WILLS & SUCCESSION

Arts. 1081-1083
How and who may
effect PARTITION
PARTITION INTER VIVOS,
PRESERVATION OF ENTERPRISE
Art. 1080. Should a person make a partition of his
estate by an act inter vivos, or by will, such partition
shall be respected, insofar as it does not prejudice
the legitime of the compulsory heirs.
A parent who, in the interest of his or her
family, desires to keep any agricultural, industrial or
manufacturing enterprise intact, may avail himself
of the right granted him in this article, by ordering
that the legitime of the other children to whom the
property is not assigned, be paid in cash.
HOW AND WHO MAY EFFECT PARTITION
Under Art. 1080
1. By the testator himself: Either by will or by
an act inter vivos
2. This partition, however, becomes effective
only after death of the testator.
3. If partition is made by an act inter vivos, no
formalities are prescribed, after all it is not
partition that is themode of acquiring
ownership. Neither will the formalities of a
donation be required since donation will
not be the mode of acquiring ownership
here after death but SUCCESSION.

LEGASTO V. VERZOSA (54 PHIL. 776)
SC categorically declared the necessity of a
prior will before the testator can partition his
properties among his heirs. Hence, Art.
1080 in the NCC cannot be interpreted to
mean that a person may, by acts inter vivos,
partition his property without the authority of
a testament containing an expression of his
last will. Hence, 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 by law.
HOW AND WHO MAY EFFECT PARTITION
Under Art. 1080
4. A partial distribution of the decedents estate
pending final determination of the testate or
intestate proceedings should as much as
possible be discouraged by the courts, and
unless in extreme cases, such form of advances
of the inheritance cannot be countenanced.
Creditors and the rightful heirs must be assured
of their share. (Gatmaitan v. Medina, L-1440,
Aug. 5, 1960).
5. The second paragraph of the article indicates
one way of preserving intact an enterprise.



MERE POWER TO MAKE A PARTITION GIVEN TO A THIRD PERSON NOT
AN HEIR DESIGNATED BY THE DECEDENT
Art. 1081. A person may, by an act inter vivos or mortis
causa, intrust the mere power to make the partition
after his death to any person who is not co-heirs.
The provision of this and the of the preceding
article shall be observed even should there be among
the co-heirs a minor or a person subject to
guardianship; but the mandatary, in such case, shall
make an inventory of the property of the estate, after
notifying the co-heirs, the creditors, and the legatees or
devisees.
HOW AND WHO MAY EFFECT PARTITION
Under Art. 1081
1. By a third person designated by the testator,
through a mandatary, intrusted with the power
to make the partition after his death to any
person who is not one of the co-heirs, by an
act inter vivos or mortis causa
2. Note that what can be delegated to the
mandatary is the power make the physical
division of the estate, but the power to make
the disposition or distribution should be
exercised by the testator.
3. This power shall be exercised only after the
testators death.

HOW AND WHO MAY EFFECT PARTITION
Under Art. 1081
4. What is a MANDATARY?
The Mandatary is the person entrusted to make
the pertition. He/She should not be a co-heir.
The partition by the mandatary may be either
approved or rejected by the heirs. If rejected, the
probate court can be called upon to decide the
conflict.

Note that arts. 1080 and 1081 can be observed, even if
one of the heirs is a minor or subject to a
guardianship. But in this case two things are
required: a) NOTIFICATION to co-heirs, creditors,
legatees, devisees; b) INVENTORY of the estate
ACTS DEEMED PARTITION
Art. 1082. Every act which is intended to
put an end to indivision among co-heirs
and legatees or devisees is deemed to
be a partition, although it should purport
to be a sale, an exchange, a compromise
or any other transaction.
ACTS DEEMED PARTITION

Concept of Partitition: In general, is the
separation, division and assignmentof the thing
held in common among those to whom it may
belong. The thing itself may be divided, or its value.

Purpose: Intended to put an end to indivision
among co-heirs, and legatees or devisees, although
it should purport to be a sale, exchange,
compromise, or any other transaction. It is not
subject to any form.



WHO MAY EFFECT PARTITION
Art. 1083. Every co-heir has a right to demand the
division of the estate unless the testator should
have expressly forbidden its partition, in which case
the period of indivision shall not exceed twenty
years as provided in Art. 494. This power of the
testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the
co-ownership terminates when any of the causes
for which partnership is dissolved takes place, or
when the court finds for compelling reasons that
division should be ordered, upon petition of one of
the co-heirs.
WHO MAY EFFECT PARTITION
Partition Cannot Be Demanded
2. Even though prohibited by the testator, the co-
ownership terminates, however,when any of the
causesfor which partnership is dissolved takes
place, or when the court finds for compelling
reasons that division should be ordered, upon
petition of one of the co-heirs. (2
nd
par. Art. 1083
NCC)

3. The heirs themselves may agree on indivision, but
only for a period not exceeding ten (10) years,
renewable for like periods. (2
nd
par. Art. 494 NCC)

WHO MAY EFFECT PARTITION
Under Art. 1083
1. By the decedents heirs:
through an extrajudicial settlement as
provided in Sec. 1, Rule 74 of Rules of Court
2. By a competent court:
through an ordinary action of partition under
Rule 69 of Rules of Court
However,
Partition Cannot Be Demanded
1. When expressly Prohibited by the testator
for a period not exceeding 20 years (1
st
par. Art.
1083 NCC)

THE END.



BY: CHERYL A. TALIRONGAN, RPH