion cannot
take place if the inheritance is
earmarked.
Art. 1016 - Accretion in Testamentary
Succession
Example:
T instituted A and B as his own heirs. If A
predeceases T, the share of A accrues to B.
Thus, B inherits half by institution, and half
by accretion.
Art. 1017 - Non-Earmarking
Example of par.1
T gave A and B one half each of a particular
house. There can be accretion here. But if A
had been given the first floor, and B, the
second floor, there will be no accretion.
Example of par. 2
T gave A his money in the left hand drawer of
his desk, and B, his money in the right hand
drawer. There is earmarking, therefore no
accretion.
BAR QUESTION
A executed a will which was duly probated, wherein
he bequeathed one-half of his property to his full
brother B; and the other to C, his half-brother and to
the children of a deceased half-sister, named D, E and
F at the rate of one-fourth to the former and one-fourth
to the latter, in equal shares. F died before the testator
A, leaving only one child G.

(a) Can G inherit the share by his father F under the
circumstances of this case? Why?
(b) If your answer is in the negative, who shall inherit
the portion left by F, and in what proportions? Reason.
Art. 1018 - Accretion in Intestate Succession
Art. 1019 - Proportional Sharing of Property
Received by Accretion
 Note that the Article speaks of repudiation
only.
 It is believed however that the Article applies
also in case of incapacity, without prejudice
to the right of representation..
 Whether there will be accretion or inheritance
in their own right by intestacy, the net answer
or result would be the SAME.
 Remember too that Art. 1018 does not speak
of “predecease,’’ for in such a case, there is
no vacant portion. (See discussion under Art.
1015).
Art. 1020 - Effect of Accretion and Exceptions
Thereto
The heirs to whom the inheritance
accrues shall succeed to all the rights
and obligations which the heir who
renounced or could not receive it would
have had.
Art. 1021 - Accretion Among Compulsory Heirs
 there can be NO accretion insofar as the
legitime is concerned; accretion, if it
takes place, concerns only the free
portion
Art. 1022 - Rules When Accretion Does Not Take
Place
 This illustrates the order of preference
(ISRAI).
 Example: T gave P10 million (deposited
at the Citibank) to A and P10 million
(deposited at the Bank of the Philippine
Islands) to B. A and B are T’s friends. No
substitute was appointed. S, a sister of
the testator, was given nothing. If A
repudiates his share, who will get it?
 ANS.: B will not get, there being no
accretion since there was an earmarking
of share. Therefore, S, the sole intestate
heir, gets A’s share
Art. 1023 - Accretion Among Devisees, Legatees,
and Usufructuaries
 under the same conditions established
for heirs.
Art. 1024 - ‘Capacity to Succeed’ Defined
It is the ability to inherit and retain
property obtained mortis causa.
Kinds of Incapacity to Succeed
 ABSOLUTE — (can never inherit from
anybody regardless of circumstances)
 RELATIVE — (cannot inherit only from
certain persons or certain properties,
but can inherit from others or certain
other properties)
[NOTE: There are three kinds of relative
incapacity:
1) because of possible undue influence.
2) because of public policy and morality.
3) because of unworthiness].
Art. 1025 - Persons Absolutely Incapacitated
There are two classes who are absolutely
incapacitated to succeed:
 Individuals, associations, and
corporations not permitted by law to
inherit.
 Those who lack juridical personality
(such as abortive infants, or those who
do not comply with the requirements of
Arts. 40 and 41 of the new Civil Code).
Art. 1026 - Dispositions in Favor of Entities
Requirement for capacity to succeed: must
already exist as a juridical person when the
decedent dies.
Art. 1027 - Incapacity Because of Possible
Undue Influence
Priest or Minister
to safeguard the rights of the heirs who
may be defrauded by the sinister and
undue influence which may be exercised
by some priests or ministers over a dying
man.
“Relatives of such priest or minister within the
fourth degree, the church, organization, etc.”
The relatives here are those by
consanguinity.
Guardians
The guardian referred to may be the
guardian of the person or of the
property since both can exercise undue
influence.
Attesting Witnesses
If the witnesses is not given any
testamentary disposition, but instead
burdened with a duty, such as that of
selling or encumbering, the burden can
properly be made, provided that the
witness accepts the responsibility.
Physicians, surgeons, etc.
To disqualify these people from
inheriting as testamentary heirs,
legatees, or devisees, it is essential that:
1) the will or disposition in their favor
was made during the last illness and
after the “care” by them had
commenced
2) they “took care” of the testator —
(this presupposes a continuing or regular
caring, and not an isolated service)
Art. 1028 - Incapacity by Reason of Public
Morality
The following donations shall be void:
(a) Those made between persons who were
guilty of adultery or concubinage at the time of
the donation;
(b) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
(c) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
Art. 1029 - Disposition for Prayers and Pious
Works
For the Article to apply (50-50 disposition), the
following requisites are essential:
(a) disposition is for PRAYERS and PIOUS WORKS
(b) disposition is in GENERAL TERMS
(c) disposition does NOT SPECIFY its application.
Art. 1030 - Dispositions in Favor of the Poor
 Dispositions in Favor of the Poor The
Article applies if the disposition is in
favor of:
(a) the poor in general.
(b) the poor of a definite locality.
 Unless clearly appearing otherwise, only
the poor in the testator’s domicile at
death should be considered
Art. 1031 - Dispositions in Favor of a Disqualified
Person
 Purpose— to prohibit the testator from
violating indirectly what he cannot violate
directly.
 How the interposition of a third party may be
done:
1) if the disposition is disguised as an
onerous contract.
2) if fictitious debts are ordered paid.

3) if an intermediary is interposed (for him
later on to give to the incapacitated person)
Art. 1032 - Incapacity by Reason of
Unworthiness
The law says “induced their daughters to live a
corrupt or immoral life.”
 May this apply to granddaughters and
sons?
YES, in view of the parent’s moral
perversity.
 Suppose the parent had tried to
persuade the daughter to become a
prostitute, but she did NOT become one,
should the parent still be incapacitated?
ANS.: YES, in view again of the moral
perversity of the parent as revealed by
his act of persuasion. (c) The law says
“attempted against their virtue.” It
would seem that no criminal conviction
is needed here.
Art. 1033 - Rules for Condonation
 If at the time he made the will, testator
ALREADY KNEW of the causes of
unworthiness, the mere fact of
instituting the person concerned, or
giving him a devise or legacy, is an
IMPLIED CONDONATION. (See 6
Manresa 64).
 If knowledge comes ONLY AFTER the
execution of the will, CONDONATION
must be in WRITING (public or private)
Art. 1034 - How to Judge the Capacity of the Heir
 The rights to the succession are
transmitted from the moment of the
death of the decedent. (Art. 777). It
logically follows that as a rule, capacity
must be determined as of that time.
 A son is accused of having killed his
father. Subsequently, the son was
convicted. He now claims the right to
inherit on the ground that at the time his
father died, he, the son, was still
capacitated. Should he inherit?
: No. The law provides that to fi nd out
whether or not he was capacitated, fi nal
judgment should be awaited. Had he
been acquitted, he would have been
entitled to inherit unless otherwise
disqualifi ed.
Art. 1035 - Incapacitated Compulsory Heir Can
Be Represented
 Legal Guardianship by the Father
(a) No need of a court appointment as
guardian of the property of the child.
(b) If the father is absent or incapacitated, it
is the mother who shall be the legal
guardian.
 Bond Requirement If the child’s property
exceeds P50,000.
 Amount of the Bond At least 10% of the
value of the property or annual income.
 The right of the parents over the fruits
and income of the child’s property shall
be limited primarily to the child’s
support and secondarily to the collective
daily needs of the family.
Art. 1036 - Judicial Order of Exclusion
 By the judicial order of exclusion, the
court declares which of the heirs are
disqualified or incapacitated.
Art. 1037 - Indemnities to be Reimbursed
Excluded Heir
This Article speaks of two rights:
 (a) to collect necessary expenses (for
preservation, regardless of good or bad
faith)
(b) to collect credit (because while he is
incapacitated to inherit, he still is a
creditor)
A was incapacitated to inherit from his father’s
estate. But the father owed him P100,000 before
he (the father) died. May A still enforce this
credit of his?
ANS.: Yes, he is allowed to do so, although he is
incapacitated to inherit. A credit is not an
inheritance. He can get the credit therefore not
as an heir, but as a creditor.
Art. 1038 - Incapacitated Heir Who Disregards
Prohibition
 Any person incapable of succession,
who, disregarding the prohibition stated
in the preceding articles, entered into
the possession of the hereditary
property, shall be obliged to return it
together with its accessions.
 He shall be liable for all the fruits and
rents he may have received, or could
have received through the exercise of
due diligence.
Art. 1039 - Capacity to succeed is governed by
the law of the nation of the decedent.
Art. 1040 - Prescriptive Period for Declaration of
Incapacity and for Recovery of the Inheritance
 Action for declaration of incapacity and
for the recovery of the inheritance
(devise or legacy) SHALL be brought
WITHIN 5 YEARS from the time the
DISQUALIFIED heir took POSSESSION
thereof.
Section 3
ACCEPTANCE AND REPUDIATION
OF THE INHERITANCE
Art. 1041 - Voluntary and Free Acceptance and
Repudiation
 The acceptance or repudiation of the
inheritance is an act which is purely
voluntary and free.
Art. 1042 - Retroactive Effect of Acceptance and
Repudiation
 The effects of the acceptance or
repudiation shall always retroact to the
moment of the death of the decedent.
Art. 1043 - When Acceptance or Repudiation
May Be Made
The acceptance or repudiation must be made in
DUE TIME; therefore, the law requires two
requisites before acceptance or repudiation is
done:
 The heir must be CERTAIN of the death
of the decedent.
 The heir must be certain of his RIGHT to
the inheritance.
Art. 1044 - Who May Accept or Repudiate
 Acceptance — mere acceptance by
those in charge (guardians, parents), in
behalf of incapacitated person —
SUFFICIENT. (Therefore, no judicial
authorization is needed, UNLESS there
be burdens.)
 Repudiation (being an act of alienation)
— COURT APPROVAL IS NEEDED.
Art. 1045 - Rules for Juridical Entities
 Acceptance — does not need court
approval. (Reason: A benefi t is
presumed).
 Repudiation — requires court approval.
(Reason: Such approval may be
demanded by public policy and interest
because the act can result in loss of
patrimony.)
Art. 1046 - Public official establishments can
neither accept nor repudiate an inheritance
without the approval of the government.
Art. 1047 - A married woman of age may
repudiate an inheritance without the consent of
her husband.
Art. 1048 - Rule For Deaf-Mutes
 Observe that in acceptance, no judicial
approval is required, unlike in the case of
repudiation.
 This is so — to protect the ward’s
interest. If a deaf-mute who can read
and write has no guardian, he may
accept OR repudiate even without the
necessity of judicial approval.
Art. 1049 - Kinds of Acceptance
While repudiation can only be done expressly,
acceptance may be:
 express
 implied or tacit (Art. 1049) — thru
actions which one would have no right to
do except in the capacity of an heir.
 presumed (Art. 1067) — if within 30 days
after the court has issued an order for
the distribution of the estate, the people
concerned have not signified their
acceptance or repudiation.
Art. 1050 - Instances of Implied Acceptance
 If the heir sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them;
 If the heir renounces the same, even
through gratuitously, for the benefi t of
one or more of his co-heirs;
 If he renounces it for a price in favor of
all his coheirs indiscriminately; but if this
renunciation should be gratuitous, and
the co-heirs in whose favor it is made are
those upon whom the portion
renounced should devolve by virtue of
accretion, the inheritance shall not be
deemed as accepted.
Art. 1051 - Why Repudiation Must Be Made
Expressly
Repudiation should always be EXPRESS because:
 It is an act of disposing of property
rights.
 It is unnatural and resultantly disturbs
juridical relations.
 Creditors of the renouncer should be
more or less informed, hence, the need
for an express renouncing.
Art. 1052 - When Creditors May Accept
How Repudiation Is Made
 by a public instrument
 by an authentic (genuine, not forged)
instrument
 by a petition to the court having
jurisdiction over the testamentary or
intestate proceedings but must be
presented within 30 days from order of
court for the distribution of the estate,
otherwise, this is deemed to be an
acceptance.
Art. 1053 - When Right to Accept or Repudiate
is Transmitted to Heirs of the Heir
 While rights may be waived, still waiver
cannot be allowed, if among other
things, it is prejudicial to a third person
with a right recognized by law.
 The creditors do not accept in their own
name; they accept in the name of the
heir (or devisee or legatee).
 The creditor cannot accept everything
that has been repudiated, they can
accept only to the extent they have been
prejudiced.
 Even if the creditors accept everything
that has been repudiated, the
renouncing heir is not considered as
 having accepted — he is still a
renouncer, and cannot therefore be
represented.
 made thru any of the causes that vitiate consent:
Art. 1054 - Should there be several heirs called
to the inheritance, some of them may accept
and the others may repudiate it.
Art. 1055 - Repudiation as Testamentary Heir
 If a person, who is called to the same
inheritance as an heir by will and ab
intestato, repudiates the inheritance in
his capacity as a testamentary heir, he is
understood to have repudiated it in both
capacities.
 Should he repudiate it as an intestate
heir, without knowledge of his being a
testamentary heir, he may still accept it
in the latter capacity.
 Remember that a “will” is the express
will of the testator while “succession by
intestacy” is only the presumed will of
the decedent.
 Now then, the disregarding of the
express will should carry with it the
disregarding of the presumed will, while
the disregarding of the presumed will
does not necessarily mean the
disregarding of the express will.
Art. 1056 - The acceptance or repudiation of an
inheritance, once made, is irrevocable, and
cannot be impugned, except when it was made
through any of the causes that vitiate consent,
or when an unknown will appears.
Art. 1057 - When Acceptance or Repudiation
Must Be Signified to the Court
GR — Once an acceptance or repudiation is
made, it is irrevocable. Reason: To prevent
confusion and instability of rights.
Exceptions
(a) When the acceptance or repudiation was
1) mistake (of substance or on the principal
conditions)
2) violence
3) intimidation
4) undue influence
5) fraud.
(b) When an unknown will appears.
Manresa makes a distinction here:
1) If the new will makes only insignificant
changes in the old one, the appearance
of the unknown will should not allow the
impugning of the previous acceptance or
repudiation made concerning the old
one. This is so because the cause for
impugning can not really be said to be
present.
2) If the new will makes substantial
changes, the old acceptance or
repudiation may be impugned. (7
Manresa 398)
Section 4
EXECUTORS AND ADMINISTRATORS
Art. 1058 - All matters relating to the
appointment, powers and duties of executors
and administrators and concerning the
administration of estates of deceased persons
shall be governed by the Rules of Court.
Art. 1059 - Insolvency of the Estate
 The rules on preference and
concurrence of credits are to be applied
in case of insolvency of the estate.
 Art. 2244 gives the ORDER OF
PREFERENCE.
Art. 1060 - Juridical Entities Acting in a Fiduciary
Capacity
 Note that the juridical persons referred
to can be appointed guardian of the
PROPERTY, but not the person of a ward.
Art. 1061 - Collation by Compulsory Heirs
As used in the law of succession, collation has at
least two meanings:
(a) First, it means “computing or adding
certain values to the estate, and
charging the same to the LEGITIME.’’
(b) Secondly, it means “computing or
adding certain values to the estate,
and charging the same to the FREE
PORTION.’’
D has P1 million. He gave a donation inter vivos
of P100,000 to X, his elder child. Later, he died
intestate, leaving the remaining P900,000. How
should this amount be divided between X, the
elder child, and Y, the younger child?
ANS.: The P100,000 is collationable, and
therefore must be added to the remaining
P900,000. The net hereditary estate is therefore
P100,000 which should now be divided EQUALLY
between X and Y, who should get P500,000 each.
But since X has already received P100,000 as
advance of his legitime or inheritance, he will get
only P40,000 more. Thus, the P900,000 will be
distributed as follows: X — P400,000 Y —
P500,000 P900,000
Art. 1062 - When Compulsory Heirs Will Not
Collate
Donations inter vivos to compulsory heirs are not
to be collated (still computed, but not charged to
the legitime) in two cases.
In said two cases, the donation shall be charged
to the free portion:
 First, if the donor expressly provides
 Secondly, the donation should be
charged not to the legitime but to the
free portion if the donee should
REPUDIATE the inheritance.
Art. 1063- Property left by will is not deemed
subject to collation, if the testator has not
otherwise provided, but the legitime shall in
any case remain unimpaired.
Art. 1064 - Collation by Grandchildren
 When grandchildren, who survive with
their uncles, aunts, or cousins, inherit
from their grandparents in
representation of their father or mother,
they shall bring to collation all that their
parents, if alive, would have been
obliged to bring, even though such
grandchildren have not inherited the
property.
 They shall also bring to collation all that
they may have received from the
decedent during his lifetime, unless the
testator has provided otherwise, in
which case his wishes must be
respected, if the legitime of the co-heirs
is not prejudiced.
 Par. 1 gives an exception to the rule that
only donees should collate.
 Par. 1 applies only when the grandchild
inherits by right of representation, not
when he inherits in his own right, for
here the reason for the law would cease.
 Par. 1 although applying apparently only
in the case of predecease, applies ALSO
and for the same reason in both
incapacity and disinheritance.
Art. 1065 - Parents are not obliged to bring to
collation in the inheritance of their ascendants
any property which may have been donated by
the latter to their children.
Art. 1066 - Neither shall donations to the spouse
of the child be brought to collation; but if they
have been given by the parent to the spouses
jointly, the child shall be obliged to bring to
collation one-half of the thing donated.
Art. 1067 - Expenses for Support
 Expenses for support, education,
medical attendance, even in
extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts
are not subject to collation.
Art. 1068 - Expenses For a Career
 As already stated in the comments
under the preceding Article, this present
one deals with education after high
school, and may even include graduate
courses in the Philippines and abroad,
but not after the course is finished (as
when a father buys an hacienda for his
son who has graduated with a degree in
agriculture). The hacienda is a real
donation, chargeable to the legitime.
 The expenses in Art. 1068 will not be
considered as an advance of the legitime
but as an advance of the free portion.
 However, if the parents so provide, said
expenses will be considered as an
advance of the legitime.
 (d) In no case should the legitime be
impaired.
Art. 1069 - Any sums paid by a parent in
satisfaction of the debts of his children, election
expenses, fines, and similar expenses shall be
brought to collation.
Art. 1070 - Wedding Gifts
 The wedding gifts here, although really
donations, are not chargeable to the
legitime in view of the sentimental
importance of a wedding.
 Nevertheless, they may be reduced if
they exceed (for each child) one-tenth of
the free disposal.
 This is to prevent abuse and
extravagance.
Art. 1071 - Collation of the Value
 Note that only the value should be
collated.
 This is the value at the time of the
perfection of the donation. Reason: It is
this that really had been given
gratuitously.
 Reason for par. 2 — The owner, being
the donee, bears the loss. Hence, even if
the thing given has been lost by a
fortuitous event, the donee must still
collate its value.
Art. 1072 - Donation by Both Parents
 In the collation of a donation made by
both parents, one-half shall be brought
to the inheritance of the father, and the
other half, to that of the mother.
 That given by one alone shall be brought
to collation in his or her inheritance.
Art. 1073 - Reduction of Donee’s Share in the
Estate
 The donee’s share of the estate shall be
reduced by an amount equal to that
already received by him;
 and his co-heirs shall receive an
equivalent, as much as possible, in
property of the same nature, class and
quality.
A has 2 children B and C. B had been given a
donation of an old car worth P100,000
during A’s lifetime. When A died, he left an
estate worth P900,000. Since B is supposed
to receive a total of P500,000 he will be given
only P400,000. (He has already received
P100,000 by way of donation). C in turn
 should be given, if possible, a car in the
estate worth P100,000 and cash worth
P400,000. If the car cannot be given, as when
the estate had only one car, Art. 1074 should
be applied.
Art. 1074 - Additional Ways of Equalization
 In the process of equalization, more
rights are given to the co-heirs who did
not receive donations, if the donations
were of REAL PROPERTY.
 Rights (if REAL property)
(a) get property of same kind
(b) if none, get cash or securities
(c) if none, sell property to get cash
 Rights (if PERSONAL property)
(a) get property of same kind
(b) if none, get equivalent (in value)
personal property (no right to demand
CASH or to demand a SALE to get cash)
Art. 1075 - Fruits and Interest of Collatable
Properties
 The fruits and interest of the property
subject to collation shall not pertain to
the estate except from the day on which
the succession is opened.
 For the purpose of ascertaining their
amount, the fruits and interest of the
property of the estate of the same kind
and quality as that subject to collation
shall be made the standard of
assessment.
 This is just because it cannot be denied
that the land is really part of the
inheritance (an ADVANCE thereof).
Remember, too, the provisions of Art.
781.
Art. 1076 - Rules for Returning in Kind
 Although this Article speaks of collation
“in kind,” this is strictly speaking not
collation, but a RETURNING in
KIND.
 This happens when:
1) the donation is totally reduced because it
is completely inofficious.
2) AND the donee either has no money or
does not desire to reimburse in money
Art. 1077 - Questions Arising from Collation
 Should any question arise among the co-
heirs upon the obligation to bring to
collation or as to the things which are
subject to collation, the distribution of
the estate shall not be interrupted for
this reason, provided adequate security
is given.
Section 6
PARTITION AND DISTRIBUTION OF THE ESTATE
Subsection 1. — PARTITION
Art. 1078 - Co-Heirship Before Partition
 Where there are two or more heirs, the
whole estate of the decedent is, before
its partition, owned in common by such
heirs, subject to the payment of debts of
the deceased.
Art. 1079 - Kinds of Partition
 Classified according to the duration of
its existence:
1) provisional or temporary. (Art.
1084).
2) permanent. (Art. 1084).
 Classified according to the extent of the
properties involved:
1) partial
2) total
 Classified according to who made the
partition:
 1) judicial — this is made by the court
either in the course of administration
proceedings; or in an ordinary action for
partition.
2) extrajudicial —
a) made by the testator. (Art.
1080).
b) made by the decedent in an
act inter vivos. (Art. 1080).
c) made by the heirs themselves.
(Rule 74, Sec. 1, Rules of Court).
d) made by a third person
entrusted by the testator or
decedent. (Art. 1081, par. 1).
Extrajudicial Partition Made by the Heirs
(a) This can be done as long as:
1) there are NO debts
2) everyone concerned is OF AGE or represented
by GUARDIANS.
Art. 1080 - Partition by Testator
 Under the old Civil Code, the word
“testator” was used. Under the new
Civil Code, the word “person” is used.
This latter term is broader in scope.
 Whereas under the old Code, it was
essential for one to have made a valid
will before his partition by an act inter
vivos could be valid, under the new Civil
Code, said requirement is no longer
necessary.
 If the partition is made by an act inter
vivos (other than by will), it would seem
that no formalities are prescribed by the
Article.
Art. 1081 - Meaning of ‘Mere Power to Make
the Partition’
 This is just the power to make a physical
division of the hereditary property. The
third person is not allowed to make the
disposition or distribution of property —
as for example — the power of giving
one heir 2/3 and another heir 1/3 is not
allowed under the law. The disposition
must have been made by the decedent
or testator himself.
 Arts. 1080 and 1081 can be observed,
even if one of the heirs be a minor
subject to guardianship. But in this case,
two things are required:
o (a) notification to co-heirs,
creditors, legatees, devisees
o (b) inventory of the estate.
Art. 1082 - When Partition is Effected
 As long as the co-ownership ceases to
exist, there is a partition. If after
partition, certain properties are still
supposed to be owned in common,
there can be a later partition of this.
 A, B, and C, were co-heirs. It was agreed
to sell the property, and give the
proceeds to A. The agreement is oral.
Can this be a valid partition? Yes,
because the indivision has ceased.
Art. 1083 - When Partition Can Be Demanded
 As long as the partition is not expressly
prohibited, partition can be demanded
anytime. This right does not prescribe
and can apply to a co-legatee.
 But the heir desiring partition must
make parties to the suit all persons
interested in the estate. But partition
can be demanded only if the co-
ownership still exists.
 Therefore, if one of the co-heirs has by
adverse possession for the needed time
acquired exclusive ownership over the
property, partition would no longer lie.
Art. 1084 - When Voluntary Heirs Can Demand
the Partition
This Article distinguishes between
1) pure heirs
2) and conditional (suspensive) heirs
 The former can demand partition
anytime, subject to Art. 1083. If together
with them, there are conditional heirs,
suffi cient security must be given by the
pure heirs to safeguard the rights of the
conditional heirs.
 The conditional heirs cannot demand
partition till the condition is fulfi lled.
Art. 1085 - Equality in the Partition
 In the partition of the estate, equality
shall be observed as far as possible,
dividing the property into lots, or
assigning to each of the co-heirs things
of the same nature, quality and kind.
Art. 1086 - Indivisible Object
 Should a thing be indivisible, or would be
much impaired by its being divided, it
may be adjudicated to one of the heirs,
provided he shall pay the others the
excess in cash.
 Nevertheless, if any of the heirs should
demand that the thing be sold at public
auction and that strangers be allowed to
bid, this must be done.
Art. 1087 - Reimbursement by Co-Heirs
Reimbursement must be made of:
(1) income and fruits
(2) useful and necessary expenses
(3) damages thru malice or neglect
 The reimbursement can be sought in an
action for judicial partition. But even if
the partition is extrajudicial, it is
submitted that an action for
reimbursement would lie by itself.
1088 - Legal Redemption by Co-Heirs
For this Article to apply, the following requisites
must all be present:
(a) there must be two or more heirs;
(b) one must sell his hereditary rights;
(c) the buyer must be a stranger;
(d) the sale must be before partition;
(e) at least one co-heir must demand the
redemption;
(f) the demand must be made within a period of
one month from the time of notifi cation in
writing;
(g) the redemptioner must reimburse the price
of the sale
1089 - Delivery of Titles
 The titles of acquisition of ownership of
each property shall be delivered to the
co-heir to whom said property has been
adjudicated
1090 - Meaning of ‘Title’
 “Title’’ here refers to the document
evidencing the right of ownership, and
not to the right itself. This is evident
from the phrase “authentic copies.”
 Order of preference if some properties
remain undivided:
(a) largest interest
(b) if same interest — the oldest heir
Subsection 2. — EFFECTS OF PARTITION
1091 - Effect of Partition Legally Made
 A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him.
1092 - Warranty of Title and Quality
 (a) title (eviction)
 (b) quality (and hidden defects)
 For warranty to the first to be
enforceable, it is not necessary that the
heir be deprived of full ownership. It is
enough that there be a burden or
encumbrance that must be respected.
 Eviction here does not have to be by final
judgment before recourse to the
warranty can be sought, as long as no
heir objects.
1093 - Reciprocal and Proportionate Warranty
This Article deals with:
(a) proportionate liability
(b) responsibility in the meantime for another’s
insolvency
(c) right of reimbursement
1094 - Prescription of the Warranty
Ten years from the date the right of action
accrues.
1095 - Warranty of Debts
(a) There may be:
(1) good debts (collectible debts)
(2) bad debts
(b) Warranty for good debts
(1) warrants that the debtor is solvent at
the time of partition (not later)
(2) good for 5 years — following the date
of the partition
(c) There is no warranty for bad debts, so an heir
accepts them at his own risk.
1096 - When Warranty Ceases
(1) When the testator himself has made the
partition, unless it appears, or it may be
reasonably presumed, that his intention was
otherwise, but the legitime shall always remain
unimpaired;
(2) When it has been so expressly stipulated in
the agreement of partition, unless there has
been bad faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has been caused
by the fault of the distributee of the property.
Subsection 3. — RESCISSION AND NULLITY
OF PARTITION
1097 - A partition may be rescinded or annulled
for the same causes as contracts.
1098 - Rescission on Account of Lesion
o The lesion or damage must be at least 1/4,
otherwise rescission will not lie. (Garcia v.
Tolentino, 25 Phil. 102).
o If less than 1/4, the proper action is one for
damages.
1099 - When Partition by Testator Can Be
Rescinded Because of Lesion
This Article applies, whether the lesion is 1/4,
more than 1/4, or less than 1/4 — thus, the
partition made by the testator may still be
rescinded:
(a) If the legitime is impaired.
(b) If the intent of the testator is for his partition
to be rescinded should there be lesion.
1100 - Prescription of Rescission
 The action for rescission on account of
lesion shall prescribe after four years
from the time the partition was made.
1101 - Option of the Suing Heir
 The defendant heir, despite a proper
ground for rescission, is still given an
option:
(a) indemnification
 (b) or a new partition

1105 - Intrusion of a Stranger in the Partition

 [NOTE: The plaintiff must necessarily be
one who suffered the lesion referred to
in the law, so, if he has in fact received
more than his share, he cannot
successfully ask for rescission. (Cadiz v.
Cabuniag, 56 Phil. 271).].
1102 - When No Rescission Can Prosper
 An heir who has alienated the whole or
a considerable part of the real property
adjudicated to him cannot maintain an
action for rescission on the ground of
lesion, but he shall have a right to be
indemnified in cash.
1103 - Preterition of Objects in the Partition
 A partition which includes a person
believed to be an heir, but who is not,
shall be void only with respect to such
person.
 Instead of a preterition here, there is
intrusion.
 Nevertheless, the partition is not
completely void.
 Only the part corresponding to the non-
heir is VOID.
 Those who are able to get shares,
although they are not entitled thereto,
must give them to one who is an heir and
lawfully entitled to receive the same.

 This involves a preterition, not in the

institution, but in the partition, of one or
more objects.
 Preterition of an object in a will gives rise
to mixed succession. Preterition of an
object in the partition does not give rise
to rescission.

1104 - Preterition of Compulsory Heirs in the

Partition

 This involves a preterition of compulsory

heirs, not in the institution, but in the
partition.
 Such preterition in the partition will NOT
cause rescissionexcept if there was:

(1) fraud

(2) bad faith

 If the exception is present, the partition

can be considered not valid.
 An acknowledged natural child
preterited in the partition can bring an
action for recovery of his share from the
other heirs to whom the property has
been adjudicated.